Iowa Packing Co.

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1140 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140
The Iowa Packing Company and Joseph L. Walsh, an
attorney with Hedberg, Owens & Hedberg.
Case 18–CA–16289–1
April 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 19, 2002, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings,2 and conclusions3
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Iowa Packing Company,
Des Moines, Iowa, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Timothy B. Kohls, Esq., for the General Counsel.
Kevin J. Driscoll and Brian L. Stowe, Esqs. (Finley, Alt, Smith,
Scharnberg, Craig, Hilmes & Gaffney, P.C.), of Des
Moines, Iowa, for the Respondent.
Joseph L. Walsh, Esq. (Hedberg, Owens, & Hedberg, P.C.), of
Des Moines, Iowa , for the Charging Party.

1 The Respondent also requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In adopting the judge's finding that the Respondent violated Sec.
8(a)(1) by discharging employees for engaging in a protected work
stoppage, we do not rely on the statements set forth in the seventh
paragraph of sec. II,B,3, of his decision, or on the statement in the
preceding paragraph that: “To employees, it surely appeared that Re-
spondent intended to conduct business as usual with the morning proc-
essing of the combo loins.”
3 Chairman Battista agrees with the judge's conclusion that the Re-
spondent threatened employees with discharge in violation of Sec.
8(a)(1) by telling them that they would be considered as having volun-
tarily quit if they engaged in a work stoppage. Accordingly, he finds it
unnecessary to pass on whether the Respondent additionally unlawfully
threatened employees with discharge by telling them that “it might be
bad for them” if they engaged in a work stoppage. In his view, this
additional finding is cumulative and does not affect the remedy.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard
this case at Des Moines, Iowa, on August 13, 2002. Joseph L.
Walsh, an attorney (Charging Party), filed the original charge
on January 11, 2002, and an amended charge on January 18.
The Regional Director issued a complaint and notice of hearing
on April 19, 2002, alleging that the Iowa Packing Company
(Respondent or Company) violated Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act), on July 12 and 13, 2001,1
by interrogating and threatening employees concerning their
protected concerted activities, and by discharging ten employ-
ees because they engaged in protected concerted activities and
by threatening employees that they would be discharged for
that reason.
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after considering the briefs filed
by the General Counsel and Respondent, I have concluded that
Respondent engaged in the unfair labor practices alleged based
on the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Iowa corporation, maintains an office and
place of business in Des Moines, Iowa, where it engages in
slaughtering hogs and processing pork products. During the
2001 calendar year Respondent’s gross revenues exceeded
$500,000 and its direct inflow exceeded $50,000. Based on its
Des Moines operations, I find that the Board has statutory ju-
risdiction over this labor dispute and that it would effectuate the
purposes of the Act for the Board to exercise its jurisdiction to
resolve this matter.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent slaughters hogs and processes the meat and by-
products for shipment to its customers. Plant Manager John
Anderson oversees the plant operations with the assistance of
staff and supervisory personnel. Charles Newton, the corporate
director of human resources and safety, provided Anderson
with staff support in connection with matters relevant to this
dispute. At the time, Luis Moreno supervised the cutting floor
workers.
When this dispute occurred, Respondent employed about 82
workers on the cutting floor. It provides each newly hired em-
ployee with an employee handbook and requires the employee
to sign a receipt for it. The employee handbook provides that it
is a “major offense” that “will result automatically in a suspen-
sion without any prior warning and after investigation of the
1 The relevant events here occurred in July 2001. If not shown oth-
erwise, all dates hereafter refer to the 2001 calendar.
2 The findings reflect my credibility resolutions based on various
factors summarized by Judge Medina in U.S. v. Foster, 9 F.R.D. 367,
388–390 (1949). I do not credit testimony inconsistent with my find-
ings. Further specific credibility resolutions are addressed below.
338 NLRB No. 176
IOWA PACKING CO. 1141
facts and circumstances of the violation and your work and
disciplinary record, can result in your immediate discharge” if
the employee causes “a work or line stoppage when not neces-
sary for the production process or for employee safety.” (See Jt.
Exh. 1(a), pp. 26–28.) In addition, the employee handbook
provides that a dismissed employee is “not eligible for reem-
ployment . . . .” (Jt. Exh. 1(a), p. 10.)
Employees assigned to the slaughtering, cutting and boning,
packaging, shipping, cold storage, and security and mainte-
nance departments perform Respondent’s production functions.
The local production begins with unloading, weighing, and
sorting live animals purchased from farmers or other producers
into holding pens. Following an inspection by USDA inspec-
tors, the animals are transferred to the slaughter floor where
they are killed, dressed, and hung in the carcass cooler for 24
hours. After that, employees on the cutting floor cut and bone
the cooled carcasses and these products are then packaged for
shipment to customers or placed in cold storage if not shipped
immediately. From time to time, Respondent also processes
pork loins from animals slaughtered and broken down at its
Chicago plant and sent to the Des Moines plant in refrigerated
trailers. This outside work arrives in round boxes called “com-
bos” that contain about 2000 pounds of loin each. The combo
work primarily involves cutting, boning, and packaging pork
loins for shipment to customers. This type of outside work is
almost never put on the line while the regular kill is in progress.
Over the years Respondent has maintained a so-called “guar-
anteed pay” policy.3 Under this policy, workers on the produc-
tion and maintenance crew receive notice on Friday that the
following week will be either a guaranteed 4- or a 5-day work-
week. If the former, Respondent guarantees pay for 32 hours to
the entire crew subject to a number of overall and individual
conditions set forth in its employee handbook; if Respondent
schedules the crew for a 5-day week, it guarantees pay for 36
hours. In both instances, Respondent pays employees for the
amount of the guaranteed time even if they do not actually
work that number of hours. By way of example, employees
who meet all of the established conditions may earn 36 hours
pay even though the crew might actually work 34 hours. Gen-
erally, however, Respondent provides enough production to
keep the crew busy at least for the guaranteed number of hours.
Normally the crewmembers may close out their workday and
leave upon completion of the daily production run. However,
individual crewmembers may volunteer to perform other tasks
after completing the daily production run or by working on the
weekend. In this manner, employees earn extra pay over and
above the guarantee. All parties agree general cleaning, paint-
ing, lawn maintenance, and other miscellaneous tasks fall in
this extra-work category. In the past some cutting floor em-
ployees also remained behind after completing the normal in-
plant production to work on the combo loins from the Chicago
facility and to do other “rework” on Des Moines products. Plant
manager Anderson claimed that the combo work and the in-
plant rework had always been a part of the regular production
covered by the guarantee.

3 The pay guarantee plan is outlined in the employee handbook. See
employee handbook, Jt. Exh. 1(a), p. 12.
However, two cutting floor employees, Orlando Ortiz and
Jose Muniz, disputed Anderson’s claims concerning the Chi-
cago combo work and I find their testimony on this point credi-
ble. The change occurred, according to Muniz, at the time that
supervisor Moreno began putting the combos out when the
crew first started in the morning. In this way, it became inte-
grated into the work expected under the Company’s guaranteed
hours system rather than extra work performed at the end of the
day by volunteer crew members. Each asserted that the Com-
pany recently changed its procedure for processing the combo
work. According to Muniz, several workers wanted manage-
ment to revert back to its previous procedure followed for the
six or so years he had worked at the plant so those employees
would have the opportunity “to make better money.”
On July 11, Muniz and several other cutting floor employees
refused to return to work after the morning break until they met
with Plant Manager Anderson. Because Anderson was unavail-
able at that time, Muniz agreed for the group to meet with
Anderson after production ended that day. Anderson, in turn,
arranged to have human resources director Newton and the kill
floor supervisor, Galino Vega, present. Vega served only as an
interpreter. Anderson asked Newton to attend because he “had
some pay issues with employees.” Anderson used Vega as the
interpreter he knew the employees also had issues concerning
Supervisor Moreno.
At the outset of the July 11 meeting, employees (principally
Muniz, Ortiz, and Abelino Mercado) asked for the Company to
increase the top wage rate and to return to the practice of proc-
essing the combos outside the guaranteed time at the end of the
plant’s regular production day.4 The overall aim of these pro-
posals sought to increase employee pay. As earlier suggested,
this latter proposal meant that the work would result in pay over
and above the guarantee because it would be performed by
crew members who volunteered to remain after the local pro-
duction day ended. Anderson defended the process by which
the Company dealt with the combos saying that they were
“special orders” that needed to be done. Some employees also
complained of perceived mistreatment by Moreno, the cutting
room supervisor. According to Muniz, Moreno had a habit of
yelling orders to employees in disrespectful terms; he claimed
some women workers would burst into tears as a result of Mo-
reno’s harsh treatment. In the midst of the meeting, Anderson
received information about a mechanical break down on the kill
floor that caused him to terminate the meeting. Before leaving,
however, he arranged to meet with the employees again at the
end of the following workday and promised to have some an-
swers to problems discussed by the employee group.
Before meeting with the employees on July 12, Anderson
said he conferred with Company Vice President Chet Cool-
baugh and Human Resources Manager Newton about the de-
mand to process the Chicago combo work outside at the end of
the regular production day outside the guaranteed time. Later,
at the July 12 meeting, Anderson claims that he told the 10 or
so employees present that the Company would make every
attempt in a 36-hour guarantee situations to hold the loins and
4 Estimates about the number of employees in attendance varied
from 10 or 15 on the low side to 40 or so on the high side.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
the local rework until the crew completed its regular cutting
and processing so that the employees who volunteered to per-
form this work would be paid over and above the 36-hour guar-
antee.
Although Anderson thought employees seemed pleased with
the Company’s concession concerning the Chicago combo
work, other evidence which I credit suggests that Anderson
hedged to the point of indicating to at least some of the workers
that little, if anything, would be done about the combo work.
For example, Ortiz recalled that Anderson told employees the
Company “couldn’t do nothing” about the combo loins, “[t]hey
were not going to change the work, the conditions,” and if the
workers “didn’t want to work they could go home.” Muniz too
said that Anderson told them “[n]othing is going to be
changed.” Vega, the kill floor supervisor who interpreted, re-
called that Anderson told employees that if there were only two
or three combos they would be done in the morning but if there
was a whole load (a load consists of 20 combos) they would be
held until the local regular production had been completed in
the afternoon and employees would be paid above the guaran-
tee.
To the extent that Anderson may have made concessions to
the employees, he apparently failed to mollify several workers
present at the July 12 meeting. Anderson recalled that at the
end of the meeting Abelino Mercado told him that the employ-
ees would walk off if management put one more loin on the
line during regular production time. Ortiz recalled that several
cutting floor workers said they would walk out. Muniz said
employees told Anderson there would be a reaction from the
workers but they did not say what. Moreno had joined this
meeting late but overheard the employees threaten to walk out.
Anderson responded to the walkout threat by asking who would
walk out. Either Mercado or Muniz stated: “[W]e are all going
to walk out.” Anderson then told the employees that “[t]his
meeting is over” and left. Human resources director Newton
remained behind and asked Vega to stay also. He then told the
employees through Vega that if they walk out “they will be
considered voluntary quit” and that they would be replaced.
Newton then told the employees that the Company was not
“refusing to meet with them on any of their demands” but as of
then the meeting was over.5
Shortly after the July 12 meeting, Moreno spoke with Muniz
in the cafeteria. During their discussion, Muniz explained to
Moreno that the cutting floor workers wanted to process the
combo loins after the in-plant hog production “because it would
get them more pay.” Elsewhere, Anderson stopped Ortiz,
Mercado and other employees in the plant parking lot. Ander-
son began talking with Mercado while the others listened. He
asked Mercado why they were talking about walking out and
told the employees that if they walked out “[i]t might be bad for
them.”
The dispute quickly came to a head when a walkout occurred
the following morning. Moreno and Anderson claim that when

5 At the July 13 meeting discussions about increasing the top wage
rate dropped by the wayside and virtually nothing is known about
Anderson's reaction to complaints concerning Moreno's supervisory
style.
the slasher machine broke down early on July 13 Anderson
authorized Moreno to put out combo loins for processing. Ac-
cording to Anderson, the normal cutting floor work cannot
proceed without an operable slasher machine.6 Purportedly, he
okayed “throwing the loins” in order to prevent idling the 82
cutting floor employees as well as 60 more employees in the
packaging room for the hour or so that would be required to fix
the slasher machine. In sum, Anderson claims that he okayed
work on the loins so this large group of employees would not
be “getting paid for standing around doing nothing.”
The timing of the July 13 events suggests that only a little of
the regular in-plant production occurred that morning before
the combo loins came on to the line. Muniz claims that the loins
were ordered out at around 6:45 a.m., about 15 minutes into the
shift. Newton confirms Muniz’ sense of the time; Anderson,
Newton said, summoned him to the cutting floor scene that
morning and he estimated that he arrived there about 7:15 a.m.
Ortiz recalled that Moreno removed him from his usual station
and ordered him to begin putting out the loins. No one told
employees about the broken slasher machine and, seemingly,
no one told employees that the combo loin work would only go
on for an hour or so until mechanics completed repairing the
slasher machine.
Trouble quickly came. About 10 minutes after the loins came
out, Moreno yelled at Muniz “in a bad way” to pass the loins on
to another line. Muniz reacted to Moreno’s manner by walking
away from the line. He said he left the line in order to seek a
“solution,” to find out why they were doing this after what had
been said in the meetings. As he started to walk toward Mo-
reno, the supervisor told him: “Go to office, get your check and
leave.” Anderson, in turn, asked Muniz for his equipment, an-
other sign that his employment had ended. Ortiz started to fol-
low Muniz and he too was told to get his check and leave. Sev-
eral others then began to walk away from the line. Both Ander-
son and Moreno “start[ed] telling them if they walk out they
will lose their jobs.” This caused some to return to work but
others did not. Newton described the turmoil when he arrived
this way: “John [Anderson] was there. Chet [Coolbaugh] was
there. I didn’t see Luis [Moreno], and I said, ‘Who walked
out?’ John threw up his hands–I don’t know–he just was in a
frenzy.” Newton said that he positioned himself near the time
clock. When the group came out of the locker room he asked to
speak with them but they walked by him and on out of the
plant.7 All told, the following nine employees left with Muniz:
Maria Contreras, Abelino Mercado, Orlando Ortiz, Maria Ortiz,
Elsa Rocha, Maria Rodriguez, Antonia Rodriguez, Isela Tapia,
and Gerardo Velazquez. Nothing shows that these employees
were discourteous or disorderly in any manner.
Some or all of the employees who walked out went to the of-
fice of Elizabeth Salinas, an administrator at the Division of
Latino Affairs in the Iowa Department of Human Rights.
6 Employees cut and bone product along four main lines on the cut-
ting floor. These lines then feed into a single line where other employ-
ees feed the trimmings from the cutting and boning process into the
slasher machine that cuts them into smaller pieces for packaging.
7 Muniz recalled that the employees followed him to the cafeteria
where they remained briefly before leaving the premises.
IOWA PACKING CO. 1143
Muniz again explained that the purpose of this visit was to seek
a “solution.” Salinas called Anderson on their behalf and, fol-
lowing her telephone conversation, she told Muniz that Ander-
son would be willing to meet with the employees but not as a
group.
Newton claims to have hired seven replacement workers on
Monday, July 16. That same morning Muniz called the Com-
pany and asked to meet with Anderson. He was given an after-
noon appointment. When he arrived at the plant, Muniz met
Anderson and Newton. Muniz asked if he had been fired. New-
ton claimed that he explained to Muniz “over and over and over
again” to Muniz that he had not been fired. Finally, Muniz
asked if he could get his job back. Newton explained that they
wanted to “talk to the rest of the people before we made a deci-
sion on that.” However, that decision never happened. Newton
explained that shortly thereafter the Company “started getting
bombarded with lawsuits and unemployment claims” so he told
Anderson “that we’d better not make a decision any way on this
[returning the ten employees to work] because we are going to
be wrong either way we do it.” In addition to Muniz, two others
who walked out on July 13 also called the plant but did not
arrange an in-person meeting.
On July 17, Moreno completed “Status/Payroll Change Re-
ports” for all employees who walked out the previous Friday. In
the space provided to show the reason for the change, he
checked the “Discharged” box. Below that in the space pro-
vided to list a reason, Moreno wrote in his own hand: “Walk off
the line.” He listed July 16 as the effective date of the status
change. These forms in turn resulted in the generation of a
separate computer form kept in the employee’s personnel file.
The attendance section of this latter form also reflects that the
employee had been discharged for walking off the line. Moreno
claimed that he had no authority to discharge employees and
that he never told any July 13 strikers that he or she was dis-
charged. He claimed that he completed the form as he did sim-
ply so the personnel office would remove them from the regular
payroll and “and get new personnel in there.” As far as Newton
was concerned, the ten employees had voluntarily quit their
employment. To date, none have returned to work.
B. Further Findings and Conclusions
Section 8(a)(1) provides that it is an unfair labor practice for
an employer to “interfere with, restrain, or coerce employees”
in the exercise of the rights guaranteed in Section 7 of the Act.
Section 7 provides in pertinent part that employees “have the
right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or
all such activities. . . .” [Emphasis supplied.] Section 10 of the
Act empowers the NLRB to prevent unfair practices affecting
commerce.
1. The rule banning work stoppages
The General Counsel argues that the Company violated Sec-
tion 8(a)(1) by maintaining a rule that prohibits all work stop-
pages save for those “necessary for the production process or
for employee safety.” He contends that the rule, contained in
the widely-distributed Employee Handbook, runs afoul of Sec-
tion 8(a)(1) because it fails to distinguish work stoppages pro-
tected by Section 7 from those not protected and because it
provides for the immediate discharge of employees who violate
the rule.
Respondent appears to rely on Newton’s testimonial claim
that its rule banning work stoppages does not apply to protected
concerted activities and that Respondent did not rely on the rule
when the July 13 work stoppage occurred.
The Board has held that blanket prohibitions against work
stoppages, i.e., those that fail to distinguish between protected
and unprotected work stoppages, violate Section 8(a)(1). Re-
spondent’s work-stoppage rule amounts to the type of overly
broad ban the Board prohibits. Catalox Corp., 252 NLRB 1336,
1339 (1980).
I reject Respondent’s claim it never intended to bar protected
activities by maintaining its rule. Nothing in the rule’s language
suggests that interpretation and any reliance on an agent’s self-
serving claims concerning the rule’s intent would effectively
alter the legal test applicable under Section 8(a)(1). In measur-
ing an employer’s conduct under that provision, the Board and
the courts employ an objective test that seeks to determine only
whether the conduct at issue reasonably tends to interfere with
employees’ exercise of their Section 7 rights. NLRB v.
Hitchiner Mfg. Co., 634 F.2d 1110, 1113 (8th Cir. 1980).
Plainly, by maintaining and widely publishing broad work
stoppage ban, punishable by discharge, an employer interferes
with the free exercise of Section 7 rights. Accordingly, I find
Respondent violated the Section 8(a)(1), as alleged, by main-
taining its work stoppage rule.
2. The July 12 threats
Complaint paragraphs 4(a) and (b) allege that plant manager
Anderson interrogated employees concerning their protected
concerted activities and that he threatened employees with dis-
charge and other unspecified reprisals if employees engaged in
protected concerted activities. These allegations pertain to
Anderson’s remarks to employees Abelino Mercado and Or-
lando Ortiz in the parking lot following the July 12 meeting.8
Complaint paragraph 4(c) alleges that human resources director
Newton unlawfully threatened employees when he told them
that they would be considered to have quit and would be re-
placed if they engaged in a work stoppage. This allegation ref-
erences Newton’s admitted remarks at the conclusion of the
July 12 meeting.
Section 8(c) of the Act provides that “[t]he expressing of any
views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any
of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.” A statement
loses its protected character under Section 8(c) as a reasonable
prediction based on available facts and becomes a threat of
retaliation where there is “any implication” that an employer
may or may not take action solely on his own initiative for

8 In his brief, General Counsel requested to withdraw the interroga-
tion allegation at complaint par. 4(b). That request is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
reasons known only to him and unrelated to economic necessi-
ties. Gissel Packing Co., 395 U.S. 575, 618 (1969).
Anderson’s parking lot remarks on July 12 (“it might be bad
for them”) clearly relates back to Mercado’s statement at the
end of the meeting that employees might walk out if Respon-
dent continued to put out the combo loins before the end of the
regular production. As Anderson abruptly terminated the meet-
ing and left after Mercado’s remark, employees could reasona-
bly perceive that Anderson’s had become angered by
Mercado’s walkout statement and that his utterance in the park-
ing lot amounted to a retaliatory threat rather than a reasoned
prediction. For these reasons, I find Respondent violated Sec-
tion 8(a)(1) as alleged by Anderson’s threat in the parking lot
on July 12.
I have also found that Newton’s threat at the end of the July
12 meeting to treat employees who walk out as having quit to
be unlawful. The Board and the courts consider such statements
as tantamount to threats of discharge. Conair Corp., 261 NLRB
1189, enfd. in relevant part 721 F.2d 1355 (D.C. Cir. 1983).
And see NLRB v. Comfort, Inc., 365 F. F.2d 867 (8th Cir.
1966)—notices to strikers that they were deemed to have quit
their employment is tantamount to notice of discharge regard-
less of the nomenclature used. Viewed in this manner, Newton
effectively threatened to discharge employees if they walked
out as they threatened. Accordingly, I find Respondent violated
Section 8(a)(1), as alleged, by Newton’s “quit” remarks to em-
ployees at the July 12 meeting.
3. The July 13 walkout
Complaint paragraph 4(d) alleges that Anderson and Moreno
violated Section 8(a)(1) by telling employees on July 13 that
they were discharged or considered to have quit because of
their protected concerted work stoppage. Complaint paragraph
5 alleges that Respondent discharged ten named employees in
violation of Section 8(a)(1) because they engaged in protected
concerted activities.
The General Counsel argues that the ten employees engaged
in a strike on July 13 to press their demand for more pay for the
work they perform, i.e., they wanted to be paid additional com-
pensation for processing the combo loins. According to the
General Counsel, the employees withheld their services to pres-
sure Respondent into acceding to their demand over pay. Rely-
ing on Asplundh Tree Expert Co., 336 NLRB 1106 (2001), the
General Counsel contends that this work stoppage in support of
the employee pay demand was protected under the Act and that
Respondent violated Section 8(a)(1) by discharging the ten
employees who walked out on July 13.
Respondent claims that it did not discharge the employees.
Instead, it argues in its brief that “Iowa Pack’s position has
consistently been that the claimants voluntarily resigned as a
result of walking off the job.” [R. Br. 9, par. 55.] In addition
Respondent claims that the employees were engaged in an in-
termittent, or partial strike because they refused to work on the
combo loins except on their own terms, meaning at the end of
the day after the local cutting floor work had been completed or
on an “overtime” basis. Pointing to rationale in NLRB v. Mike
Yurosek & Sons, 53 F.3d 261 (9th Cir. 1995), and Audubon
Health Care Center, 268 NLRB 135 (1983), Respondent claims
that the July 13 walkout was not protected because it amounted
to an attempt by the employees to set their own conditions of
employment.
The Act protects the right of employees to engage in con-
certed activities, including the right to strike without prior no-
tice. NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963); Monte-
fiore Hospital, 621 F.2d 510 (2d Cir. 1980). However, the right
to strike is not absolute. Concerted activity that is unlawful,
violent, in breach of contract, or other wise indefensible is not
protected under Section 7. NLRB v. Washington Aluminum Co.,
370 U.S. 9, 17 (1962). A group protest by employees concern-
ing their wage rates and other conditions of employment consti-
tutes protected activity. Pennypower Shopping News, Inc. v.
NLRB, 726 F.2d 626 (10th Cir. 1984). The Act also protects a
concerted work stoppage to protest a supervisor’s attitude.
Quality C.A.T.V., Inc., 278 NLRB 1282 (1986). An employer
violates the Act by discharging employees for exercising their
right to engage in protected concerted activities. Sierra Publish-
ing Co. v. NLRB, 889 F.2d 210, 215 (9th Cir. 1989).
At the outset, I specifically reject Respondent’s characteriza-
tion of this overall dispute as an attempt by the employees to
dictate their own terms of employment. On the contrary, this
was a pay dispute that grew out of a change recently made by
Respondent whereby it began processing the combo loins in the
morning by the whole crew and as a part of the regular produc-
tion work subject to the guaranteed hours plan. As a result, the
employees who regularly volunteered to remain after regular
production to process the combo loins would have suffered a
loss of pay. In the meetings, employees first spoke of increas-
ing the top pay rate presumably to make up for the losses some
had suffered when the morning processing of the combo loins
started. Increasing the pay rate seems to have never been seri-
ously considered, but returning to processing the combo loins
by volunteers at the end of the day obviously received consid-
erable discussion. Anderson even claims to have told employ-
ees more or less that the combo loins would be held to the end
of the day unless there was an urgent customer need for them
earlier. Although some employees found this to be unaccept-
able compromise, Respondent made no claim that the combo
loin work on July 13 was customer driven.
I find Moreno’s hostile directive to Muniz 10 minutes after
the combo loins came on to the line on July 13 triggered this
work stoppage. Muniz credibly testified that he left the line
only after Moreno had given him an order “in a bad way” for
the purpose of seeking an explanation from Moreno and Ander-
son as to why they were doing this after these precise matters
had been discussed during the meetings held on the past 2 days.
To employees, it surely appeared that Respondent intended to
conduct business as usual with the morning processing of the
combo loins. I find that Muniz’ acted within the protection of
Section 7 at this precise time because his conduct logically
grew out of the concerted activity at the two meetings. Ewing v.
NLRB, 861 F.2d 353, 361 (2d Cir. 1988); Salisbury Hotel, 283
NLRB 685, 687 (1987).
In my judgment, Respondent’s managers and supervisors
executed the production change on the morning of July 13 in
such a foolhardy manner as to cause considerable doubt as to
the purity of their claimed business motives. Even allowing for
IOWA PACKING CO. 1145
the ordinary severity of the slaughterhouse climate, the manner
and tone of that morning comes close to suggesting a deliberate
attempt to provoke a confrontation with the cutting floor em-
ployees. Where, as here, many of these employees had partici-
pated in meetings with Anderson the previous 2 days to grieve
about, and threaten a walkout over, their perceived pay losses
resulting from the change to processing the combo loins in the
morning and the conduct of its allegedly insensitive, rough-
edged cutting floor supervisor, it seems inconceivable that
Anderson and Vice President Coolbaugh could stand by on the
cutting floor, as they appear to have done, while Moreno yelled
orders to start work on the combo loins in his characteristically
harsh manner and for a reason no one bothered to tell employ-
ees about.
If from surrounding circumstances the employer should rea-
sonably see that improvement of working conditions is behind
an employee walkout, it may not penalize the employees in-
volved without running afoul of Section 8(a)(1). NLRB v.
Tamara Foods, Inc., 692 F.2d 1171, 1177 (8th Cir. 1982), quot-
ing with approval from South Central Timber Development,
Inc., 230 NLRB 468, 472 (1977). Here, Anderson and Moreno
effectively fired Muniz, one of the leading spokespersons at the
meetings, as he was about to utter another protest about Mo-
reno’s harsh treatment, as well as the sudden and unexplained
production change, seemingly inconsistent with what the Com-
pany agreed to the previous day. They discharged Ortiz shortly
thereafter and began warning others who walked away that they
would lose their jobs if they failed to return to work. The re-
maining employees who followed Muniz and Ortiz away from
the line received an ultimatum to return to the line or lose their
jobs. In sum, I find this evidence sufficient to cause the em-
ployees who walked out that morning to believe or infer that
they had been discharged because of their protected concerted
activity. Pennypower Shopping News v. NLRB, supra at 629;
Accurate Wire Harness, 335 NLRB 1096 (2001).
My conclusion that employees could reasonably infer that
they had been discharged is also consistent with Respondent’s
overall conduct. Thus, its personnel records reflect the dis-
charge of all 10. Despite the highly self-serving testimony elic-
ited from Moreno to the effect that he lacked authority to dis-
charge employees at the time he completed the status/payroll
change reports, I find that these reports, at the very least, repre-
sent supervisor Moreno’s own contemporaneous perception
that all 10 had been discharged because they walked out. In
addition, Respondent persistently claimed, consistent with
Newton’s threat on July 12 that the employees quit by walking
out, an assertion considered to be functionally equivalent to
discharging employees who engage in a protected work stop-
page. Vanguard Tours, 300 NLRB 250, 251, 254 (1990). Fur-
thermore, when Muniz asked for his job back on July 16, New-
ton hedged and predicated his reinstatement on irrelevant con-
siderations, i.e., Respondent’s discussions with other employ-
ees. As Respondent admittedly hired at best only seven re-
placements by then, its apparent failure to accord Muniz’ rein-
statement request consideration under the Laidlaw doctrine9

9 See Laidlaw Corp., 171 NLRB 1366 (1968), enfd 414 F.2d 99,
cert. denied 397 U.S. 920 (1970).
implies that Respondent did not believe that he had a striking
employee’s rights. Finally, Newton’s admission that Respon-
dent deferred any consideration of returning employees after
being “bombarded with lawsuits and unemployment claims”
essentially implies a permanent employment separation equal to
a discharge. For these reasons, I find Respondent discharged
the 10 employees who walked out on July 13.
Finally, Respondent’s claim that the walkout represented an
intermittent or partial strike lacks merit. Those who walked
away from the line on July 13 left the plant in short order and in
an entirely peaceful manner. No evidence supports the claim of
a partial or intermittent strike. In Polytech, Inc., 195 NLRB 695
(1972), the Board stated that a work stoppage may be found to
be an unprotected intermittent strike if it is “part of a plan or
pattern of intermittent action which is inconsistent with a genu-
ine strike or genuine performance by employees of the work
normally expected of them by the employer.” The total work
stoppage by the ten employees at issue does not meet that defi-
nition. I find, therefore, that Respondent failed to rebut the
presumption that the work stoppage here was protected with
evidence demonstrating that it was part of a plan or pattern of
intermittent action. St. Barnabas Hospital, 334 NLRB 1000
(2001).
Accordingly, for the foregoing reasons I find that Respon-
dent violated Section 8(a)(1) on July 13 by discharging the 10
employees named in the complaint because they engaged in
protected concerted activity and by telling employees who fol-
lowed Muniz and Ortiz that they would lose their jobs if they
walked out.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By maintaining a rule banning work stoppages protected
by Section 7 of the Act; by Newton’s “quit” statement to em-
ployees at the end of the July 12 meeting; by Anderson’s threat
in the parking lot on July 12; by telling employees that they
would lose their jobs if they walked out on July 13; and by
discharging Maria Contreras, Abelino Mercado, Jose Muniz,
Orlando Ortiz, Maria Ortiz, Elsa Rocha, Maria Rodriguez, An-
tonia Rodriguez, Isela Tapia, and Gerardo Velazquez because
they engaged in protected concerted activity, Respondent en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(1) of the Act.
3. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having unlawfully discharged Maria Contreras, Abelino
Mercado, Jose Muniz, Orlando Ortiz, Maria Ortiz, Elsa Rocha,
Maria Rodriguez, Antonia Rodriguez, Isela Tapia, and Gerardo
Velazquez, my recommended order requires Respondent to
offer each of these employees immediate and full reinstatement
to their former position, or if that position no longer exists, to a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
substantially equivalent position, and to make each employee
whole for any loss of earnings and other benefits. Abilities &
Goodwill, Inc., 241 NLRB 27 (1979), enfd. denied on other
grounds 612 F.2d 6 (1st Cir. 1979). Backpay shall be computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In addition, my recommended order re-
quires Respondent to expunge from its records any reference to
the unlawful discharge of the employees named above and to
notify each of them in writing that this action has been take as
provided in Sterling Sugars, Inc., 261 NLRB 472 (1982). Re-
spondent also will be required to remove the current work stop-
page rule from its Employee Handbook.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, The Iowa Packing Company, Des Moines,
Iowa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a rule that prohibits work stoppages pro-
tected by Section 7 of the Act.
(b) Threatening employees by informing them that they will
be deemed to have quit their employment, that bad things will
happen to them, or that they will lose their jobs if they engage
in a work stoppage protected by Section 7 of the Act.
(c) Discharging employees because they engage in a work
stoppage protected by Section 7 of the Act.
(d) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Maria
Contreras, Abelino Mercado, Jose Muniz, Orlando Ortiz, Maria
Ortiz, Elsa Rocha, Maria Rodriguez, Antonia Rodriguez, Isela
Tapia, and Gerardo Velazquez full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Maria Contreras, Abelino Mercado, Jose Muniz,
Orlando Ortiz, Maria Ortiz, Elsa Rocha, Maria Rodriguez, An-
tonia Rodriguez, Isela Tapia, and Gerardo Velazquez whole for
any loss of earnings and other benefits suffered as a result of
their discharge on July 13, 2001, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful July 13, 2001 discharge
of the employees named in 2(a) and (b), above, and within 3
days thereafter notify each of those employees in writing that
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
this has been done and that this discharge will not be used
against her or him in any way.
(d) Within 14 days from the date of this Order, notify each
employee in writing that it will not give effect to the work
stoppage rule in the employee handbook and physically remove
the rule from the current employee handbook before providing
it to any other employee.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Des Moines, Iowa, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 11, 2002.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
IOWA PACKING CO. 1147
WE WILL NOT maintain a rule that prohibits work stoppages
by a group of employees seeking to improve their wages, hours,
and other terms and conditions of employment.
WE WILL NOT threaten our employees by informing them that
they will be deemed to have quit their employment, that bad
things will happen to them, or that they will lose their jobs if
they engage in a work stoppage that seeks to improve their
wages, hours, and other terms and conditions of employment.
WE WILL NOT discharge employees because they engage in a
work stoppage protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL offer Maria Contreras, Abelino Mercado, Jose
Muniz, Orlando Ortiz, Maria Ortiz, Elsa Rocha, Maria Rodri-
guez, Antonia Rodriguez, Isela Tapia, and Gerardo Velazquez
immediate and full reinstatement to their former jobs.
WE WILL make Maria Contreras, Abelino Mercado, Jose
Muniz, Orlando Ortiz, Maria Ortiz, Elsa Rocha, Maria Rodri-
guez, Antonia Rodriguez, Isela Tapia, and Gerardo Velazquez
whole for any loss of earnings and other benefits suffered as a
result of their discharge on July 13, 2001, together with interest
as provided by law and WE WILL remove from our files any ref-
erence to their unlawful discharges and notify each of them in
writing that this has been done and that this discharge will not
be used against her or him in any way.
WE WILL notify each of our employees in writing that we will
not give effect to the work stoppage rule in our employee hand-
book and we will physically expunge the rule from the current
employee handbook before providing it to any other employee.
THE IOWA PACKING COMPANY