United Beef Co., Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1985

277 N.L.R.B. 1014 (N.L.R.B. 1985)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Beef Co., Inc. and Frank E. Boire and Fi-
dalgiso Cefalo . Cases 1-CA-21831 and 1-CA-
21853
9 December 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 5 August 1985 Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision and a brief in answer to
the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, and
conclusions and to adopt the recommended Order.
1985 pursuant to charges filed on 17 and 23 February
1984 and a complaint issued on 27 December 1984 and
amended on 8, 23, and 24 April 1985. The case presents
the question of whether Respondent United Beef Co.,
Inc. violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by telling Fidalgiso Cefalo, through
Supervisor Norman Lind, that Respondent had decided
not to rehire employees who were strong union men or
who had testified at an arbitration hearing, and by telling
Frank Boire, through Supervisor Stephen Schwartz, that
the reason Boire was not rehired was the Company
President Paul Miller was mad at him for having testified
at an arbitration hearing. The case presents the further
question of whether Respondent violated Section 8(a)(1)
and (3) of the Act by refusing to rehire Cefalo from
about 15 September 1983 to 9 April 1985, and by refus-
ing to rehire Boire from about 15 September 1983 to De-
cember 1984, because of their protected concerted activi-
ties and protected activities on behalf of the United Food
& Commercial Workers Union, Local No. 592, AFL-
CIO (the Union).
On the entire record, including the demeanor of the
witnesses who testified before me, and after due consid-
eration of the briefs filed by Respondent and the General
Counsel, I make the following
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United Beef
Co., Inc., Boston, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
Peter Gallaudet, Esq., for the General Counsel.
Michael Bearse, Esq, of Boston, Massachusetts, for the
Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge.
These consolidated cases, Cases 1-CA-21831 and 1-CA-
21853,1 were heard before me on 8-10 and 23-24 April
i United Beef Co, Inc., and Frank Klotzbeecher, an Individual, Case 1-
CA-21826, was initially consolidated with these cases for hearing pur-
poses. On 8 April 1985, after the hearing opened, I granted the unop-
posed motion of the General Counsel for leave to amend the complaint
so as to delete the allegation of unlawful discrimination against Klotz-
beecher , the General Counsel stated that he had made this motion be-
cause Klotzbeecher had reached a non-Board agreement with Respond-
ent, affording him a right to reinstatement plus some backpay , and had
requested that his charge be withdrawn On 16 April 1985, the Regional
Director approved Klotzbeecher 's withdrawal request . On 22 April 1985,
the Regional Director issued an order purporting to sever Case 1-CA-
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation which maintains an office
and place of business in Boston, Massachusetts, where
Respondent processes livestock carcasses into commer-
cial cuts of meat. Respondent annually sells and ships
from that facility products, goods, and materials valued
in excess of $50,000 directly to points outside Massachu-
setts. I find that, as Respondent admits, Respondent is an
employer engaged in commerce within the meaning of
the Act, and that assertion of jurisdiction over its oper-
ations will effectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Ownership and Managerial Hierarchy
As of July 1983, Respondent had issued a total of 100
shares of stock. As of that date, 41 shares were held by
Company President Paul Miller; 39 shares were held by
Treasurer Benjamin Miller (Paul's brother); and 5 shares
each were held by Vice President Joel Miller (Paul's
son), Edwina Chyet (Paul's daughter), Stuart Miller
(Benjamin 's son), and Rohan Schwartz (Benjamin's
21826 from the instant cases "pursuant to Section 102.33(a)(4) of the
Board's Rules and Regulations ," and purporting to dismiss "the com-
plaint in Case No 1-CA-21826 " The Regional Director's power to
sever the case after the hearing opened appears questionable See Sec
102.33(c)(d) of the Rules and Regulations Moreover, after I granted the
motion for leave to amend the complaint, I doubt whether any complaint
was pending in Case 1-CA-21826. However, because I granted the
motion for leave to amend and the Regional Director thereafter ap-
proved Klotzbeecher's request for leave to withdraw his charge, the ef-
fectiveness of the purported severance and dismissal is immaterial.
277 NLRB No. 107
UNITED BEEF CO. 1015
daughter). So far as the record shows, Paul, Benjamin,
and Joel Miller are the only shareholders who actively
participate in the ' management of the business .2 Their su-
pervisory status is conceded . During most of the period
relevant here, Stephen Schwartz (Rohna Schwartz hus-
band) was on Respondent 's payroll . His supervisory
status during this period is also conceded . The alleged
supervisory status of James Sullivan was put in issue by
the pleadings and 'was litigated at some length . As I see
no relevance to this issue , it will not be resolved herein.
Respondent 's operations are conducted in two separate
buildings which are next door to each other but are sepa-
rated by at least 30 feet of land. The addresses of these
buildings are 14 Foodmart Road and 18 Foodmart Road;
the buildings are referred to herein and in the record as
Building 14 and Building 18, respectively . Production
operations are conducted in both buildings . Building 14
processes meat predominantly for commercial purposes;
Building 18 processes meat (much of it from Building 14)
predominantly for the United States Government. At all
times relevant here, the corporate offices have been lo-
cated in Building 18 . The Millers worked out of these of-
fices. Benjamin Miller was in charge of all production at
both plants, and spent the bulk of his time on the pro-
duction floors of both buildings. Schwartz, who reported
directly to Benjamin Goldfarb and James Snyder, both
admittedly supervisors in Building 14, reported directly
to Schwartz. Norman Rotman and Norman Lind, both
of whom were admittedly supervisors and reported di-
rectly to Joel Miller, supervised production and shipping
in Building 18. John Connors, admittedly a supervisor
with respect to the freezer , also worked in Building 18.
Joel Miller , who reported to Benjamin Miller, spent
about 10 percent of his 14-hour day on the production
floor . Company President Paul Miller was in charge of
sales, purchases , credits, and office operations, and spent
most of his time in Respondent's offices.
B. The Work Stoppage and the Arbitration Proceeding
Respondent has for a number of years recognized the
Union as the bargaining representative of Respondent's
hourly paid employees. A bargaining agreement which
covered such employees on a multiemployer basis was
effective by its terms between 21 September 1980 and 30
August 1983. About 15 July 1983, Respondent sent a
letter to the Union withdrawing from the multiemployer
group and indicating Respondent ' s desire to negotiate in-
dividually. So far as the record shows, the Union never
thereafter requested Respondent to bargain for a new
contract with respect to Respondent's employees.
On 13 July 1983, Respondent discharged Building 14
Chief Steward Roberto Rodriguez, allegedly for spitting
at Supervisor Schwartz. A work stoppage that same day
among Respondent's employees, in connection with his
discharge, led to the discharge of the participants and
others, consisting of almost the entire nonsupervisory
work force of 110 employees on 13 and 19 July 1983.
Pursuant to a grievance filed by the Union, an arbitration
hearing on the discharges (other than the discharge of
2 Benjamin Miller retired in August 1984 during the course of the
events herein
Rodriguez) was held on various dates between 28 July
and 22 August 1983. The employee witnesses who testi-
fied for the Union consisted of Cefalo, Boire, Klotz-
beecher, Richard Bryant , Ed Cormier , and Charles John-
son,3 all of whom were among those for whom the
Union sought relief.
At the arbitration proceeding , the Union contended,
inter alia, that the 13 July work stoppage was caused by
a lockout or mass discharge effected by Respondent and
that Respondent had agreed on 15 July to a settlement
calling for the recall of the employees who had stopped
working on 13 July. Respondent contended , inter alia,
that the 13 July work stoppage constituted a strike in
breach of the contract , that no settlement had been
reached on 15 July, and (apparently) that the discharges
on 19 July were proper because these dischargees had
joined the strike . In an award issued on 13 September
1983 the arbitrator substantially upheld Respondent's po-
sition , including Respondent 's contention that Cefalo and
Boire were lawfully discharged. However, the arbitrator
found that, after being discharged on 13 July, Cormier
and another employee, Zafiris, had been reinstated and
had not been discharged thereafter .4 I n May 1984 the
Board's Regional Office decided to defer to the arbitra-
tor's award , and dismissed the Union 's charge alleging
that the discharges upheld by the arbitrator violated Sec-
tion 8(a)(5) and ( 1) because Respondent had allegedly
reneged on the alleged settlement agreement.5
During the work stoppage , production operations in
Building 14 were completely shut down . However, Re-
spondent continued to purchase new boxed beef from its
usual sources . This beef was processed in Building 18 by
Respondent's salaried personnel (most or all of them su-
pervisors), and was mostly sold to the United States
Government.6 Company Attorney Herbert L. Turney
testified that throughout this period Respondent had
been quite anxious to resume full-scale operations.'
3 This finding is based on the arbitrator 's decision and on a composite
of the testimony of Cefalo , Boire, and Union Business Agent Joseph M.
Carroll The arbitrator 's decision refers at one point to a union witness
named "Grant," and strongly implies that he was an employee Nobody
named Grant is named on a list, received into evidence, of Respondent's
entire work force before the work stoppage; nor is there any other evi-
dence that such a person ever existed . I am inclined to think that "Grant"
was a misprint for "Bryant "; any such error would have been immaterial
to the arbitrator 's conclusions.
4 A separate proceeding as to Rodriguez ' discharge was still pending
when July 1985 briefs were filed with me.
5 The arbitrator's opinion was received into evidence to show that an
arbitration hearing had taken place , that certain people testified at that
hearing, and that an award was issued that resolved the dispute Because
the brief of Respondent 's counsel does not address the contention that the
opinion should be received to establish the truth of the contents, that
contention will not be disposed of in this decision.
6 My findings in these two sentences are based on the testimony of
Sullivan and Paul Miller and on credible parts of Joel Miller 's testimony,
For demeanor reasons, I do not credit Joel Miller's initial testimony oth-
erwise
7 However , Joel Miller testified without contradiction or corroboration
that Respondent made some effort to sell its buildings . Cf supra at in 6
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Date of the Management Meeting About
Whom to Recall,- the Collective-Bargaining Agreement
1. The date of the management meeting
Benjamin Miller testified that he was at the plant when
he heard about the arbitrator's award (issued on Tues-
day, 13 September 1983), and that "there was scuttlebutt
at the beginning" about the award "and then our at-
tornys told us." Company Attorney Turney credibly tes-
tified that he received a copy of the award in the morn-
ing mail on Wednesday, 14 September, or Thursday, 15
September 1983, and telephoned Respondent about it
later that same day. Sullivan, who worked in the ship-
ping department throughout the work stoppage, credibly
testified without contradiction that on a Tuesday or
Wednesday morning, and the day before Sullivan saw
the award document lying on the counter in an office,
Benjamin Miller approached him and said, "I think we
just had 110 men fired." Thereafter, management con-
ducted a meeting to discuss which employees were to be
rehired. I accept Sullivan's testimony that this meeting
occurred during the afternoon of the day after Benjamin
Miller made the foregoing remark; such testimony shows
that the meeting occurred no earlier than the afternoon
of Wednesday, 14 September, and no later than the after-
noon of Friday, 16 September. As discussed infra, section
II,G, a conversation between Schwartz and employee
Boire , which must have occurred after the management
meeting , took place on the morning of Friday, 16 Sep-
tember. Accordingly, I find that the management meet-
ing was held in the afternoon of 14 or 15 September.8
The evidence that the meeting occurred on a later date,
and what happened there, are discussed infra.
2. The bargaining agreement
Meanwhile, Company Attorney Turney arranged on
14 or 15 September for a meeting on 16 September to
advise Benjamin , Paul, and Joel Miller about Respond-
ent's options under the labor laws with respect to re-
sumption of operations. As of 16 September, Respond-
ent's active work force consisted of only about seven
employees. Turney told the Millers that Respondent was
not bound by a union contract; that Respondent could at
this time hire whomever it chose; that so long as Re-
spondent did not discriminate it could hire old employ-
ees back or hire new employees; and that the work force
might then choose to file a decertification petition with
the NLRB or to do something to change Respondent's
union status. He went on to tell them that because there
were at that time no or practically no new employees an
argument could be made that Respondent's legal status
had not changed, and that Respondent could choose to
get in touch with the Union and try to reach an early
agreement . One of the Millers asked whether, if this hap-
pened, it would still be possible for the employees to
obtain a decertification. Turney said no, if a contract had
been agreed to. Paul Miller immediately told Turney to
contact the Union and get a contract right away. The
Millers said that they wanted to start "easing into" full
operations right away.
Later that same day, Turney arranged with Union
Business Representative Carroll for a negotiating session
on 21 September in Turney's office. At 9 a.m. that morn-
ing, Turney conferred privately with Benjamin, Paul,
and Joel Miller to plan negotiating strategy. Then, about
11 a.m., Turney and the three Millers began negotiations
with the Union about a bargaining agreement . During
these negotiations, Union Business Agent Carroll and the
president of the Local both asked management to rehire
the former employees. Management replied that it would
determine whom to rehire, and that any rehired employ-
ees would come back as new employees.9 At 4 or 5 p.m.
that day, and without taking a lunchbreak, the parties
reached a complete oral agreement. At this time , Benja-
min, Joel, and Paul Miller, all three of whom were
present throughout negotiations, were still in Turney's
office. Turney then arranged for the typing up of, a
memorandum of agreement, whose preparation took less
than an hour and which was executed at some time be-
tween 5:30 and 6 p.m. by a union representative and by
Paul Miller for Respondent. Paul Miller, and (perhaps)
one of the other Millers, remained in Turney's office
until the agreement was signed.
Thereafter, by letter to Carroll dated 23 September
1983, Company Counsel Turney stated, in part:
This will confirm agreements reached in connec-
tion with the collective bargaining agreement .. . .
All former employees of the Company whose
discharges were upheld by the Arbitrator . . . who
may be rehired on or after September 21, 1983, are
considered new employees without credit for previ-
ous service with the Company.
The letter concluded with the typewritten notation
"Assented and agreed to," followed by a blank for Car-
roll's signature. Carroll did sign the blank on a date not
shown by the record.
3. Respondent's discredited evidence regarding the
date of the management meeting
The three Millers, Schwartz, and Lind all testified that
the management meeting about rehiring was held after
Paul Miller executed the memorandum bargaining agree-
ment on 21 September 1983.
Joel and Paul Miller both testified for Respondent on
23 April 1985 that the management meeting took place in
Building 18 on 21 September 1983 after the conclusion of
negotiations (as previously noted), agreement was
reached in the office of Respondent's attorney between 4
and 5 p.m., and a memorandum of agreement was signed
there by Paul Miller between 5:30 and 6 p.m.. However,
when Joel and Paul Miller were called by the General
Counsel as adverse witnesses on 8 April and 9 April
9 This finding is based on Carroll's testimony In view of the undis-
puted evidence (infra, sec. II,I) about whom Respondent in fact hired,
a Lind testified that this meeting was held on a Wednesday, Schwartz and for demeanor reasons, I do not credit Paul Miller's testimony that he
testified that it was held on a Thursday In 1983, 14 September fell on a promised to rehire all the old employees before going for any "outside
Wednesday and 15 September fell on a Thursday. help."
UNITED BEEF CO.
1985, respectively, they could not recall whether the
management meeting took place in the morning or the
afternoon and did not testify that the meeting took place
in the evening; nor could Paul Miller recall whether the
management meeting occurred on the same day as the
negotiations or on the following day.,
Schwartz and Benjamin Miller testified that this meet-
ing occurred no earlier than the day after the contract
was agreed to-that is, no earlier than Thursday, 22 Sep-
tember; and Schwartz testified that the meeting occurred
in the afternoon. However, the evidence shows that
about eight rehired employees returned to work at
normal starting time (6 or 7 a.m.) on 22 September;
indeed, rehired employees Sophos returned to work at
normal starting time on 20 September. It is unlikely that
that many employees resumed work before management,
decided whom to rehire.
Lind testified, in effect, that the meeting began aboast 5
or 5:30 p.m. on 21 September, and that he reached home
that evening, a drive of 35 to 60 minutes from the plant,
about 6:45 p.m. However, the testimony of Lind and Joel
Miller establishes that when the meeting began Paul
Miller was in the plant, which (according to him) he did
not reach until about 6:30 p.m. on,21 September. More-
over, Paul Miller testified for the General Counsel that
the management meeting did not begin until after ,he had
made some telephone calls from his office phone.
Joel Miller initially testified that the persons who at-
tended the management meeting knew that they should
attend because, a few minutes before it began, he tele-
phoned them about the meeting from his office, which is
in Building 18, and Paul Miller telephoned them at an
hour and from a location which Joel Miller did not
specify. However, Paul Miller denied that any such calls
were made, and testified that immediately after reaching
the plant about 6:30 p.m. on 21 September he went to
the Building 18 office and started to make telephone calls
to order fresh beef. After initially testifying about arrang-
ing for the meeting on Respondent's own telephone, Joel
Miller testified that between 4 and 5 p.m. on 21 Septem-
ber he called the plant from his attorney's office and told
whoever answered the phone (whose identity Joel Miller
did not recall) that he wanted certain named persons,
which persons were just about all the salaried personnel
involved in production operations, to attend a meeting.
He went on to testify that upon leaving counsel's office
"we" took a cab back to the plant, and that "virtually
the minute we walked into the office everyone was
there" and the meeting began; he was not asked whom
he meant by the word "we."
In view of the foregoing evidence, I reject the testimo-
ny that the management meeting did not take place until
after the 21 September contract was agreed to.
D. Frank E. Boire's Work History, Union Activity,
and Arbitration Testimony
Frank E. Boire first started to work for Respondent
about 1955 as a floorman (also referred to the record as
"general help"). Apparently, he continued to work there
until 1963. He was convicted in 1963 of armed robbery
and in 1965 of attempted murder. He was imprisoned be-
tween 1963 and 1969. When he was released from prison,
1017
he applied to Respondent for a job. He was rehired by
Benjamin and Paul Miller; Benjamin, at least, knew
about Boire's prison record. About 1970, he resigned
from Respondent's employ and moved to Florida. Paul
Miller rehired him on 13 July 1976. His job title was
"boxman" between his 1976 rehire and about June 1980,
when it was changed to "quality control person" (see
infra, sec. II,G). While working for Respondent, Boire
never received a written warning or any kind of disci-
pline (see infra, fn. 15).
In late 1981, a number of the Building 14 employees
complained to Union Business Agent Carroll that they
were not being properly represented by the incumbent
Building 14 chief shop steward, Charles O'Brien, and the
incumbent assistant shop steward, James Hoffman. In
consequence, Carroll arranged for a November 1981
steward's election, at which Boire was elected to serve
as Building 14 chief shop steward and Rodriguez was
elected to serve as Building 14 assistant shop steward.io
Over a 2-week period after being advised of Boire's posi-
tion, Benjamin Miller asked Boire to tell the employees
to stop being late, to tell them that they would be fired if
they did not show up, to chastise them for failing to call
in, and to see to it that the employees threw their gloves
in the barrel. When Boire reported these incidents to
Union Business Agent Carroll, he told Boire that he did
not have to comply with such requests. Boire told Benja-
min Miller that such functions belonged to management
rather than to the steward.
About 2 weeks after Boire became shop steward, and
on an occasion when he and Benjamin Miller were on
the shop floor, Miller asked Boire to tell one of the em-
ployees, who had been late 2 or 3 days in a row, that he
would be fired if he was late the next day. Boire said
that issuing such a warning was not his job as shop stew-
ard, and that Benjamin Miller would have to issue the
warning., Miller started to yell and scream, to bang on a
table, and to wave a cane, which he was carrying for
other than medical reasons." Boire yelled at Benjamin
Miller that he should stop yelling, and that disciplining
the men was management's job and not Boire's. Eventu-
ally, Boire said that he was going to have Carroll come
down, because he himself could not reason with Miller.
Boire then left and called the union hall. Pending Car-
roll's arrival 5 or 10 minutes later, Miller walked around
the building a'number of times. Then, the three men met
in the hallway. Miller waved his cane, screamed that he
was the "boss," and said that Boire would do what
Miller told him to do or Miller would fire him. Boire
yelled back at Miller, but the record fails to show that
Boire yelled. The thought occurred to Boire that he
might be hit by Miller's cane. Boire told Miller that if he
did not shut up and listen to Boire, he was going to
punch Benjamin Miller in the mouth. Then, Carroll
10 My findings in these three sentences are based on a composite of
credible parts of the testimony of Carroll, O'Brien, and Boire I believe
Carroll was mistaken in testifying that Building 18 was involved, and that
O'Brien was mistaken in testifying that he served as Building 14 chief
shop steward until late 1982.
11
He had started to carry the cane because of a leg injury. After his
leg healed, he continued to carry the cane because he had found out that
it helped him to turn switches which were otherwise out of his reach.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stepped between the two and said that he would straight-
en the matter out. Boire, whose hands were shaking, said
that Benjamin Miller had upset Boire so much that he
was going to punch out and go home.12
Boire is an alcoholic who, at this time, had been sober
for about 6-1/2 months. After Benjamin Miller left the
scene of the argument, Boire told Carroll that Boire
wanted to see his alcoholism counselor. Then, Boire
clocked out and went to see his alcoholism counselor at
a local hospital. The counselor expressed the opinion that
it was hard enough for Boire to stay sober, and that
taking on the additional pressures of a shop steward's job
was too much for him. The counselor also suggested that
Boire apologize to Benjamin Miller. The next day, Boire
resigned as steward. Also, after reporting to work, Boire
apologized to Miller for Boire's actions the previous day.
Boire said that he worked too closely with Schwartz and
Benjamin Miller for Boire to have the job as steward,
that it was too much of a headache when he was trying
to stay sober, and that he had resigned his steward's job.
Boire and Miller then shook hands.
Boire is 6 feet 3 inches tall and, at the time the forego-
ing incident occurred, was about 42 years old. At the
time of the 1985 hearing, he was a robust man who
weighed 220 or 225 pounds. Benjamin Miller, who is
abut 5 feet 6 inches tall, at the time of this incident was
about 62 years old and weighed about 188 pounds. Miller
testified that during this November 1981 incident Boire
threatened to kill him if he treated Boire as Respondent
had treated the rest of the shop stewards in the past, and
that Benjamin Miller was scared by Boire's threat. I do
not believe Miller's version of Boire's threat, and believe
that Miller's testimony substantially exaggerated his reac-
tion to what Boire said. By Benjamin Miller's own testi-
mony, he never mentioned this December 1981 incident
to anyone else in management-including his brother, his
son-in-law (Boire's immediate supervisor), and his
nephew-until after late in September 1983.13 Nor is
there any evidence that Benjamin Miller attempted, at
any time before the July 1983 work stoppage, to bring
about Boire's termination, although butcher knives and
equipment were always in Boire's work area and Benja-
min Miller knew him to be an experienced butcher.
Indeed, Schwartz testified, although Benjamin Miller
denied same, that Benjamin Miller agreed in January
1984 to let Boire return to work.14 I accept Boire's pre-
12 My findings as to the Boire-Miller encounters are based on Boire's
testimony and on credible parts of Carroll's testimony. Because Carroll
displayed a poor memory of these events, I believe he was mistaken in
testifying that the incident occurred in connection with the processing of
a grievance Because Miller testified that he could not remember why
Boire became angry on this occasion, and for demeanor reasons, I accept
Boire's testimony about the events that led up to these encounters, and
reject Miller's testimony that he had only one conversation with Boise
and that it occurred when Carroll notified Miller that Boire was the new
shop steward. I do not accept Miller's testimony that Boire threatened to
kill him for demeanor reasons and other reasons summarized infra
is Whether he told them at that time about the incident is discussed
infra.
14 Boire was not offered a job at this time Schwartz testified that he
resigned his own employment before getting around to conveying an
offer of employment to Boire.
viously described version of what he told Benjamin
Miller.
At the time the work stoppage began on 13 July 1983,
Boire was on vacation. He returned to the plant on
Monday, 18 July 1983. Noticing that the employee park-
ing lot was almost empty, he and employee Andrian
Brandos (who, inferentially, had also been absent from
work on 13-15 July) went to see Benjamin Miller. Miller
told them that there had been a dispute the week before,
that it had nothing to do with Boire or Brandos, and that
if they did not go to work that morning they were fired
for refusing to work. After leaving Miller's office, Boire
and Brandos encountered employees Cefalo (the assistant
shop steward) and Cormier. Cefalo said that the dispute
had been settled the previous Friday, 15 July; that Boire
and Brandos were to go to work; and that the rest of the
men were going to be called back by seniority. Boire and
Brandos went to work that day.
When Boire reported to work the following morning,
19 July, he saw about 50 or 60 employees congregated
outside the parking lot with Business Agent Carroll.
Boire was told that Respondent had reneged on the 15
July "deal," that an unfair labor practice charge was
being filed against Respondent, and that he was not to
go to work. Boire then put on a picket sign and joined
the picket line. Respondent discharged him by telegram
dated 19 July.
Between 19 July 1983 and the mid-September 1983
date when Boire learned of the 13 September arbitration
award, he showed up at Respondent's premises on every
day but about three, and stayed there 5 to 6 hours a day,
inferentially as part of the picket line. He was one of 15
or 20 employees present on these occasions. Boire testi-
fied on 1 day of the 5-day arbitration hearing between 28
July and 22 August. Boire testified at that hearing that
when he arrived at work on 18 July there was no police
detail to indicate that there were any problems; the arbi-
trator found that the absence of the police detail that
morning tended to support the Union's contention
(which the arbitrator ultimately rejected )'that a settle-
ment had been reached on 15 July. Boire also testified at
the arbitration hearing that he had gone to work on 18
July because Cefalo had told him that a settlement had
been reached on 15 July, and that Boire had refused to
work on 19 July and thereafter because otherwise he
would have been ostracized by the other employees. The
arbitrator rejected the Union's argument that "it was un-
conscionable to expect [the seven returning vacationers]
to work when the others had been deprived of employ-
ment and left with no agreed-upon program to rectify
that situation." -
E. Fidalgiso Cefalo's Work History, Union Activity,
and Arbitration Testimony
Fidalgiso (Gino) Cefalo started to work for Respond-
ent in May 1978 as a meatcutter . His usual job was to
bone chucks in Building 14. Joel Miller testified that
Cefalo was a good meatcutter . He was one of about 30
employees who were stationed near a conveyor belt onto
which unboned meat carcasses were placed. When a
meatcutter had finished boning a carcass, he was expect-
UNITED BEEF CO. 1019
ed to put the boned carcass back onto the conveyor belt,
remove from the conveyor belt the next uboned carcass
to reach his work station, and proceed to bone that car-
cass. Cefalo credibly testified without contradiction that
at any given time the conveyor belt carries only one
kind of chuck. Accordingly, and for demeanor reasons, I
discredit Benjamin Miller's testimony that because Cefalo
preferred boning certain cuts of meat he sometimes took
for boning a carcass which was not the first one to reach
him after he had put a boned carcass back onto the con-
veyor belt; and I accept Cefalo's denial. On occasion, a
carcass will approach the far end of the meatcutter's
workbench without having been boned. When this
occurs, production efficiency calls for removal of the
carcass from the conveyor belt so that the carcass will
not leave the bench area before being boned. Joel Miller
testified that on several occasions Cefalo mooted, by ar-
guing about, Joel Miller's instructions to remove such an
unboned carcass. However, Joel Miller testified that,
during the 12-month period preceding Cefalo's July 1983
discharge, Joel Miller (who did not have frequent occa-
sion to observe Cefalo) never reported this conduct to
Cefalo's immediate supervisor, Goldfarb, and never
asked Goldfarb whether Cefalo similarly reacted to
Goldfarb's instructions. Accordingly, and for demeanor
reasons, I credit Cefalo's testimony that when Joel Miller
issued instructions to remove such an unboned carcass he
issued such instructions to employees generally rather
than (as he testified) to Cefalo individually, and reject
Miller's testimony that Cefalo argued about instructions
to this effect issued to him personally.
It is undisputed that during Cefalo's more than 5 years
of employment with Respondent he was never given a
written warning and was never suspended.15 Laying to
one side Benjamin Miller's testimony that he reproved
Cefalo for his alleged selectivity as to meat cuts, and
Joel Miller's testimony that he reproved Cefalo for fail-
ing to remove unboned carcasses from the conveyor belt,
Cefalo's testimony that he never received an oral warn-
ing, is undenied . In view of my failure to credit Benjamin
Miller's and Joel Miller's testimony about these incidents,
I find that Cefalo never received an oral warning of any
sort.
Benjamin Goldfarb, who was Cefalo's immediate su-
pervisor at the time of his discharge, testified that during
the September 1983 management conference he said that
Cefalo had a tendency to do a lot of talking while he
was working and disrupted his and others' work with
constant conversation. There is no other evidence re-
15 Since at least 1981, Respondent has had a progressive disciplinary
system which begins with warnings and culminates in suspension and dis-
charge Joel and Paul Miller both testified that Respondent was lax in
administering this system before Cefalo's July 1983 discharge, although
Joel identified this laxness as neglecting to put later warnings into writing
after administering earlier, oral warnings, whereas Paul identified this lax-
ness as neglecting to put all warnings into writing Union Business Agent
Carroll credibly testified in April 1985 that since 1979, Respondent had
annually sent him an average of 12 to 15 written notices of employee dis-
cipline, The record contains about nine copies of such notices sent out by
Respondent between February 1981 and June 1983; three of these merely
confirmed oral warnings. A February 1981 notice of final warning to one
employee was unsuccessfully challenged by the Union before an arbitra-
tor
garding this matter. In view of the credited testimony
that Cefalo received no warnings, and for demeanor rea-
sons, I do not accept Goldfarb's testimony in this re-
spect
About four nights a week, Respondent's employees
were required to work 2 hours' overtime unless they had
a legitimate excuse. An employee was required to advise
his immediate supervisor, before 7 a.m., if that employee
was unable to work overtime on that particular day. On
about half the occasions when Cefalo was supposed to
work overtime, he gave management, notice that he was
not going to work overtime. During the first 7 months of
1983, Cefalo worked fewer overtime hours (60) than any
other Building 14 cutter except Mazzone (20), who was
terminated on 16 April 1983;16 the next lowest was H.
Blackington (103), who was never rehired. During this
same period of about 6-1/2 months, one employee (Fer-
nando Nuzzolo) worked almost 246 hours of overtime;
he refused job offers from Respondent in November
1984 and January 1985 (see infra sec. II,I). Between Jan-
uary and July 1983, the Building 14 meatcutters (exclud-
ing Cefalo but including Mazzone) worked an average of
about 167 overtime hours. During this same period,
Building 18 meatcutters (some but not all of whom could
do Building 14 work) worked between about 77 and
about 210 overtime hours respectively, with an average
of about 112 overtime hours. During the year before Ce-
falo's July 1983 discharge , nobody ever told him that he
was not working enough mandatory overtime. On one
morning in 1983 before the beginning of the workday,
after unsuccessfully trying to find Supervisor Schwartz,
Cefalo advised Benjamin Miller that Cefalo had to go
home immediately after the end of the regular workday.
Miller said, "[T]hat is okay." The next day, Schwartz
took Cefalo's timecard from the rack and suspended him
for going home the previous everting without telling
Schwartz. Cefalo said that he had told Benjamin Miller.
Schwartz said that he did not care. At this point, Benja-
min Miller came into the area. In response to Cefalo's
questions, Benjamin Miller said that Cefalo had told him
the previous day about going home early, and told
Schwartz to give Cefalo his timecard back.
On an undisclosed date before 1982, Cefalo was elect-
ed as the chief shop steward in Building 14. Thereafter,
he was elected as Building 14's assistant shop steward in
the fall of 1982, and served in that capacity until his July
1983 discharge. During this period, the Building 14 chief
shop steward was Rodriguez, who was usually at work
every day. When serving as Building 14 assistant shop
steward, Cefalo acted as shop steward for Building 14
when Rodriguez was not on the job. Thus, about No-
vember 1982, Schwartz discharged Rodriguez on the
ground that he had taken a coffeebreak before going to
the hospital for treatment of an on-the-job injury. After
vainly complaining to Schwartz about the discharge,
Cefalo telephoned business agent Carroll. Carroll,
Cefalo, and Rodriguez then discussed the matter with
Schwartz and Benjamin Miller; the record indicates that
16 Mazzone was a supervisor at the time of the April 1985 hearing
before me
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cefalo participated in the discussion partly because he
was the assistant steward and partly because he had seen
the accident which led to Rodriguez' injury. Rodriguez'
grievance was resolved with his reinstatement.
A couple of days later, Joel Miller, who is Jewish, sus-
pended' Rodriguez for 3 days on the ground that he had
allegedly made anti-Semitic remarks. The matter was dis-
cussed at a meeting attended by Cefalo, Carroll, Rodri-
guez, and Joel Miller. At Cefalo's request, Supervisor
Goldfarb was called to the meeting. Goldfarb, who is
Jewish, stated that Rodriguez had said that all Jews were
"animals." Cefalo said that management frequently called
the employees "a bunch of animals." Miller or Goldfarb
said to Cefalo, who was born in Italy and speaks English
with a marked accent, that management did not call him
a "guinea" or a "spick." Carroll remarked that apparent-
ly it was all right for the employees to call all the super-
visors a bunch of animals. Miller said that it was all right
to say that. Respondent refused to cancel Rodriguez' 3-
day suspension and the Union said that it would process
the matter through subsequent steps in the grievance
procedure. 117 The record indicates that Cefalo attended
this conference because he knew what had happened at
the plant that day. When describing this conference to
fellow employees, Cefalo said that Joel Miller had said it
was all right to call the supervisors a bunch of animals as
long as the employees did not specify Jews, Italians, or
"guinea," or "spick." Upon overhearing Cefalo's re-
marks, Goldfarb looked angry.
Cefalo served as steward while Rodriguez was out of
the country for about a month and a half. During this
period, Cefalo arranged for a meeting between himself,
Carroll (the Union's main representative), and Joel and
Paul Miller to discuss the employees' anger at the instal-
lation of television cameras in the work area. Joel Miller
said that the cameras were there to monitor supervisory
work only. Cefalo said that the cameras made the em-
ployees nervous and more likely to cut themselves. Joel
Miller said that individual employees could not be identi-
fied on the cameras. A few weeks later, at management's
invitation, Cefalo, Building 18 Steward Charles Johnson,
and Carroll inspected the television screen visible to
management. Then, Cefalo said that individual employ-
ees could indeed be identified on the screen. Joel Miller
said that the cameras were there to stay, and the employ-
ees could strike if they did not like the cameras. They
remained and Cefalo reported to the other employees
about the matter. Also, while Rodriguez was still out of
the country, Cefalo successfully processed the grievance
of an employee who was discharged for refusing
Schwartz' orders to back up a truck after Schwartz had
made fun of him.
Union Business Representative Carroll testified that
Cefalo did a very good job as shop steward. In his ca-
pacity as assistant steward, he accompanied Carroll when
they went to Respondent's office on 13 July 1983 and
were told by Paul and Joel Miller that all the employees
had been discharged. Also in Cefalo's capacity as assist-
ant steward, he and Carroll met with Paul and Benjamin
11 The record fails to show the ultimate disposition of this grievance
Miller during a 15 July discussion about settling the
work stoppage.
Cefalo attended the entire 5-day arbitration hearing,
and testified for the Union on 2 of those days. His testi-
mony included testimony with respect to the meetings
with management on 133 and 15 July.
As previously noted, a major issue in that proceeding
was whether the work stoppage which followed
Schwartz' discharge of Rodriguez resulted from a refusal
by the employees to work or from action by Respondent
in discharging them. As to this issue, the arbitrator's
award stated in part:
Company witness and dischargee Boxman David
Thomas testified that he was nearly at the' door
when he heard the argument and that ' he turned
around when Schwartz told Rodriguez that he was
fired. Company witness and dischargee General
Help Harvey Gilman [see, infra, fn. 38] testified that
he was at the scale and heard Foreman Ben Gold-
farb tell the crew it was nine o'clock; that the men
began to leave; that Schwartz yelled it was not yet
time; that Rodriguez said they had so been notified;
that the two yelled at each other; and that
Schwartz fired Rodriguez with the statement: "You
are all through here. Get out of the shop. You are
all through."
Union witness and dischargee Richard Bryant
said that despite others standing in front of him, he
saw, and heard the controversy from a distance of
about 15' and that Schwartz yelled, "You are fired.
You are all fired."
Dischargee and Boner (Grade A) Franklin
[Klotzbeecher] testified for the Union, that he was
about 20' away, saw Schwartz push Rodriguez'
shoulder, point a finger on him and say, "You are
fired" and that Schwartz pointed his finger at others
as well as to him and, executing an arc, stated,
"You are fired" and that by both pointing and look-
ing at him that it included him (Klotzbeecher) in
that group.
Gino Cefalo said he was hanging up his coat for
the start of the break and observed Schwartz from
about 10' to 12' and heard him say it was not yet
time. Assured by his Foreman that he had called for
the break, the Assistant Steward continued to
within 2' to 3' from Schwartz and heard him say,
"You are fired, you are fired, you are fired." He
said he heard Ben Miller state, "You are fired" and
told him to reach Joseph Carroll. He went outside
and called the Union office for Carroll to hasten to
the plant.
The attempt to ' immunize all who were fired on
July 13, 1983 on the theory that, once discharged,
these employees were incapable of striking, fails.
That theory cannot apply to Building 18 employees
because they were in another building. At most, it
could concern only those in Building 14. When
Schwartz testified that it was Rodriguez he had
fired and Ben Miller stated that it was only Rodri-
guez he had told to leave because he was fired, they
added that they had discharged no one else. .. .
UNITED BEEF CO. 1021
While testimony of Union witness Klotzbeecher,
Grant [see supra , fn. 3] and Gina Cefalo as well as
Company witness Gilman , taken in a narrow sense,
would seem to hold that "all" were fired, it is a mis-
interpretation . If "all" were discharged it produced
an anomalous result . The employees followed their
normal course and headed for their break. Not one
questioned Miller, Schwartz or Goldfarb for the
reason he was discharged . Gilman went up-stairs,
had his coffee and sandwhich , and then descended
to the loading dock for the remainder of his break.
A 19-year employee, Thomas took his coffee in the
rear of the building with others from the cooler.
These men followed their usual pattern and did
nothing about a matter as serious as their alleged
discharge . In direct examination , Gino Cefalo said
that when the firing took place he first thought it
was Rodriguez but later that it might have meant
him, as well, and only after Ben Miller told him to
call Joseph Carroll did he leave word at the Union
office that he believed the whole group was fired.
'Within moments the Assistant Steward 's under-
standing of the events had escalated . Yet, he did not
question any supervisor as to any reason , which si-
lence contrasted with his statement that he asked
Goldfarb if, in fact, he had released the men for
break. Only Rodriguez, who had argued with
Schwartz before his discharge, continued to argue.
The Assistant Shop Si eward did not. Neither did
anyone else . This silence emphasizes that only Ro-
driguez was discharged.
As previously noted , another major issue in the arbi-
tration proceeding was whether Respondent had reached
a settlement with the Union on 'the morning of 15 July.
At the arbitration proceeding, Cefalo testified about
what happened at the Union's 15 July conference with
the Millers, at which, according to the Union (but con-
trary to Respondent), a settlement was reached . The ar-
bitrator 's decision indicates that Benjamin and Paul
Miller testified for Respondent about this matter. The ar-
bitrator found that whether a settlement had been
reached was a question of credibility, that the Union had
the burden of showing that a settlement had been
reached , that the testimony of company witnesses and
the testimony of union witnesses were opposite , and that
this " is not surprising in the light of general misunder-
standing and confusion ." In finding that no settlement
had been reached , the arbitrator based is analysis on
what happened at the plant after the alleged settlement.
According to the arbitrator ' s decision, Cefalo testified
that the employees had departed from the yard shortly
after the alleged settlement had been reached ; the arbi-
trator stated thet Cefalo's testimony in this respect was
some evidence , although "weak," that Respondent had
reason to believe that the dispute had been settled.
F. The Meeting Where Management Decided Whom
to Recall
As previously found , on 14 or 15 September manage-
ment held a meeting at which certain rehiring decisions
were reached . i s Management also devoted about half of
this meeting to discussing other problems , including
maintenance of equipment and prospects for being able
to sell Respondent 's product . The meeting lasted about
2-1/2 hours . i 9 The meeting was attended by the three
Millers, Schwartz, Lind, Goldfarb, Rotman, Connors,
James Snyder , and Sullivan ; all of them but Sullivan
were admittedly supprvisors . 20 Joel Miller brought with
him a list which he had previously made up to find out
the 110 employees prestrike hourly wages. The group
went through the list of employees one by one. Joel
Miller read out each name, whereupon those who had
been connected with that employee stated whether he
should be hired back or not hired back.2 i During this
discussion , management decided that about four employ-
ees (not claimed to have included Boire, Cefalo, or
Charles Johnson) would never be rehired because of al-
cohol or drug abuse.
As to certain decisions made during this meeting,
much of the evidence is confused and conflicting . Credi-
ble parts of the Millers ' testimony show that manage-
ment decided that Respondent needed a certain number
of employees (the testimony varied between 25 and 40)
to "crank up" operations, and that management agreed
on the names of an equivalent number of employees
(who did not include Boire or Cefalo) to be asked to
return to fill these positions. The employees in this group
are hereafter referred to as the "preferred list." The Mil-
lers and Schwartz testified that laying to one side
Charles Johnson (see infra) and the four employees
thought guilty of alcohol or drug abuse, management did
not reach a decision during this meeting that any particu-
lar employees would never be rehired. However, the
Millers were unreliable witnesses as to other matters.
Sullivan , a generally reliable witness, testified that during
this meeting management decided that 25 or 30 percent
(that is, between 27 and 33) of the discharged employees
would never be rehired. In view of Sullivan's testimony
18 The three Millers , Lind, Schwartz , and Sullivan all testified that
during this meeting management decided to reline some employees and
not to rehire others. I do not accept Goldfarb's wholly uncorroborated
testimony that no decisions were reached at this meeting as to whom Re-
spondent would rehire
19 This finding is based on Sullivan's testimony Benjamin Miller testi-
fied that the meeting lasted "a couple of hours anyway ." Joel Miller,
Schwartz, and Lind gave estimates ranging from 40 minutes (Lind) to 2
hours "at the outside" (Schwartz) In view of the credible testimony
(infra) that the participants went through 110 employees one by one to
decide whom to rehire , and also spent half the meeting in a discussion of
other topics , Sullivan's estimate impresses me as the most reasonable one.
As discussed infra, Sullivan impressed me as generally the most reliable
of the witnesses who testified about this meeting
20 For demeanor reasons , and in view of the evidence summarized
supra, sec. II,C,3, I credit Sullivan 's testimony , corroborated by Schwartz
and Goldfarb , that Paul Miller was present during 90 percent of the
meeting, the rest of his time being devoted to receiving telephone calls;
and reject the testimony of Paul Miller and Linid, to some extent cor-
roborated by Benjamin Miller, that Paul Miller's telephone activity
caused him to be absent an appreciable part of the time
zi My findings in these two sentences are based on credible parts of
the testimony of Sullivan , Schwartz , Goldfarb (cf. supra, fn 18), and
Benjamin Miller . Joel Miller's testimony varied as to whether these
events occurred . For demeanor reasons , I do not credit Lind's testimony
that only half the employees were discussed or Paul Miller 's response,
"Not to my knowledge," when he was asked whether each dischargee
was evaluated during this meeting
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the evidence discussed infra as to the employees
whom Respondent eventually hired and how they were
hired, I infer that during the meeting management decid-
ed at least tentatively not to rehire the group whom Sul-
livan testimonially described as ineligible but that Re-
spondent eventually became willing to consider many (if
indeed not most) of them for rehire. From certain parts
of the testimony of Joel and Paul Miller and Schwartz, I
infer that in reaching the decision about whom to in-
clude in this initially ineligible group and whom to offer
jobs at once, and laying Boire and Cefalo to one side,
among the factors which management took into account
were skill level, or overall attitude, cooperation in the
sense of willingness to do the job, and willingness to
work overtime.
The probative evidence discussed infra, section II,H,
establishes that during this meeting the Millers stated
that Respondent would not rehire employees who had
testified for the Union during the arbitration proceeding
or who were strong union men. Sullivan credibly testi-
fied that during this meeting management used as to em-
ployees who had been on the picket line words like "mil-
itant" ,and "he was outside every day." He testified that
his memory as to this matter was "a little hazy" and that
the only individual there referred to whose name Sulli-
van was able to remember was "young Wentzell," the
brother of Sam Wentzell. Carroll's testimony and Re-
spondent's records show that this brother was John
Wentzell, that he was on the picket line most of the time,
and that he was never rehired. The complaint does not
allege that Respondent took unlawful action with respect
to John Wentzell. Schwartz credibly testified, without
giving a reason, that during the meeting management de-
cided not to rehire meatcutter Charles Johnson, who had
been the Building 18 steward and had testified for the
Union at the arbitration hearing. Johnson thereafter filled
out an application which Joel Miller admittedly ignored-.
Carroll asked Joel Miller to rehire Charles Johnson, and
Joel Miller admittedly said that he "just couldn't do
it."22 The complaint does not allege that Respondent
violated the Act with respect to Charles Johnson.
As previously noted, Boire had testified for the Union
at the arbitration hearing. When his name came up,
Schwartz "very strongly" recommended that Boire
should be called back; Schwartz testified, "I have
worked with [Boire] for a long time and I know what he
can do there . .. I needed him in that [quality control]
position . . . he does a good job there and I can depend
on him." Schwartz went on to testify that Boire's work
habits were good "for the most part"; that he had good
ability; that "in general" he was willing to work over-
time ; and that he was cooperative. Joel Miller said that
Boire should be rehired because "I had known him a
long time, I liked him very much, I thought his work
was very good , and I thought he had a lot of positive
22 In view of Joel Miller's testimony in this respect, and for demeanor
reasons, I do not accept his testimony, contrary to Schwartz' testimony,
that at his meeting Charles Johnson's rehire was not ruled out "In a
weak moment," Joel Miller had rehired Charles Johnson after he had
quit and then asked to be rehired with a "real hard luck story " Joel
Miller testified that Charles Johnson had high absenteeism, talked a lot,
and was not productive
qualities." A few of the others present likewise recom-
mended that he be rehired. Among those present who
wanted to rehire Boire was Benjamin Miller. The only
person present who disagreed was Paul Miller, who
slammed his fist on the table and screamed out no.23
There is no credible direct evidence regarding the dis-
cussion about Cefalo who (as previously noted) had been
a steward and an assistant steward and had testified for
the Union at the arbitration hearing. Benjamin Miller tes-
tified that he described Cefalo's alleged selectivity with
respect to the cuts of meat he chose to bone. I do not
credit Benjamin Miller's testimony in this respect because
no other witness so testified, because I have previously
found that such incidents did not occur, and for demean-
or reasons. Joel Miller testified that he participated in the
discussion and decided not to recall Cefalo immediately,
but Joel Miller did not in terms testify about what he
said. Joel Miller's testimony does imply that he described
the alleged incidents where Cefalo failed to comply with
Joel Miller's instructions to pull unboned, carcasses off
the conveyor belt. No other witness testified that these
incidents were alluded to. Accordingly, and in view of
my finding (supra, sec. II,E) that such incidents did not
occur, I conclude that they were not referred to at the
meeting. Goldfarb testified that during the meeting he
said that Cefalo disrupted his and others' work with con-
stant conversation. I do not credit Goldfarb's testimony
in this respect because no other witness testified that
Goldfarb referred to the matter, because Cefalo was
never reproved for this alleged conduct, and for demean-
or reasons. Although Goldfarb admittedly did not state
during the meeting that Cefalo was reluctant to work
overtime, Goldfarb testified that such reluctance was a
factor in his judgment that Cefalo should not be rehired
immediately. However, Joel Miller testified that it was
he who decided not to recall Cefalo immediately, and
that Joel Miller's only reason was the alleged incidents
regarding failure to pull unboned carcasses off the con-
veyor belt.
The witnesses who testified about this meeting were
the three Millers, Schwartz, Goldfarb, and Lind (all of
whom testified for Respondent) and Sullivan (who testi-
fied for the General Counsel). As shown supra, Respond-
ent's witnesses gave mutually conflicting testimony about
23 My findings in the last two sentences are based on Sullivan's testi-
mony, which I credit for reasons discussed infra. When testifying for the
General Counsel as an adverse witness on 9 April 1985, Paul Miller testi-
fied that he could not recall whether it was at that meeting that he heard
that Boire had threatened Benjamin Miller. When testifying for Respond-
ent on 23 April 1985, Paul Miller denied that he was present during the
part of the meeting when Boire's name came up for consideration (of
supra, fn 20 ). Schwartz, Benjamin Miller, and Joel Miller testified that
the only objection to Boire's rehire was voiced by Benjamin Miller. Joel
Miller testified, but Benjamin Miller and Schwartz denied, that Benjamin
explained why he did not want Boire rehired."Joel testified that Benjamin
gave as the reason that Boire "tried to kill him," conduct not testimonial-
ly attributed to Boire by Benjamin or anyone else. Joel Miller and
Schwartz testified that no decision was made at that meeting that Boire
was not eligible for rehire; Benjamin Miller testified that an understand-
ing was reached that anybody (including Boire and Cefalo, but not em-
ployees excluded for alcohol and drug abuse) was subject to be rehired.
At the outset of the hearing, Respondent's counsel stated, "I don't think
the evidence will show that the Company considered [Boire] to be unem-
ployable for its purposes "
UNITED BEEF CO. 1023
the meeting, and were unreliable witnesses as to other
matters. Moreover, the Millers (Schwartz' relatives by
marriage) and Schwartz' wife have a pecuniary interest
in this proceeding; and, at the time of the hearing,
Schwartz, Goldfarb, and Lind were in Respondent's
employ as supervisors. In view of the foregoing, and for
demeanor reasons, I credit Sullivan's testimony where in
conflict with theirs even though Respondent discharged
Sullivan in July 1983, after `6 years of employment with
Respondent, because Joel Miller accused him of theft of
a company product. In this connection, I note that Sulli-
van was never prosecuted for the alleged theft, that Re-
spondent represented to the unemployment compensation
authorities that he had been terminated for "lack of
work, permanent," and that Respondent did not oppose
his claim for unemployment compensation.
G. Alleged Independent Violation of Section 8(a)(1)
Through Supervisor Schwartz; Boire's Rehire
Between 10 and 11 a.m. on Friday, 16 September, em-
ployee Frank Boire and his wife, Mary Boire, came
down to the area of Respondent's plants in order to col-
lect his weekly work stoppage benefits from Carroll.
After parking their car, the Boires went over to a group
of participants in the work stoppage. Boire asked where
Carroll was. Boire was advised that Carroll had already
left the area, and was further advised that the employees
had lost in the arbitration proceeding. At Frank Boire's
suggestion, the Boire's went over to a canteen truck and
bought some coffee. While Frank Boire was chatting
with a couple of participants in the work stoppage, Mary
Boire noticed a man who was standing 10 yards away
between the canteen truck and one of Respondent's
buildings. This man, who was Schwartz and whom she
had never met before, was waiving at and calling her
husband. When she drew ]Boire's attention to Schwartz,
Boire walked over to Schwartz with her and introduced
the two. Then, Schwartz said that Respondent was not
going to call Boire back, that Schwartz had tried to get
Respondent to call Boire back, but that whether he
would be called back was up to Paul Miller, who was
"mad" because Boire had testified at the arbitration pro-
ceeding. Boire asked whether he could use Schwartz as a
reference with respect to a job which Boire had applied
for. Schwartz said yes, and also suggested another place
where Boire might be able to get a job.
My findings as to the substance of Schwartz' remarks
are based on a composite of credible parts of the testimo-
ny of Schwartz and the Boires. Schwartz' testimony dif-
fers from that of the Boires principally as to Schwartz'
explanation (if any) for management's decision not to
recall Boire and as to the date of his conversation with
the Boires. Although Schwartz denied with escalating
certainty that he attributed the decision to Paul Miller's
resentment of Boire's action in testifying at the arbitra-
tion proceeding, Schwartz did not testify to giving Boire
any reason for Respondent's decision (which Schwartz
admittedly relayed to Boire) that he would not be re-
called, and testified to an inability to recall whether
Boire asked for a reason (as he almost certainly would
have done if Schwartz had failed to volunteer one).
Moreover, the Boire's testimony that Schwartz attributed
the decision to Paul Miller is corroborated by Sullivan's
credible testimony that at the management meeting Paul
Miller expressed opposition to Boire's recall. Sullivan's
credible testimony that the management meeting could
have occurred on 14 or 15 September (see supra, sec.
II,C,1) vitiates Respondent' s claim that the Boire's testi-
mony is unworthy of belief because they attached to the
conversation a date (16 September) before the manage-
ment meeting occurred. In finding that Schwartz attrib-
uted Respondent's decision to Paul Miller's resentment of
Frank Boire's action in testifying before the arbitrator, I
am aware that Mary Boire testified that Schwartz so
stated, whereas Frank Boire testified that Schwartz
nodded after Boire so stated. Moreover, the record con-
tains no explanation for why Boire allegedly already sus-
pected that Paul Miller (rather than other members of
management) resented the fact that Boise had testified at
the arbitration hearing. Furthermore, Charging Party
Boire and his wife were highly interested witnesess (al-
though Schwartz, too, was an interested witness who
was testifying on behalf of his employer, his wife, his
father-in-law, his brother-in-law, and an uncle and two
cousins by marriage). Nevertheless, and after considering
the witnesses' demeanor, I credit Mary Boire's version of
the conversation.24
Boire knew as early as 15 or 16 September 1983 that
Respondent was going back into production and was re-
hiring, and that some of the participants in the work
stoppage had been rehired on 15 September after ap-
proaching Respondent and without being called by it. He
signed his charge herein on 11 February 1984; this
charge, received by Respondent on 21 February, alleged
that Respondent had unlawfully "failed or refused to
recall" him since about 26 September 1983, Also, begin-
ning on an undisclosed date preceding 21 November
1983, a claim for unemployment compensation as of at
least 13 August 1983 was prosecuted on behalf of Boire
and other participants in the work stoppage.25 This
charge and unemployment compensation claim aside,
Boire did not apply to Respondent for a job until 15 De-
cember 1984, or ask the Union to make a specific rein-
statement request on his behalf. Nor did Respondent
offer him a job during this period. On Saturday, 15 De-
cember 1984, Boire applied to Joel Miller for a job.
Miller hired him on a salaried basis to fill the supervisory
position vacated by Schwartz. Boire reported to work on
24 Schwartz testified that on a weekday about a week before Christmas
1983 Boire came down to the plant, and Schwartz told him that
Schwartz was still trying to induce Benjamin Miller to let Boire come
back to work. Schwartz worked between 5.30 a m. and 7 p in at Re-
spondent's plant, which is located in Boston, Massachusetts Boire credi-
bly testified that during the entire month of December and until Christ-
mas Eve (when his employer let the employees off), he was working 5
days and 42 hours a week, with a shift beginning at 6 or 7 a m, in Lynn,
Massachusetts, about 10 miles from Boston Benjamin Miller testified that
after he told Schwartz why Benjamin Miller allegedly did not want to
rehire Boire, Schwartz never again asked for Boire's rehire I accept
Bone's denial of the December 1983 visit testified to by Schwartz.
25 The February 1984 decision issued by the Board of Review of the
Commonwealth of Massachusetts Division of Employment Security,
partly reversing a total disqualification determination by the Regional Di-
rector, found such employees eligible for unemployment compensation
after 20 September 1983. At the time of the April 1985 hearing before
me, the Employer's appeal of that decision was pending
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monday, 17 December ; worked for 1 day; and then
quit.26 The General Counsel does not ask for an instate-
ment order as to Boire, and seeks backpay through 15
December 1984 only. About 28 November 1983, Boire
started to work at a job which he still held at the time of
the April 1985 hearing before me . Boire credibly testified
that between his 15 September 1983 conversation with
Schwartz and his 15 December 1984 application to Re-
spondent for work, nothing had happened to change his
opinion as to Paul Miller 's feelings about having Boire
come back to work. This testimony, the fact that by 15
December (a Saturday) he already had a full-time job
elsewhere , and his testimony about why he worked for
Respondent for only 1 day persuaded me that he applied
for and accepted the job only to show the Board investi-
gator that management was not sincere in its assertions
to him that Boire was dangerous . Paul Miller testified
that Boire had been free to return to work since shortly
after the September 1983 startup.
As previously noted, at the time of Boire's July 1983
discharge his job title was "quality control person"; he
had been performing the duties attached to that job title
for about 7 years. Boire's duties , performed in Building
14, were to see to it that prime cuts were separated from
choice cuts (in order to enable Respondent thus to label
products in accordance with regulations of the United
States Department of Agriculture) and that the product
had been trimmed according to the Millers' quality
standards . Paul Miller testified that Respondent 's quality
control progam is an important program which is unique
to meatpacking houses in the area . Building 14 Supervi-
sor Schwartz testified that to carry out the quality con-
trol program Respondent "really [has] to have someone"
to act as quality control inspector , and that Boire's job
was an important job in the plant "because we produce a
quality product and we want somebody down there to
make sure that the stuff coming off the line before it is
[packaged] is trimmed properly and . . . is just the right
package to be going out to . . . the customers."
Schwartz further testified that someone to perform
"quality control" was needed to start up operations in
September 1983, and that Schwartz "needed [Boire]
there in that position." Moreover, it is undisputed that
the only member of management who opposed Boire's
immediate hire did so on grounds unrelated to need for
his quality control services. Accordingly, I do not accept
Paul Miller's testimony that Respondent did not need
anyone working in quality control until 2 to 4 months
after Building 14 resumed operations. The record shows
that after resuming Building 14 operations , Respondent
apportioned quality-control work among supervisors and
bargaining unit employees . Moreveor, the record shows
that Boire was capable of performing the work of
boxmen and general helpers.
H. Alleged Independent Violation of Section 8(a)(1)
Through Supervisor Lind
Supervisor Lind, a co-plant manager of Building 18
since 1981, worked in the same building (Building 14) as
employee Cefalo for about 2 years, between 1979 and
26 Schwartz returned to that job in early March 1985
1980. Also , during a short period of time which ended in
1982, Lind was Cefalo's immediate supervisor . Thereaf-
ter, Cefalo frequently saw Lind during lunch and coffee
breaks; they did not, however, have lunch or coffee to-
gether . Cefalo was on the sidewalk in front of Respond-
ent's premises 8 to 10 hours a day on most of the days
during which the work stoppage continued . During this
period , Cefalo and Lind conversed "many times."
Several days after learning about the 13 September
1983 arbitration award , 27 Cefalo found himself standing
near Lind while they were in the middle of a group of
people who were in the course of buying coffee from a
coffee truck located across the street from Respondent's
plants. Cefalo asked Lind what was going on. Lind said
that all of the supervisors had had a meeting in Building
18; that Joel Miller had a list of all of the men; that he
called the name of each ; and that those present voted on
whether to take that person back. Lind went on to say
that "the Millers" had said at that meeting that anyone
who had testified at the arbitration proceeding or was a
strong union man would not be called back . Thereafter,
at later chance meeting near the coffee truck, Lind and
Cefalo talked about other matters.
My findings as to the Lind -Cefalo conversation are
based on Cefalo 's testimony . 211 Such testimony is indi-
rectly corroborated by testimony from Respondent's
other witnesses and by other and partly undisputed evi-
dence. Thus, the credible testimony of Respondent's
other witnesses shows that the three Millers and all of
Respondent 's supervisors (including Lind) attended a
meeting in Building 18 during which Joel Miller pro-
duced a list of all the employees and it was decided
never to recall certain employees and to recall others im-
mediately . Company witness Schwartz testified that at
this meeting Respondent decided (for reasons Schwartz
did not give) not to rehire Building 18 Steward Charles
Johnson, who had testified for the Union at the arbitra-
tion hearing. Sullivan credibly testified that during that
meeting Respondent decided never to rehire 27 to 33
employees (rather than the 5 or fewer testified to by Re-
spondent's witnesses), and that management used as to
employees who had been on the picket line words like
"militant" and "he was out every day." He further iden-
tified one employee so discussed who (other evidence
shows) was on the picket line most of the time and was
never rehired . It is undisputed that Respondent did not
rehire union arbitration witness Boire until December
1984, and never hired any of the other arbitration wit-
nesses for the Union or either of the union stewards.29
27 Frank Boire's testimony shows that at least some of the participants
in the work stoppage had learned about the award by the morning of 16
September.
28 It should be noted that pages 370-371 of the transcript of his testi-
mony were corrected by a letter to me from the reporting service dated
25 June 1985 . Counsel received courtesy copies of this letter, and were
also advised , in a letter from me dated 2 July 1985, that they would be
deemed to have assented to such corrections unless I was otherwise ad-
vised by 8 July 1985 , the due date for briefs No comments have been
received from counsel.
29 O'Brien , whom Respondent did rehire, had been replaced as stew-
ard in late 1981 because his fellow employees thought he was not proper-
ly representing them
UNITED BEEF CO.
Moreover, as previously found, Supervisor Schwartz
(also present at the meeting) told Boire that he would
not be rehired because he had testified for the Union at
the arbitration proceeding.
It is true that Cefalo was a highly interested witness.
Moreover, be did not recall whether he ever described
this incident to employees Boire or Klotzbeecher, both
of whom also testified at the arbitration hearing and also
filed February 1984 charges attacking Respondent's fail-
ure to rehire them (see supra, fn. 1), or to Union Repre-
sentative Carroll; and Cefalo never related this incident
to the attorney who represented the Union in the arbitra-
tion case . Furthermore, Cefalo did not refer to this inci-
dent in his first prehearing affidavit, which he gave
during a 28 November 1983 interview when he told the
Board investigator that Cefalo wanted his job back; and
he testified that he volunteered an account of this inci-
dent to another Board investigator in March 1984 be-
cause Cefalo knew it was connected in some way with
his chances of getting his job back. 30 Also,'Cefalo's testi-
mony varied as to the date of this conversation. Thus, he
initially testified that it occurred about a week after he
learned of the award and a week or a week and a half
after it came down (on 13 September). However, he
thereafter testified that the 115 September 1983 date he
gave in his March 1984 affidavit was "approximately"
correct, then that the conversation was "on the 15th";
then that it was "about the 15th"; and, finally, that it
could have been up to a week later.3 i On the other
hand, Lind was testifying on behalf of an employer who
had been employing him in a supervisory capacity for
about 6 years. Further, his testimony about the manage-
ment meeting is demonstrably false as to its date and
length (see supra sec. II ,C,3). After taking into account
the foregoing considerations and the witnesses' demean-
or, I accept Cefalo's testimony about this conversation,
and reject Lind's testimony that it never occurred.32
Further, because Respondent's answer admits Lind to
have been its supervisor and agent at all material times, I
accept Cefalo's credible testimony about Lind's remarks
as probative evidence about what happened at the meet-
ing. See Mahlandt v. Wild Canid Survival & Research
Center, 588 F.2d 626 (8th Cir. 1978); US. v. Roe, 670
F.2d 956, 965 (11th Cir. 1982); Bohemia, Inc., 266 NLRB
761, 763-764 (1983); Fed.R. Evid. 801(d)(2)(D).
Because Cefalo was an assistant steward, Carroll let
him know on an undisclosed date that the contract had
been "'settled" on 21 September 1983. Cefalo never asked
Carroll to make a specific reinstatement request on Cefa-
lo's behalf. Cefalo found out on an undisclosed date that
Respondent was accepting applications from and rehiring
30 Cefalo explained the November 1983 omission on the ground that
"we were concentrating on 13 July [19831 "
31 As found supra in sec . 11,C,1, the management meeting which Lind
allegedly described to Cefalo occurred on 14 September or (at the latest)
15 September.
32 In contending that I should discredit Cefalo, Respondent asserts that
the arbitrator "discredited" portions of Cefalo's testimony. Cf. Adams De-
livery Service, 237 NLRB 1411, 1418 (1978), enfd 623 F.2d 96 (9th Cir.
19$0) As the General Counsel's brief points out, the arbitrator did not
find that Cefalo failed accurately to recount the facts. Rather, the arbitra-
tor found that "in a narrow sense" Cefalo's testimony was true, but that
he had misinterpreted the events he testified about Cf. infra, fn 38
1025
some discharged employees whom Respondent had got
in touch with. He never asked any of Respondent's su-
pervisors whether Respondent would rehire employees
whom Respondent had not got in touch with. As previ-
ously noted, beginning on an undisclosed date prior to 21
November 1983, an unemployment compensation claim
was prosecuted on behalf of employees who may have
included Cefalo. He testimonially ascribed to his conver-
sation with Lind his failure to apply to Respondent for a
job.
Paul Miller testified that after he allegedly asked Car-
roll for butchers (see infra, sec. II,I) Cefalo was free to
come back to work. Joel Miller testified that Cefalo was
a good meatcutter, and that, if he had applied for work
as of January 1984 and perhaps even as of October 1983,
the chances were "very high" that he would have been
hired: "There were very few people that we ever refused
to hire that came back to us." Cefalo signed his charge
on 14 February 1984. This charge, which was admittedly
served on Respondent on 23 February 1984, alleged that
Respondent had unlawfully refused and failed to recall
Cefalo or to offer him employment since about late Sep-
tember 1983 "and continuing to this date." Joel Miller
testified that the Board investigator had thereafter asked
him to give reasons why Cefalo was allegedly not a
good enough employee to rehire during the "crankup"
period, and that it never crossed Joel Miller's mind to
tell the Board investigator that Respondent was now
willing to rehire Cefalo. Between Cefalo's July 1983 dis-
charge and the April 1985 hearing, Respondent never of-
fered Cefalo a job. Paul Miller testified that Cefalo was
not offered a job because the owner of one of Respond-
ent's competitors had told Miller, during, one of their fre-
quent lunches, that Cefalo had a very good job at Berto-
lino's (another meatpacking house in the area) and would
never come back to Respondent's employ. Cefalo credi-
bly testified that he worked part time at Bertolino's be-
tween some date in the summertime and some time in
October, that Bertolino's paid him a total of $150 for
such work, and that during his part-time employment at
Bertolino's he also showed up at Respondent's premises.
Paul Miller testified on 9 April 1985 that Cefalo was free
to come back to work immediately. In consequence of
off-the-record discussions, the General Counsel stated
that he was not -asking for an instatement order as to
Cefalo, and was not asking for backpay as to Cefalo after
8 April 1985, the first day of the hearing before me. The
General Counsel's posthearing brief states that Cefalo re-
cently obtained a job elsewhere and he would rather
keep it than return to Respondent's employ.
I. Respondent's Postcontract Ifiring
As previously noted, Cefalo and Boire had both
worked as meatcutters in Building 14-Cefalo as a boner
and Boire as a quality control person. Joel Miller testi-
fied that all boners in Respondent's employ at the time of
the work stoppage were capable of performing the duties
of boxman. Boire had at one time worked as a boxman
and, indeed, had been hired as such by Respondent in
1986; the record fails to show whether lie was capable of
performing any other aspect (such as boning) of a butch-
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er's job. He was also capable of performing "general
help" work. Some Building 18 meatcutters are capable of
performing the meatcutting work in Building 14, and
some are not. The record fails to show whether Cefalo
and Boire were able to perform Building 18 work.
Following the management meeting about rehiring,
which meeting was held (I have found) on 14 or 15 Sep-
tember, Respondent's office attempted to telephone or
telegraph employees on the preferred list, but reached
only a few of them. Then, about a week after the man-
agement meeting, some members of management were
each given a list of people to try to get in touch with.33
Of the 25. to 40 employees on the preferred list,
Schwartz' list included about 12. He credibly testified
that "probably maybe" three or four agreed to come
back. There is no other direct evidence as to the ratio of
acceptances; Joel Miller testified that he did not remem-
ber.
Joel Miller testified that for many years (he mentioned
the 1940s, 1954, 1955, and 1967) Respondent had been
experiencing a problem getting enough qualified meat-
cutters. The Millers testified that in expanding to full-
scale operations in 1983-1984 Respondent underwent dif-
ficulty in obtaining enough qualified employees; Paul and
Benjamin Miller attributed this problem partly to the fact
that the September 1983 bargaining agreement called for
a cut in wages. Joel Miller testified that from time to
time Respondent limited its hiring to the preferred list
until the end of October 1983; indeed, he tendered the
unlikely testimony that Respondent began postcontract
operations with fewer employees than it needed because
some (he could not remember how many) of the pre-
ferred-list employees were unavailable for rehire. Paul
Miller testified that Respondent hired only former em-
ployees of Respondent. However, this testimony by Paul
and Joel Miller is refuted by Respondent's employment
records. Thus, of the approximately 66 employees who
began to work between 22 September (the day after the
execution of the memorandum bargaining agreement)
and 28 October 1983,34 about 27 had never worked for
Respondent before, so far as the record shows. Of these
27, about 9 were meatcutters, 7 of them assigned to
Building 14. Moreover, this hiring practice began shortly
after the 21 September execution of the bargaining agree-
ment. Thus, of the approximately 27 employees who
began to work during the week beginning Monday, 26
September, and ending Friday, 30 September, incluidng
about 15 meatcutters (11 of them assigned to Building
14), about 8, including about 3 meatcutters of whom 1
was assigned to Building 14), had never worked for Re-
spondent before, so far as the record shows. Moreover,
in explaining why Respondent rehired one of these
Building 14 meatcutters (boxman Willie March) on 26
as My findings in these two sentences are based mostly on Schwartz'
testimony. Because Schwartz credibly testified that he received a list of
"random names" that the office was unable to reach, I infer that most (if
indeed not all) of the other lists were similarly "random." To the extent
inconsistent with Schwartz' testimony, I do not accept Joel Miller's testi-
mony that management divided among themselves the names on the pre-
ferred list on the basis of whom each of them thought he could get in
touch with
34 For reasons explained infra, this total does not include Cormier or
Zafirm, both of whom were employed before the work stoppage
September 1983 even though in March 1982 he had re-
ceived a verbal warning for excessive tardiness and a 1-
week suspension for excessive absenteeism and tardiness,
Joel Miller testified, "[P]icking the best of a worst situa-
tion . . . when [March was] at work, [he] did [his] job
well . . . it's either having nobody in that situation and
you had to fill the job or going to somebody with char-
acteristics you weren't particularly thrilled with but you
felt you could deal with." Accordingly, and in view of
Paul Miller's testimony that Respondent was willing to
take back all former employees except for the three or
four alcohol and drug abusers, I find that by 26 Septem-
ber 1983 (when A. Brown, a meatcutter who had never
previously worked for Respondent, began to work in
Building 14) Respondent was hiring former employees
without regard to the preferred list.
Credible parts of the Miller's testimony indicate that
Respondent solicited "quite a few" former employees to
return to work and rehired the few who said they
would, but that most of the jobs were filled by employ-
ees who came in and applied. About December 1983 or
January 1984, Paul Miller and Norman Lind asked Union
Business Agent Carroll if he knew of any meatcutters
who wanted jobs, without specifying whether or not
former employees were acceptable and without naming
any employee not to send over. Carroll sent over two
"general help" employees who had never before worked
for Respondent. They were not hired. The only former
employee whom Carroll ever sent to Respondent was
meatcutter Charles Johnson, who was not rehired. About
January 1984, Respondent began to advertise for em-
ployees. At the time of the April 1985 hearing, Respond-
ent was advertising for butchers. Joel Miller described
Respondent's need for production employees about No-
vember or December 1983 as presenting a "pretty des-
perate situation."
In November 1984, dischargee Fernando Nuzzolo,
who had been a Building 14 boner before the work stop-
page, received a message from his wife that Paul Miller
had telephoned and wanted to talk with him. Nuzzolo
thereupon went to see Paul Miller, who asked him to
return to work. Nuzzolo replied that he could not come
back right away because of illness in the family. Thereaf-
ter, on several occasions before January 1985, Nuzzolo
had discussions with the Millers about the possibility of
Nuzzolo's return, but the Millers told him that they did
not want to pay him the rate he had received before the
work stoppage. In January 1985, Nuzzolo went to see
Paul Miller, who said that Nuzzolo was a good man and
asked him to return to work. Nuzzolo refused on the
ground that the offered pay was too low.
In late July 1984, Respondent rehired discharged
boxman Frank Chirco as a Building 14 meatcutter.
Chirco had previously applied for work on several occa-
sions, but had been rejected on the ground that he was
"awfully slow." Joel Miller testified that Respondent
eventually rehired him because "it came to the point that
we needed meat cutters so bad it was making the best of
several miserable decisions . . . and hiring a bad butcher
at this point or one we didn't feel was truly great was
better than having no butcher at all." In January 1985,
UNITED BEEF CO.
Respondent rehired dischargee Louis Ortega initially as a
part-time and a month or so later as a full-time Building
14 meatcutter. He had previously applied for work on
several occasions, but had been rejected on the ground
that he talked a lot and was very argumentative. Imme-
diately before rehiring him, Joel Miller was advised that
Ortega had threatened someone in supervision.
The day after executing the memorandum bargaining
agreement, Respondent offered a job to dischargee
Charles O'Brien, a forklift operator who in February
1981 had received a written warning for tardiness after
repeated verbal warnings, O'Brien turned the job down
on the ground that the pay was too low. In March 1985
he requested a job and was rehired as a forklift operator
in the Building 14 box storage room. Joel Miller testified
that after Building 14 operations were resumed Respond-
ent was not very successful in finding capable employees
to do that work. On 3 October 1983 Respondent rehired
general helper Lazaro Garcia, who in July 1982 had re-
ceived "verbal" warnings for excessive absenteeism. In
late January 1984, Respondent rehired, as a forklift oper-
ator, an employee who (for reasons which will appear) is
referred to herein as John Doe.35 On various occasions
before 1 June 1983, Doe had received verbal warnings, a
written warning, and a suspension for continued tardi-
ness; the suspension notice had stated that he would be
terminated if he continued to be tardy. Moreover, there-
after Doe had gone into personal bankruptcy, had joined
Gamblers Anonymous, and had advised Respondent that
"the mob" was out to get him because he welched on a
bet." Joel Miller testified that Respondent rehired Doe
because:
We were then placed in a situation we've been
placed in many times, making the best of a worst
situation. We were suffering because of a lack of
somebody with that skill. People that we had hired
just didn't seem to be fitting into the situation. And
it appeared that a bad known quantity at this point
was better than an unknown bad quantity. We just
hadn't been able to find anybody to do that job. We
knew when he was there he was good. But we had
the problem of tardiness and absenteeism before.
We were hoping because he needed a job so bad
this time that he would show up for work.
The dischargees rehired by Respondent included meat-
cutter Theoples Good, rehired on 4 October 1983, who
was present on the picket line most of the time. On vari-
ous dates between 22 September 1983 and at least 19 Jan-
uary 1985, Respondent rehired at least 12 other discharg-
ees (8 of them meatcutters) who significantly participated
in the picketing 38 As of the April 1985 hearing before
me, Respondent had rehired about 50 of the about 110
employees who had been discharged for participation in
the work stoppage. Paul Miller testified that 98 or 99
percent of the meatcutters then in Respondent's employ
had been in Respondent's employ before the work stop-
page.
3s His name appears on p. 611, L 19 of the transcript.
16 These included meatcutter Ortega (see supra) and general helper
Gilman (see infra, fn 38)
1027
So far as the record shows, Charles Johnson, who had
been the Building 18 steward , was the only dischargee
who asked Respondent for a job and was never re-
hired.37 As previously noted, he was one of the Union's
witnesses at the arbitration proceeding. The others were
Cefalo, Boire, Bryant, Klotzbeecher, and Cormier.
Shortly after the contract was signed, Union Business
Agent Carroll asked management to rehire Charles John-
son, who had been a meatcutter. Carroll was advised
that Respondent was not' going to rehire Johnson. Re-
spondent never offered a job to Bryant. There is no evi-
dence that Respondent ever offered a job to Klotz-
beecher (although see supra, fn. 1). Corimer and Zafiris
(who did not testify at the arbitration proceeding)
worked on 16 September 1983, and were on Respond-
ent's payroll as of 22 September 1983. The 13 September
arbitrator's award found that they had been discharged
on 13 July 1983 and reinstated on 18 July 1983. The arbi-
trator further found that because they had not been dis-
charged thereafter they remained employees.
J. Analysis and Conclusions
An employee who acts as a union steward or who tes-
tifies on a union's behalf at an arbitration hearing is en-
gaged in union and concerted activity protected by Sec-
tion 7 of the Act. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 702-705 (1983); Oil Workers Local 4-23 (Gulf
Oil), 274 NLRB 475 (1985); Teamsters Local 788 (San
Juan Islands Cannery), 190 NLRB 24, 26-27 (1971);
Ebasco Services, 181 NLRB 768, 769-.770 (1970); South-
western Bell Telephone Co., 260 NLRB 237, 240 (1982),
enfd. 667 F.2d 470 (5th Cir. 1982). Accordingly, an em-
ployer violates Section 8(a)(1) and (3) of the Act by re-
fusing to rehire applicants for employment because they
have engaged in such conduct . Furthermore, even where
(as here) the alleged discriminatees failed to ask the em-
ployer for a job, the employer's failure to hire them vio-
lates Section 8(a)(1) and (3) where he has made known
to prospective employees that he will refuse to hire them
because of their protected union activity. Love's Barbeque
Restaurant No. 62, 245 NLRB 78, 81-82 fn. 10 (1979),
modified 640 F.2d 1094 (9th Cir. 1981); Sherwood Truck-
ing Co., 270 NLRB 445 (1984).
The credited testimony in the instant case provides
direct evidence that Respondent told Cefalo and Boire
that applying for a job would be futile and that Respond-
ent's motivation for this decision was their having testi-
fied for the Union at the arbitration hearing and Cefalo's
activity as an aggressive union steward.38 The conclu-
37 Indeed, so far as the record shows, dischargees Chirco, Ortega, and
Doe were the only such employees whose applications were not accepted
immediately
38 Respondent makes no contention that the limitations in the effect
which the arbitrator gave to Cefalo's arbitration testimony (supra, fn. 32)
deprived him of statutory protection in giving such testimony. See Glover
Bottled Gas Corp, 275 NLRB 658 (1985). I note that employee Harvey
Gilman, a company witness at the arbitration hearing to whose testimony
the arbitrator attached about the same weight as Cefalo's resumed work
on 23 September 1983 I further note that Respondent unlawfully refused
to hire Boire because of his arbitration testimony, which the arbitrator
unreservedly accepted.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lion that this was the reason for Respondent's refusal to
rehire Boire and Cefalo gains support from other record
evidence. Thus, Respondent never did rehire any of the
employees who testified for the Union at the arbitration
proceedings . The only dischargee (so far as the record
shows) whose application for employment was never ac-
cepted had testified for the Union at the arbitration pro-
ceeding and was the only incumbent steward except
Cefalo who, had been discharged for participation in the
work stoppage. Although Joel Miller admitted that
Building 14 meatcutter Cefalo was a good meatcutter,
meatcutter March (who in March 1982 had been sus-
pended for 1 week for excessive absenteeism and tardi-
ness, and whose "characteristics" Joel Miller "wasn't
particularly thrilled with") returned to work in Building
14 on Monday, 26 September 1983, just 4 days after that
building resumed operations . 39 In July 1984 Respondent
rehired meatcutter Chirco, who was "awfully slow" and
whom Joel Miller described as "a bad butcher or one we
did not feel was truly great." In January 1985 , Respond-
ent rehired meatcutter Ortega, although he had threat-
ened a supervisor , talked a lot, and was very argumenta-
tive. Also, on the day after the execution of the bargain.
ing agreement , Respondent offered a job to forklift oper-
ator O'Brien, who in February 1981 had received a writ-
ten warning for tardiness after repeated verbal warnings;
on_ 3 October 1983, Respondent rehired general helper
Garcia, who in July 1982 had received "verbal" warn-
ings for unsatisfactory attendance ; and in January 1984,
Respondent offered a job to forklift operator Doe, who
had received verbal warnings , a written warning, and a
supsension for continued tardiness , and who had gone
into personal bankruptcy, had joined Gamblers Anony-
mous, and had advised Respondent that "the mob" was
"out to get him because he welched on a bet." However,
although Paul Miller testified that Respondent needed to
hire additional experienced employees at all times after
executing the 21 September 1983 bargaining agreement,
and Joel Miller described Respondent's need for produc-
tion employees about November or December 1983 as
presenting a "pretty desperate" situation , Respondent did
not offer a job to Cefalo (a good meatcutter) even after
he filed his February 1984 charge alleging that Respond-
ent had unlawfully failed to offer Cefalo a job "continu-
ing to this date."
Moreover, an analysis limited to Respondent's own
evidence as to why it did not rehire Boire casts serious
doubts on the truthfulness of that explanation . Boire's
December 1981 threat to Benjamin Miller had been made
21 months earlier, the two men had been working to-
gether (in an area containing butcher knives) at all times
thereafter until the July 1983 work stoppage, it is undis-
puted that Benjamin Miller never told anyone else about
the incident until the September 1983 management con-
ference, and ,Benjamin Miller and Schwartz testified that
Benjamin Miller did not refer to the incident at that
meeting and did not tell Schwartz (Benjamin Miller's
son-in-law and Boire's immediate supervisor) about it
until some time thereafter . Furthermore, although Joel
Miller testified that at that meeting Benjamin Miller said
39 The record fails to show whether March applied for work
that Boire had tried to kill him, Benjamin Miller did not
testify to any such conduct by Boire. Also, Benjamin
Miller, testified that after he told Schwartz the reasons
why Benjamin Miller did not want to rehire Boire
Schwartz never again brought up the subject of Boire's
rehire, and that up until Benjamin Miller 's August 1984
resignation he did not want Boire to be rehired; whereas
Schwartz testified that he "hounded " Benjamin Miller
almost daily about rehiring Boire until the end of Janu-
ary 1984 when Benjamin Miller agreed to let Schwartz
call him back.
The foregoing evidence persuades me that Respond-
ent's failure to rehire Cefalo and , Boire was motivated
solely by the fact that they had testified for the Union at
the arbitration hearing and by Cefalo's grievance activity
as a union steward . In any event , Respondent has plainly
failed to meet its burden of showing that it would have
failed to hire them even if they had not engaged in such
activities.40 As to Boire, the credible evidence shows
that Benjamin Miller , who in December 1-981 Boire had
threatened to punch in the mouth if Benjamin Miller did
not shut up and listen to Boire, stated at the September
1983 management conference that Boire should be re-
hired . Indeed , Respondent's own evidence shows that
Benjamin Miller did not even tell other members of man-
agement (including his brother , his nephew, and his son-
in-law) about Boire 's alleged December 1981 death
threat until September 1983 at the earliest , and that Boire
was rehired in a supervisory position in December
1984 . 41 I note , moreover , that Respondent rehired
Ortega as a meatcutter even though he had threatened a
supervisor . As to Cefalo, the record shows that he was
by Respondent's admission a good meatcutter , that he
did not in fact engage in the only activity (refusing to
remove unboned carcasses from the line ) which accord-
ing to Joel Miller was the only reason Cefalo was not
recalled immediately, that he was not in fact ' selective
about what cuts to bone, that his alleged excessive talk-
ativeness was-not the subject of any reproof to him or
any discussion at the management meeting about whom
to recall , that he had , never been reproved for failure to
work overtime , and that 5 days after the execution of the
memorandum bargaining agreement , Respondent rehired
a meatcutter who had been suspended for excessive ab-
senteeism and tardiness.
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by refusing to
rehire employees Boire and Cefalo because they testified
for the Union at the arbitration hearing and by refusing
to rehire Cefalo for- the additional reason that he had
been an active union steward.
40 See NLRB v Transportation Management Corp., 462 U.S. 393 ( 1983);
NLRB v Horizon Air Services , 761 F 2d 22 (1st Cir 1985).
41 I need not and do` not determine whether, in the underlying labor
relations context, Boire's threat to punch Miller in the mouth was so fla-
grant that Respondent could rely thereon as a legally sufficient defense to
its refusal to rehire him. Cf Southwestern Bell, 260 NLRB at 240, Wo-
metco Coca -Cola Bottling Co, 255 NLRB 431, 446-447 (1981 ). I note that
Schwartz ' September 1983 explanation to Boire for Respondent 's decision
not to take him back did not refer to any aspect of his December 1981
steward activity.
UNITED BEEF CO
Finally, I find that Respondent violated Section 8(a)(1)
of the Act by telling Boire that he would not be rehired
because he had testified for the Union at the arbitration
hearing and by telling Cefalo that Respondent would not
rehire employees who had testified at the arbitration
hearing or who were strong union men . Hutchens Truck-
ing Co., 268 NLRB 509, 512 (1984), enfd . 749 F.2d 32
(4th Cir. 1984).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by telling employee Boire that he would not be rehired
because he had testified for the Union in an arbitration
proceeding, and by telling employee Cefalo that Re-
spondent would not rehire employees who had testified
for the Union in the arbitration proceeding or who were
strong union men.
4. Respondent has violated Section 8(a)(1) and (3) of
the Act by refusing to rehire Boire and Cefalo.
5. The unfair labor practices specified in Conclusions
of Law 3 and 4 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be required to cease and desist therefrom and from
like or related conduct.
The General Counsel does not seek an instatement
order with respect to Boire, or Cefalo; seeks backpay
with respect to Boire until 15 December 1984 only, the
date on which Respondent rehired him as a supervisor;42
and seeks backpay with respect to Cefalo until 8 April
1985 only, the first day of the hearing. Rehired Building
14 meatcutters began to work for Respondent on 22 Sep-
tember 1983; Supervisor Schwartz (seconded, in effect,
by Joel and Benjamin Miller) stated at the management
meeting on 14 or 15 September 1983 that Boire should
be rehired immediately; Joel Miller cited conduct which
Cefalo did not really engage in as the only reason he was
not on the preferred list; and, in any event, by 26 Sep-
tember 1983 Respondent was hiring any available quali••
fled meatcutter. Accordingly„ backpay as to Cefalo and
Boire will begin to run on 22 September 1983. Respond-
ent will be required to make Boire whole for any loss of
earnings between 22 September 1983 and 15 December
1984, and to make Cefalo whole for any loss of earnings
between 22 September 1983 and 8 April 1985, which
they may have suffered by reason of the discrimination
against them, in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).4
}2 I need not and do not determine whether such action would render
an instatement order inappropriate if requested.
13 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
1029
In addition, Respondent will be required to post appro-
priate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed44
ORDER
The Respondent, United Beef Co., Inc., Boston, Mas-
sachusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling employees that Respondent will not rehire
employees who testified on behalf of United Food &
Commercial Workers Union, Local No. 592, AFL-CIO,
or any other labor organization, at an arbitration hearing,
or who are strong union men.
(b) Refusing to rehire any employee, or otherwise dis-
criminating with respect to the hire or tenure of employ-
ment or any term or condition of employment of any
employee, to discourage membership in Local 592 or any
other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Frank Boire and Fidalgiso Cefalo whole for
any loss of pay they may have suffered by reason of the
discrimination against them in conformity with the
remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Boston, Massachusetts facility copies of
the attached notice marked "Appendix."45 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
44 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
45 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 opportunity 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 or-
dered us to post this notice.
WE WILL NOT tell you that we will not rehire employ-
ees because they have testified on behalf of United Food
& Commercial Workers Union, Local No. 592, AFL-
CIO, or any, other union, at an arbitration hearing; or be-
cause they are strong union men.
WE WILL NOT refuse to hire ' any employee , or other-
wise discriminate with respect to the hire or tenure of
employment or any term or condition of employment of
any employee , to discourage membership in Local No.
592 or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of your
rights under Section 7 of the Act.
WE WILL make Frank Boise and Fidalgiso (Gino)
Cefalo whole, with interest , for any loss of pay they may
have suffered by reason of the discrimination against
them. Boire and Cefalo do not wish to return to our
employ.
UNITED BEEF CO., INC.