Iowa Beef Processors, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1976

226 N.L.R.B. 1372 (N.L.R.B. 1976)

1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iowa Beef Processors , Inc. and Local 222, Amalgamat-
ed Meat Cutters & Butcher Workmen of North
America, AFL-CIO. Case 17-CA-6463
December 3, 1976
DECISION AND ORDER
Pursuant to a charge filed by Local 222, Amalga-
mated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, herein the Union, on March 7,
1975,' the General Counsel of the National Labor
Relations Board, herein the Board, issued a com-
plaint and notice of hearing alleging that Iowa Beef
Processors, Inc., herein the Respondent, violated
Section 8(a)(1) of the Act by interfering with, re-
straining, and coercing employees in the exercise of
their rights under Section 7 of the Act, and also vio-
lated Section 8(a)(3) and (1) of the Act by issuing
disciplinary warnings to Ken Walburn, Rick Turner,
and Ronald Guy; suspending Walburn for 3 days;
discharging Walburn and Elmer Combes; and refus-
ing to reinstate Walburn and Combes to their former
positions of employment.
Pursuant to due notice, a hearing was held before
Administrative Law Judge E. Don Wilson in Empo-
ria, Kansas, on July 10-12 and 14-17. The General
Counsel, the Respondent, and the Charging Party
were represented by counsel. All parties were afford-
ed a full opportunity to be heard, to present oral and
written evidence, and to examine and cross-examine
witnesses.
On November 3, Administrative Law Judge E.
Don Wilson issued his Decision in this proceeding.
Thereafter, the General Counsel, the Respondent,
and the Charging Party each filed exceptions and
supporting briefs.
The Board has considered the record and the Ad-
ministrative Law Judge's Decision in light of the ex-
ceptions and briefs and has decided to make its own
rulings, findings, and conclusions in this case for the
reasons set forth below.
At the hearing and in the presence of the witness-
es, Respondent, by its counsel, threatened to dis-
charge and criminally prosecute any individual iden-
tified during the hearing as having stolen cigarettes.'
The General Counsel's theory for one of the alleged
discharges alleged to be in violation of Section
8(a)(3) of the Act is that the Respondent disparately
discharged one employee who was a union organizer
for allegedly taking cigarettes from the machine
without paying but did not conduct a thorough in-
' All dates herein are 1975
2 The propriety of Respondent counsel 's conduct is discussed in detail
infra
vestigation to discover and discharge other persons
who may have taken cigarettes. In his Decision, the
Administrative Law Judge severely admonished Re-
spondent's counsel for his intimidation of witnesses.
The Administrative Law Judge's distress with coun-
sel pervaded the entire Decision.
The Administrative Law Judge found that Re-
spondent's counsel intimidated the witnesses so
much that he prevented counsel for the General
Counsel from proving her case. The Administrative
Law Judge therefore concluded that the General
Counsel had proven the allegations of the complaint
by a preponderance of the evidence, without exami-
nation of the record evidence.
The Administrative Law Judge's own words reflect
his precise position:
Counsel for Respondent so intimidated wit-
nesses that it was impossible for General Coun-
sel to present its case with any witnesses who
were free from Respondent's unlawful intimida-
tion. Since, if General Counsel failed to prove its
case by a preponderance of the probative and
substantial evidence only because of such un-
lawful conduct, there could have been no trial.
[sic] Justice demands that since Respondent's
counsel made it impossible for the witnesses of
General Counsel to testify to facts as they knew
them, Respondent's defense should be disre-
garded and the allegations of the complaint be
found to be true because of the coercion of Re-
spondent's counsel. [sec. III,B.]
To permit Respondent to act as it has, would
be like "the right divine of kings to govern
wrong." While my observation of the witnesses
and particularly those who proclaimed the cor-
rectness of the testimony of witnesses for Gener-
al Counsel convinced me of the honesty of their
testimony. So too, was I not convinced by the
demeanor of the "three" who testified against
Combes. In any event, the unlawful intimidation
of counsel for Respondent, so contaminated this
trial [sic] that I can do naught but find counsel
for the General Counsel has proved the allega-
tions of the complaint by a preponderance of
the probative and substantive evidence. Notiust
some witnesses for General Counsel were sub-
ject to Respondent's counsel's intimidation.
How many, only God can say. [sec. III, C, par.
14.]
The Respondent contends that its counsel did not
intimidate witnesses. Respondent argues that its
statements concerning possible discharge and disci-
226 NLRB No. 210
IOWA BEEF PROCESSORS, INC
plme were truthful observations of the possible effect
of testimony.
The Respondent further contends that the Admin-
istrative Law Judge's Decision is defective in that it
fails to state reasons for the conclusions contained
therein, in violation of the Administrative Procedure
Act, and that the Administrative Law Judge was bi-
ased against the Respondent. The Respondent re-
quests a hearing de novo before another Administra-
tive Law Judge.
The General Counsel contends that it is unneces-
sary to remand the case for a hearing de novo before
a different Administrative Law Judge because there
is sufficient uncontroverted evidence on the record to
sustain the allegations of the complaint.
The Charging Party argues that the evidence sup-
ports the Administrative Law Judge's conclusion that
the Respondent threatened witnesses in violation of
Section 8(a)(1) of the Act. Moreover, the Charging
Party contends that the Respondent received a fair
hearing and the Board should adopt the Decision of
the Administrative Law Judge.
We find that the Decision of the Administrative
Law Judge fails to satisfy the requirements of the
Administrative Procedure Act. Section 557 of the
Administrative Procedure Act provides that reasons
for findings on material issues of fact must be given.
The Decision of the Administrative Law Judge does
not set forth findings of fact and the reasons there-
fore for each alleged violation. The Decision con-
tains only a fragmentary, rambling, and disjointed
discussion of the merits of the issues.
Moreover, the Administrative Law Judge's conclu-
sions are based in large measure on the conduct of
Respondent's counsel, not on the merits of the issues.
Rather than considering all the evidence, the Admin-
istrative Law Judge simply concluded that intimida-
tion by Respondent's counsel made it impossible for
the General Counsel to present her case. He further
concluded that, since counsel for the General Coun-
sel could not prove her case, he therefore should dis-
regard the Respondent's defense and find that all of
the allegations of the complaint had been proven by
counsel for the General Counsel. While the intimida-
tion of witnesses by Respondent's counsel undoubt-
edly tainted testimony at the hearing, the Adminis-
trative Law Judge was still obliged to consider all the
evidence by both parties before drawing his conclu-
sions. This he failed to do.
Accordingly, we shall decide this case on the basis
of the entire record, disregarding the rulings, find-
ings, and conclusions of the Administrative Law
Judge.
Upon the entire record in this case, we make the
following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
1373
Respondent is engaged in the business of pro-
cessing and packing meat at its Emporia, Kansas,
facility, the only facility involved herein. In its busi-
ness operations at the plant, Respondent annually
sells goods and services valued in excess of $50,000
directly to customers located in States other than the
State of Kansas. At all times material herein, it has
been an employer engaged in commerce within the
meaning of the Act.
11. THE LABOR ORGANIZATION
At all times material herein, the Union has been a
labor organization within the meaning of the Act.
111. CONDUCT OF RESPONDENT 'S COUNSEL
In his opening statement in the presence of all the
witnesses, Respondent's counsel, Charles F. Henley,
Jr., said, inter alga:
. . . we just want the Administrative Law Judge
to be aware of the fact, and I think witnesses
should be aware of the fact, that there is no im-
munity of testimony for any type of criminal
prosecution by virtue of their testimony before
you this morning or in the next few days, and
that if any new evidence is introduced that
would indicate that anybody else was involved
in this incident, that the company [the Respon-
dent] feels duty bound to investigate this new
evidence and would have to take whatever ac-
tion that would be appropriate depending on
that particular evidence.
"This incident" refers to the alleged theft of packages
of cigarettes from a cigarette machine. As men-
tioned, the General Counsel's theory for one of the
discharges alleged to be in violation of Section
8(a)(3) of the Act is that the Respondent disparately
discharged a union organizer allegedly for taking cig-
arettes but did not conduct a thorough investigation
to discover and discharge other employees who sup-
posedly engaged in the same conduct.
Employee Roy Shade testified that he saw one in-
dividual take cigarette packages from the machine
and throw them to people. He also testified that
while he later saw six or seven people around the
cigarette machine, Elmer Combes, the individual al-
legedly discharged in violation of Section 8(a)(3) of
the Act, was not among them. On cross-examination,
Respondent's counsel asked Shade to testify regard-
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the name of the single individual near the ma-
chine or the names of any of the six or seven individ-
uals around the machine. The witness refused to an-
swer the question. Respondent's counsel moved to
strike all the testimony of the witness pertaining to
the incident where six or seven individuals were
around the machine.
Later during the hearing, counsel for the Charging
Party made a motion to take testimony of a witness
who would testify that one of Respondent's execu-
tives told him (the witness) that the Respondent in-
tended to discharge and seek prosecution of anyone
named in the hearing as having stolen cigarettes. The
Administrative Law Judge denied the motion.
The Administrative Law Judge then read Section 7
and Section 8(a)(4) of the Act to the witnesses, verba-
tim. The language of the statute was interpreted
somewhat to make it intelligible to the lay witnesses.
Still later, after counsel for the General Counsel
had rested her case, counsel for the Charging Party
announced he would not put witnesses on the stand
because the Jencks rule 3 would require disclosure of
the witnesses' affidavits, and there was no guarantee
that the names of cigarette thieves in the affidavits
would be protected.
Employee Kevin Effland testified that he saw an
individual take cigarette packages from the cigarette
machine and throw them to people. The Administra-
tive Law Judge asked him if he recognized the thief
and Effland responded he recognized the face but
not the name. The Administrative Law Judge then
asked Effland if he saw anyone in the courtroom
who had taken cigarette packages out of the ma-
chine. The Charging Party objected on the grounds
that the witness should not have to identify a ciga-
rette thief in view of the remarks by Respondent's
counsel. The witness was not required to identify
anybody.
The General Counsel called Combes to the stand,
but Combes refused to testify as to the involvement
of other employees in the cigarette stealing incident,
asserting that he would not jeopardize the jobs of
others and subject them to possible prosecution. Two
other witnesses, Frank Smith and Dean Kellerman,
refused to testify for the same reason.
As noted previously, the Respondent contends
that its counsel did not intimidate witnesses. It ar-
gues that General Counsel could have sought immu-
nity from prosecution for these employees under the
Organized Crime Control Act of 1970. Witnesses
could have pleaded their fifth amendment constitu-
tional right against self-incrimination to questions
See Ra -Rich Manufacturing Corporation, 120 NLRB 503, in 2 (1958),
citing Jencks v United States, 353 U S 657 (1957)
about their own criminal conduct. Respondent notes
it offered to allow witnesses to testify without naming
individuals who stole cigarettes if counsel for the
General Counsel would stipulate that disparate treat-
ment of cigarette thieves was not a theory for the
alleged unlawful discharge of Combes. The Respon-
dent also argues that (1) there is no evidence to sup-
port a finding that witnesses who testified to viola-
tions other than the discharge of Combes were also
intimidated; (2) the problem of alleged intimidation
should have been addressed by the Administrative
Law Judge at the hearing; and (3) a finding of viola-
tive conduct by Respondent's counsel at the hearing
is unjustified since such violation was not alleged or
litigated.
The Charging Party argues that the evidence sup-
ports a conclusion that the Respondent threatened
witnesses in violation of Section 8(a)(1) of the Act.
We find that the conduct of Respondent' s counsel
was improper, and that such conduct violated Sec-
tion 8(a)(1) of the Act. When the fact that Respon-
dent conducted at best a shoddy investigation of the
alleged cigarette theft (as detailed infra) is coupled
with Respondent counsel's statement at the hearing
several months later that witnesses had no immunity
and that the Respondent would take "appropriate
action" against any newly discovered cigarette
thieves, the conclusion is inescapable that the state-
ment was a calculated maneuver to intimidate wit-
nesses to prevent them from testifying about employ-
ees involved in the cigarette theft incident for fear
that those fellow employees might lose their jobs
and/or be prosecuted. Furthermore, it is clear that
the object of counsel's statement was to prevent the
General Counsel from establishing disparate treat-
ment of Combes.
Unfortunately, counsel was partially successful in
his intimidation attempt. Witnesses Shade, Effland,
Combes, Smith, and Kellerman refused to testify to
the names of individuals other than Combes who
stole cigarettes. The Charging Party refused to call
any witnesses to testify because the Jencks rule
would require disclosure of the affidavits and there
was no assurance that the names of cigarette thieves
would be protected.
Even assuming, without deciding, that counsel for
Respondent was correct in his statement of the legal
principle governing testimonial revelation of criminal
conduct in this proceeding, we find no justification
for his intimidation of the General Counsel's witness-
es in open court. If Respondent's counsel had merely
made his point to the Administrative Law Judge and
the General Counsel, then there would be no cause
for concern on our part. Here, however, counsel for
Respondent chose to interfere with the employees'
IOWA BEEF PROCESSORS, INC. 1375
right to engage in protected concerted activity-
which includes the right to testify before the Board in
support of a fellow employee's unfair labor practice
charge. His action took place on the record in open
court and the issue has been fully litigated and
briefed by the parties. Accordingly we find that the
issue was litigated and that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening, restraining,
and coercing witnesses at a National Labor Rela-
tions Board hearing. McGraw-Edison Company v.
N. L.R.B., 419 F.2d 67, 77 (C.A. 8, 1969).
IV. ALLEGED UNLAWFUL DISCIPLINE OF KEN WALHURN,
RICK TURNER, AND RONALD GUY
The complaint alleges that Respondent issued dis-
ciplinary warnings to employees Ken Walburn, Rick
Turner, and Ronald Guy; suspended Walburn for 3
days; and subsequently discharged Walburn, all in
violation of Section 8(a)(3) and (1) of the Act.
Walburn, Turner, and Guy, employees in Respon-
dent's offal department, all favored the Union. Wal-
burn was one of two employees who independently
contacted the Union to start the organizational cam-
paign. He solicited employees to sign cards and often
spoke in favor of the Union to supervisors. Turner
signed a union card, attended union meetings, and
spoke in favor of the Union. Guy was an open advo-
cate of the Union in conversations with other em-
ployees.
The Respondent has a disciplinary policy for being
absent or tardy without excuse. For the first unex-
cused absence, the employee receives a written warn-
ing. For the second unexcused absence within 12
months, the employee receives a written warning and
a suspension. For the third unexcused absence within
12 months, the employee is discharged. If an employ-
ee is tardy three times without excuse, the employee
receives a written warning. If tardy an additional
time within 12 months, the employee receives a 3-day
suspension. If tardy an additional time within 12
months, the employee is terminated. Being tardy
three times is equivalent to an unexcused absence for
the purpose of discipline. This policy was posted on
bulletin boards around the plant.
The Respondent has a policy of allowing a 15-min-
ute break after 2-1/2 hours of work and a 30-minute
meal break after 5 hours of work. It is the practice to
allow employees in the offal room occasionally to
take additional breaks of 5, 10, or 20 minutes during
the course of a workday "as long as the boys were
caught up." These informal breaks are often referred
to as "cigarette" breaks or "warm-up" breaks (the
temperature in the offal room is 28 to 32 degrees). In
addition, offal department employees frequently ex-
tended the regularly scheduled 15- and 30-minute
breaks by 5, 10, or even 15 minutes. Supervisor Ta-
bares testified he warned the employees every couple
of weeks about overextending their breaks. Employ-
ee Ken Walburn testified that the employees were
warned about overextending breaks every 8 or 9
months.
Slaughter Superintendent William Lahr, who su-
pervises the kill floor, offal department, "coolers,"
edible and inedible rendering, and "the yards," testi-
fied he had complaints from hourly employees on the
kill floor that employees in the offal and rendering
departments had been taking longer breaks than they
were entitled to. Lahr spoke to Plant Manager Bob
Fleming who told him to talk to the foreman. Lahr
spoke to the offal department supervisor, Tony Ta-
bares, about the matter on two occasions a week or
two prior to February 10, and again a couple of days
prior to February 10.
Tabares testified that he independently decided to
warn the men about taking too much time on breaks
and then time them. At the start of the shift on Feb-
ruary 10, Tabares testified, he warned offal depart-
ment employees Steve Swift, Tom Knox, Rick
Turner, Ken Walburn, Steve Davidson, Ronald Guy,
Don Hayden, Ramone Escamille, and Wes Under-
null that they had to "stick to the 15 and 30 minute
break." Walburn testified that Tabares said "not to
take as long" on their breaks because a superinten-
dent would probably check on them.
Rendering Foreman Larry Bradstreet worked that
evening with Tabares because Tabares was going to
be gone Saturday and Bradstreet was going to take
his place.
Tabares, Bradstreet, and employee Turner testified
that the first break came at 5 a.m. on February 10.
Walburn testified the first break was 9 a.m The pre-
ponderance of the evidence establishes that the first
break occurred at 5 a.m.
Bradstreet and Tabares timed the employees as
they went on break. According to Bradstreet's testi-
mony, he and Tabares were in the foreman's office
when they noticed the employees had gone on break.
Bradstreet looked at his watch and commented that
the time was 5:22 a.m., but Tabares said the employ-
ees had been gone for some time so they should time
the employees from 5:20 a.m. Bradstreet testified
they picked 5:20 a.m. because "it seemed arbitrary."
Tabares watched the employees through the door of
the foreman's office while Bradstreet kept track of
the length of their breaktime in a small notebook.
According to Bradstreet's calculations, the employ-
ees took the following lengths of time for their
breaks: Escamille and Undermill, 11 minutes; Knox,
15 minutes; Turner, Guy, and Walburn, 27 minutes.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They were unable to time Hayden, Davidson, and
Dale Barnaby. While they saw Hayden return from
break with Turner, Guy, and Walburn, they did not
see him go on break because he was operating a fork-
lift on the loading dock rather than working in the
offal department. They saw Barnaby return from
break 3 to 5 minutes ahead of Turner, Walburn, and
Guy, but did not see when he went on break because
he made boxes in the dry storage room. They were
unable to time Davidson because they did not know
what time he went on break.
The foregoing evidence with respect to the time
employees left for break and returned is based on the
testimony of Bradstreet. Tabares' testimony on when
employees left on break and returned is so contradic-
tory that it is inherently incredible. Tabares was un-
der medication during the hearing and there was one
special recess to allow him to regain his composure.
Tabares and Bradstreet determined that three em-
ployees had taken too long on break-Walburn,
Turner, and Guy. Tabares reported this to Lahr.
Lahr told Tabares to speak to the three employees.
Tabares then threw away the notebook paper which
had the employees' breaktimes written down.
Tabares went into the offal room and told Wal-
burn, Turner, and Guy that they had taken an ex-
tended break in violation of company policy and that
their personnel records would reflect this. Turner
queried why "we" were receiving "lates" when there
were other people on break in the cafeteria as long or
longer than they who had not received discipline. Ta-
bares replied they had lost track of some men. Hay-
den asked Tabares why he (Hayden) had not re-
ceived a reprimand since he had taken as long on his
break as Walburn, Turner, and Guy. Hayden testi-
fied, "He said they either lost track of me or did not
see me or one thing or another." Tabares told Hay-
den that maybe he should be reprimanded, to which
Hayden replied he was only kidding.
Tabares returned to Lahr's office and they decided
to see if anyone should receive more formal disci-
pline for violating the absence and tardiness rule. Ta-
bares and Lahr testified they had not checked the
records before the evening to determine if anyone
was due for discipline. After checking the records,
they discovered Walburn was due for a 3-day sus-
pension .4
At the end of the shift, Tabares took Walburn into
Lahr's office. Lahr explained that Walburn had re-
turned to work late from break, that this was his
third offense, and therefore he was going to receive a
3-day suspension. Walburn testified that he left the
Applying company policy to Walburn's record of being absent and tar-
dy and assuming arguendo this February 10 discipline to be nondiscrimina-
tory, this determination was correct
offal room to go into the parking lot to get his dinner
from his wife. He returned to the offal room after 10
minutes, but no one was there. He spent 3 or 4 min-
utes preparing a manifest for some boxes of tongues,
then went out the "back way" to give the manifest to
one of "the girls" in the front office, and then contin-
ued on to join the other men on break in the cafete-
ria. Apparently, Walburn was told to return the next
day.
Lahr had Tabares check with Undermill and Esca-
mille, the two employees who returned from break
early, but they had not seen Walburn return to the
offal room to manifest some boxes of tongues and
then leave again. Lahr also had Tabares check with
the "girls" to see if Walburn turned in a manifest.
They did not corroborate Walburn's testimony.
Bradstreet does confirm Walburn in part, since he
testified that at one point during the break he went to
the doors which led to the parking lot. He later saw
Walburn going to the cafeteria where the men were
on break. He did not see Walburn go into the offal
room.
Walburn returned the next day and Lahr told him
that Tabares had checked with Undermill, Escamille,
and "the girls," and Walburn's story was not corrob-
orated. Therefore, Lahr gave Walburn a 3-day sus-
pension. Walburn asked to see his record for being
absent and tardy and he was allowed to copy the
information down.
The offal department employees stopped taking
informal breaks and strictly adhered to the 15- to
30-minute breaks for a week or two after February
10, but then they lapsed back into their old habits of
informal and extended breaks.
On March 7, Walburn did not report to work and
did not call in absent. According to company policy,
he was due to be discharged for this infraction. The
Company did discharge him.
There is no allegation that Respondent's finding of
a violation of the rules on March 7 was discriminato-
rily motivated. However, the General Counsel con-
tends that Walburn would not have been discharged
on March 7 but for the unlawful discipline on Febru-
ary 10, and therefore the discharge on March 7 is
unlawful.
A year prior to February 1975, Respondent had
employee Gilbert Ash timed while he was on a break,
and gave him a warning for returning late from the
break. This is the only other evidence on the record
that Respondent timed employees while they went
on breaks.
With respect to the warnings of Walburn, Turner,
and Guy, and the discharge of Walburn, the General
Counsel contends that: (1) Walburn's, Turner's, and
Guy's support of the Union's organizational cam-
IOWA BEEF PROCESSORS, INC 1377
paign was well known by the Respondent; (2) the
decision to time an entire department's break was
made 2 months after the advent of the Union's orga-
nizational campaign; (3) Tabares destroyed the evi-
dence of his inept investigation; (4) the discipline
against the three known union adherents was not
based on evidence of the whereabouts of the entire
department; and (5) Tabares' attempt to check
Walburn's claim that he went into the department to
complete several minutes of work before going back
on break was less than thorough.
The Charging Party contends that the Respondent
was aware that there was union organization in the
offal department, that Walburn was actively organiz-
ing for the Union, and that the creation and execu-
tion of the tardiness policy restrained and coerced
offal department employees from participating in
protected concerted activities.
The Respondent's motive for disciplining Wal-
burn, Turner, and Guy can be inferred from the sur-
rounding facts of the case. Shattuck Denn Mining
Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d
466, 472 (C.A. 9, 1966). Here all the circumstances
point to the conclusion that Respondent was not at-
tempting to enforce rules but simply producing some
basis for concluding that union supporters Walburn,
Turner, and Guy had engaged in misconduct. Thus,
although Respondent first noted that the offal de-
partment employees went on break at 5:22, Tabares
and Bradstreet started timing the break at 5:20. They
did so because "it seemed arbitrary." Tabares and
Bradstreet were able to time Escamille, Undermill,
and Knox who were notoriously punctual about
breaktime, and Walburn, Turner, and Guy. How-
ever, they were curiously unable to time Hayden,
Davidson, and Barnaby. If punctuality with respect
to breaktime was as important as the Respondent's
witnesses testified, then it is unlikely that Tabares
and Bradstreet would not have noticed immediately
when the offal department employees went on break,
and unlikely that they would completely lose track of
Hayden, Davidson, and Barnaby. It is more likely
that Respondent simply intended to find that Wal-
burn, Turner, and Guy had engaged in misconduct.
Similarly, Tabares would not have dismissed
Hayden's statement that he also had taken an overly
long break if disciplining employees for long breaks
was his only concern. It is clear that Tabares wanted
to discipline Walburn, Turner, and Guy and simply
had no need to discipline Hayden. The recorded
notes of lengths of time employees had been on
break have been destroyed so there is no way to veri-
fy whether, in fact, Respondent knew that Walburn,
Turner, and Guy were the only employees on extend-
ed breaks.
Finally, it appears that Respondent was simply not
interested in putting an end to the offal department
employees' practice of taking long breaks, for Ta-
bares' enforcement of breaktime violations occurred
only once, and employees were quickly allowed to
fall back into their old habits of taking breaks for
longer than the secheduled period subsequent to the
imposition of discipline upon the three active union
adherents.
The net effect of the Respondent's enforcement of
the rule is that three open union advocates were dis-
ciplined. Walburn, the most active union campaign-
er, was ultimately discharged.
We find that the Respondent intended to disci-
pline Walburn, Turner, and Guy and subsequently
discharge Walburn not for taking extended breaks,
but rather for their union activities, in violation of
Section 8(a)(3) and (1) of the Act. Cf. Shattuck Denn
Mining Corporation, supra.
V. THE ALLEGED UNLAWFUL DISCHARGE OF ELMER
COMBES
The complaint alleges that Respondent discharged
Elmer Combes on or about February 20, and has
failed and refused to reinstate him, in violation of
Section 8(a)(3) and (1) of the Act.
Combes was an active union adherent. Supervisor
Doug McMannes testified he saw and heard Combes
speak in favor of the Union, and warned him about
his union activities on at least one occasion prior to
Combes' discharge.
Respondent has a cafeteria where employees often
meet, prior to the start of work, to socialize over cof-
fee and cigarettes. There is a cigarette machine in the
cafeteria. Midwest Vending Company, which is not
connected with the Respondent, operates the ciga-
rette machine.
Employee Roy Shade testified that, on February
15 at approximately 5:20 a.m., he saw a person at the
cigarette machine and that the person put some
money in the machine; took the door off the ma-
chine, and took two packages of cigarettes. Later, six
or seven other employees took cigarettes from the
machine and threw some 30 packages of cigarettes to
people in the room who were calling out brand
names. One person took a full carton of cigarettes.
Shade testified that he saw Combes in the room but
that Combes was never near the cigarette machine.
Later, however, Combes told Shade that he (Com-
bes) had gotten some cigarettes; he did not say how
many.
Probationary employee Michael Jaynes testified
that he went into the cafeteria around 5:20 a.m., Feb-
ruary 15, and ate some rolls and milk. He then real-
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ized he needed a package of cigarettes and went to
the cigarette machine. He discovered that the ciga-
rettes were "accessible," so he reached in and took a
package without paying. He could not remember if
he saw other people take cigarettes. He left the cafe-
teria at 5:40 and saw Combes enter the cafeteria as
he left.
Employee Joe Walford testified that when he ar-
rived at the cafeteria at 5:30 a.m. on February 15 he
saw Larry Redburn go up to the cigarette machine,
put in two quarters, pull the knob, but receive noth-
ing in return. Someone, he does not know who, told
him the machine was broken. That person told him
to take the front off to get his cigarettes. He did take
the front off, took one package, and walked away.
Employee Walford testified that he sat at a table in
the cafeteria on the morning in question with Calvin
Yeager, Claude Schultz, and Harold Sliter. Around
5:35 to 5:40 a.m. he saw Combes seated at the table
in front of the cigarette machine throwing 10-20
packs of cigarettes to various men over the course of
5 minutes. He saw Combes put a package in his
pocket, but this may have been his own package
which he brought to work. He did not see anyone
other than Combes take packages out of the ma-
chine. Supervisor McMannes entered the cafeteria
around 5:40 a.m. Walford saw Combes hand Mc-
Mannes a package of cigarettes. McMannes said,
"What are we doing, having free cigarettes today?"
McMannes and Supervisor Steve Kemp put the front
on the machine and turned it to the wall.
Supervisor Claude Schultz is a foreman for both
the rendering and ethicon departments. He testified
that he arrived at the cafeteria on the morning of
February 15 around 5:20 a.m. He sat at a table with
Joe Walford, Calvin Yeager, and Harold Sliter (and
perhaps Larry Redburn). He watched Combes throw
10 or 15 packs of cigarettes out to various people
over a period of 2-3 minutes. Because of the location
in which he sat he could not actually see Combes
take the cigarettes out of the machine, but he could
see him reach into the machine and then throw the
packages to people. He does not know the names of
people who took cigarettes from Combes because
they work in departments other than his. He did not
see anyone else take packages for himself or throw
them out to other people. Shortly thereafter he left
the cafeteria, and as he left he saw McMannes and
Kemp enter the cafeteria.
On February 20, Schultz received a letter from
Plant Manager Robert Fleming reprimanding him
for failure to take "proper action" expected from a
supervisor regarding the theft of cigarettes from the
cafeteria on February 15.
Employee Calvin Yeager testified that he sat at a
table in the cafeteria with "Joe," Harold Sliter, Larry
Redburn, and Claude Schultz about 3 or 4 minutes
after 5:15 a.m. on February 15. He heard a commo-
tion, and looked up to see Combes standing at the
machine and throwing three or four packs of ciga-
rettes to people. He saw no one else at the machine
but did not recall looking at the machine after Com-
bes left. When McMannes entered the cafeteria,
Combes handed him a pack of cigarettes. McMannes
and Kemp turned the cigarette machine to face the
wall.
Personnel Director Daryl Silkman testified that on
Wednesday, February 19, Plant Manager Gene Hud-
son told him that employee Carl Vogts had reported
that Elmer Combes stole some cigarettes. Silkman
spoke to Carl Vogts, who said he heard this from Pat
Vogts. Pat Vogts told Silkman he heard it from Lead-
man Gary Combes. Gary Combes told Silkman he
heard it from Supervisor Claude Schultz. Schultz told
Silkman that he saw Combes take the cigarettes. On
Thursday, Silkman spoke to "A" shift Superinten-
dent Doug McMannes about the incident. They
called Schultz into McMannes' office. McMannes
asked Schultz if he saw "Elmer" passing out ciga-
rettes in the cafeteria and Schultz replied he saw him
taking cigarettes out of the machine and passing
them out McMannes asked if anyone else saw it and
Schultz replied Yeager and Walford had. McMannes
and Silkman then went to Bob Fleming's office and
told Fleming what they had discovered. Fleming told
them to talk to Walford, Yeager, and Schultz and get
statements.
According to Silkman's testimony, McMannes and
Silkman returned to McMannes' office still on the
same Thursday. They called Yeager into McMannes'
office and asked him if he had seen Combes stealing
cigarettes. He said he had. He could not identify peo-
ple who received cigarettes because he did not recog-
nize them. McMannes and Silkman asked Yeager to
write out a statement, and he did so. Despite the fact
that the date was February 20, Yeager dated the
statement February 15. All this was done in the pres-
ence of Schultz.
Employee Calvin Yeager testified that on Monday
McMannes and Silkman called him into McMannes'
office. He testified he was in the office alone with
McMannes and Silkman; Schultz was not there.
They asked him about the incident on the previous
Saturday in the cafeteria. He said that he saw Com-
bes taking three to four packs of cigarettes out of the
machine and throwing them to people. They asked
him if he saw anyone else at the machine and he
replied no.
Silkman testified that, after Yeager left, McMan-
nes asked Schultz to make a statement and he did.
IOWA BEEF PROCESSORS, INC 1379
Schultz made his statement on the same sheet that
Yeager did, and again the statement was dated Feb-
ruary 15.
Schultz testified that on Tuesday, February 18,
McMannes and Silkman spoke to him about the inci-
dent in McMannes' office and asked him to write a
statement , which he did.
Next Silkman testified that Schultz left and told
Joe Walford to go to McMannes' office, which he
did. McMannes asked what happened that morning
and Walford said he saw Combes reach into the ma-
chine, take packages of cigarettes, and pass them to
people. Walford said he did not know anyone who
had seen the incident aside from Schultz and Yeager.
Walford wrote a statement on the same sheet that
Yeager and Schultz did, and again the statement was
dated February 15.
Walford testified that on the Tuesday following the
incident Schultz told him to go to the personnel of-
fice to meet McMannes and Silkman. They asked
him to sign a statement, which he did.
The preponderance of the evidence indicates that
Yeager, Schultz, and Walford signed the statement
on Tuesday, February 18, but dated it February 15.
According to Silkman's testimony, McMannes and
Silkman then took the statement up to Fleming's of-
fice. Fleming read the statements and then had Mc-
Mannes get Combes. Fleming asked Combes if he
took cigarettes last Saturday in the cafeteria and
Combes replied he had taken two packs of cigarettes
that had been tossed to him but that he did not take
cigarettes out of the machine. Fleming asked Com-
bes if he knew it was wrong to possess stolen prop-
erty and Combes replied yes, but insisted other peo-
ple took cigarettes also. Fleming gave Combes an
opportunity to quit before the Company made a de-
termination on the matter, and said he probably
would not be prosecuted if he quit. Combes decided
not to quit. Fleming told him to return to work.
Fleming asked Silkman to get the name and tele-
phone number of the people who were in charge of
Midwest Vending Company. Silkman went to his of-
fice to get the information. Combes went into
Silkman's office. Combes wanted to call his attorney.
Silkman told him to call his attorney on break. Com-
bes said he wanted to talk to his lawyer before he was
fired. Silkman assured him he would not be terminat-
ed before he went on break. Silkman returned to
Fleming's office and repeated his conversation with
Combes. Harry Hendershot, Respondent's assistant
vice president for labor relations, was in McMannes'
office and they discussed the details of the incident
concerning Combes. They then called Respondent's
vice president for labor relations, Arden Walker. Mc-
Mannes, Walker, and Hendershot had a three-way
telephone conversation concerning Combes. After
the end of the conversation, they told Silkman they
had decided to terminate Combes. Silkman did not
want Combes terminated prior to breaktime, but
they "overruled" him. McMannes then entered the
office. Fleming told him they had decided to termi-
nate Combes. Fleming told McMannes that he
should terminate him.
According to the testimony of Silkman, Hender-
shot went into his (Silkman's) office a week after the
discharge and said he wanted to talk to Yeager,
Schultz, and Walford. They were brought up to
Silkman's office immediately. He asked them what
happened on the "15th." Walford said Larry Red-
burn had put money in the machine but had not got-
ten cigarettes. Walford continued, saying Combes
told Redburn that the machine was open so he need
only open it up and take a pack. Hendershot also
asked if they could name any other individuals in-
volved in the incident. Someone mentioned Harold
Sliter's name . Hendershot asked Sliter if he saw any-
one take cigarettes on February 15 and Sliter replied
he saw Combes, but could not identify other people.
He did not know of any witnesses.
The next day, Silkman asked Redburn if he put
money in the cigarette machine, did not get anything,
open the machine, and then take a pack out at the
suggestion of someone. Redburn confirmed this was
true. Silkman asked if Combes was the one who told
him to open up the machine. Redburn replied he did
not know. Silkman asked Redburn if he knew other
individuals who took cigarettes or other witnesses,
and Redburn said he did not know any.
Hendershot and Silkman asked Greg Barnett if he
saw anyone take any cigarettes or know any witness-
es. He said no. Silkman is not sure why they asked
Barnett.
Hendershot and Silkman also spoke to Albert Otto
about the cigarette incident, either the day after
Combes was discharged, or within a couple of days
thereafter.
As mentioned, Combes did not testify.
With respect to the discharge of Combes, the Gen-
eral Counsel contends that the stories of witnesses
Yeager, Schultz, and Walford are inconsistent on
several points, and that Respondent used the theft of
cigarettes as a pretext to discharge Combes, an active
union adherent. The Charging Party argues that the
Respondent was aware that Combes actively orga-
nized for the Union, that the theft of cigarettes as the
reason for Combes' discharge was pretextual, and
that the purpose of Respondent's investigation was
not to discover the truth but to find Combes guilty.
In ourjudgment, the evidence preponderates in fa-
vor of finding that the Respondent discharged Com-
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bes because of his union activities . While Combes
admittedly took cigarettes, he was not the only em-
ployee who did so. A total of $86 worth of cigarettes
were missing . By all accounts , Combes took at most
several packs and possibly threw some packs to other
employees . In any event he surely never appropriated
$86 worth of cigarettes to his own use. Michael
Jaynes' testimony confirms this conclusion , since he
saw other people take cigarettes without putting
money in the machine.
Initially, the Respondent conducted no investiga-
tion of the incident . Supervisor Schultz saw Combes
steal the cigarettes but did nothing about it. Supervi-
sor McMannes received some of the stolen cigarettes
from Combes immediately after the incident but
took no action at that time . The Respondent only
became interested 4 days later when Silkman learned
about it through the grapevine.
Thereafter , Silkman followed up on the lead and
was able to get the affidavits of Walford , Yeager, and
Schultz that Combes stole cigarettes . Despite the fact
that the affidavits were given several days after the
theft , all three affidavits were back dated to the day
of the incident . This makes the investigation appear
more swift and responsive to the theft than it was.
No further investigation occurred until the week
after Combes' discharge, when Hendershot and Silk-
man asked some five other employees about the theft
and whether they saw who stole cigarettes.
In sum , the Respondent never conducted a com-
plete and thorough investigation . The Respondent
investigated only after Silkman discovered that Com-
bes was one of the employees involved . The investi-
gation focused on Combes without regard to discov-
ering others who took cigarettes . On the basis of the
entire record , we find that Respondent discharged
Combes not for stealing cigarettes , but rather for his
union activity in violation of Section 8(a)(3) and (1)
of the Act. Cf. Shattuck Denn Mining Corporation,
supra.
VI THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) OF THE
ACT
Paragraph 5(a) of the complaint alleges that in late
November 1974 Supervisor Douglas McMannes told
an employee that he had been seen passing union
cards to another employee after work and that this
would not be permitted.
The only evidence on this issue is testimony of Mc-
Mannes who said, "He [Combes] was only around
down in the basement during working hours, the ren-
dering and laundry departments [away from his work
station in the offal room], and it was brought to my
attention. I asked him to stop in and see me and I
told him to keep his nose clean, not to be engaged in
[union] activities like that on our time when he was
working and he was supposed to be on the kill floor."
The General Counsel adduced no evidence that
other forms of employee solicitations were permitted
or condoned during working time . Accordingly, we
find that the Respondent did not violate the Act
when McMannes prohibited Combes from engaging
in union activities away from his work station during
worktime. Essex International, Inc., 211 NLRB 749
(1974).5
Since the General Counsel moved to dismiss the
allegations of paragraph 5(b) of the complaint at the
request of the Respondent, we hereby grant the mo-
tion.
Paragraph 5(c) of the complaint alleges that in
January 1975 Supervisor Gilbert threatened an em-
ployee with loss of employment if he continued to
engage in union and other protected concerted activ-
ities.
Employee Marvin McWilliams testified that Gil-
bert entered the cafeteria where McWilliams and
Combes were, and told Combes to shut up about the
Union or he would be out the door.
Gilbert testified he walked into the cafeteria a cou-
ple of times and said, "Pardon me, I didn't want to
walk into a union meeting" and left without saying
anything else. Gilbert flatly denied McWilliams' tes-
timony.
There exists a direct testimonial conflict on this
issue. We find that it would not effectuate the poli-
cies of the Act to remand this case to the Administra-
tive Law Judge for purposes of making a credibility
resolution since any finding of a violation would be
cumulative and would not, in any event, affect the
remedy.
Despite the fact that McWilliams' testimony, if
credited, would appear to support the allegations of
paragraph 5(c) of the complaint, counsel for the Gen-
eral Counsel moved to amend the complaint "con-
cerning the testimony testified to by McWilliams
with respect to the conversation he had with foreman
Marty Gilbert in the cafeteria in late January."
5 Contrary to his colleagues , Member Fanning finds that the Respondent
violated Sec 8(a)(1) by prohibiting Combes from engaging in union activi-
ties Clearly, had Respondent been concerned only with Combes' absence
from his work, his union activities would have been irrelevant And there
can be little doubt on this record about the Respondent 's union animus But
hostilely motivated or not, restricting only union activity is discriminatory
on its face and, as plainly , unlawful Member Fanning believes that the
question is not whether nonunion solicitation has been permitted, but
whether it , too, was forbidden by McMannes He would find it was not, and
it is for that reason that McMannes ' instruction to Combes is unlawful on
its face There would then be no need to discover whether or not the Re-
spondent also discriminates by permitting employees to engage in other
activities which interfere with their work, so long as they do not bear the
union taint
Member Jenkins in finding no violation does not rely on Essex Interna-
tional, Inc
IOWA BEEF PROCESSORS, INC 1381
Counsel wanted to add paragraph 5(d) to the com-
plaint to allege "[Marty Gilbert] did threaten to take
reprisals against an employee because of his activities
on behalf of the Union and other protected concert-
ed activities." Respondent opposed the motion. Since
proposed paragraph 5(d) speaks to the same conduct
as paragraph 5(c) we find that the addition of para-
graph 5(d) in the form proposed by the General
Counsel would be cumulative. Therefore, we hereby
deny the General Counsel's motion to amend the
complaint by adding paragraph 5(d).
VII. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, oc-
curring in connection with its operations, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
VIII. THE REMEDY
Having found that the Respondent, through its at-
torney, threatened, restrained, and coerced witnesses
for the General Counsel, we shall order that Respon-
dent and its agents cease and desist from any such
interference, restraint, or coercion of its employees in
violation of Section 8(a)(1) of the Act.
Having further found that on or about February
10 Respondent unlawfully issued warnings to em-
ployees Ken Walburn, Rick Turner, and Ronald
Guy, and that on or about the same date it suspend-
ed Ken Walburn for 3 days, all in violation of Sec-
tion 8(a)(3) and (1) of the Act, we shall order that the
warnings be expunged from their personnel files and
that Ken Walburn be recompensed for his 3-day sus-
pension.
Having found that Respondent discharged em-
ployee Elmer Combes on or about February 20, and
discharged employee Ken Walburn on or about
March 7, and has since the dates of their discharges
failed and refused to reinstate them to their former
positions of employment because each joined or as-
sisted the Union or otherwise engaged in protected
concerted activities for the purpose of collective bar-
gaining, or other mutual aid or protection, we shall
order that Respondent offer each of these employees
full and complete reinstatement to his former posi-
tion or, if such position no longer exists, to a substan-
tially equivalent position without prejudice to his se-
niority and other rights and privileges.
We shall also order that Respondent make Wal-
burn and Combes whole for any loss of pay either or
both may have suffered by reason of their discharges
and Walburn's suspension, in violation of Section
8(a)(3) and (1) of the Act, in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest on backpay computed in the manner
described in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, we make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By issuing written warnings to employees Ken
Walburn, Rick Turner, and Ronald Guy on or about
February 10, 1975, because they engaged in union
activities, Respondent violated Section 8(a)(3) and
(1) of the Act.
4. By suspending employee Ken Walburn for 3
days on or about February 10, 1975, because of his
union activities, Respondent violated Section 8(a)(3)
and (1) of the Act.
5. By discharging employee Elmer Combes on or
about February 20, 1975, because of his union activi-
ties, Respondent violated Section 8(a)(3) and (1) of
the Act.
6. By discharging employee Ken Walburn on or
about March 7, 1975, for his union activities, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
7. By refusing and failing to reinstate Combes and
Walburn individually to their former positions of
employment, Respondent has violated Section
8(a)(3) and (1) of the Act.
8. By threatening, restraining, or coercing witness-
es for General Counsel through its attorney at a Na-
tional Labor Relations Board hearing, Respondent
violated Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect com-
merce within the meaning of the Act.
Upon the entire record including the foregoing
findings of fact and conclusions of law, we hereby
issue the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Iowa Beef Processors, Inc., Emporia, Kansas, its offi-
cers, agents , successors, and assigns , shall:
1. Cease and desist from:
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discharging, suspending, refusing to reinstate
or otherwise discriminating against Ken Walburn,
Elmer Combes, Rick Turner, and Ronald Guy be-
cause of their support for and/or assistance to the
Union or because they engaged in any union activi-
ties or any other activities protected by the Act.
(b) Issuing warning notices to employees because
they support the Union or engage in other concerted
activities protected by the Act.
(c) Threatening, restraining, or coercing witnesses
giving testimony at a National Labor Relations
Board hearing.
(d) In any other manner interfering with, restrain-
ing, or coercing any employee in his right to join,
assist, support, or petition the Union or any other
labor organization, or to engage in any activity pro-
tected by the Act, or to refrain from exercising such
right.
2. Take the following affirmative action, which
will effectuate the policies of the Act:
(a) Remove the "late warnings" from the person-
nel records of Ken Walburn, Rick Turner, and Ron-
ald Guy for February 10, 1975.
(b) Offer Ken Walburn and Elmer Combes imme-
diate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges.
(c) Make Ken Walburn and Elmer Combes whole
for any loss of pay suffered by them by reason of
Respondent's discrimination against them, in the
manner set forth in the section of this Decision enti-
tled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its location in Emporia, Kansas, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an
authorized representative of Respondent, shall be
posted immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that such notices are not altered , defaced , or covered
by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
6In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, restrain, or coerce wit-
nesses giving testimony at a National Labor Re-
lations Board hearing.
WE WILL remove the "late warnings," issued
February 10, 1975, from the files of Ken Wal-
burn, Rick Turner, and Ronald Guy.
WE WILL NOT discharge, suspend, refuse to re-
instate, or otherwise discriminate against Ken
Walburn, Elmer Combes, Rick Turner, and
Ronald Guy because of their support for and/or
assistance to the Union or because they engaged
in any union activities or any other activities
protected by the Act.
WE WILL offer Ken Walburn and Elmer Com-
bes immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights
and privileges.
WE WILL make Ken Walburn and Elmer Com-
bes whole for any loss of pay suffered by them
by reason of our discrimination against them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any employee in his
right to join, assist, support, or petition the
Union, or any other labor organization, or to
engage in any activity protected by the Act, or
to refrain from exercising such rights.
IOWA BEEF PROCESSORS, INC.