Pepper Packing Co.

National Labor Relations Board - Board Decisions

Jun 29, 1979

243 N.L.R.B. 215 (N.L.R.B. 1979)

PEPPER PACKING CO.
Pepper Packing Co. and United Food and Commercial
Workers International Union, Local 641, AFL-
CIO' and Dave O. Carr. Cases 27-CA-5887 and
27-CA 5949
June 29. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.I.O
AND TRUESDALE
On April 3, 1979, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed a brief in answer to Respondent's exceptions.
and the Charging Party filed a brief in response to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Pepper
Packing Co., Denver, Colorado, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
I Effective June 7. 1979, the Amalgamated Meatcutters and Butcher
Workmen of North America, AFL-CIO, merged with the Retail Clerks In-
ternational Union, forming a new union identified as United Food and Com-
mercial Workers International Union, AFL-CIO. Accordingly, we have sub-
stituted the new name for the Amalgamated Meatcutters and Butcher
Workmen of North America.
2 Respondent has excepted to certain credibility findings made by the Ad-
mninistrative Law Judge. II is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In adopting the Administrative Law Judge's finding that Respondent vio-
lated Sec. 8(aX 1) by threatening to reimpose Carr's suspension if Carr filed a
grievance concerning that suspension, Member Penello would not rely on
Daniel Construction Company' 239 NLRB 1335 1978)., in which he dissented.
In his recommended Order and notice the Administrative Law Judge
inadvertently omitted certain conclusions of law which he had made in the
body of his Decision. Accordingly, we have modified herein the Administra-
tive Law Judge's Order and notice to conform with his findings and conclu-
sions.
I. Substitute the following for paragraph l(a):
"(a) Issuing warning notices to employees for
smoking, and restricting the restroom access of em-
ployees, because such employees filed charges or had
charges filed on their behalf under the National La-
bor Relations Act, or because such employees en-
gaged in activities protected by Section 7 of the Act."
2. Substitute the following for paragraph (b):
"(b) Threatening to indefinitely suspend employ-
ees for filing grievances, saying that it intended to get
rid of employees who filed grievances and resorted to
the processes of the National Labor Relations Board,
threatening disciplinary action against employees for
smoking because those employees had filed charges
under the Act and had engaged in union and/or pro-
tected concerted activity, issuing warning notices to
employees regarding their accident record because
the employees had filed charges under the Act or en-
gaged in protected concerted activities, telling em-
ployees to keep their mouths shut during safety meet-
ings, creating the impression that employees have
been given more onerous work because of their par-
ticipation in safety meetings, and interrogating and
threatening employees with reprisals because those
employees had filed charges under the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT issue warning notices to you for
smoking or restrict your access to the restroom
because you file charges or have charges filed on
your behalf under the National Labor Relations
243 NLRB No. 37
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, or because you have engaged in activities
protected by Sec. 7 of the Act.
WE WILL NOT issue warning notices to you,
restrict your access to the restroom, discharge or
otherwise discriminate against you for engaging
in activities on behalf of United Food and Com-
mercial Workers International Union, Local 641,
AFL-CIO, or any other labor organization, or
for engaging in other concerted activity pro-
tected by the National Labor Relations Act.
WE WILL NOT threaten to suspend you indefi-
nitely for filing greivances.
WE WILL NOT tell you that we intend to get rid
of employees who file grievances and resort to
the processes of the National Labor Relations
Board.
WE WILL NOT threaten disciplinary action
against you for smoking because you have filed
charges with the National Labor Relations
Board and WE WILL NOT threaten disciplinary
action against you because you engage in ac-
tivity on behalf of a labor organization or be-
cause you engage in concerted activity protected
by the National Labor Relations Act.
WE WILL NOT issue warning notices to you re-
garding your accident records because you have
filed charges under the Act or engaged in pro-
tected concerted activities.
WE WILL NOT tell you to keep your mouths
shut in safety meetings.
WE WILL NOT create the impression that we
are assigning more onerous work to you because
of your participation in safety meetings.
WE WILL NOT interrogate and threaten you
with reprisals because you have filed charges un-
der the Act.
WE WILL NOT in any other manner interfere
with any of your rights set forth above which are
guaranteed by the National Labor Relations
Act.
WE WILL expunge from the personnel file of
Dave O. Carr, and from any other records which
we maintain, all references to the July 11, 1978,
letter concerning smoking, and the September 6,
1978, letter concerning future accidents, which
we issued to Dave O. Carr because unfair labor
practice charges were filed against us involving
Dave O. Carr and because of his union and pro-
tected concerted activities.
WE WILL make Dave O. Carr whole for any
loss of pay he may have suffered as a result of his
May 1978 suspension in the event that we refuse
to process a grievance concerning that supsen-
sion because it is untimely.
PEPPER PACKING CO.
DECISION
STATEMENt OF rill C-'SE
WIL.IAM J. PANNIIER 1L. Administrative Law Judge:
This matter was heard by me in Denver, Colorado on De-
cember 12, 1978.1 On July 31, the Regional Director for
Region 27 of the National Labor Relations Board issued a
complaint and notice of hearing in Case 27 CA-5887.
based upon an unfair labor practice charge filed on July 3
alleging violations of Section 8(a)( I) of the National Labor
Relations Act, as amended. 29 U.S.('.. §151. et seq., herein
called the Act. On October 26 the Regional Director issued
an Order consolidating cases, consolidated complaint, and
notice of hearing, based upon the above-described charge in
Case 27-CA-5887 and upon an unfair labor practice charge
in Case 27-CA 5949 filed on September I alleging addi-
tional violations of Section 8(a)(1) of the Act. On Novem-
ber 24 the Regional Director amended the complaint to add
violations of Section 8(a)(3) and (4) of the Act based upon
an amended charge in Case 27 CA 5949 filed on Novem-
ber 21.
All parties have been afforded full oppportunity to ap-
pear. to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based upon the entire record,
the briefs filed on behalf of the parties, and my observation
of the demeanor of the witnesses, I make the following:
FINIINGS OF FA(CT
1. JURISDICTION
At all times material, Pepper Packing Co., herein called
Respondent, has been a corporation duly organized under
and existing by virtue of the laws of the State of' Colorado,
has maintained its principal office and place of business at
901 East 46th Avenue, Denver, Colorado, and has been
engaged in the wholesale packing and processing of meat
products. In the course and conduct of these business op-
erations Respondent annually sells and ships goods and
materials valued in excess of $50,000 directly to persons
and firms within the State of' Colorado, each of whom, in
turn, annually derives gross revenue from retail sales in ex-
cess of $500,000 and purchases and receives goods and ma-
terials valued in excess of $10,000 from points and places
directly outside the State of Colorado. Therefore, I find that
at all times material Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2). (6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 641, AFL-
CIO. herein called the Union, has been a labor organization
within the meaning of Section 2(5) of the Act.
i Unless otherwise stated all dates occurred in 1978.
216
PEPPER PACKING CO.
III. TE UNFAIR LABOR PRACTICES
A. Issues
The instant case presents a series of incidents. Most are
alleged to constitute violations of Section 8(a)(1 ) of the Act.
These incidents correspond to the subheadings listed below
and most involve employee David Carr, who had worked
for Respondent for a number of years. In addition, two of
these incidents-a letter of July I 11 concerning smoking and
an instruction restricting Carr's access to the restroom are
alleged to violate Section 8(a)(3) and (4) of the Act as well.
B. The Alleged Threat of Indefinite Suspension if Carr Did
Not Withdraw a Grievance
During the morning of May 242 Carr had been perform-
ing trimming work in the cooler at Respondent's facility
when cooler Supervisor Charles Miller] had directed him to
go to the breaking room to aid in hanging off chucks. Carr
worked in the breaking room for the remainder of the pre-
lunch period. When he returned to the cooler following
lunch he was reprimanded by Dock Foreman David Rob-
ert Sanchez' for not having completed the trimming as-
signed to him. On the following morning Miller again told
Carr to render assistance in the breaking room. After hang-
ing off approximately 15 to 20 chucks, the employee with
whom Carr was working said that he had to cut them down,
a procedure that would necessitate a pause in Carr's work.
Carr took advantage of this break to go to the east dock
where he expressed concern to steward Albert Trujillo, em-
ployed by Respondent as a laborer, concerning what had
occurred the prior day and the possibility that Sanchez
might again reprimand him. Trujillo replied that Carr
should return to work; they could discuss the matter later.
As Carr started to return to the breaking room, he encoun-
tered Miller who reprimanded Carr for leaving his work
station, saying that he could suspend Carr for having done
so. When Carr responded that such action was Miller's pre-
rogative, the latter punched out Carr's timecard, saying that
Carr was suspended indefinitely.5
Carr and Trujillo, possibly in the company of Miller,
then went to the office of Plant Manager Robert Rifkin 6 to
complain about the suspension. After hearing their com-
plaint, Rifkin said that he would have to consider the mat-
ter,' and he instructed Carr to telephone him that after-
noon. After leaving the plant Carr went to the Union's hall
where a representative aided him in preparing a grievance
alleging that the suspension had been unjust and seeking
payment for all time lost; he instructed Carr to give the
grievance to Trujillo so that it could be filed with Respon-
dent.
2 Although there was some conflict as to whether this incident occurred on
May 24 or 31. it was clear by the end of the hearing that the former date was
the accurate one.
3 An admitted supervisor and agent of Respondent.
' An admitted supervisor and agent of Respondent.
There is no contention that the suspension was unlawfully motivated.
I An admitted supervisor and agent of Respondent.
Rifkin testified that there were "a lot of things to weigh to see what
amount the suspension might be," including looking into the offending em-
ployee's personnel file.
Rather than telephone Rifkin, Carr went to the plant at
approximately 4 p.m. that same day. His description of his
conversation with Rifkin following his arrival at the plant
was vague and, at best, showed a lack of recollection as to
what had been said during that meeting. To the extent that
it was clear, Carr testified that after delivering a lecture on
the need for kill-floor employees to remain at their posts so
that the continuous flow of production could be main-
tained.' Rifkin had said that Carr could return to work on
the following morning. According to Carr., as he was leav-
ing the office Rifkin had said to him, "I guess you'll file a
grievance won't you?"' Carr testified that he had not an-
swered this question but had simply continued out of the
office.
Rifkin's account of this conversation was more detailed.
Like Carr he testified that he had described the need for
employees to remain at their posts. Moreover, he testified
that following a 25 to 35 minute discussion of this subject
Carr had thrown up his hands and had said that he would
just as soon fbrget about the whole thing,'" at which point
Rifkin claims to have said. "In that case you can report to
work tomorrow." Rifkin testified that at that point "I as-
sumed the matter was settled." However, he denied that
there had been any mention of a grievance at any time
during this meeting. Further, he conceded that he had not
asked Carr not to file a grievance, and that Carr had not
promised not to file one.
On the following morning Carr gave his grievance to
Trujillo, who submitted it to Rifkin upon the latter's arrival
at work. This led to an argument involving Carr. Trujillo,
and Rifkin. with Rifkin asserting, admittedly, that he had
believed that the matter had been settled during his discus-
sion with Carr the prior afternoon and that "if Mr. Carr
wanted to renege on his agreement, then I certainly would
renege on mine and he could consider himself still under
suspension."" Confronted with this alternative, Carr told
Trujillo that while he wanted to pursue the grievance, he
could not afford to be suspended. Accordingly, the griev-
ance was pursued no further.
C. The Allegations Pertaining To Warnings Regarding
Carr's Smoking
The complaint alleges that Respondent violated the Act
by issuing a written reprimand to Carr on July I concern-
ing smoking and, on August 3, by threatening to suspend
Carr if he were found smoking. This conduct, alleges the
I There is no contention or evidence to support a contention that Carr's
brief absence from the breaking room, which Carr estimated to have been
less than 5 minutes by the time that he had encountered Miller. had resulted
in any cessation of production on March 25.
9 Carr appeared most uncertain as to precisely what Rifkin had assertedly
said concerning the possibility that Carr might file a grievance. At various
points in his testimony he attributed the very converse of the above-quoted
remark, which was the final version upon which he settled, to Rifkin: "I
guess you won't go filing a grievance, will you?". "I guess you won't be filing
a grievance." and "I guess you won't file a grievance."
10 Carr denied specifically having made the remark that he would just as
soon forget about the whole thing.
" Rifkin testified that since his investigation of the incident had not been
completed by the time of this conversation. he could not a) how long (arr's
suspension would have lasted had the latter not agreed to abandon the griev-
ance.
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, was engaged in by Respondent because Carr
had caused charges to be filed against Respondent under
the Act and because Carr had engaged in union and/or
protected concerted activity.
On July 3 Trujillo filed the charge in Case 27- CA-5887.
That charge states, as the "Basis of the Charge," that
"Since on or about December 1, 1977, the above-named
Employer, acting by and through Bob Rifkin, threatened to
suspend employees at its Denver, Colorado plant because
of their attempts to engage in protected, concerted activi-
ties." The return receipt shows that the charge was received
by Respondent on Friday, July 7. On Tuesday, July II,
Carr received a letter signed by Rifkin which stated:
Notices have been posted in the past stating that
U.S.D.A. and Company regulations forbid smoking in
any edible area of the plant.
In addition to the posted notice you were cautioned
against smoking when observed on two occasions on
July 11, 1978.
In the event you do not immediately comply with
this regulation, the Company will have no other re-
course than to take disciplinary action against you.
Although he acknowledged having smoked in an edible
area and conceded that he had been cautioned at the time,
Carr testified that this had occurred on the previous day.
He denied that he had been given any verbal warnings
about smoking on July 11. Rifkin claimed that he had been
the supervisor who had observed Carr smoking twice on
July 11. However, contrary to the statement in the letter.
Rifkin did not testify that he had cautioned Carr about
smoking on either of these purported occasions.
The history of smoking at Respondent's facility has not
been a straight line proposition. Respondent has main-
tained notices on its bulletin boards reciting that U.S.D.A.
and Respondent's regulations prohibit smoking in edible
areas and warning that employees caught doing so will be
subject to disciplinary action. There are also no-smoking
signs in the plant. Further, between October 1975 and Au-
gust 28, Respondent issued at least five warning notices to
employees other than Carr regarding their smoking after
having twice been cautioned on dates which are set forth in
the letters that they received. Moreover, another employee
was warned about smoking by Sanchez on the same day
that the latter had warned Carr. These factors tend to sup-
port Respondent's contention that the letter issued to Carr
was no more than a continuation of Respondent's normal
practice concerning the matter of smoking in edible areas.
Yet other evidence was produced which tends to contra-
dict that conclusion. For example, hook return employee
William Holloway testified that the no-smoking rule was
"very relaxed." Indeed, while Rifkin appeared as a witness,
he did not deny that in July, he had been speaking with
three maintenance employees about a broken down shackle
conveyor and that during that conversation-which had
taken place on the east dock, an edible area--all three
maintenance employees had been smoking. So far as the
record discloses nothing was said to any of the maintenance
employees about their smoking, although each had con-
sumed an entire cigarette during the course of their discus-
sion with Rifkin. Nor did Rifkin deny that on August 3 he
had spoken with a maintenance man on the top dock, also
an edible area, about a newly installed automatic conveyor
and that during that conversation the maintenance em-
ployee had smoked a cigarette. Similarly, while Miller also
appeared as a witness for Respondent. he did not deny that
at the end of July he had come upstairs to the cooler with a
lit cigarette. In fact, shortly before the hearing, an employee
had been smoking while pushing beef, and although San-
chez had been present he had said nothing to that em-
ployee.' 2
As set forth above on page I, the complaint and notice of
hearing in Case 27 CA 5887 issued on July 31. It alleged a
single violation of the Act: "On or about May 31, 1978 the
Respondent, acting by and through Robert Rifkin, threat-
ened to indefinitely suspend its employee David Carr if he
did not withdraw his grievance on a previous suspension."
The return receipt for the copy' of the complaint served on
Respondent shows that it was received on August 1. Two
days later Carr and Holloway were among a group of em-
ployees on the east dock, the same area where approxi-
mately I month earlier the three maintenance employees
had been smoking while conversing with Rifkin about the
shackle conveyor. Also present at the time was Sanchez.
Carr asked Holloway for a cigarette. Sanchez interjected
that if Carr lit a cigarette, he (Sanchez) had orders to sus-
pend Carr. Sanchez testified that he had made this state-
ment to Carr "[b]ecause Bob Rifkin told me to enforce it,
and it's on the bulletin board and posted on all the doors
there will be no smoking around an edible area." Sanchez
further testified that Carr had been warned previously
about smoking, both by himself and by two other supervi-
sors. However, he did not identify those other two supervi-
sors, nor did he furnish any details of his purported prior
warning to Carr.
Significantly. it was later that same day that Carr had
observed Rifkin on the top dock speaking to the mainte-
nance employee who had been smoking at the time about
the newly installed conveyor. It is undisputed that Carr had
asked Rifkin why that maintenance employee was being
permitted to smoke while he (Carr) was not permitted to do
so. Rifkin replied only that he had spoken to the mainte-
nance employee about the matter. Yet, it is undisputed that
the latter had consumed the entire cigarette while speaking
with Rifkin, and Rifkin did not testify to having made even
a single comment to the maintenance employee regarding
this matter.
D. The Allegedy Unlaqful Restriction on Going to the
Restroom
Prior to July 17 employees working on the east dock,
where Carr worked, simply told each other whenever they
needed to go to the restroom and then would leave the
dock. On that date Carr returned from one such trip to the
restroom and was told by Sanchez that before going to the
restroom Carr would have to tell the foreman or wait for a
12 Both Carr and Trujillo identified this employee as Charles Hurd. While
Sanchez testified that he did not know an employee by that name, not supns-
ingly in light of the size of Respondent's employee complement. he did not
deny having been present. shortly before the hearing, when an employee had
been smoking a cigarette while pushing bee.l:
218
PEPPER PACKING CO.
utilityman to replace him. A sign to that effect was then
posted in the guard office in Carr's department for approxi-
mately I week after Sanchez' admonition to Carr.'
Sanchez testified that he had given the same instruction
as he had given to Carr to the other employees working on
the east dock on an individual basis.' He claimed that the
policy had been in effect prior to July 17, but that it had
been unenforced on the east dock and that "my supervisor
told me to make sure there was a relief man, because it was
too much strain on the guys up there when one's taking off
all the time."' Yet, Holloway testified that on jobs where
teamwork was not essential, such as the roll-on job per-
formed by Carr, employees were not normally required to
ask permission before going to the restroom. Sanchez
agreed that there was not the need for teamwork among
employees on the east dock that existed in other areas such
as the west dock. Indeed, Sanchez testified that there were
"a few times" when there were no trailers to load during
which employees were free to use the restroom.
Significantly, while utilitymen were assigned to other de-
partments, thereby making it possible for employees in
those departments to be replaced whenever they needed to
go to the restroom while maintaining the work of their
teams, no utilityman had been assigned to Carr's depart-
ment. Indeed, while Sanchez referred generally to the effect
of an employee leaving to go to the restroom on the work
that other department employees had to perform and, fur-
ther, to Carr's trips to the restroom, he did not specify even
a single instance where the work of Carr's department had
been delayed by Carr going to the restroom.
E. The Warning Letter of September 6 Concerning
Accidents
On Wednesday, August 30, Carr injured his knee while
working. As a result he did not return to work until late
September. In the interim two events of significance oc-
curred. First, on Friday, September I, Carr filed the charge
in Case 27-CA-5949, alleging that Respondent had "dis-
criminated, harassed and intimidated" him for having filed
charges with the Board. Second, by letter dated September
6, Rifkin issued the following warning to Carr regarding his
prior accidents:
As we are all aware, working conditions in a meat
packing plant are difficult and can be hazardous if em-
ployees do not exercise care and good judgement. Em-
ployees must be in good physical and mental condition
in order to perform the required work.
In December 1975 you were cautioned on the
amount of injuries sustained over a three year period.
From employment date of October 11, 1972 through
December of 1975, you had 14 reportable accidents.
Since December 1975 through August of 1978, you
have reported an additional 14 injuries. The Company
'3 Carr testified that he had not seen the notice for 3 or 4 years.
"4 Respondent did not call any employees to corroborate Sanchez in this
respect.
' Sanchez did not identify this supervisor, nor did Respondent call any
official to testify that he had given such an instruction to Sanchez.
feels we can no longer tolerate your record of injuries,
resulting in lost time, costs in dollars and cents for
medical payments and insurance and time lost by
other personnel due to your injuries and carelessness.
On August 28, 1978, you were involved in accidents
and injuries to three other employees, of which two
required medical treatment. In addition, 26 quarters of
beef were dropped on the floor. Since that day we have
had no more than three quarters of beef dropped in
any one day, which leads us to believe you are working
in a very careless manner.
Upon your return to work from your present injury,
you will be given additional instructions in the proper
way to load beef. Any further accidents caused by you
to yourself or your fellow workers, due to neglect, care-
lessness. failure to use provided safety equipment, or
poor judgment, will result in disciplinary action, in-
cluding discharge.
Attached to the letter was a list of the dates and nature of
Carr's accidents since December 11, 1975. Carr did not dis-
pute this recitation of his accidents. However, it is worth
noting that at least three of them involved injuries resulting
from hooks used to convey carcass quarters of less than
maximum strength. As Sanchez acknowledged, "Iwle had
weak hooks."
While he testified. Rifkin never did explain his reason for
deciding on September 6 as the date on which to send Carr
the letter. In fact, there was no testimony regarding the
circumstances that led Respondent to transmit this warning
to Carr. Respondent did produce two letters which had
been sent to other employees which, contends Respondent,
show that it was not unusual to send such letters to accident
prone employees. Yet, there are perceptible differences be-
tween the situations described in these two letters and the
circumstances of Carr in September. On June 20, 1977, a
letter was sent to employee Richard Lobberding for having
a total of 45 injuries over a 57-month period. The letter sent
to Carr on September 6 concerned a 71-month period: Oc-
tober 11, 1972, through August, 1978. During that period
Carr had been involved in only 28 injury incidents. More-
over, Lobberding's letter recites that his injuries since Feb-
ruary 1975 had caused him to miss 103 days of work. There
was no showing that Carr's accidents had caused him to
miss even nearly so much work. Similarly, the other letter,
sent to Joe Babish on May 22, states that his injuries had
caused him to miss "a total of 178 days due to on-the-job
injuries."
Consequently, if the Lobberding and Babish letters show
anything, they show that Carr's accident record by Septem-
ber had not been nearly so bad as the much more extreme
situations of those two employees. Respondent had toler-
ated more extreme accident situations before sending those
two employees the same type of letter as had been sent to
Carr on September 6. Furthermore, certain other matters
are significant concerning the letter sent to Carr. First, Re-
spondent produced no evidence to controvert Carr's testi-
mony that he had been involved in accidents and injuries to
only two-not three-other employees on August 28. Sec-
ond, one of those two accidents had involved a hook that
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had straightened out-the problem referred to supra. '6 Fi-
nally, when Carr did return to work in late September, he
was not "given additional instructions in the proper way to
load beef."
F. The Alleged Comments of Mills to Carr
Donald C. Mills is supervisor of the cooler department."
Carr testified that on August 3 during the course of an
explanation concerning how employee L. B. Jackson had
been hit in the mouth when a hook had slipped out of a
piece of meat, Mills had said to him (Carr): "You and L. B.
are the only ones around here that get hurt. This is a haz-
ardous job. If you don't like it, why don't you quit? We
don't like you around here anyway." Later that same day
Carr testified that he had asked Mills why Respondent
wanted to fire him, to which Mills had replied: "Bob is
going to fire all you people who filed grievances and go to
the Labor Board with it." Mills denied telling Carr that
Rifkin was going to get rid of all the troublemakers who
filed grievances or charges. In fact, he later denied having
any conversation with Carr on August 3, although he also
testified that he did not recall any other employees with
whom he had spoken on that date.
No mention of Mills had been made in the July 31 com-
plaint in Case 27-CA-5887. However, in the consolidated
complaint issued on October 26, the foregoing comment,
attributed to Mills by Carr, was alleged as a violation of
Section 8(aXI) of the Act. Carr testified that on November
27 Mills had initially refused to issue a clean smock when
requested to do so by Carr. Carr further testified that when
he had protested, naming four or five other employees who
were issued clean smocks whenever they asked for them,
Mills had replied, "Why did you go to the Labor Board on
me?"" After that, testified Carr, Mills had given him the
smock. Although he denied having made any statement to
Carr about the filing of charges with the Board, Mills did
not recall having participated in any conversation with Carr
on November 27. In fact, while he acknowledged having
issued several smocks on that date, Mills did not recall
whether he had given one to Carr.
Carr testified that on December I he had become em-
broiled in a mild dispute with Mills and Sanchez concern-
ing whether Carr had left a job before it had been com-
pleted. According to Carr, as he walked away from the
plant Mills had either kicked or pushed open the door
loudly and had hollered three or four times at Carr, "You
16 Sanchez testified that the problem could also be with the manner in
which the meat was handled when moved by means of the hooks. However,
there is no evidence that Sanchez had personal knowledge of how Care was
handling the meat on August 28. Consequently, it cannot be found that the
fault for that accident had been that of Carr. Interestingly, Sanchez testified
that "all" of the employees had complained that the manner in which Can'
performed his work tended to generate injuries, and that they were afraid to
work with Carn. Yet. Sanchez described not even a single specific instance of
such a complaint by an employee, nor did Respondent call any employee to
corroborate Sanchez' account that "all" of the employees had lodged such
complaints with him about Can.
" An admitted supervisor and agent of Respondent.
1s At another point Carn testified that Mills' remark had been, "Why did
you go lie to the Labor Board on me?" (Emphasis supplied.) However, he
later testified that this had not been Mills' question, but that the question
had been as quoted in the text, above.
ungrateful bastard. I'm going to get you. I'm going to get
you." Although admitting that he had been at the plant at
the time that Carr testified that this event had occurred,
Mills denied having participated in any conversation with
Carr on that day, denied having made reference to Carr
being an ungrateful bastard, and denied having made any
statements that he would get Carr.
G. The Alleged Comments of Mills to Holloway
The complaint alleges two remarks made by Mills to
Holloway as being unfair labor practices. Both were made
in connection with the September safety meeting.' Mills,
who had never previously attended such a meeting, had
been selected to attend the September meeting as one of
Respondent's representatives. Holloway testified that prior
to that meeting Mills had said to him, "I want you to keep
your damn mouth shut in that safety meeting." To this,
testified Holloway, he had replied that he would "most cer-
tainly" not keep quiet during the meeting but would "raise
hell about these conditions that need to be done about
here." Mills testified that he had been in a hurry to go home
that day and so, in a kidding manner, he had told Holloway
to cut the meeting short and keep his mouth shut about
unsafe conditions. According to Mills, Holloway had not
responded but had merely "laughed a little bit." During the
meeting Mills had felt that Holloway "kept going over the
same subject all the time which we had already gone over."
Thus, he had told Holloway a couple of times during the
meeting to be quiet because, "You sound like an idiot." 0
Due to an injury, Holloway had worked only on hook
return since March because the condition of his leg had
prevented him from doing other types of work at Respon-
dent's facility. Although he had not submitted a doctor's
excuse, he had advised Rifkin, Mills, and Sanchez of his
condition. All of them had accepted his word regarding his
condition. However, on the day after the safety meeting,
Respondent had been short of employees to do roll-on
work. Mills asked Holloway to fill in on that job for the
day, but Holloway replied that he was unable to perform
that type of work due to his leg. Unable to persuade Hollo-
way to switch to the job, according to Holloway, Mills had
said, 'If you can open your damn mouth in the safety meet-
ing, then you can do roll-ons." Mills agreed that he had said
to Holloway, "You can run your mouth last night, and it
sure didn't hurt your leg last night when you was running
your mouth."
IV. ANALYSIS
A. The Threat to Reinstate Carr's Indefinite Suspension if
He Filed a Grievance
In defense of Rifkin's remarks to Carr concerning the
latter's attempt to file a grievance over his suspension, Re-
spondent argues that Rifkin had not intended to deprive
9 Such meetings between representatives of the Union and Respondent
are conducted periodically so that the former can bring to Respondent's
attention assertedly hazardous and unsafe conditions.
10 There is no allegation that Mills' remarks to Holloway during the meet-
ing constituted violations of the Act.
220
PEPPER PACKING CO.
Carr of his statutory right to file a grievance. Rather. argues
Respondent, Rifkin had believed that the dispute created
by Carr's suspension had been settled as a result of their
late afternoon conversation on May 25. with the result, as-
serts Respondent, that it had been understood that the mat-
ter would be forgotten in return for termination of the in-
definite suspension imposed upon Carr. Respondent points
out that such an argument, whereby an employer can "buy
its peace.' was endorsed recently in American Postal 1Work-
ers Union, AFL CIO. 240 NLRB 409 (1979), wherein the
Board held that it was not unlawful for the employer to
accord an employee a more favorable reporting date on
condition that she not grieve the underlying dispute. When
the emplovee declined that offer, the employer simply pro-
cessed the matter as it would normally have done. Simi-
larly. contends Respondent, when Rifkin had discovered
that notwithstanding his May 25 conversation with Carr the
latter had sought to file a grievance concerning his suspen-
sion, Rifkin had simply pointed out that if Carr intended to
file a grievance then Respondent would consider the agree-
ment of the prior day to have been rendered a nullity and
would restore Carr to the same status as he had occupied
prior to their conversation, namely, as being on indefinite
disciplinary suspension.
It does appear that Rifkin truly had been motivated by
his belief that the dispute had been settled as a result of his
conversation with Carr on May 25. Further. it does appear
that his remarks to Trujillo and Carr during the following
morning had been intended as an expression of indignation
because he viewed Carr as having "reneged" on that agree-
ment, rather than being intended as an expression of hostil-
ity toward Carr for having filed a grievance per se. Yet, the
violation alleged because of Rifkin's remark is grounded in
Section 8(a)(1) of the Act and "intent is not material to a
finding of coercion within the meaning of Sec. 8(a)(1) of the
Act." Perko's, Inc., 236 NLRB 884, footnote 2 (1978); see
also American Lumber Sales, Inc., 229 NLRB 414, 416
(1977), and cases cited therein. Rather, the correct test is
"whether, from the listeners' point of view, these statements
. . .constituted forbidden coercion, threats, or intimida-
tion," Hendrix Manufacturing Company, Inc. v. N.L.R.B.,
321 F.2d 100, 104 (5th Cir. 1963). Consequently, Rifkin's
intent or motives for the statements which he made to Tru-
jillo and Carr in connection with the latter's effort to file a
grievance concerning his suspension are not material in ap-
praising whether his remarks violated Section 8(a)(1) of the
Act.
Respondent does not quarrel with the principal that "the
right to file a grievance with one's collective-bargaining rep-
resentative over wages, hours, and working conditions has
been a basic statutory right," General Motors Corporation,
Packard Electric Division, 232 NLRB 335 (1977). Rather, as
noted above, it argues that it had been willing to respect
that right, and that Rifkin had only asserted that Carr's
indefinite suspension would be restored when Carr had at-
tempted to file a grievance in derogation of his prior ex-
pressed desire to forget about the whole thing. In U.S.
Postal Service, 234 NLRB 820 (1978), an employee's dis-
charge was converted into a suspension in return for that
employee's agreement not to file a grievance regarding the
discipline imposed. The Board concluded that the employer
had not acted unlawfully by conditioning conversion of
that discharge to a suspension upon the employee's waiver
of his right to process a grievance further. In American
Postal Workers Union, supra, the Board concluded that it
was not unlawful for an employer to offer a more favorable
employment term to an employee so long as that employee
was willing to forgo filing a grievance. In both cases the
Board reached its conclusion on the theory that the em-
ployer had been attempting to "buy its peace" to prevent
further litigation of the matter. U.S. Postal Service. supra:
American Postal Worker.s Union, supra.
However, in both those cases at the time that the offer to
change the planned employment action was made it was
also made clear that the employees involved would have to
relinquish their right to file grievances as a quid pro quo for
the employers' change. By contrast, in the instant case, un-
der the accounts of the afternoon conversation of May 25
given both by Carr and Rifkin, no similar equation had
been drawn between the change in employer action and the
waiver of the employee's right to process a grievance. In-
deed, Rifkin testified specifically that no mention of griev-
ance had been made during that meeting.
As noted above, the right to file a grievance is "a basic
statutory right" and the Board has a "well-established pol-
icy against ready inference of of waivers of Section 7
rights." Daniel Construction Company. Inc.. 239 NLRB
1335-36 (1978). Indeed, the waiver of such a right in a
bargaining agreement will be found only where the lan-
guage is "clear and unmistakable," Insurance Corkers In-
ternational Union, AFL CIO, Local 60 (John Hancock Mu-
tual Life Insurance Company), 236 NLRB 440 (1978).
Certainly no lesser standard can be imposed for finding a
waiver of Carr's right to file a grievance as a result of his
private understanding with Rifkin. Since it is clear from the
versions of both Carr and Rifkin of the May 25 afternoon
conversation that there was no such "clear and unmistak-
able" waiver of Carr's right to file a grievance as a quidpro
quo for termination of his indefinite suspension it cannot be
found that there was an agreement that Carr would waive
his statutory right as a condition to his immediate return to
work. Nor can it be found that an employee's expression of
a desire to "forget about the whole thing," made after a 25-
minute to 35-minute discussion of the need to remain at his
work station, could reasonably be construed as a waiver of
his right to grieve his suspension.
It is against this background that Rifkin's remarks of the
following morning must be gauged. There is no evidence
that Carr had agreed to waive his statutory right to file a
grievance to recover the day's pay lost by virtue of his sus-
pension of the prior morning. Nor, given Carr's and Rif-
kin's descriptions of the May 25 afternoon meeting, can it
be said that Carr would have reasonably understood that
his restoration to employment had been contingent upon
such a waiver. Accordingly, where the upset Rifkin con-
fronted him with the accusation that there had been such
an agreement and that Carr would again be suspended in-
definitely if he insisted on processing the grievance, the only
reasonable conclusion that could be drawn by Carr-the
employee listener-was that Respondent was using its con-
trol over his employment to retaliate under the guise of (to
Carr), a nonexistent agreement against him for attempting
to file a grievance.
221
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
This is not to say that Respondent is precluded from
making an agreement to restore a suspended employee to
work in return for a waiver of that employee's right to file a
grievance concerning his suspension. However, what ap-
pears to have happened is that Rilkin understood his con-
versation with Carr to imply such an agreement when, in
fact, there is no objective basis for finding that an employee
would clearly and unmistakably have so understood that to
have been the import of Rifkin's remarks. Thus, it could
only have appeared that Rifkin's statements that the sus-
pension would be reimposed if Carr attempted to file a
grievance were designed as a threat of retaliation against
Carr for trying to grieve his suspension of the prior day.
Therefore, I find that Rifkin's statements to Carr concern-
ing reimposition of the suspension if Carr attempted to file
a grievance concerning his suspension violated Section
8(a)(1) of the Act.
B. The Personnel Actions During the Processing of the
Unfair Labor Practice Charges
A rather striking pattern emerges when the history of this
proceeding is compared to the adverse personnel actions
taken against Carr during the summer. On Friday, July 7,
Respondent received the charge in Case 27 CA-5887. That
charge alleged a violation that, so far as the record dis-
closes, could only have involved Carr. On the following
Tuesday a letter was issued to Carr warning of disciplinary
action if he did not comply with no-smoking regulations.
One week later, during investigation of that charge, Carr
was told that he had to tell his foreman or be replaced by a
utilityman before he could go to the restroom. Sanchez ad-
mitted that this was a change in procedure. After receipt by
Respondent on August I of the complaint in Case 27-CA--
5887, which named Carr specifically as the object of an
unfair labor practice by Respondent, Carr was warned 2
days later that he would be suspended if he lit a cigarette on
the east dock. On September 1 Carr filed his own charge
against Respondent in Case 27-CA-5949. Five days later
Respondent prepared a letter warning of disciplinary action
if Carr caused further accidents.
In sum, in each instance these warnings and/or restric-
tions occurred very closely after some incident involved in
the filing or processing of the charges which underlie the
instant proceeding. Such proximity between protected ac-
tivity and mesures taken against employees "is, as we have
said, sufficient to establish a prima facie case .... " Union
Camp Corporation, 194 NLRB 933 (1972), enfd. 463 F.2d
1136 (5th Cir. 1972). "Such proximity can lend support to a
Board inference of unfair labor practices," N. L. R.B. v. Ten-
nessee Packers, Inc., Frosty Morn Division, 390 F.2d 782,
784 (6th Cir. 1968); see also N.L.R.B. v. Drives, Incorpo-
rated, 440 F.2d 354, 363 (7th Cir. 1971).
Aside from the question of timing there are a number of
unexplained inconsistencies when the conduct for which
Carr was warned is compared to similar conduct of other
employees. Most obvious was Sanchez' warning that Carr
would be suspended if he lit a cigarette on the east dock.
This is the same area where, during the prior month, three
maintenance employees had each consumed a cigarette
during a conversation with Rifkin. So far as the record dis-
closes, nothing was said to them about their smoking. Fur-
ther, Sanchez' warning to Carr was uttered on the same day
as Ritkin had spoken with a maintenanceman in an edible
area, and while that maintenanceman had also consumed
an entire cigarette during their conversation, there is no
evidence that he, unlike Carr, had been subjected to a
warning of suspension. To the contrary, the fact that these
employees smoked their cigarettes completely during their
conversations with Rifkin tends to refute any inference that
anything had been said to them. Had something been said,
presumably they would not have completely smoked those
cigarettes but would have extinguished them.
Similarly, Carr was issued a warning letter in September
for having been involved in 28 injury incidents in a 71-
month period. Yet, earlier another employee had been per-
mitted much greater latitude, not having been issued such a
letter until he had been involved in almost twice as many
such incidents during a much shorter period of time than
the one for which Carr had received his letter. Furthermore,
there has been no showing that Carr's injuries caused the
extensive loss of worktime that those of two other employ-
ees, whose records were produced at the hearing, had occa-
sioned. These comparisons tend to show that Carr "was
singled out for special treatment. This too, tends to indicate
discrimination by the employer," N.L.R.B. v. Melrose Pro-
cessing Co., 351 F.2d 693, 699 (8th Cir. 1965).
Beyond these matters, there are a number of deficiencies
in Respondent's defenses. For example, the letter concern-
ing smoking issued to Carr on July 11 recites that he had
twice been observed smoking that same day and had been
cautioned against doing so on both occasions. Yet, Carr
denied that this had occurred on July II. While Rifkin
claimed to have been the supervisor who had observed Carr
smoking twice on July II, he did not describe these pur-
ported observations with any specificity, and, contrary to
his letter, he never described or claimed to have cautioned
Carr on these two purported occasions. In a like vein, while
Sanchez claimed that he and two other supervisors had
warned Carr about smoking prior to August 3, he did not
describe these asserted warnings with any specificity, he did
not identify the other two supervisors to whom he was re-
ferring, and no other supervisor was called to corroborate
Sanchez' testimony in this respect.
The area of smoking was not the only one in which San-
chez displayed a willingness to cast broadly worded but
indefinite and uncorroborated assertions against Carr. As
noted in footnote 16, supra, he claimed that "all" of the
employees had expressed fear of working with Carr be-
cause, purportedly, the latter's manner of working tended
to generate injuries. Yet, Sanchez did not list even a single
specific instance of such an employee complaint against
Carr, and not one employee was called to corroborate his
testimony in this respect. Similarly, with regard to Sanchez'
July 17 admonition to Carr concerning the restroom, while
Sanchez claimed that "my supervisor" had instructed him
to issue the instruction which he did that day, he did not
identify that "supervisor" and no "supervisor" corrobo-
rated Sanchez' claim that he had been directed to issue that
instruction. Moreover, while Sanchez claimed that he had
told each of the employees on the east dock of the new rule,
no employees were called to corroborate Sanchez' account
in this respect.
222
PEPPER PACKING CO.
The restroom incident is illustrative of the general failure
of Respondent's actions pertaining to Carr to correspond to
objective considerations that might support a plausible non-
discriminatory basis for those actions. While Sanchez
claimed that the July 17 instruction had been motivated by
the fact that "it was too much strain on the guys up there
when one's taking off all the time." no evidence was pre-
sented to support this assertion. To the contrary, as Sanchez
conceded, this was an area where teamwork was not essen-
tial, and there were times when the absence of trailers to be
loaded had left employees working there with free time dur-
ing which they could, inter a/ia, use the restroom. Indeed,
the failure to assign a utilityman to that area, thereby pro-
viding relief to employees who sought to use the restroom,
would tend to indicate Respondent's own recognition of the
fact that employees could leave the area for brief periods
without interference with the work to be performed there.
In fact, there is no evidence of even a single instance of
work interference caused by the absence of Carr or any
other employee from the east dock. In sum, there are no
objective considerations that would support the need for
issuance of an instruction such as that issued to Carr by
Sanchez on July 17.
Similarly, in another area, Respondent produced no evi-
dence to show why it had waited for I week after Carr's
knee injury to issue the warning letter concerning accidents
that it sent to him on September 6. Moreover, if it was as
concerned about Carr's accidents as the letter states, then
most surely it would have furnished him the "additional
instructions in the proper way to load meat" as it promised
in the letter. Yet, it did not do so, and no explanation was
advanced for failing to provide such instruction in the face
of its previous assertions of concern regarding Carr's in-
volvement in these incidents.
Consequently, the timing of the adverse actions directed
against Carr, the inconsistent treatment accorded him when
compared to Respondent's tolerance of similar conduct by
other employees, the fact that Carr was the only employee,
so far as the record discloses, involved in the charges filed
against Respondent, and the basically unsupported nature
of the offenses attributed to Carr when coupled with their
inconsistency with objective considerations all tend to show
that Carr had been singled out for special and disparate
treatment related to the unfair labor practice charges stem-
ming from his suspension which, as found above, Rifkin
had believed to have been settled and which had led him to
become upset when Carr attempted to file a grievance con-
cerning the matter. Thus, the evidence supports the conclu-
sion that the summer actions of Respondent had been di-
rected against Carr in retaliation for prolonging that
dispute and for making it an issue in an unfair labor prac-
tice proceeding.
Another motive besides simple retaliation is disclosed, at
least for the smoking and accident letters, by supervisor
Mills' remarks to Carr on August 3, the same day as San-
chez had warned Carr about smoking on the east dock.
Mills did not deny having invited Carr to quit because "We
don't like you around here anyway." Although he did deny
having told Carr that Rifkin was going to fire "you people
who filed grievances and go to the Labor Board with it." his
own recollection of the events of that day did not appear
reliable. Further, his remark expressing hostility toward
Carr for having made the suspension the subject of a griev-
ance and for having invoked the Board's processes is consis-
tent with Respondent's overall course of unlawful conduct
against Carr for his involvement in such protected activity.
Moreover, Mills appeared to be an individual of strong con-
victions who lacked subtlety and would be quite likely to
frankly express his views concerning subjects about which
he felt strongly, as evidenced by his remarks to Holloway in
connection with the September safety meeting. Conse-
quently, I find that Mills did make this remark to Carr, and
that it discloses an intent by Respondent to terminate Carr
for his protected activity. Viewed in this light, the letters
issued to Carr are not simply retaliatory but also can be
found to have been part of an effort to build a record
against Carr to support his termination thereby eliminating
the source of a problem for Respondent.
Therefore, I find that by issuing a written reprimand to
Carr for smoking and by instructing Carr to notify a utility-
man or foreman before going to the restroom Respondent
violated Section 8(a)( ), (3) and (4) of the Act. Moreover, I
find that by issuing the September 6 letter threatening Carr
with discipline if he were involved in future accidents,2 by
Sanchez' threat to suspend Carr if the latter smoked on the
east dock, and by Mills' statement that Respondent in-
tended to fire all people who filed grievances or sought re-
lief through the Board's processes Respondent violated Sec-
tion 8(a)(1) of the Act.
C. The Comments tv Mills
There is no dispute regarding Mills' remarks to Holloway
before and after the September safety meeting. Mills, how-
ever, claimed that his remark before the meeting had been
motivated by his desire to shorten the meeting so that he
could go home, and that the job assignment given Hollo-
way on the morning after that meeting had been motivated
by a shortage of employees and had nothing to do with
Holloway's conduct at the meeting. Nevertheless, as
pointed out supra, an employer's motive or intent is not
material to a determination of whether Section 8(a)(1) of
the Act has been violated, Perko's, Inc., supra. The employ-
er's statements must be appraised "from the listeners' point
of view," Hendrix Manufacturing Company, supra. More-
over, in determining the effect of the employer's statements
upon employees, the Board "must take into account the
economic dependence of the employees on their employers,
and the necessary tendency of the former, because of that
relationship, to pick up intended implications of the latter
that might be more readily dismissed by a more disinter-
ested ear." N..L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 617 (1969).
Here, the safety meeting was conducted to discuss mat-
ters of concern to employees pertaining to hazardous and
unsafe conditions. Holloway's right to participate in that
meeting was, accordingly, protected by the Act. Before that
1 It is not alleged that issuance of this letter constituted a violation of Sec.
8ta(3) and (4) of the Act, and since The Remedy provided lotr the violation
of Sec. 8(aX I ) of the Act in connection with this matter, there s no need to
pursue the possibility of finding violations under these other sections of the
Act.
223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, however, Mills admonished Holloway to keep his
mouth shut during the meeting. Twice during the meeting
Mills told Holloway to be quiet. On the following morning
Holloway was assigned to perform work that Respondent
had refrained from assigning to him because of the condi-
tion of his knee. When Holloway raised the matter of his
knee in an effort to avoid possible further injury that might
result from performance of the work, Mills retorted that the
knee had not prevented Holloway from "running his
mouth" the prior evening at the safety meeting. Such a re-
tort is hardly responsive to the situation as Mills portrayed
it to exist that morning. There is hardly a correlation be-
tween Holloway's knee condition and his ability to partici-
pate in safety meetings, nor is there any logical relationship
between Holloway's participation in that meeting and his
ability to perform roll-on work. Yet those were the very
equations drawn by Mills' remark.
The only conclusion left to Holloway as a result of Mills'
retort was that because he had refused to adhere to Mill's
premeeting admonition to be silent, he had incurred Re-
spondent's enmity and consequently was to be assigned
work to which he had not been assigned previously in re-
taliation for his disregard of that admonition. In this re-
spect, his position would appear similar to that of Carr who
was concurrently being subjected to adverse personnel ac-
tions because he had refused to cease pursuing the matter of
his May suspension and his attempt to grieve that suspen-
sion. Any possibility in Holloway's mind that Mills may
have been joking by his premeeting remark would be erased
by Mills' unwarranted reference to Holloway's failure to be
silent the prior evening. Therefore, I find that Respondent
did violate Section 8(a)(l) of the Act by virtue of Mills'
comments to Holloway both prior to and following the Sep-
tember safety meeting.
The final allegations that Respondent violated Section
8(a)(1) of the Act pertain to Mills' alleged comments to
Carr on November 27 and December . Carr testified that
on November 27 Mills had refused to provide a smock, as
Respondent did for other employees, and had demanded to
know, "Why did you [Carr] go to the Labor Board on me?"
Mills denied having made this remark. Yet it was apparent
that he had virtually no recollection of the events of that
day. Moreover, at the time of the incident the hearing in the
instant matter was nearing, and Mills' August comment to
Carr had been added to the consolidated complaint as an
alleged violation of the Act. As found above, Mills was not
an individual who was reluctant to express his opinions.
Consequently, he possessed both the personality and, in his
own view, ample motive for accosting Carr with his No-
vember 27 question. Therefore, I credit Carr's account of
Mills' question, and in light of the nature of the question
and the circumstances under which it was asked, I conclude
that it was coercive and a violation of Section 8(a)( ) of the
Act.
Similarly, I find that Mills did threaten "to get" Carr on
December 1. He had previously displayed his animosity
toward Carr, and his November 27 question demonstrated
his concern and displeasure with Carr for the addition of
his name to the complaint as a perpetrator of an unfair
labor practice. I credit Carr's account of Mills' repeated
comment of December I and conclude that in the circum-
stances Carr could reasonably construe it as a threat to
retaliate against him because an allegation that Mills had
violated the Act had been added to the complaint.
In view of the foregoing conclusions, I deny Respon-
dent's motion to dismiss the allegations of the consolidated
complaint.
V. IHE EFF(CIS OF TIHE UNFAIR LABOR PRA(CTI(ES UPON
(OMMER(CE
The activities of Pepper Packing Co.. as set forth above,
occurring in connection with its operations described in sec-
tion 1, above, have a close, intimate, and substantial rela-
tionship to trade, traffic and commerce among the several
States and tend to lead and have led to labor disputes bur-
dening and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
I. Pepper Packing Co. is an employer within the mean-
ing of Section 2(2) of the Act engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of
North America, Local 641. AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By issuing a warning notice to and by restricting the
restroom access of David Carr, Pepper Packing Co. violated
Section 8(a)(4), (3), and (1) of the Act.
4. By threatening to indefinitely suspend an employee if
he filed a grievance, by saying that it intended to get rid of
employees who filed grievances and went to the Board, by
threatening to suspend David Carr if he were found smok-
ing because Carr had caused charges to be filed under the
Act and had engaged in union and/or protected concerted
activity, by issuing a warning letter to David Carr concern-
ing future accidents because Carr had filed charges under
the Act and had engaged in union and/or protected con-
certed activity, by telling an employee to keep his mouth
shut at a safety meeting, and by creating the impression
that an employee had been given more onerous work be-
cause of his participation in a safety meeting Pepper Pack-
ing Co. violated Section 8(a)( 1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Pepper Packing Co. engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and that it take cer-
tain affirmative action to effectuate the policies of the Act.
Pepper Packing Co. will be ordered to remove from the
personnel file of David Carr all records concerning the July
11, 1978, letter issued to Carr concerning smoking and all
records concerning the September 6, 1978, letter issued to
Carr concerning future accidents. In addition, Pepper Pack-
ing Co. shall be ordered to expunge any notations or other
records concerning those letters from its files and records.
While there is no allegation or evidence to support one
that the May suspension of David Carr was motivated by
224
PEPPER PACKING CO.
unlawful considerations, the fact remains that Carr did lose
I day's pay by virtue of that suspension and was prevented
from grieving that suspension by virtue of Rifkin's unlawful
threat to place him on indefinite suspension if he did so.
Consequently, the effect of this unfair labor practice was to
deprive Carr of a chance to obtain backpay had he pre-
vailed on the grievance which he sought to file. Further,
should Carr now attempt to process that grievance Pepper
Packing Co. may now argue that it is time barred. Accord-
ingly, I shall recommend that if Pepper Packing Co. raised
objections to the timeliness of a grievance concerning that
suspension, should Carr seek to file one, it will be required
to make Carr whole for the loss of earnings he suffered by
reason of the I-day suspension, with interest to be paid on
the amount owing and to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977): see,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962), enforcement denied on different grounds 322 F.2d
913 (9th Cir. 1963). Of course, if Pepper Packing Co. raises
no objections to the timeliness of such a grievance, no back-
pay will be owing.
Upon the foregoing findings of fact, conclusions of law,
the entire record, and pursuant to Section 1O(c) of the Act.
I hereby issue the following recommended:
ORDER2 2
The Respondent, Pepper Packing Co.. Denver, Colorado.
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing warning notices to employees, restricting the
restroom access of employees, discharging or otherwise dis-
criminating against employees with regard to hire or tenure
of employment or any term or condition of employment for
filing charges or having charges filed on their behalf under
the Act or for engaging in activities on behalf of a labor
organization or for engaging in activity protected by Sec-
tion 7 of the Act.
(b) Threatening to indefinitely suspend employees for fil-
ing grievances, saying that it intended to get rid of employ-
22 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.
ees who filed grievances and resorted to the processes of the
National Labor Relations Board, threatening disciplinary
action against employees because those employees had filed
charges under the Act and had engaged in union and/or
protected concerted activity, telling employees to keep their
mouths shut during safety meetings, and creating the im-
pression that employees have been given more onerous
work because of their participation in safety meetings.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Expunge from the personnel file of David Carr and
from any other records maintained by Pepper Packing Co.
all references to the July 11, 1978, letter concerning smok-
ing and the September 6, 1978, letter concerning future ac-
cidents issued to Carr.
(b) In the event that Pepper Packing Co. raises objec-
tions to the timeliness of a grievance concerning David
Carr's I-day suspension in May 1978, make Carr whole for
any loss of pay he may have suffered as a result of that
suspension in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and make available to the Board or its
agents all payroll and other records necessary to compute
the backpay rights set forth in "The Remedy" section of
this Decision.
(d) Post at its Denver, Colorado, facility copies of the
attached notice marked "Appendix."23 Copies of the notice,
on forms provided by the Regional Director for Region 27.
after being duly signed by its authorized representative,
shall be posted by Pepper Packing Co. immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Pepper Packing Co. to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
23 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
225