Great Plains Beef Co.

National Labor Relations Board - Board Decisions

Apr 18, 1979

241 N.L.R.B. 948 (N.L.R.B. 1979)

DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
Great Plains Beef Company and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO
Over The Road and City Transfer Drivers Local No.
147, Affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America and Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO.
Cases 18 CA-4910, 18-CA-5005, 18-CA-5042,
18-CB-734, and 18-CB-738
April 18, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLI.O, AND MURPHY
On July 26, 1978, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent Employer filed
exceptions and a supporting brief, and Respondent
Union and Charging Party filed cross-exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the rul-
ings, findings,' and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent
Employer, Great Plains Beef Company, Council
Bluffs, Iowa, its officers, agents, successors, and as-
i Respondent Union and Charging Party have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his find-
ings.
2 Contrary to the Administrative Law Judge, we do not find that the wage
premium for union stewards could not be construed as a payment for ser-
vices performed for Respondent Employer, inasmuch as the premium was
paid to the stewards for processing grievances on nonproduction time,
thereby assuring Respondent Employer uninterrupted work on his produc-
tion line. However, we find, in agreement with the Administrative Law
Judge, that the steward's premium provision in the contract is violative of
Secs. 8(aXI) and (2) and 8(bXIXA) of the Act.
signs, and Respondent Union, Over The Road City
Transfer Drivers Local 147, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Des Moines,
Iowa, its officers, agents and representatives, shall
take the action set forth in the said recommended
Order, as modified herein:
1. Substitute the following for paragraph A, 2(b):
"(b) Offer to Duane Trotter and Willard Cook im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights and privileges previously enjoyed,
and make them whole for any loss of earnings they
may have suffered as a result of their discharge, in the
manner set forth herein in the remedy section."
2. Substitute the attached Appendix A for that of
the Administrative Law Judge.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONA LABOR RELAIIONS BOARD
An Agency of the United States Government
WE WILL NOT continue to give effect to collec-
tive-bargaining agreements entered into between
us and Local No. 147. However, this will not
affect wage rates, holidays, or other benefits, ex-
cept for extra pay for union stewards which we
have discontinued.
Wt Wii.1. Nor directly or indirectly give assist-
ance, support, or preferential treatment to any
labor organization, in violation of the National
Labor Relations Act.
WE WILL NOT solicit or encourage any of our
employees to join any labor organization.
WE WIl. NOT interrogate you about your
union activities or those of other employees.
WE Will NOT threaten that we will close our
plant if the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-
CIO, becomes your collective-bargaining repre-
sentative.
WE WILL NOT condition your employment on
refraining from joining or supporting any labor
organization, nor will we threaten you with dis-
charge for engaging in such activities.
WE WILL NOT discourage or encourage mem-
bership in any labor organization, by discharging
any of our employees or in any other manner
discriminating against them in regard to their
tenure of employment or any term or condition
of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
241 NLRB No. 150
948
GREAT PLAINS BEFl ( O.
ercise of rights guaranteed them by Section 7 of
the Act.
WtE Wni.i. withdraw recognition from Over The
Road and City Transfer Drivers Local No. 147.
affiliated with International Brotherhood of
Teamsters. Chauffeurs. Warehousemen and
Helpers of America. as your bargaining repre-
sentative. and will not grant such recognition to
Local No. 147 unless and until it is certified, as
the result of a secret-ballot election, by the Na-
tional Labor Relations Board as your collective-
bargaining agent.
WEi wil.t offer to Duane Trotter and Willard
Cook immediate and full reinstatement to their
former jobs or. if those jobs no longer exist. to
substantially equivalent positions. without preju-
dice to their seniority or any other rights and
privileges previously enjoyed, and make them
whole for any loss of earnings they may have
suffered as a result of the discrimination against
them.
All our employees are free to join. or refrain from
joining. any labor organization.
GREAT P AINS BtEE COMPANY
DECISION
SI Ii F-MINI O()f Il CASI
CiAI 1 R. Woi.i:i. Administrative Law Judge: This con-
solidated proceeding was initially heard before me at C'oun-
cil Bluffs. Iowa. and Omaha. Nebraska. on March 21. 22.
23, 24. 29. 30. and 31: April I; and May 3, 5. 6, 9. and 10.
1977. pursuant to a consolidated complaint issued on Janu-
ary 24. 1977. and subsequently' amended on January 31.
1977. and at the hearing. The complaint. as amended. was
preceded by charges and amended charges filed on March
4. April 22. May 10 and 21. June 7. and July 7. 1976.
During the course of the initial hearing. I dismissed an
allegation of the complaint to the effect that one Don Lee-
per was discriminatorily discharged and that this discharge
was caused by Respondent Union. All parties agreed to the
dismissal of this portion of the complaint. Subsequently.
Respondent Employer moved. at the conclusion of the
General Counsel's case-in-chief. to dismiss various other al-
legations of the complaint. The General Counsel acqui-
esced to the dismissal of certain portions of the allegations
in the complaint but opposed others. Over General Coun-
sel's objections. I dismissed an allegation that employee Jim
Carson was laid off for unlawful reasons and the allegation
that since on or about February 17. 1976. Respondent Em-
plover, Great Plains Beef Company.' instituted and imple-
mented a hiring policy designed to exclude members of the
Charging Union. I also denied an offer o' the Charging
Party to call those employees who were in the group alleg-
I The proper name of Respondent Empltoer appears as amended by stipu-
lation at the hearing
edly discriminated against by virtue oft the Employer's hir-
ing policy as witnesses to corroborate their applications and
failure to hire them. By Order of September 2, 1977, I re-
versed my earlier ruling that the evidence adduced by the
General Counsel and the Charging Party had not set forth a
primal1/'ie case of an unlawful hiring policy as alleged, and
I reopened the record for the purpose olf giving Respondent
Employer an opportunity to present any relevent evidence
it may have failed to enter into the record in reliance on my
dismissal of the allegation of an unlawful hiring policy. On
October 13. 1977. 1 amended my September 2 Order to
permit the Charging Party., at the resumption of the hear-
ing, to call witnesses for the purpose set forth in his offer to
prove that which I had earlier denied. I hereafter, the hear-
ing resumed and was held at Omaha, Nebraska, on October
18. 19. and 20 and December 5, 6, 7, 8, and 9. 1977.
In sum, the General Counsel alleges in his amended coim-
plaint that Respondent Employer engaged in several in-
dependent violations olf Section 8(a)( I of the Act consisting
of threats to employees occasioned by their support of the
Charging Party: violations of Section 8(a)(2) of the Act con-
sisting of providing aid and assistance to and recognizing
Respondent Union, herein referred to as the Teamsters. as
exclusive bargaining representative of its employees at a
time when the Teamsters did not represent an uncoerced
majority of the employees and the harging Party had a
supportable claim and interest in representing these em-
ployees: and that the Company. commencing about Janu-
ary 17. 1976. implemented a hiring policy designed to ex-
clude members and supporters of the (Charging Party from
employment. In addition. the Company is charged with vio-
lating Section 8(a)(3) of the Act by discriminatorily dis-
charging Frank Lintz. Don Sprau. Duane Trotter. Don
Brown. and Willard Ck: by unlawfully laying off Jim
Carson and Ervin laynes: refusing to recall Haynes; and
costructively discharging John Twohig. Insofar as Respon-
dent Union is concerned. the complaint alleges that the
Teamsters caused and attempted to cause Respondent Fm-
ployer to discharge and/or lay off Frank Lintz, John Two-
hig, Don Sprau. Duane Trotter. and Don Brown because
the Teamsters believed them to be supporters of the Charg-
ing Party. Respondent Union and Respondent Employer
both denied the commission of any unfair labor practices.
All parties filed able post-hearing briefs which I have care-
fully considered.
Upon the entire record' including my observation of the
witnesses and after due consideration of the parties' briefs I
make the following:
FINDINGS AN) CO()('I. SONS
1. JURISI(1 ION
On the basis of the pleadings, the admissions by Respon-
dents. and the record evidence. I fnd that Respondent Em-
ployer, a wholly owned subsidiary of Kane-Miller Corpora-
Both Respondent Emploser and the Charging Part filed unopposed mo-
tions to correct the record After careful examination of the record. I grant
the motions to correct in certain respects. The record contains numerous
typographical and inadvertent errors which I shall not correct because they
do not affect the substantive evidence enough to warrant the corrections.
949
I)LI('SI()NS OF NA FIONAI. LABOR RELATIONS BOAR[)
tion. is a I)elaware corporation with its principal office and
place of business in Council Bluffs, Iowa. where it is en-
gaged in the slaughtering and nonretail sale and distribu-
tion of beef and related products. I)uring the 12 months
ending December 31. 1976, a representative period, Re-
spondent Employer processed, sold, and shipped goods val-
ued in excess of $50,000 directly from its Council Bluffs
facility to points located outside the State of Iowa. During
the same representative period, the Respondent-Employer,
in the course and conduct of its business operations, pur-
chased and caused to be transported and delivered to its
Council Bluffs facility, directly from points outside the
State of' Iowa, goods valued in excess of $50,000. Respon-
dent Employer is now, and has been at all times material
herein, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
11. '11iI lABOR OR(iAN/IZAIIONS
Over-The-Road and itv Transfer Drivers ocal No.
147. affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. and
the Amalgamated Meat ('utters and Butcher Workmen of
North America. Al. ('10, each is, and has been at all
times material to the matters discussed herein, a labor or-
ganization within the meaning of Section 2(5) of the Act.
111. SIEI:RVIS()RS
Respondent Employer, herein sometimes called Great
Plains Beef' or the Company or the Employer. admits that
the following individuals occupied the positions set forth
after their names during the periods indicated and were
supervisors within the meaning of Section 2(11) of the Act.
Robert. Burns, president and chief executive officer, 1/5/
76 to 1/6/77; Oren "Butch" Long. personnel manager, 2/
2/76 to present; Barry Thompson, plant manager, 2/9/76
to 1/14/77: William Evan, cooler supervisor, 3/1/76 to
present; Wayne Graybill, kill floor supervisor, 2/23/76 to
present: Jerry Beebe, plant engineer. 12/1/75 to present;
Mahlon Carothers, maintenance supervisor, 12/1/75 to
present; Jim Peterson. kill floor supervisor. 2/21/76 to pre-
sent; Ed Millard, plant superintendent, 3/1/76 to present:
Wayne Stofferan, kill floor supervisor, 5/3/76 to 3/4/76;
Kenneth Freeman, clean-up and rendering department su-
pervisor. 2/76 to 7/30/76; Claude Fortenberry, assistant
cooler supervisor, 3/29/76 to 1/21/77: Vernon Noonan,
assistant cooler supervisor, 3/1/76 to present: and Terry
Carrigan. supervisor, 3/29/76 to 8/13/76.
IV. IltE SATUS OF RUSSEI.I. SEVERN ANI) I.AWREN('E
MEYERS
A. Pretatory' Remarks
The evidence relating to the supervisory or agency status
of Severn and Meyers contains a melange of opinions, con-
clusory statements, and contradictory testimonies. I have
considered all of the evidence introduced at the hearing,
with recognition of the long established precedent plainly
stated by the Board in United States Gypsum CompanyV, 1 18
NI.RB 20, 25 (1957). as follows:
The question whether particular individuals in a
given case are supervisors within the meaning of Sec-
tion 2( 11) of the Act must be resolved upon examina-
tion of all the evidence in the case. ('onclusory state-
ments that the individuals can "effectively
recommend" changes in the status of employees and
that they "exercise independent judgment . .." and do
not establish supervisory authority. Such expressions
are words of art reflecting legal conclusions, but they
are not evidence which assists in the resolution of dis-
puted supervisory authority.
It follows, a /brtiori, that conclusory testimony that the
individual does not possess any of the authorities set forth
in Section 2(11 ) of the Act as indicative of supervisors au-
thority is not probative evidence upon which to base a con-
clusion. Accordingly, I will not herein refer to the numerous
conclusory assertions in the record but will only discuss the
credible evidence, its implications, and the reasonable infer-
ences to be drawn therefrom.
'[here are certain factors which were the subject of much
litigation that are clearly established by a preponderance of
the evidence. Both Severn and Meyers were hired in at a
wage of $3.5() per hour, the starting wage of all the new
production force reporting to work on March 2. 1976. Simi-
larly, it is obvious rom the record that Severn rather fre-
quently wore brown clothes like those of acknowledged su-
pervisors during the period encompassed by the complaint.
I do not, however, regard this to be of any particular signif-
icance because the record demonstrates that Severn's regu-
lar work clothes during the time in question were like those
of the other rank-and-file employees, and that on those oc-
casions when he wore brown clothing it was necessitated by
the fact that his own work clothes had become so soiled by
blood and other contaminates from working on the kill
floor that he had to change into the only available clothing
at work, which happened to be the brown clothing worn by
supervisors. Many if not all of these changes of clothing
were directed by the ederal inspectors present during
plant operation. There was also a great deal of testimony
with regard to the color of hardhat worn by Severn and the
legend appearing thereon. He wore a white hat, as did all
other employees engaged in production, and the legend on
his hat consisted of his name and department, whereas the
managers and assistant managers had their supervisory ti-
tles, after their names on their hats. Much belabored was
the question of whether an office in the plant where first aid
and other supplies were stored was a "supervisors" office. I
am persuaded from the evidence that this so-called supervi-
sors room was commonly used by employees as a place for
smoking, drinking coffee, and securing supplies. Although
there appears to have been a rule that employees were not
to frequent this room, the rule was honored far more in the
breach than in the observance and was not enforced. I
credit Severn's testimony that he did not have a key to this
room as was claimed by employee Brown.
B. Russell "Bud" Severn
Severn was employed as an hourly paid employee on
March 2. 1976, and continued in that status until August 9
when he became a salaried employee working in the knife-
GREAT PLAINS BEEF CO.
room. He left the employment of Great Plains on Novem-
ber 22, 1976. During the last week of February, Severn was
employed with Lawrence Meyers, another meatpacking
company located at Rock Port, Missouri. Meyers arranged
an interview for Severn with Respondent Employer's Plant
Manager Barry Thompson. Severn met with Thompson at
the Ramada Inn on Thursday, February 26. Thompson
told him that they were starting operations on March I, and
that he would hire Severn as a utilityman on the kill floor
and Meyers as a utilityman working in offal at $3.50 per
hour. He further told Severn that there would be an inexpe-
rienced work force, and Severn's principal duties would be
to train these employees. Severn accepted the job offer and
went to the plant on March I anticipating that production
would be starting.'
Severn testified that when he reported to work on March
I and found that he would not start working until March 2
because production had not yet started, that Plant Manager
Thompson told Supervisor Peterson, in Severn's presence,
that Severn would be a utilityman on the kill floor. Peterson
claims, however, that he was not introduced to Severn until
March 2 when Plant Superintendent Millard brought Sev-
ern to him. I have some difficulty in resolving this problem
of when Peterson first became aware of Severn's presence as
an employee, but in view of Peterson's failures of recollec-
tion on certain points I conclude that Severn's recollection
is superior to that of Peterson, and that he was introduced
by Thompson to Peterson as the utilityman on March I.
The record is clear that Severn was hired to work at
training new employees and to otherwise work as a utility-
man. This assignment required him to fill in for other em-
ployees on various jobs and to instruct them in their work.
As the General Counsel's witness Donald Sprau succinctly
put it, Severn was the utilityman who "would do practically
all the jobs that was there." Similarly, General Counsel's
witness Daniel Henkelman testified that Severn worked all
over the plant: he was usually showing employees that they
were doing something wrong, telling them what to do, or
performing work for employees when they were away from
their workstations. In the same vein, alleged discriminatee
John Twohig concedes that in an affidavit given to the
'Temporary cleanup employee George Briggs testified that on February
27 he was sitting at a table in the cafetena with five other employees, all of
whom had previously worked under Severn's supervision at Wilson and
Company. when Severn came through the plant, entered the personnel office,
and passed through the cafeteria He further stated that one of the men
grabbed Severn's leg and said "look who's there." and that Severn turned his
head the other way and just kept walking. One of these employees, William
Hampton, was called by the General Counsel to testif) on other matters but
did not mention this presence of Severn on February 27: no other evidence
was adduced by the General Counsel with respect to this alleged incident
Severn had, in fact, previously been employed by Wilson. and it is not un-
likely that Briggs was acquainted with him there. he answer to the question
of whether Severn. in fact, was in the plant on February 27 is not of any
consequence in determining the supersisor) status of Severn at Great Plains
Beef, other than the fact that the resolution of the question could possibly
have a peripheral bearing on credibility. On balance I am persuaded that
Severn, who impressed me as a matter-of-fact young man who testified In a
direct and straightforward fashion without equisocation. is more credible on
this point than is Briggs who displayed considerable conlusion in explaining
his actions in signing an authonzation card and testified to a telesision ap-
pearance of Great Plains President Burns which does not appear to have
occurred Furthermore, Severn credibly testified that he went to Rock Port,
Missouri. on Februarv 27 and quit his job, which makes it unlikely that he
would have been in the Great Plains plant that da
Board on March 12, 1976, he called Severn a utilityman
because he understood that was his correct title, as Supervi-
sors Millard and Thompson had told him so when Twohig
first started to work on March 2. Respondent Employer
denies that any supervisory authority was given to Severn,
and there is no evidence that he had any authority to hire,
suspend, lay off, recall, promote, discharge, reward, adjust
grievances, or recommend such action. I do not credit the
testimony of Terry Hall that Severn told him and nine other
employees in a group, in the presence of Supervisor Gray-
bill, that he was a foreman. Severn denies this incident as
does Graybill. and none of the nine other employees were
called to testify in support of this contention. Nor do I
credit Hall's initial testimony that it was Severn who placed
him on his job when he was first hired because he later
conceded that Wayne Graybill was, in fact, the person who
had assigned him to the job that he had requested and was
the one who generally instructed and corrected him in his
work. In this connection, I note that Hall testified that even
the equipment lockers used by the employees were assigned
to them by Graybill.' The evidence advanced by the Charg-
ing Party and the General Counsel to show that Severn
assigned employees to work and to move them from job-to-
job by exercising his independent authority is not borne out
by the preponderance of the evidence which demonstrates
that Severn did not have the authority to give employees
job assignments other than routine direction of their work
in the exercise of his function as a trainer. That Severn
could let an employee leave work to get first aid assistance
in the event of an emergency certainly does not give rise to
any presumption of supervisory status. It would be inane
indeed to insist that an injured employee must remain on
the job in his injured condition until a statutory supervisor
came around to excuse him. Similarly, it is suggested that
when Graybill permitted an employee whom he considered
to be toox short fol the job that the employee had requested
to take the job after Severn asked Graybill to let the em-
ployee have a chance at it, this establishes some indicia of
supervisory authority residing in Severn. I disagree. All it
shows is that Severn asked Graybill to give an employee a
chance at a job that the employee wanted to do, and Gray-
bill granted the request. It was Graybill's decision, not Sev-
ern's, and I do not believe this simple request can be ele-
vated to the stature of an effective recommendation. In this
same area of effective recommendation, it is contended that
when Severn recommended that his cousin be hired and his
cousin subsequently was hired that this was an effective
recommendation comprehended by Section 2( 11) of the
Act. On the basis of the record before me, I can only con-
clude he recommended his cousin and his cousin was hired,
but to draw the conclusion that this constituted an effective
recommendation would require me to find that Severn's
recommendation was the decisive factor causing the cousin
to be employed. There is no evidence to that effect, nor do
I believe that the mere fact that Severn suggested to Gray-
hill that an employee be given a chance at a utilitvman's
41 am convinced that Hall was, at best. confused when he placed all these
events in late February because the eidence fairli estabhlishes that he did
not receive his equipment until March 2 and that no groups of production
employees were at the plant in February as he claims
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job, to which he was eventually assigned by Graybill (who
was himself familiar with that employee's work), is evidence
of supervisory authority.
In sum, the General Counsel and the Charging Party
have put in many bits and pieces of evidence upon which
they rely to support a supervisory finding. Taken separately
or as a whole, this evidence does not warrant such a finding.
The only event which requires any particular extended dis-
cussion with respect to Severn's status allegedly occurred on
the first day of production. In substance, employees Jeffrey,
Hall, Lintz, and Pratt testified that Severn called off the
names of employees from a list and escorted them to their
places of work. From a synthesis of the testimonies of these
gentlemen.' and other evidence in the record relating to the
incident, I conclude that Severn was accompanied by Gray-
bill when he escorted employees to their workstations, and
it was Graybill who had in his possession a list of employ-
ees and checked off their names as they requested various
jobs. This first day of work employees were given the op-
portunity to state their preferences, and insofar as possible
they were accommodated. In effect, the employees re-
quested their own assignments, and they were granted by
Graybill. Whether Severn physically called off the names
on the list is of no consequence. I am of the opinion that, at
most, this leading of employees out to their workstations,
with or without the presence of a supervisor, even assuming
that Severn personally read off the names, was nothing
more than a routine procedure designed by the acknowl-
edged supervisory staff to facilitate the placement of em-
ployees and does not establish any supervisory authority for
Severn. Even if Severn were not accompanied by a supervi-
sor when he went with employees and called off their names
either to accompany him or to go to certain jobs, I am not
persuaded that this is anything more than a routine nonre-
petitive function necessitated by the staffing of a new opera-
tion and closely related to the training duties with which
Severn was entrusted.
I agree with Respondent Employer that the situation of
Severn is like that of utilityman Summers in American Bee'
Packers, Inc., 180 NLRB 634 (1970), wherein Judge Peter-
son commented, at page 637-638, in terms equally appli-
cable to Severn, as follows:
Upon analysis I am of the opinion that the evidence
tending to show that Summers occupied a supervisory
position prior to his being formally designated as su-
5 Jeffrey testified that it was Plant Manager Thompson who told the em-
ployees to stay in the lunchroom until they were called out, and that it was
supervisor Millard who took him and others to the supply room to get their
equipment. Pratt concurs that it was Thompson who announced whoever got
called off would go to certain jobs. For reasons more fully set forth later in
this Decision, I would not credit Frank Lintz mn any event where his testi-
mony is unsupported by credible testimony of others; even he only testified
that Severn read off some names and left the lunchroom with a group of 10.
Lintz himself was assigned to his workstation by Supervisor Peterson. Hall
concedes that Graybill went with Severn, and that it was Graybill who in
fact assigned him to his job. Although the evidence is clear that a brown
outfit was customarily worn by the supervisors. Hall sas that Severn was
wearing a white uniform on the day the employees were taken to their work-
stations, Jeffrey testified that he did not recall seeing Severn wearing any tan
and brown uniform during the month of March. In addition. Jeffrey testified
that the list Severn read off had previously been read aloud to the employees
by supervisor Millard.
pervisor in July, fails to establish that fact. During the
construction period, it seems clear, Summers worked
along with other employees and did the same type of
jobs that they did. It may well be that he was more
experienced than some of these employees and acted
somewhat in the nature of a leadman. However, I do
not regard the evidence as establishing that he was
vested with or exercised supervisory authority. On the
kill floor Summers held the position of utility man....
which required that he not only be able to perform the
various operations but also show or instruct other em-
ployees in these operations and, to some extent, assist
in coordinating operations so that the work might pro-
gress smoothly. I think it fair to say that the evidence
sufficiently demonstrates that Summers acted as a con-
duit for orders from the foreman and higher supervi-
sion, and from the standpoint of the employees, being
chief steward, was sought out by them for explanations
of matters such as alleged errors in pay they were re-
ceiving. Also, it seems natural enough that they should
convey to him a desire to be relieved because of illness
since he was one of the utility men who normally
would fill in if permission to leave were granted. On
balance, I find that Summers was not a supervisor and,
accordingly, that no alleged unfair labor practice at-
tributable to him can be charged to the Respondent
solely on that basis.
I find no substantial difference between the duties of
Summers in American Beef Packers and Severn in this case.
I am persuaded that the only control that Severn exercised
over other employees while he was employed as a utility-
man was that derived from his superior experience in the
industry and does not make him a statutory supervisor
Respondent Union admits, however, and the record
shows that at all times material herein Severn was its stew-
ard and agent. Although it would appear that he actually
did not become a steward until the date of recognition of
Respondent Union on March 8, it is clear he was acting as
an agent for the purpose of soliciting authorization cards as
early as March 4.
C. Lawrence "Bud" Meyers
Lawrence Meyers, like Severn, was hired at $3.50 per
hour and commenced work on March 2. At the time Plant
Manager Thompson hired him he told Meyers that his job
would be to train new people, and if he did the job satisfac-
torily that there was a possibility he would become offal
foreman. On or about March 26, he did become offal man-
ager and a statutory supervisor. His duties between March
2 and the time he became offal manager were those of util-
ityman training employees in offal work, much like Severn's
duties on the kill floor. There is even less evidence to find
Meyers a supervisor than there is to so find Severn, and I
therefore conclude for essentially the same reasons that
Meyers was not a supervisor until on or about March 26,
and that no alleged unfair labor practices attributed to him
6 Bugle Coat, Apron & Linen Service. Inc.. Indusirial Laundry Corporation.
etia, 12 NLRB 1098 1100(1961).
952
GREAT PLAINS BEEF CO
prior to March 26 can he charged to Respondent Employer
on the basis that he was a supervisor. There is certainly no
credible evidence whatsoever that he was held out to other
employees as a supervisor, and the General Counsel ad-
duced none to show him to be an agent of Respondent
Employer prior to his elevation to supervisory status on
March 26.
V. THE EVIDEIN(I
?
A. Purchase of the Plant, the Hiring of Burns. and the
Hiring Policy
The plant now occupied by Respondent Employer was
purchased from a debtor-in-possession by Kane-Miller Cor-
poration in the fall of 1975, sometime prior to November
19. The plant was empty at the time, and the purchase was
negotiated by Kane-Miller Executive Vice President Har-
old Oelbaum. Great Plains Beef Company was organized
around the end of 1975 and incorporated in Delaware. The
corporation was organized solely for the purpose of operat-
ing the Council Bluffs plant acquired by Oelbaum.
On November 19, 1975, Oelbaum was invited by the
Council Bluffs Chamber of Commerce to a meeting at
Council Bluffs. Iowa, on November 25 and 26. Oelbaum.
Kane-Miller's President Daniel Kane, company labor law-
yer Joseph Carey, and Mark Robbins, president of another
Kane-Miller subsidiary, met with the Council Bluffs Cham-
ber of Commerce. In addition to the Kane-Miller represen-
tatives and representatives of the Chamber of Commerce,
Gary Owens. a regional manager of industrial development
for the Iowa Development Commission and representative
of the town engineering association. water pollution repre-
sentatives, and other local businessmen were present. The
purpose of the meeting appears to have been to assure
Kane-Miller that the town of Council Bluffs and the State
of Iowa would cooperate with Kane-Miller to the end of
making the plant a going concern. Oelbaum credibly testi-
fied (not in any specific detail) that there was some discus-
sion at this meeting about training money.
During the meeting Mr. Owens of the Iowa Development
Commission give Oelbaum a CETA contractor guide.8 a
NEBIT5 booklet setting forth a resume of special training
programs conducted at Iowa Schools in order to prepare
employees for work in a new or expanding business (with
instructor costs paid by the State of Iowa), and a booklet
entitled The WIN II PROGRAM which was issued by the
'The findings of facts set forth herein are based on a synthesis of the
credited testimonies of all witnesses. the exhibits. stipulations of fact. and
careful consideration of the logical consistency and probability of the facts
found. Although I may not, in the course of this Decision. refer to all of the
record testimony of the documentary evidence. I have carefully weighed and
considered it to the extent that any testimony or other evidence not men-
tioned might have appeared to contradict my findings of fact I have not
disregarded that evidence, but I have rejected it as incredible. lacking in
probative worth. surplusage, or irrelevant. I will, in the course of this Deci-
sion, set forth certain specific credibility findings as riay be required by
conflicting evidence before me.
I CETA is an abbreviation for Comprehensive Employ ment and Training
Act of 1973.
n abbreviation for New and Expanding Business and Industry Train-
ing.
U.S. Department of Labor. manpower administration. in
1973. This latter booklet describes a national program to
help people receiving assistance under the Aid to Families
with Dependent Children program to become productive
workers. This booklet. inter alia. provides for an incentive
to employer participating in the WIN program with a job
development tax credit amounting to 20 percent of the first
year's wages paid to every employee hired through WIN
and kept on the job: a fast cost write-off provision permit-
ted by the Internal Revenue Act of 1971 for preparation of
facilities for on-the-job training: and reimbursement to the
employer fr extra costs incurred while the WIN employees
are learning their jobs. Oelbaum recalls that there was some
conversation about training money with Owens after he re-
ceived the CETA pamphlets from Owens at the meeting,
and he credibly states that this meeting was before his meet-
ing with Robert Burns who was subsequently hired as pres-
ident of Respondent. After this meeting. Oelbaum received
a letter dated November 26. 1975. from James L. Flahive.
manager of the Iowa State Employment Service office lo-
cated at Council Bluffs, wherein Flahive offered the services
of his agency in assisting Respondent in hiring employees
for its Council Bluffs plant. Oelbaum replied to Flahive, by
letter of December 9, noting the Company's appreciation of
Flahive's interest and promising to forward Flahive's letter
and an attached brochure, which was not placed in evi-
dence, for consideration by local management as soon as
local management was established.
In addition to handling the acquisition of the Council
Bluffs' plant. Oelbaum was vested with the responsibility of
finding someone to run Great Plains Beef. About I year
prior to this time Kane-Miller had been seeking a president
for another subsidiary. and an executive search firm had
forwarded the name of Robert Burns, along with other
names, to Oelbaum. Burns had declined to be interviewed
at that time. Oelbaum contacted Burns in either late No-
vember or early December 1975 and inquired as to whether
he would be interested in the job as president of the packing
plant that Kane-Miller was going to open in Council Bluffs.
Iowa. They arranged a meeting for mid-December at
O'Hare Airport in Chicago. At the time of their meeting.
Burns was the vice president of another meatpacking com-
pany in Wichita, Kansas. Oelbaum asked Burns for his
view on how the new plant should be staffed. Burns had
previously operated two plants which had proven to be suc-
cessful with the use of an inexperienced work force, and he
told Oelbaum of his experience and gave his opinion that
the use of an inexperienced work force trained in tech-
niques preferred by Burns would result in a successful op-
eration because it had worked for Burns before. Oelbaum
expressed an interest in Burns' plan. and there was some
discussion about the availability of state or Federal money
to train employees. It is not clear from the testimony of
Oelbhaum how this matter came up at the mid-December
conversation, but Oelbaum testified that i:e probably intro-
duced the subject into the conversation because of his pre-
vious November discussion with Gary Owens who had
given him CETA pamphlets Burns testified that the fact
that the two plants that he presiousl operated with inexpe-
rienced people had received Federal funds became a topic
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of discussion between him and Oelbaum, and Burns im-
parted the thought that under the circumstances Great
Plains Beef would be able to train an inexperienced work
force with Federal funds as these other two companies he
had worked with had done. I am persuaded that Burns
conveyed this thought to Oelbaum, and that Oelbaum in
turn advised him that the local representatives with whom
he had met in Council Bluffs had advised that such funds
were possibly available. There was no discussion of any
union or unions at this mid-December meeting.
According to Oelbaum, whom I credit, Kane-Miller
hired Burns as president of the Great Plains Beef Company
in late December and vested total authority in him to make
the ultimate decisions in staffing the plant. In brief, Burns
told Oelbaum that he had successfully operated with an
inexperienced work force before, he was going to operate
the plant at Council Bluffs with inexperienced people if he
were hired, and the Company hired him. From that point
on Burns had total discretion in conducting the hiring of
employees and directing the operation at Council Bluffs,
Iowa.
Burns arrived at the Council Bluffs facility on January 5,
1976,'0 and continued in that capacity until January 6,
1977, when he left the Great Plains plant. Upon being re-
tained as president of Respondent, Burns secured the ser-
vices of Joseph Carey, an attorney and officer of Kane-
Miller, to be Respondent Employer's attorney at Council
Bluffs. Oren Long, Jr., was hired by Burns as personnel
manager effective February 2, and he continues in that ca-
pacity to date. Long was not at Respondent's facility prior
to his starting date.
James Flahive, placement manager of the Iowa job ser-
vice at Council Bluffs, gave credible testimony that he
started receiving information from representatives of Re-
spondent Employer in 1975 relative to the qualifications of
employees to be hired by the Company. He received this
information from Joseph Carey, Robert Burns, and Oren
Long over a period of time; and the information he re-
ceived ultimately was reduced to a list of necessary qualifi-
cations for applicants on February 17 when Respondent
placed a job order for permanent employees. I conclude
that the contacts with Flahive in December were most
probably made by Joseph Carey inasmuch as neither Burns
or Long had yet been employed, and Carey had been in
Council Bluffs in November with Oelbaum meeting with
the Chamber of Commerce and other local people. Flahive
was told sometime in December 1975 by Respondent (I
conclude through Carey), that Respondent wanted to seek
Federal training funds. During the same month Respon-
dent, by Carey, pat in orders for temporary cleanup crews
to be secured through the Iowa job service.
During the last week of December 1975 or the early part
of January, the Iowa job service prepared a newspaper ad-
vertisement relating to employment at Respondent's Coun-
cil Bluffs facility. Flahive's best recollection is that the ad
was prepared during the last week of December, prior to
the time that Bu rns arrived on the scene. The newspaper ad
appeared in the Omaha World Herald on January 7, 1976.
and reads as follows:
10 All dates hereinafter occurred in 1976 unless otherwise specified.
EXCELLENT CAREER OPPORTUNITIES
The Iowa State Employment Service is initiating the
recruiting of production and maintenance personnel
for the Great Plains Beef Company located in Council
Bluffs, Iowa. This is a large fat cattle slaughtering and
processing operation.
There will be many career opportunities for persons
interested in permanent responsible positions. On-the-
job training will be available for those men and women
with no prior experience. These positions will offer ex-
cellent wage and fringe benefit programs.
Those interested should come to the Iowa State Em-
ployment Service, 710 First Avenue, Council Bluffs,
Iowa 51501
GREAT PLAINS BEEF COMPANY IS AN EQUAL
OPPORTUNITY EMPLOYER
Within a few days after his arrival at the facility on Janu-
ary 5, Burns met Flahive for the first time. Burns again met
with him in late January or the first week of February and
advised Flahive that the Company was interested in hiring
inexperienced people. This qualification was in reference to
the permanent work force to be employed when the Com-
pany opened production after preliminary cleanup work
was completed. During the period between Burns' first
meeting with Flahive and the job order for permanent em-
ployees placed by Respondent on February 17, Burns told
Flahive that in addition to the fact the Company wanted
inexperienced employees, it also wanted unemployed peo-
ple of stable backgrounds, preferably Iowa residents. On
February 17, Burns advised Flahive what the starting wage
rates would be, and this completed the information neces-
sary for the Iowa job service to prepare a job order and
initiate recruitment of permanent employees. The written
job order of February 17 was prepared by the job service,
and it thereafter scheduled interviews commencing within 3
or 4 days. The February 17 job order was closed out by the
Iowa job service on April 5. At the time it was prepared the
job service had sufficient applications on hand from its ear-
lier newspaper advertisement to enable it to furnish ap-
proximately 100 employees who met the qualifications of
the February 17 job order.
The requirement that employees be inexperienced in the
meatpacking industry was not applied to the temporary em-
ployees hired for cleanup during the months of January and
February. They were told at the time of their hire that their
jobs were temporary and would end when plant prepara-
tion was concluded. All of these employees were taken off
the payroll on February 27 when the cleanup was con-
cluded. It appears there were approximately 50 employees
on the cleanup crew. On February 27 plant engineer Jerry
Beebe, who was supervising the cleanup project, issued a
notice to the temporary employees reading, in pertinent
part, as follows:
The sanitation and repair project for which you were
hired as a temporary employee has been completed
with the approval yesterday by the USDA of the facili-
ties of Great Plains Beef Company.
954
GREAT PLAINS BEEF CO.
Your status as a temporary employee must now be
terminated. Soon production will commenced and only
regular full-time employees will be utilized. If you de-
sire to he considered for future regular full-time em-
ployment. you may appear at the Iowa State Employ-
ment Office on Monday, March I. 1976 at 8:00 a.m.
and make application for permanent full-time employ-
ment.
The first permanent employees reported to work on
March 2, the day the plant opened. Of the temporary em-
ployees that had been terminated, approximately 12 were
rehired effective March 2 to perform maintenance work on
the machinery. These were employees who had experience
in that line of work or were mechanically inclined and ca-
pable of performing it. The "inexperienced employee" crite-
ria was not applied to these maintenance men. The reason
for terminating their temporary status on February 27 and
then rehiring them on March 2 as permanent employees
was credibly explained by Respondent to be for the purpose
of establishing seniority status for full-time employees. In
other words, Respondent did not wish to accord the perma-
nent employees any seniority on the basis of their prior
work as temporary employees. I see nothing discriminatory
or unreasonable in this action. Other employees hired by
the Company as permanent who were not held to the crite-
ria of being inexperienced were supervisory' people and
skilled individuals hired to train the inexperienced. Oren
Long testified, and I credit him on this point, that the expe-
rienced nonsupervisory employees were hired on the recom-
mendation of supervisors, and that unless the employee had
the recommendation of a supervisor he would not have
been employed.
A composite of the testimonies of Burns, Long, and Oel-
baum reveals that Burns' expressed plan of operation of
Respondent's Council Bluffs facility was to hire inexperi-
enced people and cross-train them in different jobs to the
extent that they would be more versatile and capable of
filling in where needed. This plan entailed on-the-job train-
ing, which Burns concedes was only implemented in a small
way because the Company did not have enough trainers.
After Burns arrived at Council Bluffs he instructed his
attorney, Carey, to secure CETA funds to defray Respon-
dent's cost in training employees. Carey's first meeting with
CETA officials occurred February 11, 1976.'1 Present at the
meeting, in addition to Downey and Carey, were Oren
ui Robert Downey, CETA manager for the area covering Council Bluffs,
was the only witness testifying to what occurred during this meeting. He
maintains that the meeting occurred on February 12. but offers no notes or
other documentary evidence to support his recollection. However, Burns and
Downey agree that subsequent to the meeting Burns wrote Downey a letter
with regard to Respondent's funding request. and Downey testified that he
requested from Carey that Respondent send him such a letter. The letter,
dated February I. refers to a conference that day between Downey and
Carey and asks Downey to take whatever steps were necessary to arrange for
the funding by CETA to help defray the cost of training the inexperienced
permanent work force Respondent would soon be hiring. Downey contends
the meeting was actually held on Febuary 12 because it wvas on a Thursday.
and that he knows it was a Thursday because they got their printouts from
the computer center Thursday or Friday. He does not explain how he con-
nects the date of the receipt of computer printouts with the date of the
meeting. February 12. 1976. did fall on a Thursday.
Burns concedes that he bases his knowledge of the date of the letter on a
Long for the Employer, another representative from CETA.
James Flahive, and another representative from the Iowa
job service. 2 Carey told Downey that he was aware that
Downey had over $219,000 available as training funds, that
Carey knew the law, and that he would like to have the
money. Downey replied that he just could not give the
money to Carey in that fashion because the program was
client" oriented, and his understanding of the law was con-
trary to that of Carey's.
Carey reiterated that he intended to get the money, and
Downey told him that he could not make the decision to
give him that kind of money and would recommend that he
bring his superiors in CETA from Des Moines to talk to the
Employer about the matter.
During the course of this meeting Downey told Respon-
dent Employer's representative that he had previously had
a bad experience in funding Beefland, the company which
had previously occupied the Great Plains Beef premises,
because of the high turnover rate and that the meatpacking
industry had been bad in general because of the high turn-
over rate."4 Downey had previously participated in the
review of the document itsell and had no independent recollection at the
time of his testimony as to the actual date In response to a question on
cross-examination, Burns ventured the supposition that if t were established
that the conference between Carey and Downey was held on February 12,
then the letter would have to been issued on the same date. The Charging
Party contends that Respondent Employer deliberately predated its letter to
read February II because it received on that date a letter from the ('harging
Union announcing the commencement of an organizational campaign at the
Employer's facility advising that the Union represented a maJority of the
current employees, inter aliu. General Counsel, on the other hand. asserts
that the letter of February II was on its face written on February 12 after
the Employer received the letter from the Charging Union, presumably be-
cause the General Counsel contends that Downey's recollection that the
meeting occurred on February 12 was accurate.
I have considered the testimonies of both Downey and Bums with respect
to the letter, and I am not at all convinced that the recollection of Downe is
superior to that of Burns with respect to the date thereon or the date of the
meeting, nor am I persuaded that the receipt of the Union's letter on Febru-
ary I I gives rise to some presumption of nefanous purpose on the part of the
Employer to predate the letter as the Charging Party claims. The letter is in
response to Downey's request, and I do not believe that the evidence war-
rants a conclusion that the date thereon was fabricated in order to support
Respondent Employer's defense to an unfair labor practice charge that had
not even been filed at the time nor has the content of the letter been shown
to misstate the context of the meeting to which it refers. In all the circum-
stances, I am not persuaded that the evidence is sufficient to warrant a
finding that the letter was not prepared on the date it bears or that the
meeting referred to therein did not occur on February II. Burns' failure of
independent recollection, after almost 2 years. of the exact date the letter was
written is certainly understandable, and I see no reason why this failure of
recollection should militate against the accuracy of the date stated on the
letter itself. In my opinion, the date on the letter has not been shown to be
incorrect. and I therefore conclude that the meeting was held on February
II.
i2 Although I find no direct evidence in the record that this meeting was
prearranged, the number of parties present and common sense persuade me
that some prior arrangements for the meeting must have been made: it was
not a spontaneous coming together of this diverse group purely by chance.
" The word "client" as used by Downey refers to the employee who is the
ultimate beneficiary of the program.
4 Burns' letter of February I I, inter alia, explains his intent to hire an
inexperienced work force from the ranks of the unemployed, whose training
cost would be partially defrayed by CETA funds, and his opinion that his
policy would result in the lowest possible turnover rate. The letter closes with
an acknowledgment that Downey's office had had unpleasant experience
with the meatpacking industry and a request that this past expenrience not be
visited on Great Plains Beef This is plainly responsive to Downey's state-
ments relating to previous bad experience with high turnover.
955
DEC ISIONS O() NAlIONAL I.ABOR RELATIONS BOARD
funding of programs at other packinghouses. Downey did
not tell Respondent Employer's representatives on Febru-
ary 1 II that they would not be able to get the training funds,
but suggested that the Employer discuss the matter further
with his superiors. He also asked them to write him a letter
with regard to the matter under discussion. This is the letter
which he later received bearing the date February I I, dis-
cussed in some detail in footnote I . Downey also testified
that in making his decision not to favorably consider fund-
ing fir job training at Great Plains Beet he based his con-
clusion on the fact that there was a surplus of unemployed
meatpacking employees in the area. He testifies, however.
that he did not communicate that reason to Carey and to
the other representatives of the Employer. Although this
testimony of Downey is uncontradicted, I have some diffi-
culty reconciling his reason given at hearing or taking an
unfavorable view of funding training at Great Plains Beef
with the position that he took with the Great Plains Beef
representatives on February I I that he had a very bad ex-
perience in funding in the meatpacking industry due to its
high turnover rate. Although he asserts that he did not
communicate the surplus of unemployed meatpacking peo-
ple as a reason for not considering funding to Carey and
other company representatives because he had no opportu-
nity to so do, I consider this reason for the failure to com-
municate to be incredible inasmuch as he had no problem
at all in communicating the high turnover rate as a reason
for viewing the funding of Great Plains Beef unfavorably.
Furthermore, I hesitate to attribute to Mr. Downey the du-
plicity which is inherent in his claim that he told one reason
to the Company. but relied on another in reacting unfavor-
ably to their request. Instead, I discredit his claim of avail-
ability of unemployed people as a reason for opposing
funding on February II and conclude that he did not enter-
tain this reason or act upon it until the next meeting when
there was some discussion about the availability of meat-
packing people. In this connection, I credit Burns' testi-
mony that he had not been told by anyone that CETA
funds were not available due to the presence of experienced
unemployed packinghouse workers prior to February 17
when he placed the job order.
Downey and his superiors, including Director of Opera-
tions Fedders from Des Moines, Iowa. met with Joseph
Carey, Robert Burns, and Oren Long on or about February
19. Burns did not mention it in his testimony, but Downey
avers that James Flahive of the Iowa job service was pre-
sent at this second meeting as well as the first. ( Carey
stated the Employer's position that it wanted to hire inexpe-
rienced individuals without previous packinghouse experi-
ence. Fedders told Carey that CETA did not make blanket
grants, that it could not write grants such as Carey wanted.
and that it was not interested in writing contracts for pro-
duction workers because of the supply of qualified individ-
uals with previous experience. I do not credit Downey's
testimony in response to leading questions by the Charging
Party that Flahive stated that "they had a file full of meat-
packing laborers that were on layoff' because he earlier
testified in response to a question by the Charging Party
that Flahive said nothing at the February 19 meeting.
" Flahive was not asked to testify about these meetings.
Carey became angry at Fedders' rejection of the Employ-
er's request for funds, told him that he would probably see
him in court, and further stated that the Employer intended
to continue to seek the funds and was entitled to them.
Downey concedes that Carey was adamant throughout the
discussions with the CETA people in his claim that the
Company was entitled to the funds.
It is not clear from the record whether the matter of
(ETA funds has been fully resolved because at various
points throughout the hearing it was represented that the
matter was in litigation: but Downey proffered his hearsay
understanding that it had been resolved against Great
Plains Beef. Butns testified without contradiction that at
the time he left Respondent Employer he was still trying to
secure CETA funds.
Downey acknowledged that a pamphlet issued by the
Iowa Office fr Planning and Programming on February 2.
1976, entitled "A Fact Sheet/ fr Iowa Emplqvers." contain-
ing an explanation of the administration of the CETA pro-
gram in lowa included objectives which comported with the
objectives and policies of his office. He further stated that
he disagreed with nothing within that document. I have
carefully examined the document and note that it states
specifically,, under the heading "Services Available to Em-
plover.v nder CETA," the following question and answer:
Q. Who is eligible to participate in CETA training?
A. The legislation stipulates only that CETA funds
must be used to serve the disadvantaged. unenployed.
and underemployed population of the prime sponsor.'6
The State of Iowa has not added any additional re-
strictions to these broad requirements.
Downey denied knowledge of any political activity by
the Charging Party designed to prevent Respondent Em-
ployer from obtaining CETA funds, but acknowledged that
he had received a copy of a letter dated February 24, 1976.
addressed to a United States congressman, purportedly
bearing the signature of Robert J. Parker, secretary-trea-
surer and business manager of District Union 271.17 The
letter requests the congressman to use his office to investi-
gate and attempt to secure the denial of CETA funds to
Respondent Employer. The mere fact that Mr. Parker may
have written such a letter to a United States congressman
does not. of course, establish, nor can it or should it be
implied, that his request was granted. The letter, which
plainly bears a notation that a copy was sent to Downey.
and which Downey acknowledges that he did receive, does
belie Downey's testimony that he was unaware of any at-
tempted political activity by the Charging Party in connec-
tion with CETA funding and causes me to view his testi-
mony with caution.
In support of its bona fide attempts to secure CETA
funds, Respondent Employer offered the uncontroverted
testimony of Dan Wright. Wright was the president and
general manager of Respondent Employer from January 6,
1b Emphasis in original.
' There was no direct testimony adduced that the document was indeed
signed by Robert J. Parker. However, a comparison of the signature with
that on other documents placed in evidence and acknowledged to be signed
by Mr. Parker persuades me that the signature on the February 24. 1976, is
indeed that of Mr. Parker. See the Federal Rules of Evidence, approved
January 2. 1975. rule 901(aXbX3).
956
(;REA Pl.AINS BEEF (CO.
1977 to August 25. 1977. Prior to that time he was the
general manager of the I)ubuque Packing Company at
Wichita. Kan;ias. and currentl? is employed as vice pres-
ident and general manager of the Dubuque Packing Com-
pany of I)ennison. Iowa. During his tenure with the Du-
buque Packing Company in Wichita, that company put on
a second shift in September of 1975 and used inexperienced
people to staff it. tie applied and received CETA funds to
train these people. The contract between Dubuque Packing
Company and the city of Wichita Kansas, operating as a
prime sponsor under the Comprehensive Employnment and
Training Program. was entered into on August 26. 1975.
and expired March 31. 1976. A few months before Du-
buque Packing C(ompany entered into the corntract to re-
ceive CE A funds. the Cudahy Packing Company closed
down. leaving about 1,000 ex-Cudahy employees out ofl
work in Wichita. The ('ETA funds subsidized the wages of
all employees hired fo)r the second shift. all of' whom were
inexperienced in the meatpacking industry. The purpose of
the CETA grant was to pay a portion of the wages during
the training period.
Alth'ough the Iowa job service had a considerable num-
her of applications for employment at Great Plains Beef on
file which had been generated bh the January newspaper
advertisement, it did not start interviewing applicants for
permanent employment until receipt of the ehruary 17 job
order. Thereafter, the applications were screened and no
employees with prior experience in the meatpacking indus-
try were interviewed. There is some evidence that some em-
ployees may have been rejected from consideration because
the' fIailed to meet other criteria set forth to the Iowa job
ser ice by Great Plains Beef. but the record is not clear as
to who these persons were. The lowa job service and the
Nebraska job service are interconnected through a com-
puter system. and job orders received by either are thereby
placed in a computer job bank available to both. On Janu-
ary 14, the Nebraska job service at Omaha prepared a job
order on the basis of information obtained from the com-
puter job bank. This order reflects a need at Great Plains
Beef for packinghouse laborers with 6 months' experience
for a job duration in excess of 150 days. I am inclined to
believe, on the basis of the testimony that the first actual
order for permanent job employees was placed by Great
Plains Beef on February 17. the testimony of Robert Neito
of the Nebraska job service reflecting that he has no per-
sonal knowledge of the preparation of the job order, and
Flahive's testimony that no such order was ever transmitted
from the Iowa job service. I can give little probative weight
to this purported job order of January 14. In any event.
during the period surrounding January 14. the Iowa job
service was accepting applications for employees, but the
Employer was only hiring temporary employees for cleanup
and had not yet perfected its job order listing the qualifica-
tions needed for permanent employees. Neito's knowledge
of' what occurred appeared to be based solely on a com-
puter book in his possession reflecting the names of employ-
ees who had applied for jobs and may or may not been
referred to the lowa job service for interview for employ-
ment at Great Plains Beef. On the other hand. Flahive im-
pressed me as a credible witness who was intimately in-
volved in the hiring process which produced the eventual
employee complement at Great Plains Beet'. Flahive cred-
ibly testified that the Iowa job service did not interview
many applicants referred by Nebraska because they were
experienced in the meatpacking industry. In this connec-
tion. Neito was at the time the project manager assigned by
the Nebraska agency to place Wilson and Company em-
plo\ees who had been laid off in Omaha. Ex-employees of
Wilson were given application forms by his service to com-
plete: these were referred to Iowa job service and promptly
rejected by them. According to Flahive, whom I credit. ap-
plicants who were referred by the Nebraska job service
commencing in mid-February who had no prior meatpack-
ing experience were scheduled for interviews for employ-
ment at Great Plains Beef.
l'he C(harging Party presented evidence with respect to
more than 100 specific individuals who had prior experi-
ence and were not employed by Respondent Employer.
Some of these employees were. in fact. hired as temporary
employees during the preparatory period prior to the plant
opening but were not rehired as permanent employees.
Personnel Director Long credibly testified that Respon-
dent [Employer had hired over 2,000 employees since it
started its operation in 1976. This includes considerable
turnover. The company records reflect that a total of 422
employees with previous experience in the meatpacking or
processing industry were hired as permanent hourly em-
ployees between the date the plant opened and the time of
the hearing. Of these, 191 are currently employed. The rec-
ord further reflects that of this total number. 11 were hired
on or prior to March 4, the date of the first charge filed in
this case, and the remainder hired on or after March 8 the
day Respondent Employer extended recognition to the
Teamsters as more fully detailed below. The Employer's
records further show that 65 former employees of Campbell
Soup a company with a contractual relationship with
Amalgamated Meat Cutters, were hired after March 8, and
2 before. Respondent Employer, by its agent Oren Long.
became aware that Campbell Soup had a contract with
Amalgamated on or about March 8. Twenty-two of these
former ('ampbell Soup employees are currently in the ac-
tive employment of Respondent Employer.
The Company also placed into the record evidence that it
had employed a total of 102 former employees of Blue Star
Foods during the period from the opening of the plant until
the date of the hearing. Blue Star Foods does not have any
bargaining relationship with the Charging Party: Respon-
dent Employer contends that the information about Blue
Star Foods employees is relevant because it was known to
the Employer that Blue Star Foods did employ ex-emplo>-
ees of Campbell Soup. In addition to the fact that long was
admittedly not aware of this rather tenuous connection be-
tween Blue Star Foods and Campbell Soup until March 8.
1976. or later and the further circumstance that there is no
reason to believe that employees who had worked tfor Blue
Star Foods were union members at Campbell Soup because
there is similarly no reason to believe that the employees
hired with only Blue Star Foods experience had been
among those who were previously employed by (ampbell
Soup I am persuaded that the evidence relating to former
employees of Blue Star Foods is lacking in eidentiary
weight.
Of the employees hired. some 29 were shown to be expe-
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rienced, employed as part of a settlement of an EEOC dis-
pute.
B. Union Activity. Compan Knowledge, Recognition of the
Teamsters, and Negotiation of the Contract
Burns concedes that he was aware that Beefland. who
had previously occupied the premises purchased for Great
Plains Beef; had had a collective-bargaining agreement with
the Amalgamated Meat Cutters.
By letter of February 10. Frank Jackson. International
representative of the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, told
Burns that the International had commenced an organizing
campaign at Great Plains, and that it represented a major-
ity of Respondent Employer's current employees. The letter
went on to caution the ompany about discriminating
against employees engaged in union activities, and it in-
formed Burns that the organizational campaign was a con-
tinuous one involving all employees within an appropriate
bargaining unit. The certified mail return receipt shows that
the letter was received by Respondent Employer on Febru-
ary II.
On February 16 Robert Parker. secretary-treasurer and
business manager of District Union 271 of Amalgamated,
advised Burns by letter that 271 had been party to a collec-
tive-bargaining agreement with Beefland effective May 14.
1974 until May 14, 1977. Parker stated the position of 271
that Great Plains Beef was a successor employer bound by
this labor agreement and enclosed a copy of that agree-
ment. Joseph Carey, attorney for Great Plains Beef, replied
by mailgram of February 26 that Great Plains Beef was not
a successor to Beefland and not bound by Beefland's con-
tract. Burns also stated that "any attempt by 271 to inter-
fere with the business or interests" of' Great Plains Beef
would result in a law suit for money damages and injunc-
tive relief, and that any union representation of the "future
regular employees" of Respondent Employer would only
result from the normal NLRB processes.
On March I Frank Jackson wrote another letter to
Burns, received by the Company on March 2. in which he
referred to his previous letter of February 10 and advised
that the International was continuing to organize among
Great Plains Beef employees and had signed authorization
cards from employees. The letter closed with an adjuration
that the International expected the Company to abide by
the rules of the National Labor Relations Act and the deci-
sions of the courts with respect to employees' rights to
union representation of their choice.
The following day, March 2, Robert Parker wrote an-
other letter to Respondent Employer claiming that District
Union No. 271 had a sufficient number of properly ex-
ecuted authorization cards from employees in order to rep-
resent them and bargain collectively with Great Plains
Beef, and that District Union No. 271 also had authoriza-
tion cards for employees who had already been hired and
were to commence work when production started.
On March 4, the same day that the Union filed a charge
in the instant case, Wendell Olson, International vice pres-
ident of Amalgamated Meat Cutters, sent a mailgram to
Burns advising him that charges had been filed with respect
to violations of Section 8(a)( I), (2), (3), and (5) of the Act.
Parker sent Joseph Carey a mailgram on March 12 refer-
ring to that portion of Carey's telegram of February 26
which stated that union representation of Respondent Em-
ployer's employees would only result from NLRB pro-
cesses, and asserted that the Union had learned that day
that a meeting of the Great Plains employees was held on
March I to approve a contract with the Teamsters. Parker
reminded Carey of the charges on file with respect to the
Company's alleged unlawful assistance to the Teamsters
and repeated that the "Amalgamated Meat Cutters &
Butcher Workmen has an interest in representation of the
employees at this plant and that the signing of any contract
with an unlawfully assisted union would he in violation of
the National Labor Relations Act contrary to the assur-
ances given in your telegram."
Thirty-five employees of Great Plains Beef signed autho-
rization cards for the International between January 8 and
March 8.'? Donald L. Sprau signed a card for the Interna-
tional on March 15. James L. Carson and Marlon Rupert
signed district Union No. 271 cards on January 9 and
March 2. respectively. Six of' the employees who had signed
cards for the International also signed District Union No.
271 cards.l9 Of these card signers. the employment of eight
concluded with the end of the preproduction cleanup pe-
riod on February 27.20 and I conclude that they were hired
as temporary employees as the record amply demonstrates.
It appears, therefore, that when Respondent Employer en-
tered into its recognition agreement with the Respondent
Union on March 8, there were 27 employees on the Compa-
ny's payroll who had signed cards for the International and
s who had signed cards for District Union No. 271. Of
these five, arry D. Brewer. Robert L. Campbell, and
Rommy Frank Motiejaitis had also signed cards for the
International.
In the latter part of February. James Merrifield, trustee
and business agent of Respondent Union, visited the Com-
pany facility to inquire about trucking operations. He spoke
to some cleanup employees (who are unidentified on the
record) and asked what they knew about the Company's
trucking operations. They replied that they knew nothing
about it, that they were there for cleanup only, and that the
plant would probably be operational around March I.
I8 Delroy K. Rinker. Patrick Benson. Calvin 1. Mcintosh. Ruth M. Gon-
alez, Wendle W. Smith, Edward J. Armstrong Jack Parks, Michael A.
Slefken, Bradley S. Underwood. Courtney I). Creighton, Randy . Denton.
Frank Lintz. Rebecca R. Donnelly, Larry I). Brewer. Robert L. Campbell.
Glenn ('ampbell. Gerald Thomas. Sylvester Mapp. James S. Young. Frank
E. Stephens Bruce W Powell Donald K. Hansen Charles Fielding. Ronnie
Burkidge, George R. Briggs. Ronald I.. Dyer. Joe Jeffrey Jr.. Steven E.
O'Neill. William Hampton I)an Henkelman John W. Twohig. Ervin
Haynes, Anthony R. Perry Sr Robert Thomas and Rommy Frank Motie-
jaitis. The card of Randy . I)enton shows his employer as "Mailand" and
his job or department as "fabrication." Frank Jackson credibly testified that
he secured Denton's signature when he emerged from the plant premises as
a part ofl' a group of employees. With respect to Denton's notation that he
was employed in "fabrication" and that his employer was "Mailand." I have
taken into consideration that the maintenance foreman was Mahlon C'aroth-
ers. and I conclude that "Mailand" was an attempt to note the name of his
supervisor.
"' Larry D. Brewer. Robert L. 'anmphell. Ervin Haynes. Anthony R.
Perry. Sr.. Robert Thomas. and Rommy Frank Motiejaitis.
20 Wendle W. Smith. Gerald Thomas. Sylvester Mapp. George R. Briggs.
William Hampton. Ervin Ilaynes, Anthony R. Perry. Sr.. and Robert
Ihomas.
958
GREAT PLAINS BEEF CO.
Production employees commenced reporting to work on
March 2. About 80 arrived on March 2. Thereafter, on
March 3, 4, and 5, additional groups of new employees
arrived at the plant. One the first day, employees were
checked into work by the outside guard who had a list.
Thereafter, not all employees were checked by the guards
as they entered. This was, in large measure, due to exceed-
ingly cold weather and a sleet storm on March 4, which
caused employees to enter the plant as quickly as possible
to escape the elements and the general confusion created by
large numbers of new employees entering each day. Team-
sters representatives Mason and Merrifield joined in the
flow of employees entering the plant on March 4. They then
went to the personnel office, received withholding applica-
tion forms from Long to fill out, and returned them.2 The
record reflects that there were many employees who did not
fill out applications until after they were employed. The
Employer's records show that both Mason and Merrifield
are listed as employees employed on March 4 and termi-
nated on March 5, but reflect no record of any wage pay-
ment to either.
There was widely divergent testimony from employees at
the hearing that Mason and Merrifield wore work clothes,
leisure clothes, or dress clothes when the employees ob-
served them on March 4 or 5. Both Mason and Merrifield
testified that they wore work clothes. Merrifield states that
he wore work clothing and boots and a black jacket, and
Mason testified that he was wearing blue jeans, a cotton
plaid shirt, leather boots, and an insulated nylon jacket
when he entered the plant. Employee Steven O'Neill testi-
fied that they were wearing casual wear on March 4 and 5,
but conceded that other employees were also wearing
clothes inappropriate to their work. Robert Dyer, whom I
observed to be inventive and internally inconsistent in his
testimony with regard to other matters, testified that Mason
and Merrifield were wearing dress suits like they wore
throughout the hearing, and were carrying brief cases. I do
not believe him. Dan Henkelman testified that Mason was
in a dress leisure suit and Merrifield was wearing dress
clothes, but that he cannot remember exactly what kind.
According to Marlon Rupert, Merrifield was wearing a pair
of slacks, but he does not recall whether Merrifield had a
shirt or jacket on. Darwin Pratt recalls that Merrifield was
dressed in a suit with a work frock over it. According to
James Carson, when he saw Mason and Merrifield they
were dressed in normal work clothes and were wearing
knife equipment. He places this occasion on March 2. but I
am convinced that he is confused and that he first saw Ma-
son and Merrifield on March 4. Frank Lintz testified that
Mason and Merrifield were dressed in work clothes on the
kill floor and had knives and helmets on March 4. A careful
sifting of all the evidence and arguments on the point con-
vinces me that Mason and Merrifield were, in fact, dressed
in work clothing on March 4 when they entered the plant.
Although I have alluded to Lintz' testimony with respect
to what Mason and Merrifield wore, I do not believe his
testimony, which is totally unsupported by any other evi-
dence, that Mason and Merrifield drove up to the guard
12 The whereabouts of their applications at time of trial was neither ex-
plored nor explained.
shack in a black Cadillac and were admitted to the plant,
whereupon he saw them go into the personnel office, shake
hands with Personnel Manager Long, and shut the door.
Nor do I beleive his testimony that they were carrying large
envelopes with them at the time.
After they returned their applications and withholding
forms to the personnel office, Merrifield and Mason were
directed to the lunchroom to wait for further instructions.
Both were carrying Teamsters authorization forms inside
their shirts. According to Merrifield, whom I credit, he did
not indicate on his application that he was a Teamsters
agent. Mason does not say whether he did, but I conclude
that it would be very unlikely that he did. After they re-
turned to the lunchroom, Supervisor Peterson took them
and others who had completed their forms to the supply
room where they were issued helmets, aprons, boots, and
other work equipment. They returned to the lunchroom:
Supervisor Graybill then took Mason, Merrifield, and the
other employees who had been issued equipment to the
work floor where they observed several different operations.
While this was going on, Merrifield, who had not yet been
assigned to a position, "floated off' while Graybill was as-
signing others, and he thereafter solicited employees to sign
Teamsters cards in the lunchroom and the lockerroom for
the rest of the day. Mason was assigned by Graybill to work
in the blood pit squeegeeing blood into a drain. Mason did
this work for about 20 or 25 minutes and then moved away
from the work and talked to some of the employees. Ac-
cording to Mason, he spent the rest of the day "kind of
milling around" in the lunchroom, lockerroom and rest-
room. In view of the confusion at the plant, what with new
employees reporting and being assigned and all the other
problems and activities attendant on the starting and
smoothing out of operations in a new plant, I am not sur-
prised that Mason and Merrifield were able to manage to
evade further work assignments that day.
Mason and Merrifield continued to solicit employees to
sign cards on March 4 and 5. Mason enlisted the aid of
Russell Severn on March 4, who persuaded employees
Joyce Spracklin and Earl Schmidt to help solicit signatures
for the Teamsters. This solicitation by Severn and the other
employees continued through March 8.
Burns gave instructions, prior to the time that production
started, that supervisors were to do nothing about any
union activities in the plant except to report them to him or
to Long unless there was interference with production. Ob-
viously, Respondent Employer anticipated union activity
on its premises, and I am persuaded that it expected it to be
Amalgamated activity in view of the communications from
Amalgamated. Burns testified that one of the supervisors
told him that cards were being passed out in the plant be-
fore March 8, but states that he presumed that it involved
Amalgamated and was surprised that it turned out to be the
Teamsters. I credit Long's testimony that he became aware
of rather extensive Teamsters activity in the plant on
March 4 and 5 from his managers, and I conclude that
Respondent Employer became aware of the Teamsters
campaign during the first week of production.2' The Com-
22 This conclusion is amply reinforced by a news release put out by Re-
spondent Employer on March 5, wherein company President Burns is
quoted as having information that Amalgamated was not the onls Union
attempting to organize the employees.
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany had already been alerted by the Charging Union to its
campaign. It appears that the Company did nothing to pre-
vent either union from campaigning prior to March 8. when
it recognized Respondent Union.
Long. Burns, Merrifield. Mason, and Severn are substan-
tially in accord as to how the recognition of the Teamsters
and the subsequent bargaining transpired. On the evening
of March 8, after the conclusion of the shift. Mason and
Merrifield approached the plant guard and told him that
they wanted to see Burns. After a few minutes, the guard
directed them to the main entrance where they met Long
who took them to Burns' office. Mason and Merrifield iden-
tified themselves as representatives of Local 147, Teamsters.
Merrifield told Burns that he had a majority of Burns' em-
ployees signed up and demanded recognition. The General
Counsel concedes that Respondent Union did have a ma-
jority of the employees signed but contends that the cards
were coerced by reason of certain statements made while
they were solicited. After Merrifield made his statements
and demand, Burns called company attorney Joseph Carey
to the premises. After Carey arrived, he and Burns con-
ferred. Then Burns, Carey, and Long met with Mason and
Merrifield. and Burns instructed Long to verify the signa-
tures on the cards that had been presented to him by the
union representatives. Long got the withholding forms
signed by the Company's employees and compared them
with the Teamsters cards. According to Long. whom I
credit on this point, he verified either 146 or 147 signed
applications for Teamsters representation: the work force at
the ime *was between 160 and 165.
When ong completed his comparison of signatures and
reported the results, the company representatives held a pri-
rate meeting, returned to the room. and Burns then agreed
to recognize Respondent Union. The parties signed a stipu-
lation of recognition written by Long at Carey's dictation,
including a provision for protection of Severn and any
other employee who assisted him in soliciting on behalf of
the eamsters from retaliation b the Company. Burns tes-
tified that it was his decision to recognize the Teamsters. He
claims that he was not happy about recognizing the Team-
sters. but felt that he had no choice because he was aware
of what the 'leamsters could do. and he did not need pick-
ets out in front stopping trucks and causing a plant shut-
down. tie further asserts that he did not want a disgruntled
work force. and it bothered him that 80 percent of the em-
ployees had signed fotr the Tleamsters. "and I had hoped
that somehow e could give them another decision lo
make. hut the, had it." (;eneral ('ounsel elicited further
tesltinlon Irot Burns. on cross-exlminllation, with respect
to tIhs eXplTcssed hilpe ;is Il,1,ws:
(). You also tcstlfied on dict. I believe. Ilhat you
]lopedl' yo culld iCe thenil ;ianoller tloice. is thait cor-
recl?
A. (Ceerl ainl.
Q. I he other choice that oui werc talking about
was an N.I..R.lt. leclion, wasln't i'?
A\. It was riounllioln.
Q. It ,ias.1 Ilnlllulllioll
t(In crltl-- plll11lli lt I l s, l .i l I \,i ll lC .
Ih> it, 11]u\ Otlil t1,110 c Iliabl ex1 lcd?
A. My objectives were to try to have a nonunion
plant.
As soon as the Company agreed to recognize the Team-
sters, Mason and Merrifield demanded that negotiations
start as soon as possible. The first meeting was scheduled
for the following day. From the testimony of Long, I gather
that they negotiated from 9 a.m. until 3 or 4 a.m. on March
10; from about noon on March 10 to 1:30 or 2 a.m. on
March I I: and from shortly before noon on March I I until
3 or 3:30 p.m. on March 11 when an agreement was
reached. Included in the collective-bargaining agreement
between the Company and Teamsters were provisions pro-
viding that the chief steward was to receive 50-cents-per-
hour additional pay "for work in contract administration,"
and job stewards were to receive 25-cents-per-hour addi-
tional pay' for the same activities.
The Union requested and received permission to use the
lunchroom to conduct a ratification meeting. Severn at-
tended the negotiation sessions after the Union secured per-
mission for him to do so from the Company. He was paid
by Great Plains Beef for the time spent in negotiations.
Mason. Merrifield. and Severn met with the employees in
the lunchroom at or near the end of the workday on March
I11 and explained the contract to them. No supervisors
were present, and the contract was ratified by a show of
hands of the employees present. ' Thereafter, the agreed-
upon contract was reduced to writing and signed on March
17, with various addenda later entered into between the
parties to complete the total agreement.
C. Discharges. Suspensions, and Alleged Independent
Violations of Sections 8(a)(l) and 8(h)(1)(A) of the Act
1. The suspension of James Carson
Both the General Counsel and the Charging Party have
excepted in their post-trial briefs to my dismissal from the
21 The parties stipulated that Severn. Joseph Jeffrey. and 12 luggers were
paid hb the Emploser during their attendance at the March I I ratification
meellng. Why Jeffrey was paid is unclear because he testified that his work-
day ended at 4:30 and the meeting started 5 p.m.
24 See the testimonies of Darwin Pratt. John Twohig, Joseph Jeffrey, and
Russell Severn. I do not credit the testimony of Ronald Dyer that this meet-
ing was conducted at I a.m.
Furthermore I do not believe Dyer's testimony that on March 4 he heard
Sev ern tell Supervisor Evans. in the uggers' work area, that the luggers were
o report Ito the lunchroom at I I a.m., and that Evans then told Dyer and the
other luggers that they were to attend a meeting at I I a.m. in the lunchroom
lrncerting gelltting the Teamsters in. According to Dyer, Mason and Merri-
lilId were there with briefcases and were dressed in suits. I have concluded
that Mason and Merrifield were dressed in work clothing on March 4 and
had no briclcases or similar articles with them. Dyer testified that Severn
talked ito him about 10:1 I a.m. and did not enter the coolerroom between
that time and the time t)yer went to the lunchroom. but Dyer inconsistently
then aerred that Severn did come into the coolerruoom about 10:30 a.m. and
.liked lo 1s';n. I)yer gave a pretnal affidavit wherein he stated only that
,hcn he i cnt t lunch n March 4. Severn then told him that cserybod) was
gielng I lmtier' cards D)er's affidavit contains no reference to any in-
ctrutlil or taelcenman t rom E ans at all In view of these material inconsis-
lrnlc Cs In [)er's a;lrill)ls statements and his total failure of recollection as to
whit i so1,ld ahotlt the contract at the March II meeting which he at-
Ictld1i. I tin l hi it nl ni, rcg.lr ing the alleged March 4 statements ol
Sccrir 1to I itit. 1 1
1
1 . t )ycr. to he unconvincing and lacking in
I'p h;,tc ll cCt. and I Il Ilt hlic that re was any such nmeeting n
\"., tll 4
960
GREAT PLAINS BEEF CO.
bench of the complaint allegation that on or about March
8, 1976, the Company laid off Carson. reinstated him on
March 29 without backpay, and thereafter denied him
overtime employment and pay increases because he was
believed by the company to be a supporter, member, and/
or officer of the committee of the Charging Party.
Carson was employed on January 6. 1976, by supervisor
Mahlon Carothers who had previously worked with Carson
and knew that he had been an active member of Amalga-
mated Meat Cutters Union and had picketed at Beefland
where the two of them had been employed. His application
filed with the Company showed that he had prior experi-
ence at Beefland on forklifts. He was hired on a temporary
basis during the cleanup doing maintenance work and he
was continued on as a permanent employee in maintenance
commencing March 2.
Carson testified that he was approached by Russell Sev-
ern on the first day of production, but I conclude from all
the evidence that this actually occurred on March 4. and
that Severn told him that if Amalgamated got in everyone
would lose his job, but if the Teamsters got in everybody
would get a 50-cent-an-hour raise. Carson made a remark.
"Why not a dollar," and went on with his work. I credit
Carson on this conversation with Severn on March 4, but
view the 50-cent "promise" as mere campaign propaganda,
easily recognizable as such by Carson. as his response illus-
trates. Later the same day, Severn talked to him while he
was preparing his lunch in the lunchroom, and told him
that he had 195 names already signed for the Teamsters
and that C'arson might as well go ahead and sign." Carson
told him that he was not going to sign. Earlier the same
morning, he hau entered the restroom and was there asked
by Mason and Merrifield if he wanted to sign a card and he
told them "Not now, I am too busy," turned around, and
walked out. He was not again asked to sign a card for
Teamsters until after his suspension. Carson testified that
when Severn solicited him to sign a Teamsters card at
lunch. Barry Thompson. an admitted company supervisor.
was about 20 feet from him in the lunchroom getting some-
thing out of one of the lunch machines. I cannot infer from
this that Thompson knew what was going on between Sev-
ern and Carson.
On March 5 and 6 Carson solicited and received signa-
tures on six authorization cards for the Amalgamated Meat
Cutters International Union from his fellow employees. He
put the signed cards in his toolbox and subsequently deliv-
ered them to the Charging Union. He states that Supervi-
sors Beebe and Carothers walked into the maintenance
shop at different times when he was putting the signed au-
thorization cards into his toolbox. He does not recall
whether he had already put the cards in or whether they
were still in his hand at the time the supervisors were in the
room. He does not know whether either of them saw the
cards. I cannot conclude on the basis of Carson's testimony
that either Beebe or Carothers did, in fact, note that Carson
had authorization cards for Amalgamated in his hand or in
his toolbox at the time that they entered the room, because
it appears they were merely passing through and did not
pause to speak with him or otherwise make any special
effort to observe what he was doing.
On Sunday, March 7, Carson attended a meeting held by
Amalgamated. Present among the employees of Great
Plains Beef was Russell Severn. According to Carson. he
asked Severn if he would leave because he was representing
the Teamsters and received the reply that Severn was hand-
ing out cards to the Teamsters so he would not lose his job.
Carson then went to union representative Parker and asked
him to ask Severn to leave. Parker refused to do so because
it was an open meeting for all employees.
On Monday. March 8. the guard handed Carson a letter
from Oren Long which stated that Carson was suspended
pending an investigation.26 Carson asked the guard to call
Long. The guard did so, and told Carson that, just as the
letter stated, he was suspended pending an investigation.
A few days later Carson called Long because he was con-
cerned about his valuable tools which were still at the plant.
During the course of the conversation he asked Long what
the investigation was about. Long replied that he had no
comment. Long also said he had no comment when Carson
inquired as to how long he would be suspended. Carson
asked if he could come in and get his tools. Long told him
that he could not, but stated that he would be responsible
fbr the tools. A couple of days later Carson called Plant
Manager Barry Thompson and inquired about his suspen-
sion. Thompson told him that Long was taking care of it
and that was all that he knew.
When Carson was recalled to work, after intervention by
the Teamsters, he received full backpay, the regular pay
increases in the collective-bargaining agreement, and was
not denied overtime work as the complaint alleges. Al-
though Carson does not indentify who told him, he avers
that he was told after his return to work that he had been
suspended pending an investigation because there was
sabotage in the plant. Carson credibly testified that he had
never worked in a plant that had had as many breakdowns
as Great Plains Beef did when it first started up, and attrib-
uted this to the fact that the plant had been sitting for I
year without operation.
At the hearing General Counsel conceded that the evi-
dence did not support the complaint allegation that Carson
had been reinstated without backpay and was refused and
denied overtime employment and pay increases. General
Counsel took the position that the General Counsel was
alleging a violation without any particular remedy other
than a mention in a notice to employees. In sum, the Gen-
eral Counsel's contention is that the suspension was unlaw-
ful, and that, although remedied by reinstatement and
backpay. it should be found a violation and a remedial
cease and desist order should issue. Similarly. in an able
post-trial brief, the Charging Party asserts that although
Carson was reinstated and provided with backpay. his sus-
pension was none the less violative of Section 8(a)(3) of the
Act. and that the reinstatement and backpay simply tolled
the Company's liability therefor.
I have found that Russell Severn was not a supervisor
within the meaning of Section 2(11) of the Act and there-
fore his statements to ('Carson are not attributable to Re-
:' I .d no reg.rd thi, .ippa.recn mixrcprcsnent;lion ; ccrerlve
961
21 1 his letier was* never proniered inn eisence h in pamrl
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Employer. The Company, through its Supervisor
Carothers, knew that Carson had been an active member of
Amalgamated at Beefland. Although the timing of the sus-
pension vis-a-vis the card solicitation by Carson is suspi-
cious, suspicion does not substitute for evidence. From Car-
son's testimony, he was told that he was suspended for
investigation, even though it was not specified to him what
the investigation was for, and he was reinstated and made
whole pursuant to a grievance filed with the Teamsters
Union. I do not believe that the evidence advanced by Car-
son is such that I can fairly infer knowledge by Respondent
Employer of his union activities on March 5, 6, and 7, or
that the cause advanced to him by the Employer at the time
of his suspension was clearly pretextual. In the circum-
stances I am persuaded that my ruling at hearing was cor-
rect and that the allegations of the complaint pertaining to
James Carson were properly dismissed.
2. Departure of John Twohig
John Twohig was employed by Respondent Employer
from March 2 to March 15. Prior to his employment he was
interviewed by Plant Manager Barry Thompson who asked
him whether he had meatpacking experience and hired him
when he received a negative response. On March 4 Russell
Severn asked him if he was going to sign a card for the
Teamsters. Twohig replied that he was not sure yet and that
he would wait for a majority vote before he would sign
anything. The same day, in the lunchroom, Severn, accord-
ing to Twohig, told him that the majority of' the employees
had signed and he wanted to know if Twohig was ready to
sign. Twohig then signed the card. Some of the other em-
ployees sitting around the table, whose identities were not
recalled by Twohig, told him that there was some talk that
there might be a little rough stuff for those employees who
did not sign Teamsters cards. There is no showing that Sev-
ern initiated this talk about rough stuff or engaged in it.
Twohig was employed as a second legger. He worked at
that job throughout his employment. When he was initially
assigned to the job, he was told by Plant Manager Barry
Thompson that there would be additional help added later.
During Twohig's employment the only other person work-
ing with him was one Dennis who worked only 3 days and
then quit. He was not replaced, and Twohig worked alone
for the rest of his employment. Twohig states that he re-
peatedly asked for additional help on his job as the line
speeded up and production increased, and he was told by
Thompson to just keep it up and that he would get a "better
hang of it." On Friday, March 6, Twohig reminded Barry
Thompson that he had been told when he was first em-
ployed that he would have an opportunity to transfer to
another position if he wished and then told him that he did
want a transfer. Thompson replied that he did not have
anybody to replace him and that Twohig would have to
stay there until they could.
On March 7 Twohig signed the card for Amalgamated
Meat Cutters Union at the union meeting. Severn was pre-
sent at that meeting.
During the second week of Twohig's employment, on
Monday at about 8:30 in the morning, he pushed the
buzzer by his workstation which summons assistance. Sev-
ern came to him and asked him what the trouble was. Two-
hig said that he just could not keep up with the job, and
Severn commented that it was no wonder because Twohig's
knife was so dull. Severn then sharpened Twohig's knife
and helped him for about 30 minutes at his work.
Twohig was one of the few who voted against ratification
of the Teamsters contract by a show of hands which made
him readily identifiable, but no supervisors were present.
Twohig credibly testified that he had received no warn-
ings from anyone about his work, but that he got disgusted
because he was not getting any results from his request for
help or a transfer, and he quit.
I agree with Respondent Employer that there is no evi-
dence that Respondent Employer increased Twohig's work-
load because he was an Amalgamated supporter, nor is
there any evidence that they did so because he had signed
an Amalgamated or a Teamsters card, or because he had
voted against ratification of the contract with the Team-
sters. I particularly note that Twohig's request for a transfer
preceded both the ratification meeting and the meeting held
by Amalgamated.
In sum, there is simply no substantial evidence that Two-
hig quit for any other reason than that he was not getting
the help or the transfer that he had requested. I am unable
to find a scintilla of evidence that he was refused assistance
or that the workload was deliberately speeded up by the
Company in order to force him to quit, and I accordingly
do not find that he was constructively discharged because
of his union activities as the General Counsel and the
Charging Party urge.
3. The discharge of Willard Cook
Cook was employed on March 29 and terminated on
June 2. He was reemployed on September 27 as a result of
a settlement between Respondent Employer and Respon-
(lent Union prior to an arbitration scheduled on the matter
pursuant to the contract between the two. Personnel Man-
ager Long asserts that the reason for Cook's termination
was threats of violence to fellow employee Linda Golden.
Linda Golden was an apprehensive and suggestible wit-
ness. According to Golden, she attended a meeting of
Amalgamated in early May 1976 and signed an authoriza-
tion card at that meeting. The following day, she called
Amalgamated at their trailer which was located outside the
plant premises and told them that she wanted her card
back. Whoever answered the phone for Amalgamated told
her to deny that she had signed one. The following day,
Wednesday, she talked to union Steward Joyce Spracklin at
about 8:30 a.m. She told Spracklin that she had attended
the Amalgamated meeting on Monday, and had been given
a letter saying that the Omaha Teamsters wanted the Des
Moines Teamsters out. She also told Spracklin that she had
signed a card for Amalgamated, had called Tuesday and
asked for it back, and had been told by Amalgamated to
deny signing it. Spracklin said that she was going to talk to
Chief Steward Severn and took the letter with her. Later
that morning, Chief Steward Severn talked to her at her
workstation. Severn asked her about the meeting and who
she saw there. She named Danny Akins and Don Brown.
Severn then asked her to look around and see if she recog-
nized anybody else and to tell him. She pointed out a cou-
ple of people whose names she did not know, and he then
962
GREAl PLAINS BEEF CO.
left. Willard (Cook's name was not mentioned in that con-
versation. After Severn left. Willard (Cook called her to his
workstation and asked if she had mentioned any names.
She said that she had not. lie told her that if she did "they"
would "can \our ass." She states that C(ook did not ell at
her or raise his voice hut did seem to be serious. About 4
weeks later she was called into the office by Long. Long
asked her about the "threat." She repeated what she had
been told. and told ong that she did not vant anybody
fired. ong rejoined that he didn't want anyone else threat-
ened on the job and asked if she would tell him the names
of those who had threatened her. She told him that she did
not want anyone fired. Finally. she named Willard Cook.
She gave a signed statement to Long. which was not placed
in evidence or referred to by an5 part'. and ong told her
that the FBI would get in touch with her. They never did.
She thinks that Long talked to her around Memorial DaN.
Long did not ask her who was in attendance at the Amalga-
mated meeting. On further questioning by the ('harging
Party. she stated that the same day that she talked to Sev-
ern, Teamsters agents Mason and Merrifield talked with
her, and she told them what Cook had said to her. The
told her that if anyone else threatened her to come and tell
them.
On cross-examination. Golden testified that when she
spoke to long about the conversation she told him that she
understood that this was a threat from the Amalgamated.
She told him that she thought it was from Amalgamated,
and she was afraid that they were going to blow up her
house. She further stated that Long told her that he had
been in the business for 10 years. and he had seen people
club others on the street and blow up houses. tier conversa-
tion with Long was about 4 weeks after she had talked to
Severn and the two Teamsters representatives. She also tes-
tified that although she does not really remember, she be-
lieves that she talked about her fear of having her house
blown up after ong had talked about those things.
Willard Cook testified that about 2 or 3 weeks before he
got fired, employee Joyce Drain asked him to sign an au-
thorization card for the Teamsters, but he did not. He fur-
ther testified that he signed an authorization card for Amal-
gamated about 2 weeks after he had started to work when it
was given to him by employee Don Brown. According to
(Cook. he took Golden to an Amalgamated meeting in
April. There were about 20 Great Plains employees present.
He stated that he would not know how many blank autho-
rization cards he had obtained at that meeting. but then he
stated 20. Hie distributed the cards at the plant and received
some back. lie passed the cards out until he was termi-
nated. He testified that he got approximately 19 or 20 back.
Apart from Cook's testimony on this point, there is no evi-
dence in the record of any 10 or 20 cards solicited on behalf
of and collected by Amalgamated after his employment on
March 29. (ook said that he passed these cards out during.
before, and after lunch. Inasmuch as this testimony is un-
controverted, I credit it.
On June 2 Lawrence Meyers came to Cook's workstation
and escorted him to the personnel office. Present were
Long. Ed Millard. Assistant Personnel Manager Dennis
Craig, and a secretary. When (ook walked in. Millard said
that he was terminated. Cook asked why, and Millard said
because of a personal threat to a fellow employee. ook
again asked who. and Millard said that they could not talk
about it. long refused to tell him who it was that he had
threatened. lie was recalled to work on September 27 as a
result of a grievance settlement. He was not paid for the
time that he was oftf from work. The reasons for his June
termination were not further discussed with him after he
was called back. Cook denies saying to Linda Giolden that
if she mentioned any names "they will can your ass." I do
not credit him on this because, apart from the fact that in
general he was inclined to equivocate and was not an im-
pressive witness. I am convinced that it was this statement
to which Golden testified that caused her to become some-
what agitated and fearful.
Oren Long testified that he was told in early May by a
departmental manager that a steward had said that Golden
had been threatened. Long asked who had done it. and the
manager gave the names of Akins and Cook. The manager
told L.ong that the steward had said that Golden was very
upset. l.ong had Golden sent to a private office where he
met with her and told her that he had heard she had been
threatened with physical harm. She was very nervous and
tense and said that she had gone to an Amalgamated meet-
ing, signed a card, later called Amalgamated to get the card
back, and was told not to worry about it but to deny signing
it if she was asked about it. Long tried to find out who
threatened her, but Golden was reluctant to say on the
ground that she did not want to get anyone fired. Long told
her that he understood this, but that the Cornompan could
not and would not tolerate this kind of thing in a plant.
Long then mentioned the names of Akins and Cook. and
Golden said that Cook was the one who had told her "they
will can your ass." Golden told L.ong that she thought that
meant they were going to do something physical to her or
her personal property, that other girls to whom she talked
had told her of incidents where property was blown up and
people beaten, and that she was scared. Long mentioned
that it was not unknown that incidents of this sort could
take place with Amalgamated. Long continues that he then
discussed it with the plant manager and the plant superin-
tendent, and the three decided that they had to take imme-
diate action because of the nature of the act. Willard Cook
was brought in and the plant superintendent fired him. He
was told that it was because of a threat. A grievance was
then filed on his behalf and settled with full reinstatement
but no backpay. Long did not interview' Cook prior to firing
him. Long concedes that to him the phrase "can our ass"
refers to discharge. but says that Golden thought it meant
something else. Hie denies mentioning to Golden about em-
ploees being hit over the head or their houses being blown
up. He concedes that Golden never said that she thought it
was a threat by Cook to injure her. Long concludes that the
sole basis of the discharge was that Cook said. "If ou don't
be quiet. they will can your ass."
It is uncontroverted that Cook did pass out a number of
Amalgamated cards in the period prior to his discharge on
June 2. and l.ong concedes that Golden told him that Cook
was at an Amalgamated meeting with her. I was not at all
impressed by the testimony of (Cook: nor was Golden a
particularl\ impressive witness in view of her obvious ner-
vousness and apprehension on the stand. as well as her ten-
963
I)l('ISI()NS ()OF NA'I()ONAI I.ABOR RATIONS BOARI)
dencs to he easilN confused. But the disposition of the issue
of ('ook's discharge does not depend on their relative credi-
hilitv.
Although I have credited Iong on several occasions in
this Decision aind I recognize that the decision to discharge
was ultimately made hb Millard it strains credulity too far
for me to believe that l.ong recommended ('ook's discha;rge
on the ground that (ook's statement to (Golden was subiec-
tivel) perceived by Golden as a threat of violence, when in
fact no threat was made. This is one of the irmsiest reasons
for discharge that I have come across in quite some time. In
effect. Respondent Employer would penalize Cook for (iol-
den's misconception of what he said. I further note that
long made no discernible effort to assuage her fears, and
his admitted statement to her that incidents of violence
could take place with Amalgamated could but exacerbate
her ears. I a aware that the mere fact an employer may
act unreasonably does not prove it acted discriminatorily, 2
but I am persuaded that where I have a concatenation ot
Amalgamated activity by an employee. knowledge of that
activity by the Company, continued contention between the
Company and Amalgamated regarding the lawfulness of
the ('ompany's actions, 2" and a preposterous reason or dis-
charge. that an unlawful motive may be properly inferred. 2
That Respondent Employer waited almost I month after
learning of the alleged threat to do anything about it indi-
cates the pretext inherent in the reason fr discharge.
4. The discharge of' Donald Sprau
Sprau was employed from March 2 until he was dis-
charged on March 19. During this period he was absent
from work on March 11, 17. and Ig, and tardy on March
16. Each time he called in and reported his absence or tar-
diness to the Company's tape recording system. With re-
gard to the episode of tardiness on March 16, Sprau attri-
butes it to the fact that all four of his tires had the air let out
of them when he got ready to go to work. He also states
that the tires on a motorcycle in his backyard were slashed.
and that at night someone called him and told him he had
better not show up for work the next day, and that he might
get hurt. I am persuaded that the flat tires, tire slashing, and
phone call occurred, if in fact they did occur, prior to
March 12. I base this conclusion on the credible testimony
of Peterson that Sprau told him about it when he returned
to work after I day of absence, which would have been the
absence of March II because Sprau never came back to
work after his 2-day absence the following week. However,
Sprau apparently did not tell Ilong about it until he came
into work late, which would have been March 16. and re-
lated to Long that someone had slashed his tires and asked
Long what he could do about it. I conclude that these oc-
2= Paranunr Metacl & Finishing ('o In. , anl Paramuni Plaing ( . In.
225 NLRB 464. 465 (1976).
28 Burns' letter of May 12 to the enploees is a forthright expression of
anger toward the Charging nion 'or its alleged actions and statements he
variously termed "lies." "gangster tactics." "threats of ph ,sical violence" "a
damn insult to srou and to us." "crap." and "tricks." As of May 12 at least
Respondent IUmploer had plainly hecome hostile toward Amalgamated.
N Shiaiuc Denn Mining ('Crparuin lIr,,n King Bruanch/] .v i .. R.B.. 362
F.2d. 466. 470 (9th ('ir. 1966): Sintlair VaIlntmine ('ornanv. 223 NLRB
1043. 1(46 (1976).
currences of alleged flat tires, tire slashings and threats oc-
curred. if they occurred, prior to the time that Sprau en-
gaged in any union activity on behalf of Amalgamated and
prior to the time that he was questioned about that activity
by Mason and Merrifield.
On March 12 Sprau signed a Teamsters card at the re-
cqtest of Severn. On March 15. employee Joe Jeffrey solic-
ited himn to sign an authorizaitio n card with Amnalgamated,
which he did, and gas e him several authorization cards
which Sprau claims that he got signed on the same day.
Teamsters agents Mason and Merrifield talked to both
Jeffrey and Sprau on March 16 in the personnel office with
no supervisor or management agent present. Jeffrey claims
that he was talked to at about II a.m. on March 16, and
Sprau claims that it was about noon on March 15. I credit
Jeffrey as being a more impressive and certain witness, and
I also note that Sprau claims that he and Jetflrey were
talked to on the same day. These conversatiions occurred
during the employees' lunchtime.
Merrifield asked Jeffrey why he was passing out cards or
Amalgamated, and he received a reply that Jeffrey did not
think the Teamsters had a good contract or could represent
the people, and he did not agree with the wages. According
to) Jeff'rey, Merrifield said to him "Why don't you go get
those cards'?" Jeflrey did so and gave them to Severn who
was also present during his interview. Merritield assured
him that he was not to worry about his job. that the Team-
sters would represent him, and that they wished that he
would "knock that shit off."
Sprau testified that Merrifield and Mason talked to him,
and that Mason asked him if he was passing out Amalga-
mated cards. When he answered that he was, Merrifield
said that they did not want "none of this shit." Hie was also
asked why he was passing out Amalgamated cards, and he
replied that the men were not represented correctly. Mason
and Merrifield replied that they had been there for just a
short while and should be given some time. Sprau said,
"()K." They then asked him if he had any more cards.
When he said that he did, he was asked if they could have
them and he said that they could. He does not recall which
one of them asked. lie went to his locker, got the cards, and
gave them to one of the two. They told him to just give
them some time and they would get everything straightened
out. In response to a leading question. he further testified
that he was asked by Mason where he received his cards
but declined to tell him. He does not remember who said so
but asserts that one of them said that it was Joe Jeffrey.
Merrifield agrees that he met with both Jeffrey and Sprau
separately and asked them for the Amalgamated cards
which were given to him. Merrifield further claims that he
told Jeffrey that he did not want any problems with disci-
plinary action if someone should happen to catch him pass-
ing Amalgamated cards while he was working, and he told
Sprau that he would appreciate it if'Sprau would knock the
"crap" off during working hours because it could involve
grievances if someone observed him doing it. Merrifield de-
nies any threats, or that any report was made to the Em-
ployer about the discussion between Jeflrey, Sprau. and the
Teamsters. The grievance does not show that the Company
was aware of the subject matter of these conversations
which were conducted on nonworking time.
(RIrAl' PLAINS Bl l (O.
()n March 19 about 8 or 8:3() am.. Ed Millard called
Sprau and told him that he was ired. Sprau does not recall
the exact words used bh Millard and testified onlh that Mil-
lard said that "'they can't put up with it." I am persuaded
from the evidence before me that what the Company could
not put up with was Sprau's continued absences, and that
Sprau Xwas well aware of what Millard was referring to.
I.aler the same day. Sprau went to the plant to pick up his
check. lie talked to Personnel Manager Long. told him that
he still was not feeling very well, and asked ong what
l ong could do for him. Long told him that there was noth-
ing he could do for Sprau'sjob; Sprau concedes that he was
angry and told Long that hejust did not care, used profan-
ity to express his lack of concern, said that he had another
job lined up, and then left.
The General Counsel has failed to establish that Sprau
was discharged for his union activity. The General Counsel
argues that the Company has no set policy on absenteeism
Sprau received no warnings, and that all of the absences
were for good reasons. This may all be true, but it cannot
be fairly argued that three absences and one tardiness dur-
ing the first 3 weeks of employment, in fact I day less than
3 weeks inasmuch as Sprau's employment did not start until
March 2, is a record of irregularity that the Employer must
put up with. There is no showing that Sprau's union activity
was the proximate cause of his discharged or that Respon-
dent Teamsters caused or attempted to cause his discharge.
5. The refusal to retain or hire Ervin Haynes, Jr.
Ervin aynes was employed by Respondent Employer
from February 2 until February 9. 1976, as a temporary
employee for the purpose of cleanup. The cleanup work
that Haynes was doing in the supplyroom was completed
when he and fellow employee Perry who had been working
with him were terminated on February 9. Throughout the
time that he was employed doing this cleanup work, it was
well known by the supervisory crew that Haynes had been
very active in Amalgamated at Beefland. During the clean-
up period, he secured signed authorization cards on behalf
of Amalgamated from three other employees who were
working on a temporary basis. Contrary to the General
Counsel's allegation, there in no persuasive evidence that
his separation on February 9 was occasioned by anything
other than the fact that he and Perry completed the work
that they were hired to do. At least one of the employees
who signed a card for Haynes Rommy Motiejaitis. contin-
ued as a permanent employee in the supplyroom when pro-
duction started.
Haynes testified without contradiction that his immedi-
ate supervisor complimented him and Perry on their work,
and told Haynes to report to Mahlon Carothers on Febru-
ary 9. On February 9, Carothers told the two of them that
the)y were laid off because they were the last two hired and
they were laying off strictly by seniority. The morning of
the layoff, Faynes had a conversation with Jerry Beebe.
plant engineer, after he and Perry were laid off. Haynes told
Beebe that they had been laid off, and Betbe commented
that they had done a lot of work. had worked themselves
"' I nle that Jeffre). who as a;i leaist as active as Sprau. was n d-
charged ior ,lheri ie dtiplined
out of a job, and that he would try to get them back to work
once the plant started in operation. Hlaynes claims that he
called Plant Manager Barry Thompson on February 25 at
his office and asked him about the possibility of getting a
steady job, and that Thompson replied that he would try to
work out something for Haynes. Haynes then corrected his
testimony to relate that he first called Thompson at the
Ramada Inn, Thompson told him to come into this office
the next morning, and he did so. Haynes testified that he
told Thompson that he needed a job, and Thompson told
him that he knew Haynes was a good worker and had a
good attendance record and "I might not get you in in the
first week. but I'll get you a job in it." Haynes testified to
another conversation with Thompson on February 29 at a
shopping center where he was promised that, if given some
time, Thompson would get him on the jobh.
At this point Haynes' testimony became inconsistent
both internally and with reference to his pretrial statement.
lie first testified on direct examination that he called Per-
sonnel Manager l.ong on March 25, the day after he gradu-
ated and received his diploma or an engineer's license. His
pretrial affidavit also states that the call occurred on March
25. On cross-examination he testified with equal certainty
that he took and failed the engineer's examination in Feb-
ruary. that the telephone conversation with Long took place
in February, and that he believes it was n February 25.
On direct examination, Mr. Haynes related the conversa-
tion with Long as follows:
(Mr. aynes]: He said I told him who I were. I
told him I was ready to go to work and he said to me,
"I'm not going to hire you today, tomorrow, six
months from now, and furthermore, don't keep calling
here harassing me. I knew you were the leader of
Amalgamated Meat Cutters all the time."
Q. (By Mr. Bogue) Was there anything else said?
A. And slammed the phone down in my face and I
in turn, turned right around and called him and told
him I had some clothes I had left in there and he said,
"Your clothes ain't"-- I had left some clothes in my
locker and he throwed the clothes away or something
or other.
Q. Was anything else said during this conversation?
A. No.
On cross-examination, Haynes testified to the conversa-
tion as tollows:
Q. [By Mr. Cummings] Tell me about the conversa-
tion, who said what? Give it to me as closely as you
can, word for word.
A. I can't recall it word for word. I'll tell you the
best I can remember.
Q. All right, tell me.
A. He told me he wasn't going to hire me today,
tomorrow or six months from today.
Q. Start from the beginning of the conversation.
You called him up and you said what?
A. I asked him about a job, told him I was ready to
go to work and he said, "Well. I'm not hiring you to-
day. tomorrow or six months from now." and hung the
phone up.
Q. That's all the words that was said?
965
I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
A. "I knew you were a leader for the Amalgamated
Meat ('utters all the time." and hung the phone up.
Q. Nothing else was said'?
A. I couldn't say anything after he hung the phone
up, then I turn called him back.
Q. Did you say something about your clothes?
A. That's when I called him back and was asking
him about my clothes and he said that the clothes had
been destroyed.
Q. Was it when you called him back that he men-
tioned the Amalgamated or the first call?
A. It was in the first conversation.
Q. It was in the first conversation that he said he
knew you were a leader for the Amalgamated?
A. Yes, the first conversation on the phone, es.
Q. Are you sure it wasn't the second?
A. It was the first conversation on the phone.
In his pretrial affidavit given to the Board. lHaxnes of:
tered the following version of the conversation:
Long said that he wasn't going to hire me that day. the
next day, or six months from now. I am not going to
hire you period. lie sounded upset. I told him that
there was no reason to get up in the air about this. lHe
slammed the phone down before I could say anything
more. I called him right back. I told him that I didn't
appreciate him hanging the phone up on me. I told
him that I had left some clothes in my locker from
working clean up a few weeks before and that I wanted
to get them back. Long said that I wasn't going to get
those clothes today or 6 months from now. Further-
more. don't keep calling here and harassing me be-
cause I know you were a leader of the Amalgamated
Meat Cutters. lHe also commented that my clothes he
thought had already been destroyed and that he wasn't
responsible for them. He then hung up before I could
answer.
Long denies the statements attributed to him by Ha ynes
and testified that he recalled Haynes called him two or
three times for a job, and that the last call was probablN
during the first 2 weeks in March when Haynes asked for
employment and was advised by Long that he had no posi-
tion available for him at the time. According to Long: "I
don't have any recollection of our conversation other than
the fact that the substance he was looking for employment
I don't remember other than that, other than that I cer--
tainly do remember that I didn't make any of those state-
ments that you just asked me about."
On cross-examination, after counsel for the Charging
Party elicited from Long that he received many calls dail.
counsel for the Charging Party asked the following ques-
tions and received the following answers:
Q. What is so significant about the telephone con-
versations with Mr. Haynes that causes you to recall
that specific conversation?
A. Well. I can answer that question in two parts. if I
may. Number one, Mr. Haynes has arrived at some
notoriety during these proceedings and since the start
of these proceedings. Number two I would never talk
to anyone like that on the phone.
* * * *
Q. (By Mr. Dowd) But my question was . .. about
the conversations that you testified that ou specifi-
cally recalled talking to him two or three times. in view
of all these telephone calls that you received by people
seeking employment? What jars your recollection in
the case of Mr. Haynes?
A. I think I just answered that question.
Q. Because of the notoriety of these proceedings?
A. Because of Mr. Havnes name has come up sev-
eral times during these proceedings, and the fact that,
Mr. Dowd I would talk with someone like that on the
phone. It's not in the context of my job.
Although I believe that Hasnes did receive assurances
from his immediate supervisors during the cleanup period
and from hompson that he would be favorably recom-
niended and considered for employment, I do not believe
this establishes that they did. in fact, recommend him for
permanent employment. Plant engineer Beebe credibly de-
nies recommending Haynes. l.ong denies that anyone did,
and there is no evidence to the contrary.
I am inclined to believe that although ong's testimony
with respect to the conversation between him and Haynes is
rather vague and conclusory and not as dramatic or force-
f'ul as that of Haynes. this is probably attributable to the
fact that he received a great many calls from employees
asking for work. and he had no real reason at the time to
make any special effort to keep notes of the conversation
with Haynes.)' I had opportunity to observe both witnesses
closely throughout their testimonies, and it is my opinion
that of the two l.ong was the more believable. The inconsis-
tency in HaNnes' testimony regarding the time and se-
quence of the conversation as well as the clear self-contra-
diction on the matter of whether he successfully completed
the course he was taking in engineering, renders his testi-
mony extremely suspect. I do not believe it likely that Long,
who was present throughout the hearing and impressed me
as being mild in manner, would make statements to Haynes
on the telephone of the extreme nature claimed by Haynes.
I-or all these reasons I do not credit Haynes. and I find that
Long did not make the statements attributed to him by
I laynes.
Inasmuch as I discredit Haynes' testimony with regard to
his conversation with Long I am persuaded that I must
find that the General Counsel has not shown by a prepon-
derance of the credible evidence that the failure to employ
Haynes was due to his union activities.
In a rather unusual procedural maneuver, counsel for the
Charging Union, on cross-examination, asked Teamsters
agent Mason if he had seen, talked to, or threatened
Haynes outside the plant gate on March 4. Mason denied
doing any of these things. Later. the Charging Union coun-
sel. without any objection opposed thereto, called Haynes
on rebuttal. Haynes then testified that on March 4. the day
of the blizzard, he was sitting in the driveway and Mason
spoke to him from a pickup truck. ilaynes claims that Ma-
son told him "to get away from here and quit harassing the
people or we will take some action on you." According to
Hlaynes, he told Mason to go right ahead and that he was
' tlKynes' name was not included in any charge tiled with he Board until
April 22, 1976
966
ready. I do not believe Haynes who appeared to me to be
fabricating. and I credit Mason.
6. The discharge of Ferman Duane Trotter
Trotter was employed by Respondent Employer as a lug-
ger from March 25 to April 2 when he was discharged. At
the time of his hire the Company was well aware of his
prior employment at Beefland.
At the time that he reported to work, Trotter was in-
structed by Plant Manager Barry Thompson and Personnel
Manager Oren Long that part of his duties was to help train
new employees doing lugging. I credit Trotter's uncontro-
verted testimony that he spoke to other employees at the
Great Plains premises during the lunch hour with respect to
Amalgamated and expressed dissatisfaction with the terms
of the contract between Respondent Employer and Respon-
dent Union in comparison with the Amalgamated contract
under which he had previously worked. One of these con-
versations occurred on March 26.
Trotter attended a meeting of Amalgamated on March
28, but I do not credit his testimony that Lawrence Severn
was present; in view of his own testimonial uncertainty on
the matter and a study of the record insofar as it relates to
the attendance of Severn at Amalgamated meetings, I am
convinced that Severn attended only the meeting of March
7.
On or about March 2632 Supervisor William Evans told
Trotter that Plant Manager Thompson and Personnel Man-
ager Long had told him to discharge Trotter, but that he
would not do so and would give Trotter I week of proba-
tion if he would not talk about Amalgamated.)3
I believe Trotter's testimony that he was solicited by
Teamsters' representative Mason to sign an authorization
card on or about April 2, and that Trotter refused to so do.
Mason did not testify with respect to this incident, but he
denied having anything to do with Trotter's discharge.
At about 10:30 p.m. on April 2. Trotter was taken into
the hall by Assistant Cooler Supervisor Vernon Noonan
who told him that he was not instructing new employees
correctly. and therefore he could no longer use Trotter.
Trotter then left the plant.
Trotter testified that he had received no prior warnings
from supervisors that he was not property training new lug-
gers. In a pretrial desposition taken under oath on March 9.
1977, with respect to an action pending against Respon-
dents in a Federal court, he conceded that he might have
been told that he was not properly helping the inexperi-
enced luggers, and that these complaints were made to him
by Supervisors Evans and Noonan. I conclude from the
foregoing that Evans and Noonan did, in fact, tell him that
he was not properly helping the inexperienced luggers, but
I do not believe the date is particularly significant, although there ap-
pears to he some confusion in Trotter's mind as to the proper date.
s I detected nothing in Trottner's demeanor to persuade me that he was
testifying other than truthfully about this conversation with Evans. Evans
was not called to testify even though he was in the employ of Respondent
Employer at the time of the hearing, and I do not agree with the contention
raised that the discrepancies In Trotter's testimony and between his testi-
mony and a prior deposition given on substantially the same matters with
respect to a proceeding before a Federal district court, are so serious as to
warrant discrediting his otherwise uncontradicted testimony.
GREAT PLAINS BEEF CO.
the evidence does not establish that he was ever warned of
possible separation or other disciplinary action on that ac-
count.
Although the testimony of Trotter has certain infirmities,
I consider it of sufficient import to take note that neither
Evans nor Noonan. who were both still employed at the
time of the hearing, testified with regard to Trotter's dis-
charge, nor did Respondent proffer any other evidence with
respect to his discharge except vigorous cross-examination
by counsel.
In all the circumstances, I conclude that Trotter's activity
on behalf of Amalgamated was known to and objected to
by Respondent Employer, and it was planned to discharge
him thereafter. This is quite clear from the statement of
Evans to Trotter that Trotter would receive I week of pro-
bation, rather than a discharge, if he would not talk about
Amalgamated. In the absence of any definitive evidence
from the Employer's witnesses with respect to his discharge,
which they were clearly competent to give if called, I am
unable to conclude that Trotter was, in fact, discharged for
poor work performance. My conclusion in this matter is not
entirely free from doubt, but my examination of the evi-
dence available to me persuades me that the General Coun-
sel has carried the burden of establishing by a preponder-
ance of the evidence that Trotter was discharged because of
his activities on behalf of Amalgamated, from which he had
been expressly advised by Supervisor Evans to abstain.
The conditioning of I week of probation on cessation of
further conversation about the Meat Cutters Union. which
is a protected activity, was clearly calculated to dissuade
Trotter from such activity. The timing of Evans' statements
of March 26, Trotter's attendance at an Amalgamated
meeting on March 28, and Trotter's discharge on April 2, 7
days after Evans gave Trotter I week of probation. warrant
a conclusion that the discharge was perfected on April 2
because Trotter had failed to abide by the terms of the
probation promulgated by Evans.
The evidence does not sustain the General Counsel's ar-
gument that contends that part of the reason for Trotter's
discharge was because he had refused to sign a card for the
Teamsters.
Although I am persuaded that Respondent Employer
discharged Trotter because of his activities on behalf of the
Charging Union, I am of the opinion that the General
Counsel has not shown by a preponderance of the evidence
that Respondent Union caused or attempted to cause the
discharge. In this connection, the denial by Mason that he
had anything to do with Trotter's discharge is uncontro-
verted, as is his testimony that he talked to Long in an effort
to get Trotter reinstated but was unable to do so because
Trotter was a probationary employee.
7. The discharge of Donald Brown and evidence relating
to independent violations of Section 8(a)( 1I) of the Act
Donald Brown was employed from March 29 until May
15, 1976, as a utility trainee. Respondent Employer con-
cedes that his work was very satisfactory insofar as ability
and actual physical performance of the work were con-
cerned.
In late February. Supervisor Wayne Graybill, a personal
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friend of Brown, called him and told him that he was going
to be permitted to hire some experienced employees to train
the inexperienced. Brown and Graybill had worked to-
gether previously. Graybill had been active in Amalga-
mated at Beefland and had opposed Charging Party repre-
sentative Parker in an intraunion election.
Brown stopped at Graybill's home in mid-March and
asked him why he had not heard anything from him with
respect to the job. Brown inquired as to why he was one of
the employees that was going to be hired as a trainer, and
Graybill explained that he was a good worker with an air
knife who could handle the job. According to Brown. Gray-
bill stated one of the reasons for selecting Brown was that
Brown was not very strong with the Union. which I con-
strue as a reference to Amalgamated, and that Graybill
knew he had nothing to worry about with Brown. Brown
also averred that Graybill asked him if he had attended
union meetings that had been held by Amalgamated.
Brown replied that he had attended one, which I find was
on March 7. and Graybill then asked if Brown had heard
anything about one that occurred to prior weekend. Brown
replied that he had not.
Brown further testified that he visited Graybill's house
about March 22 and was told by Graybill that he had been
allowed to get eight experienced employees, and that
Brown would have to go and file an application at the Iowa
job service. Brown did so. Brown was interviewed by Oren
Long for about 6 or 7 minutes. The content of that inter-
view is not in the record.
Brown claims that he visited Graybill's house on March
26 with a companion and was told by Graybill that he was
selected because he was not all that strong with union ac-
tivities, because Graybill knew that he did not have to
worry too much about Brown, and because Brown was
good enough with an air knife to handle the job. Graybill
said that he had hired others in addition to Brown and
mentioned that he had gotten one of those employees be-
cause he knew that employee would not cross a picket line
if there was one. Brown told him that if there was a picket
line he would never cross it. Graybill allegedly replied that
he did not know what he would do in that event. Graybill
subsequently came to Brown's home on the morning of
March 29, and woke him up to start work that day.
Graybill concedes that he asked Brown if he had been to
any Amalgamated meetings and says that he told Brown
that the reason he wanted to know was if there was going to
be any physical violence against Graybill. According to
Graybill. he had received threatening phone calls from un-
known persons which he related to Brown. Graybill denies
that he told Brown that he was hiring him because he was
not too strong for the Union.
Brown impressed me as a belligerent witness, given to
exaggeration and considerable use of profane and obscene
language, but his version of his conversations with Graybill
in March prior to his hiring impresses me as being more
believable than that of Graybill. Furthermore, even if
Grayhill were credited, it is my opinion that his inquiries as
to what went on at union meetings transgressed the limits of
permissible activity by an acknowledged supervisor. I do.
however, note that even though Brown made it clear that
he would not cross picket line, and G(raybill was awarc that
Brown was sympathetic toward Amalgamated. Brown was
hired.
In such a situation, where two witnesses who were friends
testify in contradiction to each other about material mat-
ters, it poses a difficult credibility problem. As I have indi-
cated, I did not consider Brown to be the better witness in
terms of demeanor, but an examination of their compara-
tive testimonies satisfies me that the methods of eliciting
their testimonies. as well as the content of the testimonies,
gave rise to varying accounts, of which Brown's is the most
complete and believable. I do not, however, credit Brown's
testimony that Graybill told him on May 20 that the only
reason Brown had been discharged was because of his
union activities. Given the respective personalities of the
two as they appeared to me, it was quite obvious that
Brown was clearly the more aggressive of the two, and I
believe Graybill when he testified that when he saw Brown
on May 20 he told him that as far as he was concerned they
were still friends, that it was Brown who told him that
Graybill knew that Brown was fired because of union ac-
tivities, and that Brown received a reply from Graybill that
he did not know that at all.
After his first day at work, Brown filled out his applica-
tion and W-2 forms. Long asked him how his day went and
if he was satisfied with the wages. During the course of this
conversation, Long informed Brown that the Teamsters did
have a contract and that Long would like for him to con-
sider joining it, and that the Company thought that it was a
pretty good union. I credit this testimony.
Brown credibly testified that either during the last of
April or the first of May, Severn talked to him several times
I day and asked him if he and Lintz were trying to get the
Teamsters kicked out, and told him that if he did not knock
off his activities o behalf of Amalgamated there was going
to be a lot of hard feelings: and further, that if Brown ex-
pected to have a job very long he should stop his actions.4
It appears that they had about three meetings on this day
wherein Severn told him to keep his mouth shut to the
employees and cease his activities of getting cards signed
for Amalgamated. Brown testified without contradiction
that during his employment he had secured about 50 signed
authorizations for Amalgamated.
I credit Brown's uncontradicted testimony that some
time between April 3 and 5, Supervisor Terry Carrigan
said, in Brown's presence. that if Amalgamated got in that
Kane-Miller would shut down the plant because Kane-
Miller was too big to deal with Amalgamated. Carrigan was
not called to testify on this matter nor was any evidence
other than the testimony of Brown adduced with request to
it.
Brown complained to G(raybill about Severn pestering
him to sign up with the 'leamsters. Graybill told him that
he could not really do much about it and that Brown ought
to consider joining for his own representation. Brown
places this conversation in mid-April.
Brown was discharged on MaN 15. (iraybhill called him
into the office where Kill Floor Supervisor Peterson told
1' In ea luating rown'\ lesllnonos with rcpcct I hi, eorlVr1; uolnls with
Severn. I hae recognize i hllt he liid nor like Sscril and had lld ittedl
thicalencd to hrteak hi, lc'
968
GREAT PLAINS BEEF CO.
him that he was fired for talking back to foremen and turn-
ing in his air knife too much. Turning in the air knife refers
to repeated sharpenings of the knife requested by Brown
who was not happy because the Company did not give him
a knife that was as sharp as it might be, but gave him the
same type of knife to work with as those employees whom
he was training. These knives had been dulled for the pur-
poses of training, and Peterson credibly testified that he told
Brown that he was not going to be treated any differently
from the others in this regard. After careful consideration of
the testimonies of Brown and Peterson and Brown's pretrial
affidavit which was placed into evidence. I am satisfied that
the following narrative is the most likely version of what
occurred prior to and at the discharge interview on May
15.'
Brown had a fellow employee honk the horn for a super-
visor until Supervisor Wayne Stofferan came to him and
asked him what was wrong. Brown complained that the
cattle were coming to him improperly codded and this was
disabling him from performing his job. Stofferan replied
that Brown was not the only person there, and he walked
off without reply when Brown asked him to get the problem
corrected. Graybill came by later on, and upon Brown's
request advised that he could do something about the cattle
coming to Brown being improperly finished and left. After
that point, the cattle starting coming through in better con-
dition.
Peterson credibly testified that he had repeated com-
plaints from Brown about the sharpness of the knives, and
that the incident that directly led to his discharged was
Brown's conduct. On May 15. the same morning that Gray-
bill had responded to one of his complaints. Brown honked
the horn repeatedly until Peterson went to his workstation
where Brown started shouting and cursing at him. As Peter-
son credibly testified, "He was hollering at me like he was
supposed to be the supervisor and I wasn't, and Brown said
'Jesus Christ. look at that poor" [expletive deleted] down
there working his ass off. What the hell you going to do to
him. Jim. let him die like that?' and 'You're a --- slave
driver.'" Peterson states that the latter description applied
to him "was the last straw for me," and he told Brown to
calm down and then walked away "or I would have blown
my cool."
Peterson gave as his primary reason for discharging
Brown as insubordination but states that his continued
complaints about the knives played a part in it. I have dis-
cerned no element of pretext in these reasons. Brown was
called in after lunch on May 15. and when Peterson told
him that he was discharged for back talk to foremen and
turning in his knife too much, Brown called Peterson a
lying SOB, and told him that the only reason that the (Com-
pany was discharging him was because he would not join
the "company union and your sweetheart contract."
Given Brown's propensity for engaging in belligerent.
provocative, and obscene language, which I decline to cast
off as common in the shop as it relates to conversations
3' In reaching Ihese conclusions. I have noted that Br,,wn's testimony ha,
several internal incnslstencies.
I am persuaded by all the eidence that this incideini currd mrn tihe
same dal oif the discharge
? Reh-rring Io a lellowv emplohse working behind Brov.ln sll. a drop
ping heads
between the employees and the supervisors. I conclude that
Brown's outburst at Peterson, including a characterization
of Peterson as a "slave driver," with an obscene adjective
added thereto, was indeed the last straw for Peterson and
clearly constituted insubordination warranting Brown's dis-
charge. Although it is true that Brown was engaged in
union activity. Graybill knew that he was, Carrigan has
expressed hostility to Amalgamated in his presence, and the
record contains sufficient evidence to warrant a conclusion
that Respondent Employer was indeed hostile to the Charg-
ing Union at the time of Brown's discharge. these factors do
not make his discharge unlawful. Union activities do not
constitute a license for insubordination, and I am convinced
that insubordination has been shown to be the precipitating
reason for Brown's discharge. Accordingly. I find that the
General Counsel has not proved by a preponderance of the
credible evidence that Brown was discharged because of his
union activities or sympathies or any protected concerted
activities. Similarly, General Counsel has not shown that
Respondent Union caused or attempted to cause Brown's
discharge.
8. The discharge of Frank Lintz, Jr.
Mr. Lintz was employed from March 2 to 4. 1976, at
which time he was discharged.
In addition to the fact that Mr. Lintz, as he testified, was
an evasive, equivocal. and belligerent witness who an-
swered questions with questions, fenced with counsel, and
impressed me as being totally unbelievable, the record itself
demonstrates his unreliability as a witness.
Mr. Lintz testified before me on March 30, 1977. On
March 9. 1977. he gave a pretrial deposition in a civil action
pending before the United States Court for the Southern
District of Iowa. western division, in which he and others
were plantiffs and Respondent Employer and Respondent
Union were defendants. This deposition was taken before
official reporters and under oath. The deposition covered
many of the same matters before me in the instant proceed-
ing. Mr. Lintz admittedly gave false testimony in the depo-
sition of March 9. 1977, and gave unconvincing reasons
before me for so doing.?8
31 For example, the following colloquy ensued on cross-examination:
Q. (B) Mr. Bond) But you testified, did you not, on pretrial examina-
tion on March 9. 1977, that you typed this affidavit at home on a rented
typewriter didn't you?
JUD(iF WOL.fE: Are you referring to the deposition at this time?
MR. B,D: I am indeed. Your Honor.
Jt tri Woti -i. You said pretrial. Answer the question.
A tnder the direction ot my law)er. that is what I said.
Q. By Mr. Bond) I beg your pardon? Would you repeat that"
A I said. under the direction of m attol ney. name deletedl was told
not to Innvile the Meat ('ulters whatsoever in my lawsuit against the
teamsters and Great Plains Beet and through misunderstandings on my
part. I guess you could say that I altered or falsified my slatement to
you
Q D), s rall taking an oalh hetore you testified in that pretrial
examination.
A I recall taking an oath hut there wasn't a Judge there or anything
I u:;,asnl el sure that it wits a pretrial examination
And againl. ater Mr ,Bond read question, and ananswrs rm the deposiltion
to Mr I.mnt, the tfllo lng ensued:
Q HBs r Bond) V., hi, ticstimon, sc. 1sr I niol
ii(})ttlltlttu d)
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lintz' testimony before me is so contradicted by his other
statements given in the deposition in the pending Federal
court action, his pretrial affidavit given to the Board, and
his own testimony on the stand, that I am unable to believe
any of it that depends on Lintz alone for its truth. As an
example of this extensive contradictory testimony, he stated
in the deposition that he was asked at the Iowa job service
about the last 2 years of his employment. 9 In his testimony
before me he was asked if the Iowa job service had asked
him to limit his work history to the 2 years prior to the time
he went to see them, and he stated that "they might have. I
can't actually say that they said 2 years or 3 years or 6
months," and "the only thing they wanted to know was my
last current job." On his application filed with the Nebraska
job service, Mr. Lintz showed only that he was employed
from January 1967 to December 1975 as a farmer, but the
record is clear that he did work for packing plants during
that period, which he conceded on examination with the
general explanation that this work involved the processing
of pork rather than beef.
Lintz also testified in his deposition that he made out an
affidavit on March 4 on forms provided him by his private
attorney on a typewriter which Lintz rented, and that he
received no assistance from the Charging Union in prepar-
ing that affidavit. It is clear from the testimony of Lintz
himself at other points that the affidavit was given before a
union employee, Marianna Mitchell, who notarized the af-
fidavit at the union office after Lintz executed it. Other rec-
ord evidence establishes to my satisfaction that the affidavit
in question was prepared at the union office with the assist-
ance of union officials and was typed by the Union's secre-
tary. Lintz also gave a sworn affidavit to a Board agent
wherein he stated that he told by officials of the Omaha
local of the charging Union, although he had worked in a
number of plants as a member of that union, to say that he
was inexperienced because the Company was believed to be
turning down employees who belonged to that Union. On
examination before me, he claimed that he was told this
belief by a union steward in Omaha after he was already
hired. He then testified that he first found out that Great
Plains Beef was trying to hire inexperienced help when he
was fired and that he found out "through discussions and
the guard told me that on the way out." He then retraced
his testimony and stated that he was told by the Omaha
union representative to say that he was inexperienced after
he had already made out his application and this was on Fri-
day, Februany 26. He then conceded that he never, in fact,
told the Company that he had any prior experience; but he
also testified that when he was interviewed by Personnel
A. I don't know. Some of the wording in there could be misleading.
could be false, I don't know. That wasn't the normal kind of hearing
and I think you would admit that yourself.
JUDrGF WOLFF: Were your answers truthful in the hearing?
THE WlrNEss: To the best of knowledge. I was confused. yes.
MR. BON): I don't think you answerled] Your Honor's question or
mine.
JultX;E WOLF.: My question is did you answer those questions truth-
fully during the deposition?
THE WITNEss: For what I thought was truthful, yes.
19 The General Counsel placed into evidence an application signed by Mr.
Lintz with the Nebraska job service, and there is no evidence other than his
incredible testimony that he in fact filed an application with the Iowa job
service.
Manager Long prior to his employment, that Long asked
him if he had any experience on beef kill (to which he
answered no), and that he did not tell Long that he had
worked at Omaha Pork Packers or Wilson and Company. I
could continue detailing the multiple discrepancies between
the various statements made by Lintz, but it would serve no
useful purpose to belabor the point that this is an entirely
incredible witness whose testimony I reject wherever it
must stand on the credibility of Lintz alone.40
Although it is my opinion that the General Counsel ad-
duced no credible evidence whatsoever from Mr. Lintz, or
any other source to support the allegation that he was un-
lawfully discharged, Respondent chose to enter evidence
regarding its defense which I am obliged to examine. Per-
sonnel Manager Long testified that he was advised by one
of the department managers (otherwise unidentified), that
Lintz had had previous experience in the industry. Long
then examined his application and saw no experience indi-
cated thereon. According to Long, Lintz was then termi-
nated for falsifying his work history on his application for
employment. Further, according to Long, the Company
had a policy in March 1976, that if it was determined that
an employee had falsified his job applica t' . he would be
immediately dismissed. The only evidence ii raupport of any
policy other than the testimony of Long that was adduced
is a statement appearing on the application form prepared
jointly by Great Plains Beef and the Iowa job service to the
effect that the applicant certifies the truth of his statements
and understands that falsification of the application would
be considered sufficient grounds for discharge. The docu-
ment completed by Lintz bore no such instruction. How-
ever, the fact that the application prepared by the Com-
pany and the Iowa job service did contain such a statement
lends support to Long's testimony that the Company did
pursue such a policy. I was not overly impressed by Long's
testimony on that matter, but it is unrebutted, although
vague, and cannot be said to be testimony of the type that
"carries its own death wound.", I consider it very likely
that had Lintz completed his job application accurately he
would not have been hired because of the Company's pol-
icy on not hiring experienced employees, but he was in fact
hired and Respondent Employer's reason for discharging
him has not been shown to be a pretext to mask an unlaw-
ful motivation. Accordingly, I shall recommend that the
allegation that Lintz was discharged because of his pro-
tected activities be dismissed, together with the companion
allegation that Respondent Union caused or attempted to
cause his discharge.
9. Alleged solicitation by Lawrence Meyers
Marlon Rupert testified that on March 4 Lawrence
"Bud" Meyers told him, during a break period, to go to the
break area and sign up for the Teamsters. Meyers denied
telling any employee to sign a union card or not to sign a
union card for any union. I credit Meyers because he ap-
peared to me to be the more believable of the two, and
Rupert's testimony as a whole demonstrates a pattern of
4 See N. L. R.B. v. Walton Manufacruring Company & Loganville Pants Co.,
:369 U.S. 404, 408 (1962).
41 N.L.R.B. v. Pittsburgh Sleamship Company, 337 U.S. 656. 660 (1949).
970
GREAT PLAINS BEEF CO.
confusion and inconsistency which casts considerable doubt
on the validity of his recollections. There is no evidence that
Meyers played any part in Respondent Union's organiza-
tional efforts other than that alleged by Rupert, whom I do
not credit: and assuming arguendo that Rupert was accu-
rate in his testimony, which I find he was not, Meyers' al-
leged statement is not attributable to Respondent Employer
because I have found that he was neither a supervisor nor
an agent during the period encompassing March 4.
Vi. ('ON('I.tLUDIN(i FINDIN(S
A. Individual ,41leged iolations of Sections 8(a)(3) and
8(h)(2) of the Act
For the reasons set forth hereinabove, I find that Respon-
dent Employer did not violate Section 8(a)(3) and (I) of the
Act by (I) suspending James Carson: (2) laying off and
refusing to recall Ervin Haynes, Jr.: (3) increasing the work-
load of John William Twohig or constructively discharging
him: (4) discharging Frank Lintz, Jr.: (5) discharging Don-
ald Sprau: or (6) discharging Donald Brown. I further find
that Respondent Union did not violate Section 8(b)(2) or
(1)(A) of the Act by causing or attempting to cause Respon-
dent Employer to discharge Frank Lintz, Jr.. John William
Twohig, Donald Sprau, Duane Trotter, or Donald Brown
as the amended consolidated complaint alleges.
I do, however, conclude and find that Respondent Em-
ployer discharged Duane Trotter on or about April 2, 1976,
and Willard Cook on or about June 2. 1976. because they
engaged in activities on behalf of the charging Union, and
that these discharges were therefore effected in order to dis-
courage union activities, and that Respondent Employer
thereby violated Section 8(a)(3) and ( I ) of the Act.
B. Independent 1Violations of Section 8(a)( l) and 8(h)()(,4)(
of/ the Act
I conclude and find that the statement of Respondent
Employer's Supervisor Terry Carrigan, on or about April 3,
4. or 5. 1976. that the plant would be shut down if the
Charging Union got in constitutes a patent violation of Sec-
tion 8(a)(I) of the Act. Similarly I find that Respondent
Employer violated Section 8(a)( 1) of the Act by the actions
of its Supervisor Wayne Graybill in interrogating Donald
Brown in mid-March 1976 regarding his attendance at
meetings of the Charging Union and events transpiring
thereat.
Graybill's statements to Brown on an occasion in mid-
March. and again on or about March 26, 1976. to the effect
that Brown was being employed in part because he was not
a strong union supporter. coupled with the statement on
March 26. 1976, that another employee had been hired be-
cause he would not cross a picket line. had a clear tendency
to restrain Brown in the exercise of his Section 7 rights and
violated Section 8(a)( ) of the Act.
The statements and actions of Responde7nt Employer's
Supervisor William Evans, on or about March 26, 1976, in
placing Duane Trotter on probation and conditioning said
probation. in lieu of discharge, on Trotter's abstention from
talking on behalf of the Charging Union was an open threat
of discharge if Trotter continued in his activities on behalf
of the charging Union and violated Section 8(a)(l) of the
Act. 2
I conclude and find that Respondent Union violated Sec-
tion 8(b)(1)(A) of the Act by the actions of Merrifield and
Mason on March 16. 1976. of interrogating employees Jef-
frey and Sprau concerning their activity of passing out au-
thorization cards for the Charging Union, telling them that
they wanted this action discontinued, and requesting and
securing the supply of Amalgamated cards in the possession
of Sprau and Jeffrey. 43
Russell Severn, as chief steward, was an agent of Respon-
dent Union in late April or early May 1976" when he told
Donald Brown that if he did not stop his Amalgamated
activities there was going to be a lot of hard feelings, and
that if he expected to keep his job he should stop his ac-
tions. These statements constitute a threat of job loss and
restraint and coercion within the meaning of Section
8(b)( I )(A) of the Act.'4
C. The Respondent Emplover's Hiring Police
After carefully considering the entire record, I find that
the evidence does not compel a conclusion that Respondent
Employer changed its hiring policy on February 17. 1976,
and thereafter embarked on a course of refusing to hire
experienced people because of their likely affiliation with
the charging Union.
The Company's policy of hiring inexperienced people
had its genesis in December 1975 when the Company's
president-to-be, Robert Burns. expressed his preference for
such a policy to Harold Oelbaum. Burns had previously
been successful with similar hiring practices at two other
meatpacking plants. Oelbaum engaged Burns as president
of Great Plains Beef with the knowledge that Burns in-
tended to operate with an inexperienced work force, and
Burns was vested with full authority to conduct the staffing
and operation of the Council Bluffs facility. Thereafter.
Burns told Flahive of the Iowa State Employment Service.
in late January or the first week in February. that he
wanted to hire an inexperienced permanent work force. The
advertisement for applicants placed in the newspaper by
the Iowa job service on January 7, 1976 was, according to
Flahive's credible testimony, prepared prior to Burns' ar-
rival in Council Bluffs on January 5. The advertisement
does not specifically or impliedly exclude experienced em-
ployees from consideration, but any ambiguity thereby
raised with regard to the Company's hiring plans was re-
solved by Burns' later specific instructions to Flahive, prior
to anv communication from the Charging Union. That this
clarification may not have been communicated to all those
applicants reading the ad does not alter the case.
In December 1975 Flahive was advised by Great Plains'
(2 The placing of Trotter on probation because of his union activities is not
alleged as a violation of Sec. 8(aX31 of the Act. and the remedy for his
unlawful discharge will include full reinstatement which will be sufficient to
remove an); probationar) status discriminatorily levied upon him.
4 Kniwteave ini.rhing (o. Inc.. 183 NLRB 1148. 1150 (1970).
Internarinual ongshoremens and Karehousemen's 'nion. C 1.0. (Sunset
Line and T7ine Compan). 79 NLRB 1487 (1948).
" See, e g.. International '.o.dilorkers of Amerwia, A41. ('10 (Central I'e-
nee'r. Incorporated), 131 NI RB 189 (196 1
971
Dl)F('ISIONS OF NA lIONAL LABOR RELATIONS BOARD
counsel Joseph Carey that temporary cleanup employees
were needed. I'he cleanup employees who worked in Janu-
ary and Fehruar? knew from the outset that their employ-
ment would terminate when the plant had been cleaned up
and readied for production. Their termination on or before
February 27 was consistent with the terms of their employ-
ment, and I find no substantial evidence to support any
contention that their employment, the length of which was
plainly contingent on the duration of the cleanup work re-
quired. was terminated for any reason prohibited by the
Act.
Between the time that Burns told Flahive he wanted in-
experienced employees and February 17. Burns supple-
mented this requirement with a stated preference for unem-
ployed people of stable backgrounds who resided in lowa.
On or about February 17, Burns gave Flahive the starting
wage rate, which completed the information required by
the job service, on February 17. prepared a written job or-
der, and thereafter interviewed and rejected or referred ap-
plicants on the basis of Burns' stated requirements.
C(ontrary to the General Counsel and the Charging Party,
I find that the February 17 job order represented no change
in hiring policy but was the first written compilation of
Respondent Employer's conditions for employment which
had been transmitted to Flahive more than 2 weeks earlier.
It is contended that Burns' preference for inexperienced
employees is. in and of itself: unreasonable and indicative
of an unlawful motive. I do not agree. Burns' prior success-
ful experience at two other companies with inexperienced
work forces provided a reasonable basis for his continued
preference for such employees. With respect to the argu-
ment that Burns' policy has not been successful at Great
Plains and therefore was unreasonable in its inception, I
only observe that this argument implies that success is the
sole measure of the reasonableness of a course of action,
and that common sense whispers that both the contention
and its correlative implication are invalid premises.46 The
failure of complete implementation of Burns' program of
training the inexperienced was due in large measure to the
denial of Respondent Employer's application for CETA
funds to assist its training program.
The General Counsel also contends that Respondent Em-
ployer had no reasonable basis for applying for CETA
funds because it was not qualified for such funds and inti-
mates that the Company's quest for CETA funds was an
elaborate charade designed to mask an unlawfully moti-
vated hiring policy. In addition to the fact that the Com-
pany thought seriously enough of its eligibility to litigate its
claim for funds, and the Charging Union thought seriously
enough about it to attempt to bring political pressure to
deny Respondent Employer access to CETA funds, the rec-
ord shows that the Employer's action in seeking the funds
was not clearly unreasonable or pretextual.
At the very outset, in November 1975. Harold Oelbaum
and Joseph Carey were apprised of the possibility of some
4 In any event, it is not my prerogative to substitute my subjective busi.
ness judgment ifor that of Respondent Employer, FP(' Adverlising, Ins., 231
NtRB 1135 (1977): nor do I consider the subjective business judgment of
the General ('ounsel or the (harging Party regarding the reasonableness of
Burns' preference in hiring or training methods to be of any weight. This
issue, as all others. must be determined on the basis or credible record ei-
dence obhjectively considered and evaluated.
training money by Gary Owens of the Iowa Development
Commission, and Oelbaum was provided by Owens with
copies of various documents, including a CETA guide, set-
ting forth the availability of funds and other monetary in-
centives from the State of Iowa and the United States for
employers participating in various programs designed to
train the untrained and to remove them from the ranks of
the unemployed. Burns had procured Federal funds at two
prior companies to train the inexperienced: and Dan
\'right, Respondent Employer's president from January 6
to) August 25, 1977, had procured CETA funds in August
1975 to defray the wages of newly hired inexperienced peo-
ple at Dubuque Packing in Wichita, Kansas, where there
was a considerable number of unemployed experienced
meatpacking employees. Furthermore. Robert Downey,
('ETA manager for the Council Bluffs area, conceded that
a pamphlet issued by the Iowa Office for Planning and Pro-
gramming on February 2, 1976, was accurate in stating that
legislation only stipulated that C(TA funds must be used to
serve the disadvantaged, unemployed, and underemployed,
and that the State of' Iowa had not added any additional
restrictions to those requirements.
On these facts, I am not persuaded that Respondent Em-
ployer had no reason to expect such funds would be forth-
coming and to adamantly and persistently demand them.
The fact that the application was contested and the funds
have not been granted does not alter the reasonableness of'
the Employer's expectations.
Although it is true that the communications between the
Charging Union and Respondent Employer commenced in
mid-February and ripened into mutual hostility and unfair
labor practice charges, and I have found that Respondent
Employer has engaged in certain unfair labor practices, at
the time of the promulgation of the disputed hiring policy
the Charging Union had given no indication to Respondent
Employer of its interest in its employees or its organizing
efforts among them. Subsequent events do not, in my judg-
ment, warrant a retroactive conclusion that the hiring pol-
icy for which Burns asserted a preference as early as De-
cember 1975 was discriminatorily motivated at a time when
the charging Union had not made its interest known, by
word or action, and the Employer had not evidenced any
animus toward the charging Union, unlawful or otherwise.
In arriving at my conclusion with respect to the hiring
policy. I have carefully considered the testimony of Robert
Burns in the course of cross-examination with regard to
recognition of the Teamsters that he had hoped to give his
employees another choice, and his objectives were to try to
have a nonunion plant. It is not, of course, unlawful for an
employer to entertain a desire to run a business without a
union. He only runs afoul of the Act when he translates
that desire into action designed to thwart his employees in
the exercise of' their Section 7 rights. Considering the con-
text in which Burns' statements were made (inquiry into his
course of action vis-a-vis the Teamsters). the extensive evi-
dence on the development and application of Respondent
-Employer's hiring policy, and the paucity of other evidence
that the policy was motivated by a desire to discriminate
against adherents to the charging Union, I conclude that
Burns' comments on his "hopes" and "objectives" at the
time he recognized the Teamsters and after Respondent
Employer was aware of the Charging Union's activities,
972
GREAT PLAINS BEEF CO.
raise only a suspicion of unlawful motivation with respect
to the hiring polico3 which is far outweighed by the other
credible evidence to the contrary.
Unlike cases relied upon by the General Counsel and the
Charging Party. this case involves neither an alter ego or
successorship situation, nor does it show a hiring policy
grounded on an overt resolve or studied plan to exclude
members of a particular union or unions in general.
On its face the hiring policy discriminates between the
inexperienced and the experienced. and it appears that a
considerable number, if not most. of the experienced in the
local were members or former members of Amalgamated or
its constituent locals. Consequentl. Respondent Employer
is required to show legitimate and substantial business justi-
fications for the policy. This it has done, and the General
Counsel has not adduced evidence of a preexisting anti-
union motivation sufficient to overcome the Employer's
business justifications." Accordingly. I shall recommend
that the complaint allegation of an unlawful hiring polico
be dismissed.
Inasmuch as I have found that the General Counsel has
not shown by a preponderance of the evidence that the
hiring policy was discriminatorily motivated, there is no
need to resolve the question as to which individuals applied
for employment and were rejected pursuant to that policy.
This applies to George Briggs and William Hampton.
whose failures to be rehired have not been shown to be
discriminatorily motivated. as well as the remainder of the
temporary cleanup crew who were not retained.
D. Recognition of and Assistance to the Teamsters. and the
Steward's Premium
The evidence supports a finding, and the General Coun-
sel agrees. that Respondent Union had secured signed au-
thorization cards from a majority of the employees when it
was recognized on March 8. There is no persuasive evi-
dence that this majority was the product of coercion. and I
find that it was not.
The activities of Mason and Merrifield on March 4 and 5
smack of the cloak and dagger, but in view of the confusion
attendant on the hiring. outfitting, and placing of large
numbers of employees on those days: the inclement
weather facilitating easy entry into the plant; their work-
men's garb: and the fact that it was not shown that Respon-
dent Employer or its supervisors had prior knowledge of
their indentity or intent, it is not entirely implausible that
their infiltration into the work force and their subsequent
organizing efforts took place as they stated. Assuming argu-
endo that their authorization soliciting was noted by a su-
pervisor or supervisors and they were not curbed in their
actions are consistent with the instructions to supervisors to
note but make no effort to stop union activities unless they
interfered with production. On the evidence before me. I
cannot conclude that their malingering was either noted by
the Employer or disrupted production enough to attract
notice on those first days of an inexperienced work force
being moved to and fro around the kill floor:.
The foregoing conclusions are not, however, entirely dis-
positive of the question of assistance and support.
7 .' L R.B. v. Great Dane Tralers. Inc. 388 U.S. 2611967).
A portrait of Respondent Employer's overall conduct
with respect to the Teamsters is more readily discernible
from an examination of its contrasting behavior in dealing
with both Unions involved in this case than from the bare
facts or recognition. negotiations. and contract execution.
On February II the Company received notice from
Frank Jackson that Amalgamated International represent-
ed the employees then working and was conducting a con-
tinuing organizing campaign. Some of these temporary em-
ployees continued as permanent employees.
On February 26 Respondent Employer's counsel Joseph
Carey told district Union 271. in response to its claim of
successor rights. "If there is to be any union representing
the future regular employees of GPB such representation
will only result from the normal NLRB process." I do not
agree that this advice only related to successorship claim
because on its face it plainly refers to anti union.
The Company was aware of organizational efforts by the
Charging Union as well as the Teamsters prior to March 8,
and Amalgamated continued to remind the Company of its
campaign and asserted interest in representing the employ-
ees even after the ratification of the Teamsters contract.
A charge was filed and served on March 4 alleging. inter
alia. unlawful assistance and support to Respondent
Union.'" This allegation was repeated in charges filed and
served on April 22 and June 7 against the Employer.
On March 8 the Teamsters was recognized in the face of
the outstanding charges of March 4 and despite Carey's
earlier statement that representation by any union would
only result from Board processess. The rapidity of recogni-
tion on March 8. and negotiations on March 9. 10, and 11.
consisting of one session of 18 or 19 hours and another of
13 or 14 hours, in the face of the outstanding charge and
concurrent organizing efforts by the Charging Union be-
speaks a precipitateness of action which does not appear to
have been unavoidable or necessary. Although Respondent
Employer's President Burns asserts a fear of Teamsters in-
terference with operations via strikes or other action, there
is no evidence that either Mason or Merrifield or anyone
else made any threats of any such action. Furthermore, the
ready aquiescence in recognizing and the quick bargaining
of a contract, in two extremely long sessions, are in sharp
contrast to the attitude manifested toward the Charging
Union in prior communications. On considering Respon-
dent Employer's later unfair labor practices to discourage
Amalgamated activities, which inevitably tended to influ-
ence employees to retain the status quo and thereby encour-
aged support of the incumbent, I am persuaded that the
speedy recognition and consummation of a contract with
the Teamsters was, in part at least, motivated by a desire to
forestall organizing efforts by the Charging Union or its
member Local 271, and constituted assistance to the Team-
sters.4
Robert Parker. by mailgram of March 12, reminded Re-
spondent Employer of Carey's earlier statement regarding
4 It is unexplained how the Charging Union was aware of Teamsters
activit' on March 4, the day it appears to have started.
' Compare The Hart: Mountain Corporation. 228 NLRB 492. 527 (1977);
Vernitron Electrical Components, Inc., Beau Products Division, 221 NLRB
464. 465 (1975).
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use of Board processes, claim of interest in the representa-
tion of the employees, and assertion that the signing of a
contract with the Teamsters would violate the Act. Never-
theless the contract was executed on March 17.
I find no valid reason for the extra wage supplement ne-
gotiated for the stewards. The contract language that the
additional pay was "for work in contract administration" is
insufficient to invalidate the obvious conclusion that the
overt payment of such a premium is totally unlike the
granting of super seniority for stewards, approved by the
Board in Dairvlea Cooperative, Inc., 219 NLRB 656 (1975)
and succeeding cases, which give no accompanying in-
creased earning. The wage premium certainly cannot be
construed as a payment for services performed for the Em-
ployer. ' I am of the opinion and find that this special wage
treatment of stewards naturally encourages employees to be
active protagonists of Respondent Union, and that the Em-
ployer thereby encouraged Teamsters membership in viola-
tion of Section 8(a)( 1). I also find that Respondent Union,
by negotiating and enforcing the steward's premium, has
violated Section 8(b)(1)(A) of the Act; 2 and I further find
that Respondent Employer, by negotiating and implement-
ing the wage premium, rendered assistance and support to
Respondent Union in violation of Section 8(a)(2) and (1) of
the Act: and that this action commencing on or about
March 9 is evidence tending to support my conclusion that
its conduct commencing March 8 with recognition of the
Teamsters had an underlying motive of assisting and sup-
porting the Teamsters and forestalling the efforts of the
Charging Union to the detriment of the right of its employ-
ees to make an unfettered choice of their collective-bargain-
ing representative.
I have found that Respondent Employer violated Section
8(a)(I ) of the Act by the conduct of its supervisors Graybill,
Evans, and Carrigan in March and April, subsequent to the
ratification of the contract. I have also found that Respon-
dent Employer discharged Duane Trotter on April 2 and
Willard Cook on June 2 in order to discourage their activi-
ties on behalf of the Charging Union, and thereby violated
Section 8(a)(3) and (1) of the Act. I further find that the
foregoing acts designed to discourage and interfere with
employees' Amalgamated activities also encouraged em-
ployees to accept the status quo, thereby lending assistance
and support to the incumbent Teamsters in maintaining its
representative status 3 and were violative of Section 8(a)(2)
of the Act.
Further, Long's statements to Donald Brown on March
29 that the Teamsters had a contract and he would like
Brown to consider joining the Teamsters which the Com-
pany thought a good union, were not subtle encouragement
to join the Teamsters and infringed on Brown's statutory
right not to join if he so desired." The payment of wages to
employees for attending the ratification meeting was similar
50 See Sec. 302(c( I ) of the Act.
51 Gaynor News Compan, Inc. . N.L. R.B., 347 U.S. 17. 34 73 (1954).
52 The complaint does not allege the wage premium to he violative of Secs.
8(a)(3) and 8(bX2) of the Act.
s3 Iowa is a right-to-work State, and union membership is not a contrac-
tual condition of employment.
4 These statements of l.ong are not alleged in the complaint as violations
of the Act.
"subtle" pressure exerted on employees to accept the Team-
sters.
For the reasons set forth above, I find that an evaluation
of the entire pattern of Respondent Employer's disparate
conduct toward the two Unions herein involved warrants a
conclusion, and I so find, that Respondent Employer vio-
lated Section 8(a)(2) of the Act by lending assistance and
support to Respondent Union by precipitately extending
recognition and negotiating and executing a collective-bar-
gaining agreement: by discharging and interfering with, re-
straining, and coercing employees who supported the
Charging Union; by overtly encouraging employees to join
Respondent Union: and by negotiating and implementing a
wage premium for stewards.55
I further find that by accepting Respondent Employer's
assistance and support in facilitating its acquisition of rec-
ognition and a collective-bargaining agreement, Respon-
dent Union violated Section 8(b)( )(A) of the Act.6
In view of these findings. I deem it unnecessary to make
any findings as to whether Respondent Employer's recogni-
tion of the Teamsters was unlawful under Mirdwest Piping
and Supply Co., Inc., 63 NLRB 1060 (1945).
VII. 1tI EFFEC(T ()F tl tUNFAIR LABOR PRACTICES UPON
COMMER CE
The activities of Respondents set forth in section VI.,
above, occurring in connection with Respondent Employ-
er's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the findings of fact set forth here-
inahove, and upon the entire record in this proceeding, I
make the following:
CON(CI.USIONS OF LAW
1. Great Plains Beef Company is an employer engaged
in commerce within the meaning of Section 2(2), (6) and (7)
of the Act.
2. Over-The-Road and City Transfer Drivers Local 147,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America; and
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL CIO, and its District Union No. 271
are labor organizations within the meaning of Section 2(5)
of the Act.
15 Insofar as incidents referred to above are not specifically pleaded in the
complaint as violations of Sec. 8(aX2) of the Act, they are closely related to
the subject matter of the complaint and were sufficiently litigated to warrant
finding a violation of Sec. 8(a)2). Kux Manufacturing Corporation and Conti-
nental Marketing Corporation. 233 NLRB 317 (1977); The Timken Conpany.
236 NLRB 757, 758 (1978).
1s The Teamsters had been served with a copy of the charge filed by the
Charging Union in Case 18 CA 4910 on March 4. received it on March 8,
and was therefore well aware by March 8 that the Company was charged
with assisting them in their efforts. Accordingly. Respondent Union cannot
now be heard o say that it was unaware of the possibility of Company
assistance to it. It acted with its eyes wide open and was aware that it was
acting at its peril. Indeed, the rapid sequence of the recognition and negotia-
tions demanded by Respondent Union suggests a desire to take advantage of
any such assistance which might be present or forthcoming.
974
GREAT PLAINS BEEF CO.
3. By discharging Duane Trotter and Willard Cook be-
cause they engaged in union activities on behalf of the
charging Union, Respondent Employer has violated Sec-
tion 8(a)(3), (2), and (1) of the Act.
4. By coercively interrogating its employees with regard
to their activities and those of other employees on behalf of
the charging Union, Respondent Employer violated Section
8(a)(1) and (2) of the Act.
5. By advising employees that their employment was
conditioned in part on their withholding of support for the
charging Union, Respondent Employer violated Section
8(a)(1) and (2) of the Act.
6. By threatening employees with plant closure if the
charging Union got in. Respondent Employer violated Sec-
tion 8(a)(1) and (2) of the Act.
7. By placing Duane Trotter on probation conditioned
on his abstinance from activities on behalf of the charging
Union, Respondent Employer violated Section 8(a)(1) and
(2) of the Act.
8. By encouraging employee Donald Brown to join Re-
spondent Union, Respondent Employer interfered with, re-
strained, and coerced Donald Brown in the exercise of his
Section 7 rights and violated Section 8(a)( I) of the Act and
also thereby lent assistance and support to Respondent
Union in violation of Section 8(a)(2) and (1) of the Act.
9. By precipitately recognizing, entering into, maintain-
ing, and enforcing a collective-bargaining agreement with
Respondent Union, a labor organization which it unlaw-
fully assisted and supported, Respondent Employer has vio-
lated and continues to violate Section 8(a)(2) and (1) of the
Act.
10. By accepting Respondent Employer's assistance and
support in securing recognition and a collective-bargaining
agreement and by maintaining and enforcing said agree-
ment. the Respondent Union restrained and coerced and
continues to restrain and coerce Respondent Employer's
employees in the exercise of their right to a free selection of
their own bargaining representative in violation of Section
8(b)(1)(A) of the Act.
II. By coercively interrogating employees concerning
their activity of distributing authorization cards on behalf
of the charging Union, by collecting said cards from said
employees, and by warning them to discontinue this ac-
tivity, Respondent Union violated Section 8(b)( I)(A) of the
Act.
12. By threatening employee Donald Brown with loss of
his job if he did not stop his activities on behalf of the
charging Union, Respondent Union violated Section
8(b)(1)(A) of the Act.
13. By maintaining and implementing a clause in their
collective-bargaining agreement according a 50-cent wage
premium to the chief steward and a 25-cent wage premium
to other stewards, Respondent Employer and Respondent
Union have engaged in, and are engaging in, unfair labor
practices within the meaning of Sections 8(a)( I X2) and
8(b)(l)(A) of the Act.
14. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
15. It has not been established by a preponderance of the
credible evidence that Respondent Employer instituted and
implemented a hiring policy for the purpose of excluding
members or supporters of the charging Union from employ-
ment.
16. Neither Respondent Employer nor Respondent
Union has committed any other unfair labor practices al-
leged in the complaint.
THi REMEDY
Having found that Respondent Employer has accorded
unlawful assistance and support to Respondent Union in
violation of Section 8(a )(2) and ( I ) of the Act, I shall recom-
mend that Respondent Employer be ordered to cease and
desist from giving assistance or support to Respondent
Union, and be further ordered to withdraw and withhold
all recognition from Respondent Union until such time as
Respondent Union shall have been certified by the Board
as the exclusive representative of the employees of Respon-
dent Employer, and to cease giving effect to its collective-
bargaining agreement with Respondent Union, or to any
renewal, modification, or extension thereof.
Having found that Respondent Employer discharged
Duane Trotter and Willard Cook in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that Respon-
dent Employer be ordered to offer immediate, full, and un-
conditional reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges previously enjoyed, and make them whole for any
loss of earnings they may have suffered by reason of their
discharge, such backpay and interest thereon to be com-
puted in the manner prescribed in F. W. Woolworth Com-
pany. 90 NLRB 289 (1950): and Florida Steel Corporation,
231 NLRB 651 (1977).5'
I shall further recommend that Respondent Employer be
ordered to cease and desist from maintaining and enforcing
the clause in its collective-bargaining agreement with Re-
spondent Union which grants extra wages to stewards.
I shall also recommend that Respondent Employer be
ordered to cease and desist from the other unfair labor
practices found herein to be violative of Section 8(a)( 1) of
the Act, or any other conduct which infringes upon employ-
ees' Section 7 rights.
I have found that by accepting recognition and entering
into and maintaining and enforcing a collective-bargaining
agreement with the unlawful assistance and support of Re-
spondent Employer, Respondent Union has restrained and
coerced the Company's employees in the exercise of their
right to freely select their own bargaining representative in
violation of Section 8(b)( )(A) of the Act. Accordingly. I
shall recommend that Respondent Union be ordered to
cease maintaining or giving effect to its current recognition
and collective-bargaining agreement with Respondent Em-
ployer, or any renewal, modification, or extension thereof.
until such time as Respondent Union shall be certified by
the Board as the exclusive representative of the employees
covered by said agreement.
Having also found that Respondent Union has main-
tained and implemented a clause in its collective-bargaining
agreement with Respondent Employer according a wage
'See. generally. Isis Plumbing Healing (Co, 138 NLRB 716 (1962).
975
DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
premium to stewards in violation of Section 8(b)(I)(A), and
has committed other violations of Section 8(b)(1)(A) of the
Act, I shall recommend that Respondent Union be ordered
to cease and desist from enforcing said clause and commit-
ing said violations of Section 8(b)( I)(A) of the Act, or in
any other manner infringing upon the employee's Section 7
rights.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(C) of the Act, I hereby issue the following recommend-
ed:
ORDER'"
A. The Respondent Employer, Great Plains Beef Com-
pany, Council Bluffs, Iowa, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Giving effect to a recognition agreement dated
March 8. 1976, and to the collective-bargaining agreement
negotiated on March 9, 10, and 11, 1976, and executed
March 17, 1976, between Respondent Employer and Re-
spondent Union, or to any renewal, modification, or exten-
sion thereof: without prejudice, however, to any wage scale,
except the stewards' extra wage increment, or any other
economic benefit granted thereunder to employees of Re-
spondent Employer.
(b) Discouraging or encouraging membership in any la-
bor organization by discharging employees or otherwise
discriminating against them in regard to tenure of employ-
ment or any term or condition of employment.
(c) Directly or indirectly giving any assistance, support,
or preferential treatment to Respondent Union, or any
other labor organization, in violation of the Act.
(d) Soliciting or encouraging, directly or indirectly, any
of its employees to join Respondent Union or any other
labor organization, or to refrain from activity on behalf of
the charging Union or any other labor organization, in vio-
lation of the Act.
(e) Conditioning initial or continued employment of em-
ployees on their refraining from joining or supporting the
charging Union, or any other labor organization, in viola-
tion of the Act, or threatening employees with discharge if
they engage in such activities.
(f) Threatening its employees with plant closure if the
charging Union becomes their duly authorized representa-
tive.
(g) Coercively interrogating its employees with regard to
their union activities and those of other employees.
(h) Maintaining and enforcing collective-bargaining pro-
visions with Respondent Union. which accord union stew-
ards extra wage premiums, and paying union stewards said
wage premiums without adequate justification.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their Section 7
rights.
5s In the event no exceptions are filed as provided b Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the rules and Regulations, be adopted by the Board and become its find-
ings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Withdraw and withhold all recognition from Respon-
dent Union as the representative of its employees for the
purposes of collective-bargaining unless and until the said
labor organization has been duly certified by the National
Labor Relations Board as the exclusive representative of
such employees.
(b) Offer to Duane Trotter and Willard Cook immediate
and full reinstatement to their former positions or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered as a result of their discharge, in the
manner set forth herein in the section entitled "The Rem-
edy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its plant in Council Bluffs, Iowa, copies of the
attached notice marked "Appendix A." 9 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 18, after being duly signed by Respondent Employer's
representative, shall be posted by Respondent Employer
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent Employer to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Post at the same places and under the same condi-
tions as set forth in (d) above, as they are forwarded by the
Regional Director, copies of Respondent Union's notice
marked "Appendix B."
(f) Mail signed copies of the attached notice marked
"Appendix A" to the Regional Director for posting at Re-
spondent Union's offices and meeting halls.
(g) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent Employer has taken to comply herewith.
B. The Respondent Union, Over-The-Road and City
Transfer Drivers Local 147, affiliated with International
Brotherhood of Teamsters. Chauffeurs, Warehousemen and
Helpers of America, its officers, agents, and representatives,
shall:
I. Cease and desist from:
(a) Accepting recognition as the representative of Great
Plains Beef Company employees, or maintaining or giving
effect to its contract of March 17, 1976. with Respondent
Employer, or to any modification, extension, renewal, or
supplement thereto, unless and until it has been duly certi-
fied by the National Labor Relations Board as the exclusive
representative of the employees covered thereunder.
19 In the event that this Order is enforced by ajudgment of a United States
court of appeals, the words in the notice reading "Posted by Order of the
National 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."
976
GREAT PLAINS BEEF CO.
(b) Negotiating. maintaining, or enforcing collective-bar-
gaining provisions with Respondent Employer which ac-
cord union stewards extra wage premiums.
(C) Coercively interrogating employees concerning their
activities on behalf of other labor organizations, collecting
the authorization cards of said other labor organizations
from said employees, and warning said employees to dis-
continue said union activities.
(d) Threatening employees with loss of employment if
they do not cease their activities on behalf of other labor
organizations.
(e) In any other manner restraining or coercing the em-
ployees of Respondent Employer in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the at-
tached notice marked "Appendix B."- Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 18, after being duly signed by Respondent Union's
president, shall be posted by Respondent Union immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places. includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent
Union to insure that said notices are not altered. defaced. or
covered by any other material.
(b) Post at the same places and under the same condi-
tions as set forth in (a) above. as they are forwarded by the
Regional Director, copies of Respondent Employer's notice
marked "Appendix A."
(c) Mail signed copies of the attached notice marked
"Appendix B" to the Regional Director for posting at Re-
spondent Employer's plant.
(d) Notify the Regional Director For Region 18. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent Union has taken to comply herewith.
i See fn. 59. supra.
11 IS IURRTHER ORDERED that those portions of the con-
solidated complaints found to be without merit are hereby
dismissed.
APPENDIX B
NOtIl(c To EMPL.OYEES ANDt) MEMBEIRS
POSIEI)D BY ORDER OF THE
NArIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
WE VWILL Nor accept recognition as the representa-
tive of employees of Great Plains Beef Company, and
WE wstit. stop giving effect to collective-bargaining
agreements entered into between us and Great Plains
Beef Company, unless or until we have been duly cer-
tified, after a secret ballot election, by the National
Labor Relations Board as the exclusive representative
of such employees.
WE WILL NOT coercively interrogate you about your
activities on behalf of other unions, nor will we collect
the authorization cards of other unions from you, or
warn you to discontinue your protected activities on
behalf of other unions.
WE wil.t. NOl threaten you with loss of employment
for engaging in protected activities on behalf of any
other unions.
WE WILL NO1 negotiate, maintain, or enforce any
agreement with Great Plains Beef Company whereby
union stewards are paid extra wages.
WE WII.L NOT in any other manner restrain or coerce
you in the exercise of rights protected by Section 7 of
the Act.
OIl:R-TIII-ROAI) ANI) CITY TRANSFER DRIVERS
LOC.()(AI. No. 147 AFFIIIATFED WITH INTIRNATIONAl.
BRo)IHIRII((D Ol TEAMSTERS, CHAUFFEURS,
WARIIOi)USEMEN AN)D HEIPERS OF AMERICA
977