Swift & Co.

National Labor Relations Board - Board Decisions

Jul 30, 1980

250 N.L.R.B. 1223 (N.L.R.B. 1980)

SWIFT AND COMPANY
Swift and Company and Connie June Reynolds.
Case 16-CA-8648
July 30, 1980
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April i, 1980, Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in answer to the General
Counsel'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, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
We agree with the Administrative Law Judge
that Respondent's supervisor, Andy Euthon, violat-
ed Section 8(a)(l) of the Act by telling Union Ste-
ward Connie Reynolds that another steward was
"treading on thin ice" and "wouldn't last long" be-
cause that steward had filed a grievance against
Euthon. We disagree, however, with the Adminis-
trative Law Judge's finding that Union Steward
Jimmy Reynolds2 was discharged for violating Re-
spondent's unexcused absence rules. Instead, we
find that Mr. Reynolds was discharged because of
his union activities, in violation of Section 8(a)(3)
and (1) of the Act.
Reynolds was hired by Respondent on August
11, 1977, as a meatcutter, and he worked at Re-
spondent's Cactus, Texas, food processing plant
until his discharge on March 7, 1979. 3 The Cactus
operation employs approximately 1,100 employees,
900 to 950 of whom have been represented by the
Union since 1975. Reynolds worked in the fabrica-
tion division, which employs 600 unit employees,
represented by 3 union stewards.
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect 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 re-
versing his findings.
2 Connie Reynolds. the Charging Party herein, and Jimmy Reynolds
are husband and wife Both were employed by Respondent at all times
material herein.
3 All dates herein are in 1979 unless otherwise indicated
Reynolds joined the Union sometime after he
commenced employment, and on July 6, 1978, he
became a union steward for the fabrication divi-
sion. As a steward, Reynolds' responsibilities in-
cluded dealing with problems of hourly employees,
filing grievances for the Union, involving himself
in settling potential disputes, and representing em-
ployees in dealings with management. Reynolds
testified that he was a fairly aggressive steward,
and that he filed approximately three grievances
per month.
Soon after he became a steward, Reynolds no-
ticed a change in Respondent's attitude toward
him. Reynolds had been told earlier to polish his
skills as a meatcutter before attempting to match
the pace of more experienced employees on the as-
sembly line. However, Reynolds' supervisor, at the
time he first noticed the identifying "steward" label
on Reynolds' helmet, suddenly ordered him to
keep up with the other workers despite his relative
inexperience in the job.
Soon after his appointment as steward, Reynolds
had trouble with Respondent's posted rules on un-
reported and unexcused absences. These rules in-
volved a three-step disciplinary procedure. On the
first unexcused or unreported absence, the employ-
ee receives a written warning. That warning
threatens a 3-day suspension if a second unexcused
absence occurs within a year. A second such ab-
sence within the period results in the 3-day suspen-
sion and warning that a third unexcused or unre-
ported absence within the year will result in termi-
nation. Upon the third absence, the employee is
discharged.
On August 1, 1978, the Reynolds' car broke
down. They notified Respondent that they could
not report for work that day because of their vehi-
cle. On the following day, the Reynolds reported
to work and received the first warning outlined
above. Mr. Reynolds asked his supervisor if he
could bring in the repair bill for the car and have
the unexcused absence changed to excused, but his
supervisor would not give him permission to do so.
On January 5, 1979, the Reynolds again had car
trouble and were unable to report to work. On Jan-
uary 6, they both received the second warning and
3-day suspensions. Reynolds filed a grievance on
the suspensions; that grievance was still pending at
the time of his discharge.
On February 1,4 Reynolds filed a grievance
against Jim Lloyd, a foreman. Reynolds served the
grievance on Lloyd when he was standing next to
General Foreman Warren Hall. Lloyd turned to
4 In his analysis of Reynolds' discharge. the Adminitrati~se L.as Judge
inadvertently referred to the date or this cons'ersatlon a, Fehruary I.
1974 A icareful review of the record res eal'
th
at t ocicurred in 1979
250 NLRB No. 152
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hall and asked him what Hall intended to do about
the grievance, and Hall replied, "Don't worry
about it. He will not be here long."5
Mr. Reynolds testified that on Friday, March 2,
he awoke feeling ill and at 5:20 or 5:30 a.m. he
drove to a public pay telephone, having no phone
of his own, and reported that he was ill and would
not be in that day.6 On Monday, March 5, Reyn-
olds was still feeling ill and followed the same pro-
cedure, as he did on March 6. On March 7, Reyn-
olds reported for work at approximately 7 a.m. He
was directed to Respondent's office, where he met
with Supervisor Euthon, General Foreman Hall,
and Union Representative Doug Daniels.
Reynolds testified that he told them, "I figured I
would get in trouble because of no doctor's
excuse." Hall informed Reynolds that he was being
terminated for not calling in. Reynolds asserted
that he had in fact done so, but Hall insisted there
was no recorded message on the machine. Union
Representative Daniels complained that the ma-
chine was not consistent in recording employees'
messages. At this time, a higher management offi-
cial, Fabrication Supervisor Bill Toms, joined the
conversation and told Reynolds, "Regardless of
whether you brought in a doctor's excuse or not,
you are terminated if you don't call in."
Mr Reynolds' termination slip read, in pertinent
part:
Third unexcused absence in one year period.
(No call 3-5-79.) This is violation of the com-
pany policy on unexcused absences. Other un-
excused absences were 8-1-78 and 1-4-79.
The slip was signed by Euthon, Daniels, and Mr.
Reynolds.
A grievance was filed on Mr. Reynolds' termina-
tion, and it went through several steps of the griev-
ance procedure. Respondent has denied reinstate-
ment. The grievance has not been pursued to arbi-
tration because, according to Reynolds' testimony,
the Union has not had sufficient funds to go to ar-
bitration.
The complaint alleges that Respondent's dis-
charge of Reynolds violated Section 8(a)(3) and
(1). The General Counsel argued that Respondent's
alleged reason for firing Reynolds was pretextual
and that Respondent's action was actually motivat-
ed by Reynolds' activities as union steward. The
I As the charge was filed on August 13, 1979. this conversation oc-
curred outside the 10(b) period, and is not alleged as a separate violation
of Sec. 8(a)(1).
^ Respondent has two telephone answering machines which are to be
turned on when no one is available to answer the phone. One machine is
in the fabrication department, where the Reynolds worked, and one is in
the slaughter department. Employees were to call in and leave a message
on the recording device for their department if they were unable to
report for work.
General Counsel presented evidence that Respond-
ent did not apply the unexcused absence rule uni-
formly, and that Respondent's answering machine
did not always work properly, and pointed to the
differing reasons given by Respondent's manage-
ment personnel for Reynolds' discharge. The Ad-
ministrative Law Judge found that there was insuf-
ficient evidence to conclude that the rules had not
been applied uniformly, and recommended dismiss-
al of that portion of the complaint.
We do not agree with the Administrative Law
Judge's conclusion, but find, for the reasons set
forth below, that Respondent's discharge of Reyn-
olds violated Section 8(a)(3) and (1) of the Act.
The record reveals that Respondent did not
apply its unexcused absence rules uniformly. There
was uncontradicted evidence that employees Jesse
Hernandez and Felipe Mendez were allowed to
bring in car repair bills as evidence of their reasons
for absences, and had disciplinary action rescind-
ed.7 Reynolds, however, was told by his supervisor
not to bring in the bill.
Former employee Rene Garcia testified without
contradiction that he was absent on three occa-
sions, and Respondent took no disciplinary action
against him. In June 1978, Garcia called in and left
a message that he was ill and would not be in that
day. On the following day, he reported to work
and was told by his supervisor that he would be
written up for not calling in. Garcia replied that he
had indeed called and left a message, and his super-
visor told him not to worry about it. In February
1979, Garcia was ill again, and did not report his
absence. When he returned to work, his supervisor
told him to be sure and call in the next time. On
neither of these occasions did Garcia tender a doc-
tor's excuse. Later that month, Garcia had car
trouble and did not call in. When he reported for
work, his supervisor again told him to call in and
warned that he would be reported the next time he
failed to notify Respondent of his absence.
There was also evidence that Respondent's tele-
phone answering machine did not always work
correctly. Aside from Garcia's testimony that the
machine had not picked up his message in August
1978, Union President Selestino Morales testified
without contradiction to two occasions where the
Union had shown Respondent that the machine
had malfunctioned. Morales himself had called in
sick to the fabrication department machine, and, as
a precautionary measure, also left a message on the
slaughter department machine. His supervisor had
written Morales up for an unreported absence be-
' Hernandez was given backpay for the 3-day suspension he received
as a result of his absence.
1224
SWIFT AND COMPANY
cause the fabrication recorder had no message from
him, but when Morales had him check the other
machine, the supervisor heard Morales' second
message and tore up the disciplinary warning.
On another occasion, an employee who called
long distance brought in a copy of the telephone
bill which showed that a call to the fabrication di-
vision's answering device had been made. The re-
corder had picked up no message.
Respondent's personnel director, Ronald Berg-
man, admitted that Respondent was aware that the
fabrication machine had malfunctioned occasional-
ly, and testified that when the machine malfunc-
tions, the employee gets an excused absence. He
admitted that the answering device was not
checked when Reynolds claimed that he had left a
message on March 5, even though the recorder ap-
parently picked up his message on March 6.8
Such evidence of disparate treatment and the
failure of Reynolds' defense support the General
Counsel's contention that Respondent's alleged
reason for discharging Reynolds was pretextual.
Furthermore, Respondent's supervisory and man-
agement personnel seemed to disagree on the rea-
sons for Reynolds' termination. Fabrication Super-
visor Toms told Reynolds at his discharge inter-
view that a medical excuse would not help him,
and Reynolds' termination slip, prepared that day,
referred only to his failure to call in. However,
Personnel Director Bergman testified at Reynolds'
unemployment compensation hearing and before
the Administrative Law Judge that Reynolds was
discharged because he did not have a doctor's
excuse. Bergman further testified that, if Reynolds
had submitted a written excuse, he would not have
been terminated, although Bergman also admitted
that doctor's excuses are not required for all em-
ployees.
It appears that, once Reynolds became union ste-
ward, Respondent's attitude toward him changed
immediately, as his supervisor required him to keep
up with more experienced employees. Specifically
with regard to his grievance activity, General
Foreman Hall said in Reynolds' presence approxi-
mately I month before his discharge that he would
not be around long. Seven months after he became
a steward, Reynolds was terminated for violation
of a rule which was not consistently applied, and
his defense of machine malfunction was never in-
vestigated by Respondent, even though Respond-
ent had had reports that the recorder had not
worked well in the past. Finally, Respondent termi-
nated Reynolds in spite of his good work record9
I Reynolds' attendance record shows "no call" on March 5 and "sick"
on March 6
0 Supervisor Andy Euthon testified at the hearing that Reynolds was
an "excellent" employee.
if Reynolds had produced a medical excuse he
would not have lost his job.
The Board has held that disparate enforcement
of rules'I and shifting reasons for termination '' in-
dicate pretextual reasons for discharge and we so
find here. It is clear from the record that Respond-
ent terminated Reynolds because of his activities as
a union steward.' 2 The fact that we also find an
8(a)(1) violation herein based on a supervisor's
threat to discharge another steward further con-
vinces us of Respondent's animus.
In view of the foregoing, we can only conclude
that Respondent's termination of Jimmy Reynolds
violated Section 8(a)(3) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 4 of the
Administrative Law Judge's Conclusions of Law:
"4. By discharging Jimmy Reynolds because of
his activities as a union steward, Respondent has
engaged in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act."
THE REMEDY
Having found that Respondent has engaged in
additional unfair labor practices in violation of Sec-
tion 8(a)(3) and (1) of the Act, we shall order that
it cease and desist therefrom and take certain af-
firmative action in order to effectuate the policies
of the Act. Having found that Respondent discri-
minatorily discharged Jimmy Reynolds, we shall
order that Respondent offer him immediate and full
reinstatement to his former position or, if such po-
sition no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any loss of earnings he may have
suffered as a result of the discrimination against
him by payment to him of a sum of money equal to
the amount he would have earned from the date of
his discriminatory discharge to the date of an offer
of reinstatement, less net earnings during said
period, to be computed on a quarterly basis in the
manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289 (1950), plus interest
as set forth in Florida Steel Corporation, 231 NLRB
651 (1977). See, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
'o Gary Aircraft Corporation, 193 NLRB 108. III (1971).
" State Mechanical Construcors, Inc., 191 NLRB 393, 396 (1971).
" Hydra-Tool Company, 222 NLRB 1113, 1121 (1976).
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations Board hereby orders that the Respondent,
Swift and Company, Cactus, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Food
and Commercial Workers, Local No. 775, or any
other labor organization, by discharging or other-
wise discriminating against employees because of
their union membership or activities.
(b) Threatening employees who are union stew-
ards by telling them that other stewards face retali-
ation or discharge because they filed grievances
against supervisors.
(c) In any like or related manner interfering
with, restraining, or coercing its employees in their
exercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer Jimmy Reynolds immediate and full re-
instatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings he may have
suffered by reason of the discrimination against
him, with interest, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board and its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary and relevant to ana-
lyze the amount of backpay due under the terms of
this Order.
(c) Post at its Cactus, Texas, facility copies of
the attached notice marked "Appendix."' 3 Copies
of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
its representative, shall be posted by Respondent
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by it to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 16,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
1J 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."
MEMBER PENELLO, concurring in part and dissent-
ing in part:
I agree with my colleagues that Respondent vio-
lated Section 8(a)(1) when Supervisor Euthon
threatened a union steward with discharge. How-
ever, for the reasons set forth in the Administrative
Law Judge's Decision, I would dismiss that portion
of the complaint alleging a violation of Section
8(a)(3). In finding that Respondent lawfully dis-
charged Jimmy Reynolds for violation of its unex-
cused absence rule, I note particularly that Re-
spondent had terminated 33 other employees
during the period from May 1977 to January 1980,
for the same reason.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in
United Food and Commercial Workers, Local
No. 775, or any other labor organization. by
discharging or otherwise discriminating against
our employees because of their union member-
ship or activities.
WE WIL. NOT threaten employees who are
union stewards by telling them that other
stewards face retaliation or discharge because
they filed grievances against supervisors.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Jimmy Reynolds immediate
and full reinstatement to his former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole
for the earnings he lost as the result of our dis-
crimination, with interest.
SWIFT AND COMPANY
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This case was heard before me in Dumas, Texas, on Jan-
1226
SWIFT AND COMPANY
uary 15, 1980, pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board
for Region 16 on September 28, 1979, which is based
upon a charge and an amended charge filed by Connie J.
Reynolds on August 13 and 27, 1979, respectively. The
complaint alleges that Swift and Company (herein called
Respondent) is engaged in certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (herein called the Act).
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Post-hearing briefs have
been received from Respondent and the General Coun-
sel' which have been considered.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material,
a Delaware state corporation with an office and place of
business located at Cactus, Texas, where it is engaged in
food processing.
Respondent annually, in the course and conduct of its
business operations, receives gross revenues in excess of
$500,000 and, during the same period, sells and ships
goods and services valued in excess of $50,000 directly
to customers located outside the State of Texas. Re-
spondent admits, and I find, that it is now and at all
times material has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
iI. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that United Food and Commercial Workers, Local No.
775 (hereinafter the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent dis-
charged its employee, James E. Reynolds, on March 7,
1979,2 because of his activities as a steward on behalf of
the Union. Respondent admits the discharge of Reynolds
but argues that the termination was solely based on a
violation of a company rule concerning unexcused ab-
sences.
The General Counsel further alleges that Respondent's
supervisor, Andy Euthon, on August 9, threatened an
employee union steward by informing her that a different
union steward would be discharged because of the other
steward's union activities. Respondent, admitting the su-
I While the briefs of Respondent and the General Counsel were each
mailed on the same day, the General Counsel's was untimely received
Under all the circumstances I conclude that the late receipt of the Gener-
al Counsel's brief was a result of unavoidable delay in the mail Accord-
ingly, I have considered General Counsel's brief as timely for all pur-
poses,
2 All dates refer to 1979 unless otherwise stated hereinafter
pervisory status of Euthon, denies the occurrence of any
threat.
A. Background
Respondent's Cactus, Texas, operation employs ap-
proximately 1,100 employees of whom 900 to 950 are
unit employees. These employees have been represented
by the Union since approximately April 1975. Respond-
ent's fabrication division at the Cactus facility apparently
started in May 1976. It has approximately 600 unit em-
ployees which employees are represented by approxi-
mately 3 union stewards.
James E. Reynolds, husband of the Charging Party,
commenced work for Respondent on August 11, 1977.
He had been employed in various positions cutting meat
on the assembly line until his discharge on March 29.
Reynolds became a union member sometime after he
commenced employment and on July 6, 1978, became a
steward for the Union. As steward it was Reynolds' duty
to contact and deal with the problems of hourly employ-
ees, to file grievances for the Union, to be involved in
settling potential disputes, and to represent employees in
dealing with management. It was the Union's policy for
stewards to bring proposed grievances into the union
hall and have them prepared by the secretary so that
they might be worded in a technically correct manner.
As a result, a particular union steward's name would not
necessarily appear on the grievances that he originated.
Reynolds testified that, during his service as a union ste-
ward, he filed grievances approximately three times per
month. Ronald Bergman, the personnel director of Re-
spondent's Cactus facility, testified that he had dealt with
Reynolds on only one occasion as union steward and did
not regard Reynolds as a particularly aggressive griev-
ance processor.
B. James Reynolds' Difficulties When a Steward
Reynolds testified he was regarded as an excellent em-
ployee until he became a steward. He also testified that,
on one occasion, his supervisor had instructed him not to
match the pace of work done by his more experienced
colleagues on the line but to polish his skills first. Reyn-
olds testified that Respondent's attitude toward him
changed almost immediately upon his becoming a union
steward. He testified that his supervisor, upon first seeing
the identifying label of union steward on his helmet, or-
dered him to undertake his proportionate share of assem-
bly line work despite his relative inexperience in the job.
Further, both Mrs. Reynolds, an employee of Respond-
ent, and employee Doris Chapman testified to situations
where management told them James Reynolds was un-
available to function as union steward when they had re-
quested that he represent them. On each of these occa-
sions a different union steward was supplied the employ-
ee by management and the matters at issue were handled
without incident.
Reynolds testified to an event occurring on February
1, 1979. Reynolds filed a grievance against Jim Lloyd, a
foreman. Reynolds served the grievance on Lloyd who
was standing next to General Foreman Warren Hall.
Lloyd turned to Hall and said, "Now what are you
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to do about this." While Reynolds was still stand-
ing close by, Hall said to Lloyd, as overheard by Reyn-
olds, "Don't worry about it. He will not be here long."
Neither Warren Hall nor Jim Lloyd testified at the hear-
ing nor was their unavailability to testify mentioned by
any party.
C. The Events Concerning the Termination of James
Reynolds
Respondent has maintained and posted rules dealing
with unreported, unexcused, or excessive absences.
Simply put, on the first unexcused absence the employee
receives a written warning. The warning threatens a 3-
day suspension if a second unexcused absence occurs
within a year's time. A second unexcused absence during
the year merits a 3-day suspension and the additional
warning that a third unexcused absence within the
course of a year will result in termination. A third unex-
cused absence in the year period causes discharge.
On August 1, 1978, the Reynolds' car had broken
down. The Reynolds notified Respondent that they
would not be in that day because of their vehicle. They
did not go in to work. The following day each of the
Reynolds received the "first-time" warning described
above. Reynolds asked his supervisor if he might bring in
evidence of the repair of his broken car in an attempt to
change the unexcused absence to excused. His supervisor
told him he could not do so. On January 5, 1979, again
the Reynolds had car trouble and were unable to work.
The following day each of the Reynolds received the
"second-time warning" described above with its accom-
panying 3-day suspension.
Reynolds testified that on March 2, 1979, he awoke
feeling ill and that at 5:20 a.m. to 5:30 a.m. he had driven
to a public pay phone, having no phone of his own, and
reported to the Company he was ill and would not be in
that day.3 Reynolds testified he answered the telephone
recorder's questions and left a recorded message he
would not be in at work. Reynolds then returned home
and did not go to work that day. Reynolds testified fur-
ther that on Monday, March 5, he again drove to a gas
station phone close to his home and, in a timely fashion,
called Respondent answering the recorder's questions
concerning his continued sickness and returned home.
He testified that he repeated this procedure on March 6.
On March 7, Reynolds reported to work at approximate-
ly 7 o'clock in the morning. His supervisor, Andy
Euthon, directed him to the office. General Foreman
Hall, Doug Daniels, a union representative, Euthon, and
Reynolds met in the office. Reynolds testified he told
them that "I figured I would get in trouble because of no
doctor's excuse." He testified further, however, that
General Foreman Hall said that his lack of a doctor's
excuse was not at issue, but that he was being terminated
for not calling in. Reynolds asserted that he had called
in. A discussion ensued in which management asserted
that there was no record of Reynolds' alleged telephone
3 Mr. Reynolds' working time began at 6:30 a.m. He testified the rule
was to call in 30 minutes prior to worktime in the event of unavailability
His habit was to call the Fabrication Department and speak to someone
there or, in the absence of human response, to leave a message on the
Company's telephone recording device reciting the fact of his illness.
messages on Respondent's tape recorder. The union rep-
resentative, Daniels, at the meeting complained concern-
ing the inability of the tape recording device to consist-
ently record telephone messages from employees. At this
time, a higher management official, Fabrication Supervi-
sor Bill Toms, joined the conversation and informed
Reynolds in Reynolds' testimony, "Regardless of wheth-
er you brought in a doctor's excuse or not you are termi-
nated if you don't call in."
A termination slip was then prepared which stated in
part:
Third unexcused absence in one year period (no call
3-5-79). This is violation of the company policy on
unexcused absences. Other unexcused absences were
8-1-78 and 1-4-79.
Reynolds was then terminated. A grievance was filed on
the discharge but has not to date been processed to arbi-
tration.
D. Evidence of Disparate Treatment in Application of
Company Rules
The General Counsel and the Charging Party adduced
evidence that, in at least some instances, Respondent's
general policy of not allowing repair bills to justify an
otherwise unexcused absence had been set aside. In one
case an employee's vehicle had broken down during his
vacation. The employee was unable to return to work on
time as a result yet his absence was "excused." In an-
other case a repair bill was allowed to excuse an other-
wise unexcused employee's absence after the Union had
challenged the unexcused absence in the grievance proc-
ess. Selestino Morales, the union president, testified con-
cerning the uniformity of application of the rule concern-
ing car repair bills. He testified that Respondent's general
rule is that car trouble is not accepted as an excuse for
absence but added that there were occasions when the
rule had not been applied or had been reversed. The two
examples described above constituted the only examples
given.
So, too, evidence was presented that Respondent's
telephone recording device had, on at least one or two
occasions, been defective and that the Union had made
Respondent aware of this.
The General Counsel and the Charging Party further
adduced evidence that some employees had been excused
from not calling in or did not receive disciplinary warn-
ings for not calling in. The General Counsel showed that
in other instances employees had not been required to
bring in doctor's excuses for their sick days. The exam-
ples were confined to the experience of a few employees.
Respondent, in its defense, presented evidence that
medical excuses for absence are required as a general
proposition, but that supervisory discretion exists de-
pending upon the absent employee's seniority and attend-
ance record. Respondent showed that its rules regarding
unexcused absences had been applied regularly in the
past and that during the period of May 1977 to January
1980 at least 33 employees had been fired for violation of
the unexcused absence rule.
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SWIFT AND COMPANY
E. The Alleged Threat on August 9. 1979
Mrs. Connie June Reynolds became a union steward
on March 22, 1979. Sometime in early August, Ms. Ellen
Collins, a relatively new union steward, filed a grievance
against Supervisor Andy Euthon in which she accused
him of using abusive language. On August 9 Euthon and
Mrs. Reynolds were discussing that grievance. Mrs.
Reynolds testified on direct examination that at the end
of the conversation Euthon said: "Collins wouldn't last
long. That she was treading on thin ice." Reynolds told
Euthon he should not say things like that and the con-
versation ended. She expanded her testimony on cross-
examination adding that Euthon said, "That [Collins] was
treading on thin ice. That he would get rid of her be-
cause she almost cost him his job, filing that serious a
grievance."
Euthon denied making any threats directly or indirect-
ly to Mrs. Reynolds concerning Collins. The grievance
concerning Euthon was ultimately withdrawn. Collins is
still employed as a union steward at Respondent's Cactus
facility.
F. Analysis and Conclusions
I. The discharge of Jimmy Reynolds
The General Counsel attacks the discharge of Mr.
Reynolds as an action based on union animus. By way of
generalized animus against shop stewards and specific
union animus against Jimmy Reynolds in particular, the
General Counsel offers the change in attitude of supervi-
sion toward Reynolds which occurred essentially simul-
taneously with his becoming a job steward. Further, the
General Counsel suggests that Reynolds was an aggres-
sive job steward by virtue of the number of grievances
that he filed, thus presumably engendering specific hos-
tility. Management, in the General Counsel's view, dem-
onstrated this hostility by refusing to allow Reynolds to
represent employees when his presence as job steward
was requested by employees. Finally, the General Coun-
sel argues the statement on February I by General Fore-
man Hall that Reynolds would no longer be with the
company is both an indication of Respondent's hostility
toward Reynolds because of his union steward activities
and a statement that he would soon be fired for his union
activities.
While Reynolds' testimony was somewhat conclusion-
ary concerning these events, Respondent did not call
witnesses to contest Reynolds' allegations. I found Reyn-
olds to be a generally credible witness. Therefore, I find
no reason to discredit Reynolds' unchallenged assertion
that, in the February 1, 1974, conversation, higher man-
agement suggested to lower supervision in the context of
grievance filing that Reynolds would not be long with
the Company.4 Further, it appears again based on Mr.
Reynolds' unchallenged testimony that Mr. Reynolds fell
into at least generalized disfavor with Respondent as a
result of his steward activities.
It is difficult to draw more specific findings from the
testimony of Mr. Reynolds or others regarding his ag-
4 This conversation is outside the 10(b) period and was not alleged to
violate the Act
gressiveness in filing of grievances or the assertion that
he was not allowed to represent certain employees on
certain occasions as union steward. Respondent's indus-
trial relations manager testified credibly that he had only
one occasion to meet with Reynolds in a matter regard-
ing union business. Further, he indicated he did not find
Reynolds to be a particularly aggressive job steward.
This may well be consistent with Reynolds' testimony
that he filed approximately three grievances a month. As
Reynolds testified, grievances were often filed through
the union office and would not necessarily indicate the
identity of the union steward associated with the griev-
ance.
With respect to the sequence of events leading to
Reynolds' termination, the General Counsel attacks the
general rule concerning unexcused absences and progres-
sive stages of discipline as being unfairly applied to
Reynolds.
The General Counsel argues that the first two unex-
cused absences received by Jimmy Reynolds, along with
Mrs. Reynolds, were based on an uneven application of
the rule, i.e., others were allowed to show car trouble as
an "excuse." Since Respondent did not allow Jimmy
Reynolds this excuse, the union animus directed toward
him must be the inferable motive.
While there was evidence indicating that at least one
supervisor allowed employees greater freedom than the
unexcused absence rule on its face intends, the General
Counsel and the Charging Party failed to offer sufficient
evidence to show that the rule is not uniformly applied. I
find that "auto trouble" was not generally allowed to
excuse absence and that sporadic exceptions to the rule
occurred only under unusual circumstances or during the
grievance process. Further, the contention of the Gener-
al Counsel that the rule was applied to union members
based upon the degree of union sympathy and hardly en-
forced at all against nonunion employees is not sustained
by the evidence. The General Counsel's proof was
simply lacking. This is a large facility with many em-
ployees. As every rule will have an exception, particular-
ly when applied by first-line supervisors, more is re-
quired than examples of occasional nonapplication. The
General Counsel's evidence concerning "car trouble" ex-
ceptions to the application of the unexcused absence rule
is insufficient to find that the rule is not generally applied
and further that it was not applied properly in Reynolds'
case. Thus, I find that there is no illegal or improper mo-
tivation in issuing Reynolds his first two warnings on
August 1978 and January 1979.
The General Counsel attacks the termination of Reyn-
olds for a third unexcused absence as an inconsistent ap-
plication of company rules. The General Counsel ad-
duced testimony from Reynolds that he did in fact call in
to the recording device during his absence. From this as-
sertion the General Counsel seems to argue that Re-
spondent should have been lenient and not found an un-
excused absence based on the absence of a recorded call.
While the General Counsel introduced evidence that, on
at least one or perhaps two occasions, Respondent's tape
recording apparatus apparently failed to record employee
messages, I am unable to find, based on this testimony,
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent behaved unusually or outside its normal
pattern in refusing to acquiesce in Reynolds' statement
that he had called the tape recorder.
The record indicates that Respondent was at all times
reluctant to admit or even consider that its recording
equipment could be fallible. The General Counsel seems
to me to be arguing the unfairness of termination of
Reynolds when there was a possible machine error.5
Fairness, reasonableness, etc., are not issues before me. I
look to the rules and their application only in order to
evaluate the disparate treatment argument of the General
Counsel. Finding insufficient evidence of disparate treat-
ment by Respondent of Reynolds or other prounion em-
ployees, I am unable to conclude that the rule on unex-
cused absences was improperly applied to his situation.'
Accordingly, based on all of the above, I find that
Reynolds was discharged as a result of application of a
rule against three unexcused absences during the course
of a year. I find that this rule, whether applied fairly or
not under all the circumstances, was applied free of any
antiunion motive and that, therefore, Reynolds' discharge
was not based in whole or in part on his union activities.
The General Counsel having failed to sustain her burden
of proof with respect to this part of her case, I shall rec-
ommend dismissal of the discharge allegations of the
complaint.
2. The alleged threat of August 9
The August 9 conversation testified to by Mrs. Connie
June Reynolds and denied by Supervisor Euthon re-
quires a resolution of credibility between the conflicting
witnesses. Mrs. Reynolds appeared to me to be an honest
and straightforward witness who was truthfully testify-
ing concerning the events as she recalled them. While
she has an interest in the outcome of the case, both as a
union representative and because her husband is the al-
leged dischargee in the case, I find these motivations did
not affect her testimony. Her testimony was both com-
plete and detailed regarding the circumstances of the
conversation at issue. She testified that Euthon was com-
plaining to her about a grievance against him that he be-
lieved was both damaging and nonmeritorious. Reynolds
did not disagree on the merits of the grievance. Given
5 In my view, it does not matter whether, in fact, Reynolds had called
the machine. I find there is no evidence that management ever found a
recorded message from Reynolds on the machine
I The General Counsel also noted the differing reasons for Reynolds'
termination given by various agents of Respondent after the termination
Thus, testimony was received that Reynolds would not have been fired if
he had brought a doctor's excuse with him on his return to work and
there was other testimony indicating that it was the "no call" which was
the reason for the discharge. While shifting defenses or varying reasons
for a discharge may indicate a separate improper motive in some cases, I
reject such an inference on this record There was no doubt at the termi-
nation meeting that Reynolds was being fired for not calling in He was
so informed and his termination notice reflects this. Other reasons for ter-
mination offered by Respondent's agents may have resulted from the am-
biguity inherent in the fact that an unexcused absence results from either
a failure to call in or a failure to bring in a doctor's excuse. In Reynolds'
case neither had been undertaken.
I have also considered this evidence in my examination of the regular-
ity of Respondent's application of its unexcused absence rule. As I have
found above, the "shifting" reasons advanced for discharge, taken , ith
all the evidence, fails to convince me that Respondent applied the rule
selectively so as to discriminate against Reynolds for his union activities
the circumstances of the event as testified to by Reyn-
olds and not denied by Euthon, the comments attributed
to him seems plausible. They are the types of statement
that might be made by an individual who felt under
attack unreasonably by the new job steward to a person
who agreed with him on the merits of the grievance.
Euthon categorically denied making the threat. His
wooden and unconvincing demeanor may be partially ex-
plained by the fact that his testimony was in response to
leading questions which provided no opportunity to
expand.7 Mr. Euthon struck me, however, as a witness
who was doing his duty by denying a conversation
which was obviously embarrassing to him and embar-
rassing to management. Based upon the demeanor of
each witness, I have no difficulty crediting Reynolds and
in discrediting Euthon. Accordingly, I find that the state-
ments of Euthon, as testified to by Reynolds, did occur
on August 9. It should be noted that, while denying the
specific statements attributed to him by Mrs. Reynolds,
Euthon did not deny having a conversation with her that
time. Neither did he explain the circumstances of the
conversation.
Having found remarks by an admitted supervisor of
Respondent to have been made as testified to by Reyn-
olds, it is a simple step to find that such statements vio-
late the Act. The law has long been clear that an em-
ployer's agents cannot threaten a union steward or other
union stewards because of their union activity. Kansas
City Power & Light Company, 231 NLRB 204 (1977).
Having found the discharge of Reynolds not to have
been in violation of the Act, and there being no further
allegations of misconduct other than the threat to Mrs.
Reynolds on August 9, an additional issue appears. Is the
conduct found to be violative sufficiently isolated or de
minimis as to render a remedy unnecessary? I find that it
is appropriate in the circumstances of this case to require
a traditional remedy for the 8(a)(1) violation. First, the
threat is not isolated for it is similar to the February I
threat made to Mr. Reynolds. Second, I find the function
of a steward in representing unit employees on the job
floor is a particularly critical part of the collective-har-
gaining process and of the exercise of Section 7 rights.
Threats to stewards or indications that other stewards
will be discharged because of their zeal in representing
employees may not, in my view, be considered as insig-
nificant or de minimis. Thus, on this record, I find it ap-
propriate to require a notice posting to remedy the viola-
tion found. See also Kansas City Power & Light Company,
supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
I Euthon's testimony oin this aspect of the case consisted of eight "Yes.
Sir" answers and three "No. Sir" answers.
1230
SWIFT AND COMPANY
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REME DY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to post an appropriate notice at-
tached hereto as "Appendix."
I further recommend that all allegations of the com-
plaint not sustained herein be dismissed.
Upon the foregoing findings of fact, and the entire
record herein, I make the following:
CONCI USIONS O LAW
1. Swift and Company is an employei engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Food and Commercial Workers, Local No.
775, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent, by telling Connie June Reynolds on
August 9 that a fellow steward was "skating on thin ice"
and may lose her job because of her filing a grievance
against a supervisor, violated Section 8(a)(1) of the Act.
4. Except as heretofore found, Respondent has not en-
gaged in other unfair labor practices within the meaning
of the Act.
[Recommended Order omitted from publication.]
1231