Huron Dressed Beef

National Labor Relations Board - Board Decisions

Sep 15, 1980

252 N.L.R.B. 151 (N.L.R.B. 1980)

HURON DRESSED BEEF
Huron Dressed Beef, Inc. and Mike Beck, Bob
Maher, Denton Gross, Russ Flolo, Jim Brock,
Bill Eining. Case 18-CA-6422
September 15, 1980
DECISION AND ORDER
On June 30, 1980, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Huron Dressed
Beef, Inc., Huron, South Dakota, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order. 3
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Member Penello would find that Respondent's hackpay liability com-
mences from 5 days after each of the discharged strikers makes an uncon-
ditional offer to return to work. See his dissenting opinion in Abilities and
Goodwill. Inc., 241 NLRB 27 (1979), enforcement denied 612 F2d 6 (Ist
Cir. 1979); Valley Oil Co., Inc., 210 NLRB 370 (1974)
3 Member Jenkins would compute interest on the backpay in accord-
ance with his dissent in Olympic Medical Corporation, 250 NLRB No. II
(1980).
DECISION
Preliminary Statement; Issues
STANLEY N. OHLBAUM, Administrative Law Judge:
This proceeding' under the National Labor Relations
Act, as amended, 29 U.S.C. § 151, et seq., was heard
before me in Huron, South Dakota, on April 10-11,
1980, with all parties participating throughout by counsel
and given full opportunity to present evidence, argu-
ments, proposed findings and conclusions, and briefs re-
ceived by May 23, 1980. Record and briefs have been
carefully considered.
The principal issues are whether Respondent Employ-
er violated Section 8(a)(l) of the Act by threatening em-
ployees with discharge if they engaged in a strike to pro-
Complaint issued November 30, growing out of charge filed October
10 as amended November 30. 1979 Unless otherwise specified, all dates
are in 1979.
test Respondent's refusal to meet and negotiate about im-
proved wages and benefits; by discharging employees for
so striking; by treating reinstated strikers as new employ-
ees, at reduced wages and without seniority; and for re-
fusing to reinstate employees for alleged picket line mis-
conduct.
Upon the entire record and my observation of the tes-
timonial demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent has been and is a
Minnesota corporation engaged in the slaughter, process-
ing, and nonretail sale and distribution of beef and relat-
ed products at and from its facility in Huron, South
Dakota. During the 1979 calendar year, a representative
period, Respondent purchased and received at that facili-
ty, directly in interstate commerce from places outside of
South Dakota, products, goods, and materials valued at
over $50,000.
I find that at all material times Respondent has been
and is an employer engaged in commerce and in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. AI.LEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Respondent operates a beef slaughtering and meat
packing business in Huron, South Dakota, with over 100
employees, most of whom engage in slaughter or direct-
ly related tasks.
At or around 8:30 a.m. (starting time was 6 a.m., the
shift being from 6 am. to 4:30 p.m.) on Wednesday, Sep-
tember 26, 1979, Respondent's kill floor employees, after
discussing among themselves the need for a cost-of-living
wage increase, designated a committee of four-Gross,
Maher, Flolo, and Beck, all Charging Parties here-to
meet with company officials on that subject as well as
concerning perceived shortcomings in the training pro-
gram for new employees. The designated four according-
ly thereupon met briefly in the hallway with General
Manager Vandervest and Plant Superintendent Fisher,
requesting an audience with Company President Miller.
Stating that he lacked the power to authorize such a
meeting, Vandervest with Fisher nevertheless indicated
they would attempt to arrange it for later that week. The
employees' committee of four reported this to their
fellow workers shortly before 9 a.m. That evening (Sep-
tember 26), 12 to 15 employees met at Gross' home to
discuss the foregoing.
Since the employees heard nothing by the end of the
week, they-that is, most of the kill floor employees-
met again during their workbreak on Friday morning, re-
viewing their problems, needs, and intentions, and voted
to picket if nothing developed. That afternoon (Friday,
September 28) at the 2 p.m. workbreak, two members of
the employees' committee (i.e., kill floor employees
Gross and Maher, with committeeman Flolo coming in
252 NLRB No. 31
151
DECISIONS OF NATIONAL LABOR REL ATIONS BOARD
later), this time joined by two cooler room employees
(Pate and Steinblock), visited the company office, where
they again met with General Manager Vandervest and
Plant Superintendent Fisher together with two other
company officials. 2 At this meeting, employees' repre-
sentative Maher explained the need for and requested a
15-percent cost-of-living adjustment, particularly in view
of what they considered to be their continuing substan-
dard wages following a general wage reduction in Sep-
tember 1977. Employees' representative Gross also com-
mented on perceived inadequacies in training newly
hired employees. It was suggested to the employees by
Garsowl that the company representatives had no au-
thority to accede to any adjustment, and to take the
matter up through proper "channels"- the present being
the "wrong channels"-in November. Gross explained
that the employees (who were unrepresented by a union)
were opposed to any further delay. When the employees'
representatives reported the foregoing to their fellows,
the latter (around 30 to 35) expressed their impatience
with further delay and unwillingness to wait another
month, whereby about 90 percent of the employees then
voted to strike. This being close to the end of the shift
on Friday, with no kill room work scheduled for Satur-
day, the employees agreed to meet in the company park-
ing lot around 5:30 a.m., a half hour before starting time,
on Monday. On the way out, Gross informed the forego-
ing four company representatives of the employees' deci-
sion, drawing from them the response that they were
"stupid" and going about it "the wrong way." Garsow
adding that he was "scared" to tell Company President
Miller because he (Garsow) knew "what would happen,
that [you] would all be fired."
On Monday morning, October 1, around 5:30 a.m.-a
half hour before shift start-most of the kill floor em-
ployees were accordingly assembled in the company
parking lot, across the road from the company office
building. Around 5:45 a.m., the employees' representa-
tives, Gross, Flolo, and Maher, visited Vandervest and
Fisher, inquired if there was a change of heart, and
stated that the employees wanted to work but would like
"something to go on." The company representatives in-
dicated its position remained "the same." The employees'
representatives rejoined their colleagues in the parking
lot, followed shortly by Vandervest and Fisher, who,
after asking the assembled employees, "How any of
[you] guys could be on strike, what are (you] going to
do for money," announced to the 30-35 employees there
(including substantially all kill floor employees, as well
as some employees from elsewhere in the plant) that any
employee "not through the gate working by 6:00 o'clock
would be fired, or would never set foot inside the gate
again" and that "somebody would be there to take their
place." 4 When Plant Superintendent Fisher asked kill
2 I.e., Respondent's secretary and accountant Tyrrell and another ac-
countant and manager of another facility, Garsow, described as the "right
hand man" of Company President Miller, who was not there Of the
foregoing, only Vandervest testified at the hearing.
3 See fn. 2, supra.
'As against the overwhelming body of credited testimony of numerous
employees to the contrary, I do not credit the testimony of employee
Quiram-a witness of dubious credibility for additional reasons explicated
below-that Fisher merely indicated to the assembled employees that if
floor employees Curtis, Martinmaas, and Sterrett why
they were doing this and to return to work, they de-
clined, stating that "we [are] part of [them]." Vandervest
and Fisher then left. After a brief discussion, the six
Charging Parties in this proceeding commenced picketing,
about 6:05 a.m., with signs, on the road in front of the
main gate to the plant. Other employees stood by or left,
later spelling the picketers. Of the 30-35 employees as-
sembled in the parking lot that morning, at least 29-33
identified by name at the hearing did not go to work that
day. Picketing continued thereafter all day, all week
except Saturday and Sunday, until October 10.
On Tuesday evening, October 2, employee representa-
tive and picketer Denton Gross, a long-term resident of
Huron and in Respondent's employ since 1975 as a kill
floor butcher, visited Plant Superintendent Fish and told
him he had probably made a mistake and needed his job
back. Fisher told him that "sometimes you have to live
with your mistakes," but would "see what he could do"
and let him know by 7 a.m. the next morning. Later that
day Gross also visited General Manager Vandervest with
the same explanation and plea, and Vandervest likewise
told him he "would have to check with someone" and
let him know. Since Gross did not hear from either of
them, he again called Vandervest the next day. Vander-
vest told him the Company was adhering to its an-
nounced policy (supra) that anyone (including Gross) not
through the gate by 6 o'clock "would be fired and
would never work there again."
On Friday morning, October 5, Gross, accompanied
by fellow employee committeemen Flolo and Maher, in-
terrupted his picketing to meet in the company office
with Vandervest and Fisher, and inquired who else had
been sent the discharge letter of October 3, who would
be taken back, and whether the Company would negoti-
ate with the employees, again indicating that the men de-
sired to return if there was "some action that there
would be a meeting, just something to give the men
some hope for." Vandervest said it was up to Fisher as
they failed to return to work they would he "replaced." Testifying as Re-
spondent's witness, Quiram conceded he was the onl) employee of all
those attending the meeting in the parking lot on the morning of October
I who, after agreeing to picket later, returned to work that day (and has
since remained there and was promoted to leadman). I similarly reject
Vandervest's testimony that Fisher merely indicated to the assembled em-
ployees that they would be "replace[dl" if they did not return, as being
far outweighed by the cumulated, corroborated testimony of numerous
employee witnesses. Without explanation, the author of the statement itself
Plant Superintendent Fisher, was not produced by Respondent to testify to
what he said; and on cross-examination Vandervest conceded he could
not recall Fisher's exact words, that he could not "recall" whether Fisher
said "fired," and that Fisher did indeed announce to the employees that
any employee not through the gate or punching the timeclock by 6 a.m.
would "never set foot inside the gate again" (substantially as testified by
the General Counsel's employee witnesses). Although the employees' rep-
resentatives had on September 28 been given a "position" paper by Re-
sporndent indicating, among other things, that for employees not report-
ing for work Respondent "will make appropriate replacements" (Resp
Exh 5) This (as well as a prepared phraseology allegedly read by Van-
dersest to employees he solicited on the telephone to return to work-
Resp. Exh. 6) and an October 4 letter advising employees that" a perma-
nent replacement is being hired to take your job" (Resp Exh 7; emphasis
supplied) do not negate or overcome the force of Fisher's remarks, as
herein found, to the assembled employees, that they would be "fired" and
"never set foot inside the gate again" if they did not clock in at once or
under the rigorous "new hire" conditions set by Respondent.
152
HURON DRESSED BEEF
to rehire, including jobs and wages, but that in any event
rehire would be at the Company's starting-rate low scale
($4.70 per hour) with loss of all seniority. 5
Credited testimony of various of the striking employ-
ees 6 establishes that prior to being reinstated or offered
reinstatement 7 they were required to fill out a new em-
ployee's job application form, with loss of all accrued se-
niority, and loss of all accrued vacation pay and insur-
ance benefits (the latter available only after 90 days of
employment), as well as (in almost all cases) starting at a
new employee's wage rate, because of their having gone
out on strike. Not all of the striking employees were of-
fered8 or accepted" these terms. Those who did not
return on these terms were sent a letter by Vandervest
dated October 4 that since they had not reported at 5:30
a.m. on October 8 (sic), "a permanent replacement is
being hired to take your job" (Resp. Exh. 7). Vandervest
testified at the hearing that he considers all employees
who did not report to work by 6 a.m. on October I (in
response to Fisher's aforequoted admonition) to have
quit Respondent's employ and to no longer be its em-
ployees, and to have lost all of their accumulated senior-
ity and accrued benefits; and that if they returned it
could only be as new employees at the starting wage rate
($4.70 per hour) upon the basis of a new employment ap-
plication. And Vandervest testified that during the week
of October I and the following week, permanent replace-
ments were in fact hired in place of all employees who
did not return to work in response to its foregoing job
"offer" or on the aforedescribed terms and conditions.
Vandervest further testified that employees who had
been thus "replaced" were not permitted to return to
work; and that, although some of the replacements have
left, the original employees have not been offered those
jobs. Vandervest also testified that on October 8 and the
following 2 weeks there were no "permanently assigned"
jobs on the kill floor because of the large number of new
personnel. Vandervest concedes that all reinstated strik-
" The foregoing findings are based on credited, mutually corroborative
testimony of the General Counsel witnesses Gross, Beck, Williams, Curts,
Cooper, Paul, Donald Dorris, David Dorris, Flolo. and Brock
^ Only some of the striking employees were reinstated Neither the em-
ployees' committee members nor Charging Parties were reinstated.
I Williams, Curtls, Cxooper, Paul (not restored to his former job despite
his request and its being unfilled), Donald Dorris, and David Dorris; as
well as other reinstated striking employees. These employees had been
solicited by Respondent to return to work-on the terms and conditions
indicated, as "new" employees Curts, for example, was rehired as a new
employee at the starting rate of 4 70 instead of his former $5.90 per
hour, as well as total loss of his seniority since his 1975 hire date Al-
though Curts initially declined this offer because the strike was still in
progress and, as he puts it, "management had not [even] agreed to meet
with the employee representatives" and because he was being stripped of
all seniority, as well as vacation pay, and returned to starting pay. Curls
nevertheless acceded to these terms a month later and returned to work
on that basis early in November After a week back, Curls was restored
to his previous pay scale. Striking employee Donald Dorris was reinstat-
ed at $2 per hour less than his prestrike rate (also raised back some ltime
after his return).
r Concededly none of the six charging parties received any offer of
"reinstatement," een on the terms and conditions described, since they
had already been discharged for allegedly having threatened another em-
ployee or employees, as will be described in section IlI.B., infra.
9 E.g.. David Dorris, and James Paul, for example, who was "reiiisl:t-
ed" at lower pay ad loss of seniority, to a different job under his protest.
was soon laid ff and not since recalled
ing employees were rehired on the basis of new employ-
ment applications at the beginning rate of pay (which
was raised after I week to their former rate) and that
they have been permanently stripped of all seniority and
accrued benefits including vacations.
B. Resolution and Rationale
Thwarted or rebuffed in their attempts to obtain what
they considered to be overdue cost-of-living wage ad-
justments and other betterments, Respondent's employees
concertedly withheld their services, engaging in an eco-
nomic strike. It is elementary that, under the Act, the
employees had the right both to seek these betterments
and to engage in an economic strike to obtain them. Re-
spondent's response was to threaten to fire them and not
permit them to enter the plant again if they failed to
return to work at once; and, thereafter, indeed to fire
some, notably the ringleaders constituting the "commit-
tee" designated by the employees to talk to the employ-
er, and to "permanently replace" all others who failed to
return to Respondent's employ on condition that they
apply as "new" employees, at starting wages (in some
cases around $2 per hour less than they had been
making) and with total loss of their accumulated senior-
ity and benefits (vacations and medical insurance).
It is a violation of the Act for an employer to dis-
charge or to threaten to discharge, or to restrain and
coerce such as through elimination of seniority or eco-
nomic benefits, an employee because he has exercised or
seeks to exercise any right under the Act. It is a viola-
tion of the Act for an employer to discharge or to
threaten to discharge employees for seeking improve-
ment of the terms and conditions of their employment
(N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618
(1969); N.L.R.B. v. Washington Aluminum Co., 370 U.S.
9 (1962)), or to discharge or economically penalize them
(such as through denial or reduction of seniority or vaca-
tion rights) for withholding their services in pursuance of
that effort in an "economic strike" (.L.R.B. v. United
Stares Cold Storage Corp., 203 F.2d 924 (5th Cir. 1953),
cert. denied 346 U.S. 818; The LaidlaKw Corporation, 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969),
cert. denied 397 U.S. 920 (1970); L.R.B. v. Fleetwood
Trailer Co., Inc., 389 U.S. 375, 378 (1967); N.L.R.B. .
Great Dane Trailers, Inc., 388 U.S. 26, 32-34 (1967).
Since that is precisely what Respondent did here, as
found, those actions were and continue to be violative of
Section 8(a)(1) of the Act, and it is accordingly so deter-
mined. Nor has Respondent established that its economic
strikers were accorded their "Laidlaw rights,"t" or,
indeed, that they were even replaced before being dis-
charged or treated as no longer having reinstatement
rights." Although Respondent unlawfully discharged its
striking employees on October 1, even if it had consid-
"I he LaidlaK (orporatiln, 171 NlRBH 1366 (1908g). nf(d 414 F 2d 9'?
(7th Cir I969). cert denied 397 li S 920 ()(1970)
i Cf .I. R B. v [n'ited Stat (old Storage (Crp . 2(01 1: 2d 924 (5th
Cir 151), crl denied 346 US 8 X1( 1953) The G(ineral Counsel docs
not contend that the strike herein sw as at any linle conlvcred to an ll uifallr
labor practice slrike: nor does he llege olkilion of Sec v aX)(3) ,It th
Act
15 3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered them economic strikers it failed to accord them
"Laidlaw rights" or to offer them undiluted job reinstate-
ment as required.
Respondent's Contentions Concerning Alleged
Employee Threats and Picket Line Misconduct
Respondent contends that its discharge of the six
charging parties here, as well as its refusal to reinstate
them to its employ, are warranted because of certain
threats they are alleged to have made to other employees
and because of alleged picket line misconduct. It is con-
ceded that on October 3 Respondent sent all six charging
parties identical letters stating that they were being dis-
charged because of threats made to an employee.
It will be recalled that of the six thus discharged,
four-Gross, Maher, Flolo, and Beck-constituted the
committee designated on September 26 by the employees
to present their requests to Respondent. (The remaining
two are Brock and Eining, together with the foregoing
four committeemen constituting the six charging parties
in this proceeding and active picketers.)
Respondent presented a number of witnesses-Quiram
(with Mrs. Quiram as partial corroborator), Imker, Til-
bury, and Hutton-to support its contention that it dis-
charged the six employees in question for threatening an-
other employee or employees. It is necessary to consider
the testimony of these witnesses, together with counter-
vailing testimony by the discharged employees in ques-
tion.
Respondent's former kill floor gutter, Quiram-until
his elevation to leadman a few weeks before testifying
here on Respondent's behalf-testified that at the em-
ployees' aforedescribed September 28 (Friday afternoon)
meeting, where he conceded most favored a strike, em-
ployee' committeeman Beck remarked that "whoever
would come back to work would have knobs beat on
their heads," which "scared" Quiram. Observing Quiram,
I seriously doubt that. Furthermore, according to
Quiram, when the employees' committeemen returned
that afternoon (September 28) to report the outcome of
their meeting with management, they indicated that they
would meet with management again on Monday morn-
ing, October 1, and that there was no certainty of a
strike even on October 1. It will be recalled, supra, that
in the early morning of October 1, after the unsuccessful
visit of the employees' committee to the office, and the
confrontation of Vandervest and Fisher with the assem-
bled employees in the parking lot, although Quiram had
agreed to picket later that morning, instead he-alone of
all the employees there-returned to work that day, con-
cededly driving in then as well as daily thereafter with-
out hindrance or molestation, or threat thereof, of any
kind-belying his purported "scared" frame of mind. On
October 5, Respondent through Vandervest subscribed a
complaint in its name as plaintiff in the Beadle County
South Dakota Circuit Court, based in part on supporting
affidavits of Quiram (as we as lmker, Tilbury, and
Hutton), seeking an injunction against acts or threats of
violence or such picketing or "intimidation" by the
charging parties herein, named as defendants. Although
the allegations were denied under oath by the defendants
(charging parties here), nevertheless a temporary re-
straining order was issued on the same day (October 5)
ex parte, and that order apparently still remains in effect,
not only as to the charging parties here but also as to
"all other persons acting in concert with them" having
knowledge, "until further order of this Court," but with-
out any hearing yet having been held. In March 1980,
shortly before the hearing in the instant proceeding, em-
ployees' committeeman Gross, a neighbor of Quiram pre-
viously on friendly terms with him, visited the latter and
asked him why he had signed the affidavit resulting in
the injunction order. In response, Quiram, according to
his own testimony, asked Gross, "Why do you have to
threaten anybody"-although according to Quiram's tes-
timony, supra, it had been Beck who had made the afore-
describe alleged "threat." Although Quiram also testified
on direct examination that he also asked Gross on this
occasion, "Why do you have to threaten to burn some-
body's house down, on cross-examination Quiram con-
ceded that Gross had made no such threat to him, but
had only said, in a group of 20-25 other kill floor em-
ployees, that those reporting to work would be "in trou-
ble." Quiram concedes that at no time-before, during,
or after the strike-has he encountered any problem in
entering or leaving the plant. Finally, Quiram-who was
promoted to leadman a few weeks before he testified as
Respondent's witness here-testified that his affidavit in
support of the injunction application, was already fully
typed, presented to him by Respondent's office.
Concerning the foregoing, employees' committeemen,
Beck and Gross, sharply disputed Quiram's version. Beck
testified that what he did say to the employees on the
afternoon of September 28 was to urge them to be on
hand Monday morning (October 1) in view of a plan
"hopefully . . . to get ahold of management during the
weekend" and that "if we all stuck together we'd be able
to lick this deal." On comparative demeanor observations
alone and without more, I most certainly prefer and
credit the version of Beck, sincere and forthright wit-
ness, to the alleged spotty recollections and inabilities to
recall into which Quiram, an unprepossessing witness, re-
peatedly retreated. Gross, also a forthright and impres-
sive witness, likewise credibly denies that he ever indi-
cated that anybody returning to work would "be in trou-
ble" (whatever such a remark might or might not mean,
and in any event hardly necessarily a "threat"). Regard-
ing his visit to Quiram's home, Gross admits he asked
Quiram why and how he could sign such an affidavit-
hardly an improper act on Gross' part. According to
Gross, whom I credit, Quiram replied he did it because
of fear of losing his job. In other respects, Gross, whom
I credit in preference to Quiram, disputes Quiram as to
the statements attributed to him by Quiram at the latter's
home. 2
12 I can best characterize the surrebuttal testimony of Quiram's wife
on this subject, as seeming to me to be confused confabulation. largely
inconsistent with her husband's testimony as well as with that of Gross.
Mrs Quiram claims to have overheard only snatches of the conversation
between Gross and Quiram in the Quiram home, where, according to
Mrs Quiram, she pretended to be asleep on a living rooxm couch some 65
feet away from the kitchen where the conversation was taking place.
with an intervening dining room For these reasons, as well as demeanor
Continued
154
HURON DRESSED BEEF
Respondent's witness Imker, who did not participate in
the October strike, testified that on October 3, as he ap-
proached the plant in his vehicle, he observed a line of
picketers across the road, but that he was nevertheless
permitted to drive through, although employees' com-
mitteeman Flolo remarked that he would "mess up
[your] tires, maybe tip [your other pickup truck-which
had been parked in the employees' parking lot for 3 or 4
months in a substantially damaged condition following
an accident] over." Flolo flatly denies making the state-
ment attributed to him by Imker. Imker's testimony is in
various respects inconsistent with his own affidavit given
in support of the aforementioned temporary injunction
application; for example, in contradistinction to his testi-
mony here, Imnker there swore that he was "physically
blocked . . . for approximately five (5) minutes" from
entering and that Flolo "threatened . . . specifically that
. . . [I] and others would not be permitted to enter." Be-
cause of these contradictions by Imker of his own affida-
vit, his repeatedly defective memory, my poor impres-
sions of him as a witness, and my preference for Flolo's
testimony as observed, I discredit Imker.
Respondent's witness, Tilbury, who likewise did not
join the walkout, testified that as he approached the
plant gate shortly after 7 a.m. on the morning of October
3, he observed Brock and Beck standing on the road,
and they asked him why he did not join the strike. Til-
bury replied that he needed the work, planned to get
married, and "wanted things to go good." Although
Brock and Beck moved aside and Tilbury proceeded to
enter, according to Tilbury, Brock remarked that his
truck could be wrecked, his house burned down, or he
physically harmed-all of which Tilbury "didn't take it
serious." Tilbury concedes that no threatening gestures
were made and that he made no report to the police.
Tilbury admits that when Brock and Beck came over
to his window to speak to him, he (Tilbury) need not
have stopped but could have driven his vehicle ahead
and into the plant since there was nobody in front of it.
Still, according to Tilbury, when, later that day, General
Manager Vandervest asked him if he had any problems
about being "threatened," he told Vandervest about the
episode of that morning but that he (Tilbury) was "not
too concerned about it because I knew the strikers were
upset with what was going on and everything." Never-
theless, Tilbury, as Imker later executed an affidavit pre-
sented to him by Respondent, at odds with his testimony
here, that he "was physically prevented from entering"
the plant by Brock and Beck and was "froced [sic] to
stop [my] vehicle" on the occasion in question-state-
ments which, in view of his contrary testimony in this
proceeding, I am compelled to regard as untrue, and for
which reason I am constrained to reject the remainder of
his testiony, preferring instead the straightforward de-
nials of both Brock and Beck, which I credit.
Finally, Respondent's part-time gutter, Hutton, who
also did not participate in and was opposed to the strike,
testified that on the morning of October 3, as he drove
to work accompanied by fellow employee Mastel, he
observations and her evident interest in supporting her husband I dis-
count her testimony
was flagged by Gross and Eining, who approached the
driver's side of the vehicle. According to Hutton, since
there was nobody in front of the vehicle he could readily
have driven in. Instead, he stopped and exchanged a
"Hi" greeting with Gross, who, however, remarked to
Mastel (a person of siight build), "If we catch you any-
where we are going to beat your butt." Hutton laughed,
because he thought "it was funny." Mastel said, "Let's
go," and the vehicle proceeded without interruption. Ac-
cording to Hutton, Mastel later remarked he was
"scared. I don't know what to do." Hutton concedes that
at no time was he hindered from going in or coming out
of work, and that at no time was he threatened by any of
the pickets, with whom he chatted at times. Gross denies
making the remark to Mastel ascribed to Gross by
Hutton. Without explanation, Mastel was not produced
to testify. At best I cannot regard Hutton's testimony in
any way as preponderating in weight over Gross' denial;
and purely on testimonial demeanor observations, I
prefer and credit the latter.
In view of the foregoing, it is determined that the al-
leged instances of threats and picket line misconduct
relied on by Respondent to justify its discharges of and
its refusal to reinstate the charging parties here did not in
fact occur.
The remaining "Burnup & Sims"'3 aspect of this de-
fense turns on whether () the conduct attributed to the
employees occurred during the course of Act-protected
concerted activity and (2) whether the alleged conduct
in fact-as distinguished from mere employer belief, even
if bona fide-occurred. If both of these requisites are sat-
isfied, a defense is established. The first of these require-
ments is clearly satisfied, since without doubt the con-
duct occurred in the course of Act-protected concerted
activity. However, I find that the second requirement is
not satisfied, since, as found, the conduct attributed to
the employees did not in fact occur. Accordingly, the
"Burnup & Sims" defense here is not established, and I so
determine. 14
Upon the foregoing findings and the entire record, I
make the following:
CONCIUSIONS OF LAW
1. Jurisdiction is properly asserted here.
2. Through () its threats to discharge employees for
engaging in a concerted work stoppage and strike to pro-
test Respondent's refusal to meet, discuss, and negotiate
with its employees' representatives regarding wages and
terms and conditions of employment, (2) its discharge of
employees for acting as spokesmen for other employees
' I e, employer "belief' that valid cause for discharge existed
N.L.R.B. v. Burnup & Sims, Inc., 379 U.S 21, 23 (1964)
14 Additionally, Respondent's contention during the hearing and on
brief that the employees' actiities here were unconcerted is unavailing.
since it is contrary to fact and unfounded in law. It is elementary that
"unorganized" or informally or loosely organized employees acting in
concert, as here, possess Sectiont 7 rights under the Act, and may deal or
atltempt to deal with their employer thrlough their own employee repre-
sentatles. without he interplsition of a union Indeed, the Act itself,
Sec 2(5) defines "labhor organization" to include an "employee represen-
atill commniittee" See al)o VN . I Bl v Walshingon .llunitum Co., 370
U S 9 19h62): Vic lnny Iniernalonal. Inc., 232 NIR1 353 (19771, enfd
h, I.RRNM 14t8 (hh Cir 19)80)
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and for engaging in an economic strike, (3) its failure and
refusal to reinstate economic strikers except as new hires,
at starting wages, and with loss of seniority accrued va-
cation and medical and other benefits, and (4) its hiring
of "permanent replacements" in place of strikers not re-
turning to work on such terms and conditions, as found
in section II, supra, under the circumstances there de-
tailed, Respondent has interfered with, restrained, and
coerced, and is continuing to interfere with, restrain, and
coerce, employees in the exercise of their rights under
Section 7, in violation of Section 8(a)(l) of the Act.
3. The aforesaid violations and each of them constitute
unfair labor practices under the Act, and they have af-
fected and, unless permanently restrained and enjoined
and otherwise appropriately remedied will continue to
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having been found to have interfered with, restrained,
and coerced employees in the exercise of rights guaran-
teed to them by Congress under Section 7 of the Act,
Respondent should, as is usual in cases of this descrip-
tion, be ordered to cease and desist from such violations.
Having discharged some employees and reinstated others
on prejudicial and retaliatory conditions for having exer-
cised their rights under Federal law, Respondent should
further, as is also usual, be required to offer uncondition-
al and full reinstatement to all discharged employees and
to make them whole for any wages, accruals and benefits
(including vacations and vacation pay, and hospitaliza-
tion and other medical benefits, including reimbursement
for any expenses incurred by reason of any cancellation,
withdrawal, or lapse thereof) lost or reduced and which
may be due, plus interest, and with restoration of senior-
ity, all as determinable in a supplemental backpay pro-
ceeding if necessary. Sums and interest due should be
computed as explicated in F. W. Woolworth Company, 90
NLRB 289 (1950), Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).'5 All references in Respondent's re-
cords indicating discharge of any of the affected employ-
ees for cause or in relation to the described strike should
be deleted; and Respondent should be ordered not to so
indicate to any prospective employer or reference-seeker.
Respondent should be required to preserve and make
available to the Board's agents its books and records for
backpay computation and compliance determination pur-
poses; and to post the customary notice. In view of what
must be regarded as Respondent's deliberate flouting of
the most basic policies and provisions of the Act,
through its discharges of the entire employees' negotiat-
ing committee, and its harshly retaliatory measures pun-
ishing all of its employees who exercised fundamental
rights guaranteed to them by the Act, thereby stabbing
at "the very heart of the Act."'6 Respondent should also
'5 The General Counsel's plea that interest be assessed at 9 percent, as
supported by its persuasive supplemental brief, is denied, since that con-
tention has to date been rejected by the Board in other cases.
' A. J. Krajewski Mfg. Co., 180 NLRB 1071 (1970).
be required to cease and desist from violating its provi-
sions. 7
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER1 8
The Respondent, Huron Dressed Beef, Inc., Huron,
South Dakota, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or threatening to discharge any em-
ployee for acting as a spokesman for other employees
seeking to discuss and negotiate concerning improved
wages and other work-related betterments, or for engag-
ing in a concerted work stoppage or strike, lawful under
the National Labor Relations Act, to protest Respond-
ent's refusal to meet, confer, and negotiate with its em-
ployees' representatives concerning wages, benefits, and
other terms and conditions of employment, or to obtain
such benefits.
(b) Imposing or threatening to impose any sanction or
condition upon any economic striker as a condition to
job reinstatement, including but not limited to requiring
him or her to file an employment application as a newly
hired employee or at wages less than previous wages, or
eliminating or forfeiting his or her seniority or accrued
vacation, hospitalization, or other medical or insurance
or other benefits.
(c) Failing or refusing to accord strikers their full rein-
statement rights as required by law.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization; to form, join, or assist any labor organi-
zation; to bargain collectively through representatives of
their own choosing; to engage in concerted activities for
the purposes of collective bargaining or other mutual aid
or protection; or to refrain from any and all such activi-
ties to the extent provided by law.
2. Take the following affirmative action, necessary to
effectuate the policies of the Act:
(a) Offer to all discharged employees, including but
not limited to the following employees, and each of them
immediate, full, and unconditional reinstatement to their
former jobs with Respondent (or, if not available, sub-
stantially equivalent jobs with Respondent), without
prejudice to their seniority and other rights, privileges,
wages, benefits, and emoluments, including but not limit-
ed to any and all wage and pay scale increases and pro-
gressions as if not discharged; and make them whole for
any loss of income (including overtime, holiday, and va-
cation pay, and reimbursement for all hospitalization,
surgical, medical, and other payments or obligations in-
curred by reason of Respondent's cancellation, with-
N A'L.R.B. v Entwistle Manufacturing Company, 120 F.2d 532, 536
(4th Cir. 1941).
~" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order which follows herein
shall, as provided in Sec. 10248 of those Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and Order.
and all objections thereto shall be deemed waived for all purposes.
156
HURON DRESSED EEF
drawal, or nonpayment of any applicable insurance cov-
erages in consequence of said employees' discharges) to-
gether with interest, in the manner set forth in the sec-
tion of this Decision entitled "Remedy":
Mike Beck
Bob Maher
Denton Gross
Russ Flolo
Jim Brock
Bill Eining
and all other employees discharged by Respondent when
it declared them fired in its parking lot on October 1,
1979.
(b) Offer to all employees engaged in the strike on or
since October 1, 1979, who have not been reinstated or
lawfully replaced, unconditional reinstatement as re-
quired by law, and make them whole, in the manner
specified in the section of this Decision entitled
"Remedy," for any loss of income by reason of any fail-
ure by Respondent to observe such requirements.
3(c) Expunge from all of Respondent's books and re-
cords any entry or reference indicating or to the effect
that the discharge, non reinstatement, or reinstatement of
any of the foregoing employees, or any rehire as a new
employee at a beginning wage or any loss of seniority or
of any vacation or medical or other benefit or accrual,
was because of or related to any job-related fault, dere-
liction or misconduct on his or her part or because he or
she engaged in the strike here involved; and refrain from
making any such statement voluntarily or in response to
any inquiry from any employer, prospective employer,
employment agency, unemployment insurance office, ref-
erence-seeker, or credit or character inquiry.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage rate records, overtime records, re-
cords of employees hired, records of jobs held by and
payments made to employees, and all work schedules,
personnel records and reports, social security records, in-
surance records, and all other records necessary or ap-
propriate to determine the amounts of backpay and other
sums due as well as the adjustment of seniority required
under, and the extent of compliance with the terms of
this Order.
(e) Post at its premises in Huron, South Dakota, copies
of the attached Notice marked "Appendix A."'9 Copies
of said notice, on forms provided by the Board's Region-
al Director for Region 18, shall, after being signed by
Respondent's authorized representative, be posted in said
premises by Respondent immediately upon receipt there-
of and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
ig In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
(f) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply therewith.
APPENDIX
NoTrlcI To EMPIOYIFES
POSTED) BY ORI)I.R OF THE
NATIONAI. LABOR REI.ATIONS 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.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
Wl: WILL NOT violate these rights of yours.
WE WILL NOT threaten employees with discharge
for striking for better wages or working conditions,
or for attempting through any employees' commit-
tee or other representative to meet and negotiate
with us on that subject, or for striking to protest
our failure or refusal to do so.
WE WILL NOT discharge any employees for
acting as your representatives or spokesmen or for
striking to protest our failure or refusal to meet and
negotiate with them about improved wages and
benefits.
WE WIL.L NOT, as condition to reinstating em-
ployees who have engaged in a lawful strike, re-
quire them to apply for employment as new em-
ployees, or at starting wages or wages less than
they previously received, or with forfeiture of se-
niority or of vacations or of medical or any other
benifits.
WE WILI. NOT in any other manner interfere
with, restrain, or coerce you in your exercise of any
of your rights under the National Labor Relations
Act.
WE WILL offer all employees we discharged on
October 1, 1979, including but not limited to the
following employees, and each of them, immediate,
full, and unconditional reinstatement to their former
jobs with us (or, if not available, to substantially
equivalent jobs with us), with full seniority and
other rights, privileges, benefits, and emoluments,
just as if we had not discharged them, and WE WILL
pay each of them in full, plus interest, for any
wages and benefits (including overtime, holiday and
vacation pay, and reimbursement for any hospital,
157
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
surgical, medical, and other expenses which would
have been covered by any applicable insurance can-
celed, withdrawn, or not paid by us growing out of
our discharge of those employees) lost by them
since the date we took that action:
Mike Beck
Bob Maher
Denton Gross
Russ Flolo
Jim Brock
Bill Eining
and all other employees we fired in our parking lot
on October 1, 1979.
We will restore full seniority and all job rights to
all employees who engaged in the strike on or after
October 1, 1979, and who have been reinstated to
our employ; and WE Wllt pay them in full, plus in-
terest, for any wages and benefits (including over-
time, holiday and vacation pay, and reimbursement
for any hospital, surgical, medical and other ex-
penses which would have been covered by any ap-
plicable insurance cancelled, withdrawn or not paid
by us at any time after our discharge of those em-
ployees) lost or reduced as a condition of or at the
time of their reinstatement to our employ.
WE WIL1. eliminate from our books and records
all indications that any of the above discharged em-
ployees or any of the employees participating in the
above strike was discharged, not reinstated, rehired
as a new hire, or reinstated at lower wages or with-
out seniority or benefits, because of any fault or
misconduct or because of striking or attempting to
exercise any lawful right; and WE WILL. NOT report
or say that to any employer, prospective employer,
employment agency, unemployment insurance
office, reference-seeker, or credit or character in-
quiry.
All of our employees are free to discuss with us, them-
selves, or through their representatives, their wages, or
any other terms or conditions of their employment; and
they are free to strike in case of our failure or refusal to
meet, talk, discuss, negotiate, or grant improvements or
the changes they want.
HURON DRESSED BEEF:, INC.
158