Monfort of Colorado, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1981

256 N.L.R.B. 612 (N.L.R.B. 1981)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monfort of Colorado, Inc. and United Food and
Commercial Workers International Union,
AFL-CIO
Industrial, Technical and Professional Employees
Division, National Maritime Union of America,
AFL-CIO and United Food and Commercial
Workers International Union, AFL-CIO. Cases
17-CA-9064 and 17-CB-2126
June 17, 1981
DECISION AND ORDER
On July 11, 1980, Administrative Law Judge Mi-
chael D. Stevenson issued the attached Decision in
this proceeding. Thereafter, Respondents filed ex-
ceptions and supporting briefs, the General Counsel
and Charging Party filed answering briefs,' the
Charging Party filed cross-exceptions and a sup-
porting brief, and Respondent Industrial, Technical
and Professional Employees Division, National
Maritime Union of America, AFL-CIO, filed a
brief in opposition to cross-exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge for the reasons set forth below, 2 to modify
his remedy,3 and to adopt his recommended Order.
We agree with the Administrative Law Judge
that Respondent Monfort of Colorado, Inc., herein-
after the Employer, violated Section 8(a)(1) and (2)
of the Act by giving unlawful assistance and sup-
port to Respondent Industrial, Technical and Pro-
fessional Employees Division, National Maritime
Union of America, AFL-CIO, hereinafter NMU,
and by recognizing NMU and entering into a con-
tract with it on June 14, 1979, 4 at a time when
NMU did not represent an uncoerced majority of
the Employer's employees. 5 Consequently, every-
We hereby deny the General Counsel's motion to strike those exhib-
its attached to the brief filed by Respondent Monfort of Colorado, Inc..
which pertain to a contract involving MBPXL, Inc.
2 Because we agree that the evidence produced at the hearing is sub-
stantial and proves the charges alleged in the complaints, we do not
reach the Administrative Law Judge's determination to draw no adverse
inference from the Respondents' failure to produce subpenaed witnesses.
and his decision to rely on secondary evidence only to corroborate pri-
mary evidence.
3 The Administrative Law Judge erroneously recommended that inter-
est on moneys to be reimbursed to employees by the Respondents be
computed at the rate of 6 percent per annum. Rather, interest on all such
sums shall be paid in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Iis Plumbing & IIeating Co., 138
NLRB 716 (1962).
Member Jenkins would compute the interest due in accordance with
his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980(I).
4 All dates hereinafter refer to 1979, unless otherwise indicated.
' Since the overwhelming evidence of unlawful Employer assistance of
NMU is sufficient to taint its June 14 recognition of the Union, we need
not reach the question of whether that recognition also was unlawful be-
cause the Employer failed to remain neutral as to the competing claims
of NMU and a rival Union, United Food and Commercial Workers Inter-
national Union, AFL-CIO, hereinafter UFCW. Accordingly. we find it
256 NLRB No. 98
thing flowing from that contract, including the
checkoff of NMU dues from employees' paychecks
and the August 20 agreement covering the produc-
tion and maintenance employees, likewise constitut-
ed unlawful assistance and support to Respondent
Union.
We also agree with the finding of the Adminis-
trative Law Judge that NMU violated Section
8(b)(1)(A) of the Act by accepting such unlawful
assistance and recognition from the Employer.
In finding that the June 14 recognition and con-
tract were unlawful, the Administrative Law Judge
did not always clearly distinguish between pre- and
post-June 14 events, but rather tended to intertwine
them. Thus, in the interests of clarity, we will sum-
marize the Respondents' conduct (described in
more detail in the Administrative Law Judge's De-
cision) occurring before the June 14 contract on
which we rely in making our findings herein.
This case involves the Employer's meat packing
and processing plant in Grand Island, Nebraska.
Prior to the Employer's commencement of produc-
tion at the plant on August 20, the facility was op-
erated by another meat packer, Swift and Compa-
ny. For the 13 years preceding Swift's termination
of operations on June 15, its production and main-
tenance employees were represented by the Amal-
gamated Meat Cutters and Butcher Workmen of
North America. 6 This same Union also represents
employees at the Employer's main plant in Gree-
ley, Colorado, located about 450 miles from the
plant involved herein.
The Employer purchased the facility from Swift
in early 1979, and in February began to build an
addition to the plant. In this connection, the Em-
ployer hired construction workers, with the under-
standing that these workers would receive prefer-
ential consideration as production and maintenance
employees when the Employer started its meat
processing operations that summer.
In early June, two representatives of NMU--
Ray Zaporowski and Tom Blessie-began to solicit
signed authorization cards from employees at the
facility during working hours. Zaporowski and
Blessie were aided in their solicitation by John and
Steve Hiatt, who were employees of the Employer.
In their organizational activities, all four had virtu-
ally unlimited access to the plant and to the Em-
ployer's construction employees at all hours of the
unnecessary to address herein the issue raised by the doctrine enunciated
in Midwe.st Pping & Supply Co.. Inc.. 63 NLRB 106) (1945).
' The lame of the Union prior to its merger with the Retail Clerks
International Union to form the UFCW
MONFORT OF COLORADO, INC. 613
day for the purpose of obtaining signed authoriza-
tion cards. 7
These organizing activities were carried out on
the Employer's premises during working time with
the approval of, and frequently in the presence of,
supervisors of the Employer. One example of how
far the Employer was willing to go in assisting the
Union occurred on June 14, when all the Employ-
er's managers and supervisors left the plant togeth-
er for an extended lunch of approximately 2 to 3
hours, thereby providing the NMU organizers with
an opportunity to solicit cards unhindered. The
purpose of this mass exodus was made clear by a
foreman who told an employee just before this
lunch that all the foremen and supervisors were
going to leave so that NMU could have the "run
of the plant," and employees could talk freely with
the NMU representatives.
In the circumstances of this case, the extraordi-
nary and unfettered access to the Employer's facili-
ty given to persons soliciting cards for NMU, cou-
pled with the direct pressure of employees being
solicited while supervisors watched approvingly,
constituted unlawful assistance by the Employer to
NMU. Such conduct by the Employer delivered
the clear message to employees that the Employer
wanted them to choose NMU as their bargaining
representative.
In addition to the unlawful assistance given by
the Employer to NMU in its solicitation of cards,
certain statements and misrepresentations made by
NMU organizers to employees also had the effect
of coercing them into designating NMU as their
representative and of tainting the Union's majority,
if it ever existed.
For example, NMU organizers obtained some
cards on the misrepresentation that a collective-
bargaining agreement already had been signed. On
other occasions while soliciting cards, NMU orga-
nizers told employees that the contract was being
typed up at that moment, thus leading them to be-
lieve that signing a card was a mere-albeit neces-
sary-formality because NMU already was their
bargaining agent.
Further, prior to the June 14 recognition, NMU
representatives advised some employees that if they
signed a card they would be guaranteed a job in
production once the construction phase was com-
pleted, and that, if they did not sign a card, no
promise could be made about future employment.
In the context of this case, these latter inducements
differed greatly from the usual permissible asser-
tions that employees would attain more job secu-
7 For example, the Administrative Law Judge found that the Hiatts
were permitted to take longer lunch hours and leave work earlier than
other employees, and that the Hiatts told a fellow employee that they
were getting paid 100 per week to get signatures for NMU.
rity as a result of union representation. As men-
tioned above, the employees being solicited by
NMU prior to June 14 were hired for construction
work of limited duration, with only the promise of
preferential consideration for future employment,
and therefore references to their continued employ-
ment in a production or maintenance job necessar-
ily took on much significance.
Thus, unlike the normal situation, where an orga-
nizing union lacks the ability to carry out threats of
possible job loss, here the NMU threats carried
considerable weight inasmuch as they were direct-
ed toward individuals who were not yet perma-
nently employed, and who were well aware of the
Employer's support for NMU. While the exact
number of cards affected is unknown, the Adminis-
trative Law Judge found, and we agree, that these
NMU statements, as well as the Employer's unlaw-
ful assistance, tainted the cards to such an extent so
as to negate any possibility that a majority of the
cards were uncoerced.
On the same day-June 14-that the Employer
granted recognition to NMU (purportedly on the
basis of the tainted cards), the parties negotiated,
agreed on, and executed a collective-bargaining
agreement, which contained, inter alia, a dues-
checkoff provision.8 In light of the unlawful assist-
ance and coercion previously referred to, the par-
ties' hasty movement from demand for recognition
to signing of a contract is further evidence that
they felt compelled to act quickly, regardless of
whether the NMU actually represented an un-
coerced majority, in order to avoid any claim for
recognition and bargaining by a rival union, par-
ticularly the UFCW, the Union which represented
the Swift employees and the Employer's employees
at its Greeley plant.
In our view, the combination of unlimited access
to the Employer's facility provided to NMU, the
direct pressure on employees of being solicited by
NMU while supervisors watched with approval,
the misleading and threatening statements made to
employees by NMU organizers, and the rapid and
unverified grant of recognition by the Employer
reasonably tended to coerce employees in the exer-
cise of their free choice in selecting a bargaining
representative and tainted the Union's majority
showing. The situation here is very similar to that
presented in Vernitron Electrical Components, Inc.,
Beau Products Division, 221 NLRB 464 (1975),
8 The collective-bargaining agreement is undated and the signatories to
it refused to comply with subpenas directing them to appear at the hear-
ing in this proceeding. We find that it was executed on June 14, since it
purports to be effective from June 14, 1979, through June 14, 1982, and
the Respondents' conduct subsequent to June 14-particularly the start of
checkoff-gives rise to the inference that the agreement was executed on
that date
MONFORT F COLORADO. INC.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where the Board found a less flagrant combination
of factors to invalidate an employer's recognition
of, and execution of a contract with, a union.9
We conclude, therefore, that the June 14 collec-
tive-bargaining contractso was the product of a co-
erced majority and unlawful Employer assistance
and recognition of NMU. As noted above, every-
thing resulting from that contract, including the
checkoff of NMU dues and the August 20 agree-
ment concerning the production and maintenance
employees, also was invalid. Accordingly, we find
that the Employer has violated Section 8(a)(1) and
(2) of the Act, and NMU has violated Section
8(b)(l)(A) of the Act, and Respondents must cease
giving effect to the aforesaid collective-bargaining
agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that Respondent Monfort of Colora-
do, Inc., Grand Island, Nebraska, its officers,
agents, successors, and assigns, and Respondent In-
dustrial, Technical and Professional Employees Di-
vision, National Maritime Union of America,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order, except the attached notice is substi-
tuted for that of the Administrative Law Judge.
9 See, also, Tuschak/Jacobson, Inc. r/a Franklin Convalescent Center,
223 NLRB 1298 (1976); Howard Creations, Inc., 212 NLRB 179 (1974);
Yankee Department Stores, Inc., a Subsidiary of Hartfield-Zodys Inc.,
d/b/a Zodys, Elkhart, Indiana, 211 NLRB 306 (1974); Allied Supermar-
kets. Inc.-Allied Discount Foods Division, 169 NLRB 927 (1968).
'O NMU's organizing efforts continued on through the summer until
production began on August 20. On that date, the parties signed a
"Memorandum of Understanding" which purported to expand the June
14 construction employees contract to include the production and mainte-
nance employees recently hired by the Employer. Because we find the
June 14 contract to be unlawful, we find that any attempt to expand that
contract to cover other employees was invalid. Consequently, we need
not determine whether the August 20 document constituted a proper ac-
cretion clause.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give unlawful assistance and
support to National Maritime Union during a
union-organizing campaign, such as unequal
access to plant premises and such as supervisor
coercion of employees.
WE WILL NOT assist or contribute support to
the National Maritime Union by recognizing
or contracting with such labor organization as
the bargaining representative of our employees
at the plant at Grand Island, Nebraska, unless
and until it has been certified as such repre-
sentative by the National Labor Relations
Board.
WE WILL NOT give effect, at the plant at
Grand Island, Nebraska, to our contract with
the National Maritime Union, or to any renew-
al, extension, modification or supplement
thereof, but we are not authorized or required
to withdraw or eliminate any wage rates or
other benefits, terms, and conditions of em-
ployment which we have given to our em-
ployees under said contract.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them in
Section 7 of the Act.
WE WILL withdraw and withhold all recog-
nition from the National Maritime Union as
the collective-bargaining representative of our
employees at the plant at Grand Island, Ne-
braska, until such time as National Maritime
Union shall have been certified by the Board
as the collective-bargaining representative of
the employees in question.
WE WILL jointly and severally with the Na-
tional Maritime Union, reimburse all our em-
ployees, former and present, employed at the
plant at Grand Island, Nebraska, for dues and
moneys unlawfully exacted from them under
our contract with that union, with interest.
MONFORT OF COLORADO, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT receive unlawful assistance
and support from Monfort of Colorado, Inc.,
during a union organizing campaign, such as
unequal access to plant premises and such as
supervisor coercion of employees.
WE WILL NOT give effect, at the plant at
Grand Island, Nebraska, to our contract with
Monfort of Colorado, Inc., or to any renewal,
extension, modification, or supplement thereof.
WE WILL NOT act as collective-bargaining
representative of the employees at the plant at
Grand Island, Nebraska, unless and until we
MONFORT OF COLORADO, INC. 615
have been certified by the Board as such rep-
resentative.
WE WILL NOT threaten employees employed
at the plant at Grand Island, Nebraska, that
they will lose their jobs if they do not join the
National Maritime Union.
WE WILL NOT in any other manner restrain
or coerce employees in the exercise of their
rights guaranteed them in Section 7 of the
Act.
WE WILL jointly and severally with Monfort
of Colorado, Inc., reimburse all of the employ-
ees, former and present, employed at the plant
at Grand Island, Nebraska, for dues and other
moneys unlawfully exacted from them under
our contract with Monfort of Colorado, Inc.,
with interest.
INDUSTRIAL, TECHNICAL AND PRO-
FESSIONAL EMPLOYEES DIVISION,
NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me at Grand Island, Nebras-
ka, on January 8, 9, and 10, 1980,1 pursuant to a com-
plaint issued by the Regional Director for Region 17 of
the National Labor Relations Board on August 30, and
which is based upon a charge filed by the International
representative of United Food and Commercial Workers
(herein called UFCW) on July 16. Amended charges
were filed on August 27, and an amendment to the com-
plaint was filed on October 19. At hearing, the complaint
was amended further at the close of the General Coun-
sel's case. The complaint alleges that Respondents, Mon-
fort of Colorado, Inc. (herein called Monfort), and In-
dustrial, Technical and Professional Employees Division,
National Maritime Union of America, AFL-CIO (herein
called NMU), have engaged in certain violations of Sec-
tion 8(a)(l), (2), and (3) and Section 8(b)(1)(A) and (b)(2)
of the National Labor Relations Act, as amended (herein
called the Act).
Issues
1. Whether Respondents Monfort and NMU violated
Sections 8(a)(l) and (2) and 8(b)(1)(A) of the Act, re-
spectively:
(a) By Monfort providing and NMU accepting unlaw-
ful assistance and support during a union organizing
campaign while at the same time discriminating against
UFCW, a competing union.
(b) By Monfort providing and NMU accepting recog-
nition on or about June 14 and by both Respondents bar-
gaining and signing a collective-bargaining agreement,
when NMU did not represent a majority of Monfort em-
] All dates herein refer to 1979 unless otherwise indicated
ployees or, alternatively, when NMU did not represent
an uncoerced majority of Monfort employees, or when
Monfort did not employ a representative segment of its
ultimate employee complement.
(c) By Monfort providing and NMU accepting an ex-
panded recognition on or about August 20, pursuant to
an invalid accretion clause purporting to accrete a pro-
duction and maintenance unit into a construction unit.
(d) By Monfort maintaining an invalid dues-checkoff
provision and NMU accepting the benefits of said provi-
sion.
2. Whether Respondent Monfort violated Section
8(a)(1) of the Act when one of its supervisors made a co-
ercive statement to an employee relative to the futility of
supporting UFCW.
3. Whether Respondent NMU violated Section
8(b)(1)(A) of the Act when one of its agents threatened a
Monfort employee with loss of employment if she failed
to support NMU; and
4. Whether the General Counsel may rely upon ad-
verse inferences and secondary evidence in this case, and
if so, to what extent.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Charging Party, and
Respondents Monfort and NMU.2
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE EMPLOYER'S BUSINESS
Respondent admits that the Employer is a corporation
engaged in the meat slaughtering and processing business
and having a place of business located in Grand Island,
Nebraska. It further admits that during the past year, in
the course and conduct of its business, the Employer has
purchased and received goods and services valued in
excess of $50,000 from sources outside the State of Ne-
braska. Accordingly, it admits, and I find, that the Em-
ployer is engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6),
and (7).
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union, Industrial, Technical and Profes-
sional Employees Division, National Maritime Union of
America, AFL-CIO (herein NMU) admits, and I find,
that it is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2 Respondent Monfort has appended to its brief an exhibit never of-
fered nor admitted at the hearing. This is clearly improper N.LR.B. v.
Big Bear Supermarkets, 103 LRRM 3120, 88 LC F11,998, fn I (9th Cir.
1980) I will strike the document from the record and give it no consider-
ation in deciding this case.
MONFORT OF COLORADO. INC
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Preliminary events
Prior to the hearing, the General Counsel had subpen-
aed three adverse witnesses, Gene Meakins, vice presi-
dent of industrial relations for Monfort, and Ray Zapor-
owski and Tom Blessie, two union organizers for NMU.
In addition, both the General Counsel and the Charging
Party had subpenaed certain documents from Respond-
ent. After technical objections to the subpenas were
overruled, Monfort persisted in its refusal to produce
Meakins and the documents in question, substituting fifth
amendment grounds for the previously asserted technical
objections. Ultimately Monfort produced no witnesses at
all; its few exhibits will be discussed below. Like Mon-
fort, NMU persisted in its refusal to produce its organiz-
ers on fifth amendment grounds. Also like Monfort,
NMU produced no witnesses. As to documents, NMU
did turn over some of what the General Counsel had
subpenaed. Counsel for NMU asserted that it turned
over all the documents which NMU had. However, the
General Counsel refused to accept these assertions from
counsel, claiming that it needed to examine Zaporowski
and Blessie for the purpose of exploring the reasons for
the missing documents.
As a preliminary matter, I reiterate my holding at the
hearing that the General Counsel's and the Charging
Party's subpenas were valid. I also hold that the General
Counsel had every right to reject the unsworn declara-
tion of NMU's counsel that he had produced all relevant
documents in NMU's possession. In fact, counsel ad-
mitted that he had no personal knowledge of the docu-
ments and was merely repeating what he had been told
by Zaporowski and Blessie.3
After Respondents refused to comply with the sub-
penas as I had directed them to do, the General Counsel
and the Charging Party elected to proceed to hearing
without seeking a district court order enforcing the sub-
penas. At the close of the General Counsel's case, the
Charging Party requested 2 weeks' time after the conclu-
sion of the hearing to decide whether to seek subpena
enforcement. This request was denied. Respondents also
elected to proceed to hearing without requesting a spe-
cial appeal to the Board of my order holding the sub-
penas to be valid. I quote from the record:
Mr. Sykes: . . . Would you give us leave to take
this matter to the Board under Section 11(1) of the
Act and pursuant of [sic] the authority of National
Labor Relations Board in DuVal Jewelry Company,
which is a decision of the United States Supreme
Court.
JUDGE STEVENSON: I may do that. I'd like to
hear what the other parties have to say; . . .
The matter was not raised again during the hearing. In
the "Analysis and Conclusions" section of this Decision,
I will return to the issues raised by these preliminary
3 Of course, statements of counsel at hearings are not evidence. Cf.
Skyline Corporation v. N.L.R.B, 613 F.2d 1328 (5th Cir. 1980).
matters including but not limited to the question of
proper use of adverse inferences and secondary evidence
found in this case. I turn now to the facts of the case
which I find to be for the most part undisputed.
2. History and background
For several years, Swift and Co. owned and operated
a meatpacking and processing plant in Grand Island, Ne-
braska. In early 1979, Swift employees received notice
that Swift was closing down its plant, effective in July.
For approximately 13 years, Swift production and main-
tenance employees (hereinafter P & M), were represent-
ed by the Amalgamated Meat Cutters & Butcher Work-
ers of America, a predecessor union to UFCW. The con-
tract expired with the demise of Swift and Co.
Monfort was a competitor of Swift and sometime in
late 1978 or early 1979, Monfort purchased the Swift
premises. Beginning in February, or possibly before,
Monfort began to construct an addition to the Swift
plant, and for this purpose hired a number of employees
as construction workers, with the understanding that,
when production began in the summer, these construc-
tion employees would receive preferential consideration
as production and maintenance employees. Many Swift
employees, including foremen and supervisors, ultimately
went to work for Monfort, but there is no issue as to
successorship.
The nearest Monfort plant to Grand Island was locat-
ed at Greeley, Colorado, a distance of about 450 miles.
The Monfort employees at Greeley were represented by
the UFCW and, since approximately November 1, up
through the time of the hearing, were engaged in a bitter
strike. At Grand Island, the UFCW and a competing
union, the NMU, were attempting to organize Monfort
employees.
3. The organizing campaign
Apparently sometime on or about June 14, Meakins,
on behalf of Monfort, and Zaporowski on behalf of
NMU, purported to enter into a collective-bargaining
agreement subsequent to Monfort having recognized
NMU as the sole bargaining agent of Monfort's construc-
tion employees. While the "contract" is undated, it pur-
ports to be effective from June 14 through June 14, 1982.
(G.C. Exh. 2.) Production began at the Monfort plant on
or about August 20. On that date, a handwritten memo-
randum of understanding was executed by Meakins for
Monfort, and Blessie for NMU, which purported to
expand the earlier "collective-bargaining agreement" to
include "all regular, full-time hourly production and
maintenance employees" at Monfort's Grand Island
plant.
There is no evidence that any Monfort employees met
to discuss the "contract," or voted to ratify the "con-
tract." Copies of the "contract" were not distributed to
employees, although when its existence and contents
were mentioned by various NMU organizers, several em-
ployees requested a copy. None was ever provided. I
turn next to the organizational efforts of the two unions
which differed sharply in method.
- --- ---- ---- -
MONFORT OF COLORADO, INC. 617
Former Swift employee and UFCW chief steward at
Swift for 5-1/2 years, Robert Petr, testified that in mid-
May he began distributing union authorization cards to
Swift employees. In early June, he began distributing the
cards to Monfort employees. Although Petr and other
Swift employees had been scheduled to work through
July 2, they were terminated on June 15 for lack of
work. All employees were paid for the final 2 weeks of
June, but were not required to report. Organizing meet-
ings for UFCW were held after work, most often at a
local bar, at a local Holiday Inn, and occasionally at pri-
vate homes. I find that the first of these meetings with
Monfort employees was held on June 13 and was fol-
lowed by several others.4 The routine was generally the
same. Frank Jackson, a UFCW organizer, came to
Grand Island on May 21, and attended the first meeting
of Swift employees, numbering 65 to 70, at the Grand
Island Labor Temple. Employees were usually asked to
sign in on sheets provided for that purpose. Jackson and
others explained the benefits of their union. When the
meetings were held at the local bar, drinks were served
at Jackson's expense. All attendees were asked to sign
UFCW authorization cards and some did.
When Jackson attempted to distribute flyers in the
parking lot at the Monfort plant, he was not welcomed.
On July 23, he was requested by company officials to
handbill off company premises, or the police would be
called. In addition to the large parking area off the
street, Monfort maintained a guard shack which screened
all persons seeking to enter the company plant from the
parking area. No nonemployees were admitted unless on
proper business. At the time of the dispute with compa-
ny officials, Jackson was in the parking area. At another
time in July, Jackson was threatened by an unknown
person in a pickup truck if he continued to handbill for
UFCW at Monfort.
In early July, Jackson had delivered a letter personally
to the Monfort plant asking for jobs for the former Swift
employees who had been represented by UFCW. In
order to deliver the letter, Jackson was admitted by the
guard and delivered the letter to the Monfort construc-
tion superintendent.
As a result of his organizing efforts, Jackson collected
approximately 125 cards prior to August 20. On Septem-
ber 12, Jackson filed a petition for election with the
NLRB office in Kansas City, but no election was ever
held. Jackson's experiences at Monfort should be com-
pared to NMU organizers who, to say the least, had
somewhat more success in penetrating Monfort's plant.
4 Respondents contend that the first meeting was held on June 14, sub-
sequent to Monfort's recognition of NMU and execution of the collec-
tive-bargaining agreement. They also argue that this meeting was the first
evidence of the UFCW organizing drive. The -day difference in dates
does not seem material to me for two reasons. First, I will find that Mon-
fort had knowledge of the UFCW organizing drive prior to June 14 from
the evidence of record other than the June 13 meeting: eg., Jackson's
presence in town since May 21, his meeting with Swift employees on the
same date, and Petr's solicitation of signatures on authorization cards
from both Swift and Monfort employees. Second, due to Respondent's
failure to produce the signatories to the agreement, it was not possible for
the General Counsel to prove that said agreement was indeed executed
on June 14. It was undated I am not at all convinced, in the context of
this case, that it was executed on that date It may well have occurred
subsequent to June 14
The evidence shows that NMU had four primary or-
ganizers at Monfort, Zaporowski, Blessie, and two broth-
ers named Hiatt. The latter two were apparently on the
Monfort payroll and performed some work for Monfort.
A witness named Rae Melgoza, a current Monfort em-
ployee, testified that the Hiatts told her they were get-
ting paid $100 per week to get signatures for NMU. The
Hiatts, as well as Zaporowski and Blessie, had virtual un-
limited access to the plant and to Monfort employees for
the purpose of getting authorization cards signed. The
Hiatts were able to take longer lunch hours and leave
earlier than the other Monfort employees. All four were
permitted by Monfort management to engage employees
in the plant during worktime in conversation relative to
NMU. On or about June 14, all Monfort managers and
supervisors went to a local Ramada Inn for an extended
lunch. According to the testimony of former Monfort
employee Harold Lawrence, this was for the purpose of
giving the NMU organizers even more extra time to visit
employees and get cards signed. 5 Lawrence had been
told this by his foreman.
In addition to the unlimited access to the plant at all
hours of the workday, NMU organizers had the benefit
of certain statements made by company management and
by the NMU organizers themselves which substantially
assisted the NMU campaign. In late July or August, all
members of the Monfort construction crew were invited
to the local Ramada Inn for dinner. While there, they
were addressed by Ken Monfort, the owner of Respond-
ent Monfort of Colorado, Inc. Among other statements,
Monfort told his employees that there was a binding
contract with NMU which the employees should be sat-
isfied with and let the plant get into operation and make
some money. As to the UFCW, Monfort stated that their
high wage demands were putting him in a position
where he could not be competitive.
Mark Peterson, a current Monfort employee, described
similar remarks made to him in late August by Howard
Braden, a plant superintendent. Braden told Peterson that
Braden would not hold it against Peterson for supporting
UFCW. Then Braden gave Peterson "a little advice,"
telling him that everywhere UFCW was, plants were
closing because they were paying employees too much.
As the construction phase drew to conclusion, many
employees were called in to individual meetings with su-
pervisors for the ostensible purpose of asking which pro-
duction job they preferred to have when production
began. Often the subject of unions arose and, when it
did, Monfort supervisors frequently told employees that
the Company had recognized the NMU and there was a
binding contract for the next 3 years, or that the NMU
would be representing employees when production
began, or words to that effect. When discussing the
UFCW, Monfort supervisors were more negative in their
remarks. For example, in early August a Monfort fore-
" Another striking example of the freedom accorded to NMU organiz-
ers was provided by current Monfort employee Michael Hawley In testi-
mony that was ever disputed, Hawley described how he and several
other Monfort employees were working on a roof putting on trim when
the two Hiatt brothers came up on the roof and began explaining the
benefits of NMU membership and asking employees to sign NMU author-
ization cards
MONFORT F COLORADO, INC.
v f
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man called a meeting of all construction employees
working on the kill floor. The foreman said he was re-
quired to be neutral on union disputes, but he had dis-
tributed some questions for employees to ask UFCW or-
ganizer Jackson, and a list of plants that Jackson was al-
legedly involved with. Jackson was also discussed in an
unfavorable way. Then employees were advised to disre-
gard any UFCW picket line which might appear at Mon-
fort or the Company would find someone who would
disregard it. On another instance in late October or early
November, a Monfort supervisor called a meeting of
about 150 to 200 employees employed in the Monfort
beef fabrication division. The supervisor told employees
to disregard all flyers and rumors around the plant relat-
ing to UFCW and Jackson, that employees should cross
any UFCW picket lines which might appear and to
report for work, that anyone who did not cross the
picket lines might be fired, and that Jackson has been as-
sociated with violence.
Finally, the record is replete with statements made by
NMU organizers to Monfort employees who were being
asked to sign union authorization cards. These statements
included claims that the NMU would get certain raises
and bonuses of a definite nature once all the cards were
signed,6 that the signer would be guaranteed a job in
Monfort's production once construction was over, that
the terms of the contract had already been agreed to,
that the contract was being typed up at that moment,
and similar types of representations. NMU never held
any meetings with employees nor did any employee vote
on the contract. It was stipulated that the NMU had 52
signed cards bearing dates prior to June 14. 7
B. Analysis and Conclusions
1. Unlawful assistance and support
Fourteen witnesses testified at the hearing and all but
two of them were present or former Monfort employees.
In virtual unanimity, they described how the four NMU
organizers had almost complete freedom in Monfort's
Grand Island plant to discuss their union with employees
and to gather signatures of employees on authorization
cards. These activities frequently occurred during work-
time. On one occasion, supervisors and managers vacated
Monfort premises for an extended lunch period so that
NMU organizers had even greater opportunities to
engage in union activities. It is not an unfair labor prac-
tice by itself for an employer to permit a union to use its
premises to conduct organizational business, but the
granting of such access or privilege can be a factor in
the finding of an unfair labor practice under Section
8(a)(2) of the Act in connection with other evidence
showing employer support. s Some of the "other evi-
6 In fact, the collective-bargaining agreement contained all or most of
the provisions promised to employees by NMU organizers as they were
soliciting signatures on authorization cards.
I Several of the employees testified that they had signed cards for both
the NMU and the UFCW at about the same time.
s N.L.R.B. v. Magic Slacks. Inc., 314 F.2d 844 (7th Cir. 1963): Book-
land Inc., 221 NLRB 35 (1975).
dence" present here includes speeches and statements of
support for NMU made by Ken Monfort, Respondent's
owner, and other Monfort supervisors and managers to
Monfort employees.
Of particular importance in judging the significance of
NMU privileges and access is whether the Employer dis-
plays contrasting treatment of competing unions.9 As de-
scribed in "The Facts," not only did company officials
impugn UFCW, they also made inflammatory statements
about the UFCW's chief organizer, Jackson, thereby fur-
ther undermining the UFCW. Neither Jackson nor any
other UFCW official was permitted access to company
premises to engage in union organizing. In fact, on one
occasion, Jackson was not even permitted to distribute
UFCW handbills to employees on nonworktime in the
company parking lot.
Based on the above analysis, more specifically detailed
in "The Facts" portion of this opinion, I find that Re-
spondent Monfort violated Section 8(a)(2) of the Act by
completely and unmistakenly abandoning its neutral role
in the campaign between UFCW and NMU. The case of
Vernitron Electrical Components, Inc., 221 NLRB 464
(1975), enfd. 548 F.2d 24 (Ist Cir. 1977), also supports
this finding. I agree with the General Counsel that the
facts and circumstances of Vernitron are much less fla-
grant than found in the instant case. The Board noted in
its decision that while there were no employer threats or
promises and other labor organization involved-all of
which are present here in aggravation of the circum-
stances-nevertheless, the direct and indirect employer
pressures, coupled with the instantaneous and unverified
grant of recognition to the Union, reasonably tend to
coerce employees in the exercise of their free choice in
selecting a bargaining representative. 0
Monfort argues in its brief that in permitting greater
access to the facility to NMU than to UFCW it was
merely complying with article 25 of the collective-bar-
gaining agreement" which was valid and, in any event,
Monfort was not aware of any conduct by NMU agents
inconsistent with its right of access to the facility. This
argument has several flaws. First of all, I will hold the
contract is void for reasons stated below. Next, even if it
was valid, some of the unequal access occurred prior to
its effective date and was in large measure responsible
for the agreement to begin with. Finally, the NMU orga-
nizers were not on the premises to inspect working con-
ditions nor to carry out the terms of the agreement.
They were there to get cards signed and in so doing they
interfered with operations contrary to the terms of arti-
9 48 Am. Jur. 2d, Labor and Labor Relations, secs 887, 903: N.L.R.B.
v. Mark J Gerry, Inc., 355 F 2d 727 (9th Cir. 1966), cert. denied 385 U.S.
820.
'o See also Tuschak/Jackson, Inc., /a Franklin Convalescent Center,
223 NLRB 1298 (1976); Wemyss v. N.L.R.B., 212 F2d 465 (9th Cir.
1954).
" Art. 25 reads as follows:
Union Visitation
Union representatives shall have the right to visit the work place,
to inspect working conditions, and to generally carry out the terms
of this agreement, providing they report to a designated company
representative upon entering the premises and so long as such visits
do not interfere with operations
. . A
MONFORT OF COLORADO, INC. 619
cle 25. In addition, the testimony at the hearing showed
several examples of NMU worktime solicitation occur-
ring in the presence of and, on one occasion, with the
express permission of Monfort supervisors. Therefore,
this defense must be rejected.
2. Monfort's recognition of NMU (construction
unit)
On the facts of this case, I find that Monfort recog-
nized NMU at a time when UFCW was a substantial
competing union and the employees' choice between
them was in doubt. Alternatively, I find that if majority
support for the NMU did exist, it was the result of un-
lawful coercion. Each of these findings will be discussed
in turn.
It was stipulated that NMU had 52 signed cards bear-
ing dates prior to June 14. The number of employees in
the bargaining unit was between 75 and 100. Most of the
signed cards bore dates of June 13 and June 14; most or
all of the cards were obtained by the NMU organizers
operating on Monfort time and at Monfort premises. The
General Counsel argues that "The Respondent Employer
recognized and signed a contract with the Respondent
Union on or about June 14." As stated in footnote 4 of
this Decision, I make no such finding. Assuming, without
deciding, that such was the case, I do find that Monfort
had knowledge of the UFCW organizing campaign.
Jackson arrived in town on May 21 and immediately or-
ganized a meeting of Swift employees at a local union
hall. Then on June 13 several Monfort construction
people attended a UFCW meeting at a local bar. Even
discounting these two meetings, I find knowledge by
Monfort of the UFCW organizing effort. This union had
represented the Swift employees for many years. The
Swift foremen obviously were aware of this. Many of
the Swift foremen were hired by Monfort and their
knowledge of the UFCW organizing activity is imputed
to Monfort. This is so even if some of the supervisors did
not begin work at Monfort until a time subsequent to
June 14, the assumed date of recognition. I so hold be-
cause the evidence in this case convinces me that as
Swift was in the process of winding up its business, the
Swift supervisors had Monfort interests in mind. For ex-
ample, the continued effort to segregate the Swift
UFCW people from the Monfort construction crew, in
the context of this case, reflects the supervisors' interest
in obstructing the UFCW organizing drive. 2 A final im-
portant factor showing Monfort knowledge of the
UFCW campaign prior to June 14 is the fact that UFCW
represented Monfort employees at Greeley. Thus I
cannot believe that Monfort was unaware of the fact that
UFCW was attempting to represent its Grand Island em-
ployees.
:2 Respondents argue that the reason for this was due to safety consid-
erations. I cannot discount this as a factor. However, in light of the fact
that UFCW had historically represented the Swift employees and that ;ill
or most of the Monfort construction employees were soon to be produc-
tion and maintenance employees, it was clear to me that Monfort did not
want the Swift UFCW employees tainting the construction employees
This was the primary reason for keeping the two groups of employees
apart
In light of Monfort's knowledge of the UFCW orga-
nizing drive, I find the case of Midwest Piping & Supply
Co., 63 NLRB 1060 (1945), directly applicable to the in-
stant case. Thus, an employer violates Section 8(a)(l) and
(2) of the Act when it recognizes and bargains with a fa-
vored union at a time when another union is asserting a
claim of substantial employee support. A later case,
Playskool, Inc., 195 NLRB 560 (1972), enforcement
denied 477 F.2d 66 (7th Cir. 1973), is also applicable
here. It held that a question of representation is raised,
under the Midwest Piping doctrine whenever the claim of
the rival union is not "clearly unsupportable and lacking
in substance," and such a union need not even have
made a formal request for recognition. Playskool is par-
ticularly helpful here because the contract between Mon-
fort and NMU was never publicized, distributed, nor of-
ficially announced to employees. Accordingly, there is
no way to tell for sure when it was executed. According-
ly, UFCW could not have been expected to file its peti-
tion nor to step up its organizing drive. I find that the
UFCW's claim was not clearly unsupportable and lack-
ing in substance. The fact that UFCW represented Mon-
fort employees at Greeley, represented Swift employees
for many years at Grand Island, and had a show of inter-
est of Monfort employees at a bar on June 13 are exam-
ples of evidentiary support for the claim of substance of
UFCW.
The finding above as well as my alternative finding
below is supported by the hasty recognition of NMU
and the quick execution of the collective-bargaining
agreement assumedly both occurring on June 14, but
possibly later. Of the 52 NMU cards signed before June
14, 37 were obtained on June 13 and 7 on June 14. The
Board has held that such quick actions may be evidence
of an unfair labor practice where a competing union is
present. 1 3
Turning next to my alternative holding I begin with a
pronouncement from the case of .L.R.B. v. .4ir Master
Corp., 339 F.2d 553 (3d Cir. 1964):
To recognize one of two competing unions, while
the employees' choice between them is demonstra-
bly in doubt, is an unfair labor practice under what
the courts have accepted as the normal and proper
application of the Midwest Piping doctrine ....
And in principle the same result follows when ma-
jority support for the recognized union exists, but
has been achieved by coercion or some other unfair
labor practice ....
I find that NMU did not represent an uncoerced major-
ity of Monfort unit employees. In this regard, it is unnec-
essary to repeat in detail the evidence supporting this
finding. The record shows the coercive employer sup-
port for NMU as described in "The Facts." In addition,
NMU made clearly coercive representations to certain
employees:
(1) That they could be guaranteed jobs in the
plant once production began;
3 .Norrwh Plastic Corp., 127 NLRB 150 (1960)
MONFORT OF COLORADO. INC.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) That they could be guaranteed certain wage
increases and bonuses;
(3) That if they did not join, no promises could
be made about future employment;
And certain apparent misrepresentations were made:
(a) That the contract had already been signed;
(b) That the purpose of the card was only to
show interest in union representation, not in repre-
sentation by NMU necessarily.' 4
Thus, in summary, I find that such majority support as
existed was coerced and cannot be relied upon. More-
over, based upon the evidence of record and Respond-
ents' failure to controvert the evidence herein with credi-
ble evidence, I find that the degree of taint extended
beyond the 14 who testified. I accept the Charging
Party's suggestion that the elements of illegal assistance
and coercion described by the various witnesses tainted
NMU's entire majority, if it ever existed.'
3. Monfort's recognition of NMU (production and
maintenance unit)
Unlike the original collective-bargaining agreement,
the "Memorandum of Understanding" which purported
to transform the construction employees into a produc-
tion and maintenance unit is dated "August 20, 1979." I
find that the document was executed on that date. Since
I have found the collective-bargaining agreement unlaw-
ful, I find this document is similarly violative of the Act
for the same reasons. However, further discussion is ap-
propriate.
First, I again look to the Charging Party's brief and
adopt in toto her statement that certain clauses in the
original contract were always intended to cover a pro-
duction and maintenace unit:
a. The contract extends for a three-year term,
long after the end of the limited construction and
the commencement of production [G.C. Exh. 2, art.
34];
b. The contract's provisions for periodic wage in-
creases and other benefits extend far into the future,
'4 NMU contends in its brief that "The NLRB has held that there can
be no violation of Section 8(b)(2) if the bargaining agreement does not
contain a union security clause." Two cases are cited for this proposition:
Mason City Dressed Beef Inc., 231 NLRB 735 (1977). affd. 590 F.2d 688
(8th Cir. 1978), which contains a scheme similar to that in the present
case condemned both by the Board and the court. I cannot find in the
case a discussion of the alleged defense and it is not clear why the case
was cited. The case fully supports the General Counsel's theory The
second case, Anaconda Co., 225 NLRB 953 (1976), does not stand for the
alleged defense. Moreover, the case is factually distinguishable--eg., the
Administrative Law Judge found "not one scintilla of evidence indicating
restraint, favoritism, coercion, or interference on the part of Respond-
ent." All of these factors are present here. Therefore, NMU's defense is
completely without merit.
15 Clement Brothers, Inc., 165 NLRB 698 (1967). enfd. 407 F.2d 1027
(5th Cir 1969); Hartz lounrain Corp., 228 NLRB 492, 528 (1977) See
also .. L.R.B. v. James Thompson & Co.. Inc., 208 F.2d 743, 746 748 (2d
Cir. 1953), where the court concluded that the Union's majority was
tainted because 7 cards out of 40 were proven to be invalid. The court
added, "It is not necessary to prove that the unfair labor practice reached
enough employees to change the majority into a minority."
again long after construction ended [G.C. Exh. 2,
art. 24];
c. The bonus provision of Article 28 does not
become operative until June, 1980 [G.C. Exh. 2, art.
28];
d. A pension program with Company contribu-
tions is supposed to become effective January 1,
1980, long after construction ceased and production
began [G.C. Exh. 2, art. 30];
e. Except for the recognition clause, nothing in
the contract is limited to or in any way pertains to
construction workers. There are no job classifica-
tions, no different wage rates depending upon
degree of skill, and the only wage rate is termed
"the laborer's rate" [G.C. Exh. 2];
f. The six paid holidays span the entire year and
additional limitations on holiday eligibility com-
mence on October 1, 1979 [G.C. Exh. 2, art. 19];
g. Finally and most importantly, Article 32, the
expansion clause, sets forth the contractual under-
pinnings for transforming an alleged construction
unit contract to a production and maintenance unit
contract [G.C. Exh. 2, art. 32].
On August 20, Monfort employed approximately 300-
350 employees of whom about 75 were still in construc-
tion. 6 As stated earlier, Jackson had obtained about 125
signed cards before August 20. Counsel for NMU repre-
sented that NMU organizers had obtained additional
signed cards after June 14 but that said cards had been
mailed to NMU headquarters in San Francisco, were re-
ceived there, and then lost. No duplicates were available.
Zaporowski, the person who allegedly mailed the cards,
refused to testify on fifth amendment grounds. The
number of additional cards, the dates signed, and the
names of the signers, do not appear of record. Thus, the
failure of Respondent to produce the cards, particularly
as they were subpenaed by the General Counsel, or ade-
quately explain their absence-statements of counsel are
not evidence-raises an adverse inference that if such
evidence were produced it would not be favorable to
NMU's case.'7 Thus, of the 225 to 275 employees em-
ployed in production and maintenance, less the 125 cards
obtained by Jackson, plus the adverse inference, I find
that NMU lacked majority status at the time of its recog-
nition on August 20. Accordingly, the recognition was
unlawful. 8
I also hold on a related issue that the accretion of the
production and maintenance unit into the construction
unit was similarly unlawful.' 9 In N.L.R.B. v. Food Em-
16 At the time of hearing, there were still about 20 employees doing
construction work
i International U'nion (4 W) v N L R B., 459 F.2d 1329, 1336 (D.C
Cir 1972).
' N.L.R.B. Local 1199, Drug and Hospital U:'nion, 532 F 2d 877 (2d
Cir. 1976), cert. denied 429 U.S 920 (1'76.
1i Art 32 of the collective-bargaining agreement reads as follows:
Article 32-ACCRETION/NEW JOBS/NEW OPERATIONS
Section 1. In the event that the Company shall commence oper-
ations at the location covered by this Agreement, outside the scope
Continued
MONFORT OF COLORADO, INC. 621
ployers Council, Inc., 399 F.2d 501, 502-503 (9th Cir.
1968), the court adopted a statement of the accretion
issue taken from the Board's brief in the case:
An "accretion" is, by definition, merely the addition
of new employees to an already existing group.
When the new employees are added and comingled
with existing employees so as to lose their separate
identity, their inclusion in an existing unit follows as
a matter of course. Questions arise only when the
new group remains identifiable, for example, as
when they constitute a separate department or store
or plant. In these situations . . .. the Board will ex-
amine the entire picture before permitting the new
employees to be swallowed up by the bargaining
representative of the employer's other employees
without expressing their wishes in the matter. When
such inclusion is permitted, on the basis of criteria
developed by the Board and approved by the courts
... . the new group is an 'accretion' to the old
group.
On August 20, about 75 Monfort employees continued
in construction and about 225 to 275 were in production
and maintenance. The two groups clearly lack the com-
munity of interest or similarity of skills which are re-
quired for proper accretion. Moreover, the P and M em-
ployees never had an opportunity to select their own
representative; that is, 52 out of 75-100 construction em-
ployees as of June 14 determined a union preference for
the 225 to 275 (P and M) employees. Putting aside the
fact that I have found the 52 were coerced to begin
with, the result here is plainly absurd, particularly where
the evidence shows that 600-650 employees were expect-
ed to be hired eventually. Scottex Corporation, 200 NLRB
446 (1972).2 0 Finally, when the construction of the Mon-
fort plant was completed, most of the construction work-
ers were either terminated or transferred to P and M. To
find a valid accretion here would have the effect of ac-
creting a large production unit into a construction unit
which was soon to be effectively nonexistent .2
of this Agreement as set forth in the recognition clause, then the
Company agrees that it must first offer such jobs to all the employ-
ees covered by this Agreement in order of seniority before it hires
any new employees to perform such jobs.
Section 2. In the event that operations are commenced as reflected
in Section 1 above at the location covered by this Agreement and
employees covered by this collective bargaining agreement exercise
the rights allowed in Section I to will such jobs and as a result of
such procedure employees covered by this Agreement constitute a
majority of any unit appropriate for the purposes of collectise har-
gaining, then the Company agrees that it must recognize the Union
as the sole and exclusive bargaining agent for such appriopriate unit
and apply this contract in its entirety to such unit
20 See also Renaissance Center Partnership. 239 NLRB 1247 (1979)
I i will decline to discuss in detail the General Counsel's premature
recognition argument, on the grounds that I have, in effect. accepted the
argument generally in this opinion and it is cumulative to other issues
raised and decided. However, as stated in Maron Citrv Dressed Beef upra.
231 NLRB at 749, "At the time recognition was granted, a representative
complement of employees had not been retained. To grant recognition to
a labor organization under such circumstances is another form of legal
assistance by an employer." Chr Cnmunai(atlions. Inc. and Suiri Co.
Inc., 170 NLRB 159 (1968) I would apply the above fully to the nstant
case.
4. The dues-checkoff provision
The General Counsel contends that notwithstanding
the fact that the collective-bargaining contract did not
contain a union-security provision, Respondents violated
the Act by checking off dues and initiation fees pursuant
to a contract entered into in violation of Section 8(a)(2)
of the Act. Monfort argues that the dues checkoff was
proper where there is a valid collective-bargaining agree-
ment in effect. I have found, above, that the agreement
in the case was not valid. Monfort also argues that there
is no evidence that employees were coerced into execut-
ing a dues-authorization checkoff. This argument misses
the point. Because NMU did not represent an uncoerced
majority of employees at the time of recognition, the ef-
fectuation of the contract, including the dues-checkoff
provision contained therein, violated the Act. While this
finding is cumulative, it is important for purposes of
"The Remedy."
Both the General Counsel and the Charging Party
argue that a dues-reimbursement remedy is proper here.
The cases cited in support of this position deal with
union-security agreements which are not present in the
instant case. I will, however, recommend a dues-reim-
bursement remedy here as I accept the Charging Party's
theory that, in the context of this case, dues checkoff
constitutes a form of illegal assistance. American Beef-
packers, 176 NLRB 338 (1969); Hunter Outdoor Products,
176 NLRB 449, 457 (1969). Monfort argues "that a dues
reimbursement remedy is not proper in a right-to-work
state .... " No authority is given for such a sweeping
statement and I reject it.22 First, the cases do not limit
the remedy to situations where there is a union-security
agreement. Second, article 5 of the collective-bargaining
agreement specifically commits Monfort to enter into a
union shop/agency shop agreement with the union at
such future time as state law may permit.2 3 Third, there
is substantial evidence of coercion in this case-not to
execute a checkoff-but to support and join NMU. This
is sufficient, along with my other findings in this case, to
render the remedy appropriate.
In support of the violations found above relating to the
NMU organizing campaign, I also cite the very recent
case of P.C. Foods, Inc., d/b/a Price Crusher Food Ware-
house, 249 NLRB 433 (1980), which bears a striking re-
semblance to the instant case. There, in an opinion af-
firmed by the Board, the Administrative Law Judge
found violations of the Act relating to recognition of the
union when the company lacked a representative seg-
ment of its ultimate complement, and when the union did
not represent an uncoerced majority of employees, and
improper employer assistance to the union in obtaining
signatures on authorization cards while denying equal as-
sistance to a competing union.
" Pl'i (ai .Sy,,te rit. . I.R B 629 i
2
35. fn () C
Cir 198O)
z:' loth Responldernts are thus comnlllled to al security agreement de-
pending upon a cntllngency over shich they have no control Thus.
Cxel l ' scCllrit agreemen t ere esscclltlal to the remedy I propose, this
,ontingenc \a ,ld manke the remed appropriate
MONFORT OF COLORADO, INC.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The independent 8(a)(l) and 8(b)(1)(A) violations
The General Counsel alleges two final matters as vio-
lative of the above-stated provisions. I will sustain the
first and recommend dismissal of the second. First, I find
that NMU agent Blessie said to employee Trejo about 2
weeks before production started that "if you sign this
card [union] authorization card I can guarantee you your
job when the plant starts." As to Trejo's question of
what would happen if she did not sign, he added he
could not guarantee anything. A companion of Trejo
signed the card immediately, but another companion of
Trejo and Trejo, herself, did not. Union requests for em-
ployee support accompanied by threats of loss of em-
ployment violate Section 8(b)(l)(A) of the Act. 24 In
finding this violation, I note that no evidence was pre-
sented to dispute the charge. I also note the context of
Blessie's remarks wherein he and the other NMU orga-
nizers had unlimited access to Monfort's plant. All indi-
cations were that Blessie had the power to affect an em-
ployee's job. That Trejo did not sign the card is immate-
rial to the violation.
Second, it is charged that in mid-July employee Bartak
was wearing a UFCW sticker on his hat when he was
asked by a secretary to go to a conference room to meet
with leadman Terry Hampton. This was for the purpose
of learning which construction employees would stay on
in production and maintenance. Hampton asked if Bartak
was wearing an Amalgamated sticker on his hat and
what was he doing with it. Then Hampton said:
We don't want nothing to do with that around here
because Amalgamated closes plants. Maritime is the
union that's in now and that's how it is.
Hampton concluded by saying he would deny making
the remarks if asked about them later.
The first issue is whether Hampton is a statutory su-
pervisor. I find that there is no showing that Hampton
was. Leadmen are not normally considered to be super-
visors.25 However, the Board has never considered titles
as determinative of supervisory status. 26 Section 2(11) of
the Act describes the duties of the supervisors in the dis-
junctive. There is no showing that Hampton had any au-
thority "to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibility to direct them, or to adjust
their grievances, or effectively to recommend such
action." The General Counsel argues that because an-
other employee named Forrester was described by
Bartak as a leadman and because other evidence showed
Forrester to be a supervisor, it follows that all persons
referred to as leadmen by Bartak must be supervisors.
The faulty logic here is readily apparent. In addition, the
mere fact that Hampton was interviewing Bartak to see
whether he would stay on in P and M is not determina-
tive of supervisory status. The solicitation of Bartak's
preference for a future job was purely the gathering of
24 N.L.R.B. v. Kalof Pulp & Paper Corp., 290 F2d 447 9th Cir. 19o1);
Sav-On-Drugs, Inc., 227 NLRB 1638, 1644 (1977).
25 N.L.R.B. v. Security Guard Service. Inc., 384 F.2d 143. 146 148 (5th
Cir. 1967); Dravo Corp., 248 NLRB 620 (1980).
:2 Golden West Broadcasters, 215 NLRB 760, 761 (1974)
information and adds nothing to the claim of Hampton's
supervisory status. Because I hold that Hampton has not
been proven to be a statutory supervisor, it is not neces-
sary to decide whether Hampton's remarks violate the
Act. I will recommend that this charge be dismissed.
6. Miscellaneous issues raised by this case
The evidence produced at the hearing is substantial
and proves the primary charges alleged in the complaint.
Nevertheless, certain additional issues remain. Some of
these are capable of resolution and some are not. None
of them are necessary for a fair resolution of the charges
in the case.
a. The failure to produce witnesses and documents
As described above, Monfort refused to produce Mea-
kins and NMU refused to produce Zaporowski and Bles-
sie, both Respondents asserting fifth amendment grounds.
All seem to agree that as a general proposition, Federal
Administrative agencies, or their officers, are without
power or expertise to adjudicate constitutional claims. 27
Thus, at the hearing level, the Respondents were direct-
ed to comply with the subpenas. Now the General Coun-
sel and Charging Party contend that an adverse inference
is appropriate from Respondent's failure to honor the
subpoenaes. As to the witnesses, General Counsel asserts
that they should have appeared and asserted the privi-
lege on a question-by-question basis. However, all parties
stipulated that this procedure was unnecessary as the
witnesses would refuse to answer any substantive ques-
tions on the basis of the privilege. 28
Next, the Charging Party cites the Gyrodyne series of
cases and the enforcement proceedings. International
Union (UAW) v. N.L.R.B.. supra. Mistakenly, she states
in her brief that "One possible argument not discussed in
the Gyrodyne series is the impact of a Fifth Amendment
claim on the adverse inference rule." However, footnote
45 of Judge Wright's opinion, 459 F.2d 1329 at 1339,
reads as follows:
Of course, the adverse inference rule is inapplicable
in situations where a party has a constitutional right
to suppress the evidence in question. If a party con-
tends, for example, that the evidence would incrimi-
nate him . . . the Government may not burden the
exercise of Constitutional rights by attaching an ad-
verse inference to the failure to produce the evi-
dence ....
In Baxter v. Palmigiano, 425 U.S. 308, 318 (1975), an-
other case cited by the Charging Party, the Court ex-
plained the prevailing rule that
. . the Fifth Amendment does not forbid adverse
inferences against parties to civil actions where they
refuse to testify in response to probative evidence of-
fered against them. [Emphasis supplied.]
27 Cf. Spiegel v. C., 541 F 2d 287 294 (7th Cir 1976)
2 But see atlional Life Insurance (Co v artford Accident & Indemni-
tv C, 615 F:2d 595 (3d Cir 198)
MONFORT OF COLORADO, INC. 623
Thus, I draw no adverse inference from the failure of the
Respondents to honor the subpenas on constitutional
grounds. However, in analyzing the evidence, I have
given these failures no more value than was warranted
by the facts surrounding the case. This, said the Court in
Baxter, is entirely permissible. (425 U.S. at 318.) Accord-
ingly, I have noted where various incriminating evidence
supplied by the General Counsel's witnesses has not been
denied or disputed and have treated it accordingly. 2 9
b. The secondary evidence issue
This issue is much less vexing than the last. I fully
accept the case of Bannon Mills, 146 NLRB 611 (1964),
and believe the General Counsel is entitled to use sec-
ondary evidence in proving its case, with no burden at-
taching to Respondents' assertion of the fifth amendment.
This leads then to certain exhibits of the General Coun-
sel admitted at hearing on a provisional basis subject to
final admissibility only after the issue was briefed with
the case. I herewith admit General Counsel's Exhibits 38,
39, and 40 as permanent exhibits.30 In considering these
documents, I rely upon them only to corroborate pri-
mary evidence offered by the General Counsel and not
to establish any essential element of the violations of the
Act heretofore discussed. In this regard, I adopt the ar-
gument of the Charging Party: 3 '
a. Company owner Ken Monfort's statements as
quoted in the National Provisioner,3 2 August 4,
1979, to the effect that meat packers could no
longer afford to pay the master agreement wage
rates such as at Swift and at the Company's Greeley
plant and, in order to survive, needed a tough com-
petitive labor strategy.
b. Monfort officials' statements that 600-650 em-
ployees will be needed for production as reported in
the Grande Island Daily Independent on July 31,
1979 [G.C. Exh. 39].
c. The history of the NMU, as reported in a
newspaper article [G.C. Exh. 40].
d. The Company's knowledge of the UFCW
campaign and antiunion animus, as evidenced in
three leaflets [G.C. Exhs. 43, 44, and 45, subpenaed
documents].
e. The origin of the meat packing division of
NMU-the merger with UIPAW-as set forth in
the article appearing in the NMU's journal, The
Professional [G.C. Exh. 46.]
29 In light of this ruling and, more importantly, my lack of authority
to adjudicate a constitutional claim, I obviously make no ruling on
whether Respondents properly asserted the fifth amendment claims Simi-
larly, I issue no order as requested by Charging Party that certain unpro-
duced documents should now be produced; the forum is wrong, and the
issue is moot.
30 Dallas County v. Commercial Union Assurance Co., 28(6 F.2d 38 (51h
Cir. 1961); 1 will also admit Monfort's Exh. 9 on a permanent basis and
will give it such consideration as it deserves
3 The Charging Party asks that my rulings on G C Exh 41-refusing
to admit document-and with respect to certain portions of the subpoenu
duces ecum-motion to strike granted-be reconsidered I herewith
refuse on the grounds stated during the hearing and because the issue is
moot.
aZ The National Provisioner is a trade journal for the meat packing in.
dustry.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with their operations de-
scribed in section , above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent Monfort of Colorado, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent Industrial, Technical and Professional
Employees Division, National Maritime Union of Amer-
ica, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent Monfort and Respondent National
Maritime Union have violated Section 8(a)(l) and (2) and
(b)(l)(A) of the Act respectively as follows:
(a) Monfort for giving and National Maritime Union
for receiving unlawful assistance and support in a union
organizing campaign, such as unequal access to plant
premises and such as supervisor coercion of employees,
to the prejudice of UFCW, a competing union.
(b) Monfort for giving and National Maritime Union
for accepting recognition at a time when both Respond-
ents knew that UFCW was a substantial competing union
and that the employees' choice was in doubt.
(c) Alternatively, Monfort for giving and National
Maritime Union for accepting recognition when both Re-
spondents knew that National Maritime Union did not
represent an uncoerced majority of employees.
(d) Monfort for giving and National Maritime Union
for accepting recognition prematurely when a repre-
sentative complement of employees had not been re-
tained, and, when the accretion clause in the collective-
bargaining agreement was not valid.
(e) Monfort for maintaining a dues-checkoff provision
pursuant to an invalid collective-bargaining agreement
and NMU for receiving the benefits thereof.
4. Respondent National Maritime Union has violated
Section 8(b)(1)(A) of the Act when its agent, Blessie, co-
erced an employee into support for the Union by threat-
ening her with loss of employment.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as specifically found herein, Respondents en-
gaged in no other unlawful conduct.
7. An adverse inference may not be based upon Re-
spondent's failure to produce witnesses or documents in
response to valid subpenas when said refusal is based
upon fifth amendment grounds.
8. Secondary evidence is admissible even when Re-
spondent's failure to produce witnesses or documents is
based upon fifth amendment grounds where said evi-
dence is merely corroborative of primary evidence ad-
mitted at the hearing.
MONFORT OF COLORADO INC.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondents engaged in certain
unfair labor practices I will recommend that they be or-
dered to cease and desist therefrom and to take other ac-
tions designed to effectuate the purposes and policies of
the Act. Respondent Employer will be required to with-
draw and withhold recognition from Respondent Nation-
al Maritime Union and to cease giving effect to the col-
lective-bargaining agreement which these parties had
heretofore executed and to the subsequent memorandum
of understanding dated August 20, 1979, and to any
other renewal, modification, or extension of said agree-
ment, until such time as Respondent National Maritime
Union shall have been certified by the Board as the ex-
clusive representative of the employees in question. I
shall further recommend that Respondent Union cease
and desist from acting as the collective-bargaining repre-
sentative of Monfort's Grand Island employees. Howev-
er, nothing in this Order shall authorize or require the
withdrawal or elimination of any wage increase, or other
benefits, terms, or conditions of employment which may
have been established pursuant to the performance of
that agreement. I further recommend that both Respond-
ents jointly and severally reimburse all present and
former employees for all initiation fees, dues, or other
moneys exacted from them by or on behalf of Respond-
ent National Maritime Union pursuant to the dues check-
off provisions of the aforementioned collective-bargain-
ing contract, together with interest thereon at 6 percent
per annum. 3 3
Upon the foregoing findings of fact, conclusions of
law, and upon the basis of the entire record herein con-
sidered as a whole, I make the following recommended:
ORDER 34
A. Respondent Monfort of Colorado, Inc., Grand
Island, Nebraska, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Giving unlawful assistance and support to National
Maritime Union such as unequal access to plant premises
and such as supervisor coercion of employees, during a
union-organizing campaign.
(b) Assisting or contributing support to National Mari-
time Union, by recognizing or bargaining with such
labor organization as the exclusive representative of its
Grand Island, Nebraska, plant employees-unless and
until National Maritime Union is certified by the Board
as the collective-bargaining representative of said em-
ployees pursuant to Section 9(c) of the Act.
(c) Maintaining or giving any force or effect at Grand
Island, Nebraska, to the collective-bargaining agreement
effective June 14, 1979, between Respondent Employer
and Respondent Union, and to the subsequent memoran-
3S See Isis Plumbing & lHeating Co., 138 NLRB 716 (1962), for ration-
ale on interest payments.
34 In the event no exceptions are filed as provided by 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 findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
dum of understanding dated August 20, 1979, or to any
other renewal, extension, or modification thereof; pro-
vided, however, that nothing in this Order shall author-
ize the withdrawal or elimination of any wage increase
or other benefits, terms, and conditions of employment
which may have been established pursuant to the per-
formance of said contract.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.3 5
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Withdraw and withhold all recognition from Na-
tional Maritime Union as the collective-bargaining repre-
sentative of its employees unless and until said labor or-
ganization has been duly certified by the National Labor
Relations Board as the exclusive representative of such
employees at its plant at Grand Island, Nebraska.
(b) Jointly and severally reimburse all former and pres-
ent employees employed at its plant at Grand Island, Ne-
braska, for all initiation fees, assessments, and other
moneys, if any, paid by or withheld from them in the
manner provided in "The Remedy" section of this Deci-
sion.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its plant at Grand Island, Nebraska, copies
of the attached notice marked "Appendix A."36 Copies
of said notice, on forms provided by the Regional Direc-
tor for Region 17, after being duly signed by a repre-
sentative of Respondent Employer, shall be posted by
Respondent Employer immediately upon receipt thereof
and shall be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent Employer
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Upon being furnished the same by the Regional Di-
rector, post the notice marked "Appendix B" in the same
manner as "Appendix A."
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
B. Respondent Industrial, Technical and Professional
Employees Division, National Maritime Union of Amer-
ica, AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Receiving unlawful assistance and support from
Monfort of Colorado, Inc., such as unequal access to
'5 Hickmott Foods. Inc., 242 NLRB 1357 (1979).
a6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
MONFORT OF COLORADO, INC. 625
plant premises and such as supervisor coercion of em-
ployees.
(b) Maintaining or giving any force or effect at the
Grand Island, Nebraska, plant to the collective-bargain-
ing agreement effective June 14, 1979, between Respond-
ent Employer and Respondent Union, and to the subse-
quent memorandum of understanding dated August 20,
1979, or to any other renewal, extension, or modification
thereof; provided, however, that nothing in this Order
shall authorize the withdrawal or elimination of any
wage increase or other benefits, terms, and conditions of
employment which may have been established pursuant
to the performance of said contract.
(c) Acting as exclusive bargaining representative of the
employees at Monfort of Colorado, Inc., Grand Island,
Nebraska, for the purposes of collective bargaining,
unless and until said labor organization shall have been
certified by the Board as the collective-bargaining repre-
sentative of said employees.
(d) Threatening employees of Monfort of Colorado,
Inc., Grand Island, Nebraska, with loss of employment if
they do not become members of Respondent Union.
(e) In any other manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Jointly and severally with Monfort of Colorado,
Inc., reimburse all former and present employees at its
plant at Grand Island, Nebraska, for all initiation fees, as-
sessments, and other moneys, if any, paid by or withheld
from them in the manner provided in "The Remedy"
section of this Decision.
(b) Post in its offices and meeting halls copies of the
attached notice marked "Appendix B." 37 "Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent
Union's official representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent Union and its agents to insure that such notices
are not altered, defaced, or covered by any other materi-
al.
(c) Forward to the said Regional Director signed
copies of Appendix B for posting by Monfort of Colora-
do, Inc., at its plant at Grand Island, Nebraska, for 60
consecutive days in places where notices to employees
are customarily posted.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
37 See fn 36, upra
MONFORT F COLORADO NC.