Monfort Of Colorado, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1987

284 N.L.R.B. 1429 (N.L.R.B. 1987)

MONFORT OF COLORADO 1429
Monfort of Colorado, Inc. and United Food and
Commercial Workers International Union,
AFL-CIO and National Maritime Union of
America, AFL-CIO. Cases 17-CA-10613, 17-
CA-10705, 17-CA-11337, and 17-CA-10623
28 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 29 April 1985 Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel and Charging Party Food
& Commercial Workers (UFCW) filed briefs in re-
sponse.' The Respondent also filed a motion for
leave to file an additional brief and a motion to
strike a portion of the General Counsel's answering
brief. 2 The UFCW filed a statement in opposition
to the Respondent's motions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge's rulings, 3 fmdings,4
The UFCVV's request for attorney's fees is denied as we do not find
the Respondent's exceptions to be "patently frivolous." See Eliason Corp.,
256 NLRB 1121, 1122 at fn. 9 (1981); Heck's Inc., 215 NLRB 765 (1974).
2 The Respondent's motion for leave to file an additional brief is grant-
ed, and the brief is accepted. The Respondent also filed a motion to strike
the portion of the General Counsel's answering brief in which the Gener-
al Counsel requests the Board to include in its Order a visitatorial clause
authorizing the Board, for compliance purposes, to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure under the su-
pervision of the United States court of appeals enforcing the Order. We
fmcl it unnecessary to pass on the Respondent's motion because we find
that under the circumstances of this case a visitatorial clause is not war-
ranted.
'The Respondent has excepted to the judge's ruling , that the circum-
stances of this case distinguish the Respondent's questioning of union sup-
porters from the questioning that took place in Rossmore House, 269
NLRB 1176 (1984). We find no merit in this exception. The test articulat-
ed in Rossmore House states that an interrogation will be considered vio-
lative of the Act where, under all of the circumstances, it reasonably
tends to restrain, coerce, or interfere with rights guaranteed under the
Act. Here, the Respondent engaged in a continuing pattern of violations
including unlawful termination of union supporters, interrogations, threats
of plant closings, promises of additional benefits and improved working
conditions, unilateral changes in working conditions, threats of discharge,
solicitation of employee complaints, and grants of unlawful aid and assist-
ance to one of two competing unions. Given the extent of the Respond-
ent's misconduct, and the persistence with which it unlawfully presented
its mestage, both in the circumstances here as well as those articulated in
256 NLRB 612 (1981), we find that the Respondent's questioning of even
open union supporters had a reasonable tendency to restrain, coerce, and
interfere with employee's exercise of their Sec. 7 rights.
4 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
284 NLRB No. 143
and conclusions,° and to adopt the recommended
Order, as modified.°
The Respondent has excepted to the judge's rec-
ommended remedy, maintaining that the extraordi-
nary measures contained therein are not necessary
to remedy the effects of the Respondent's conduct.
Extraordinary access remedies are necessary only
to restore the status quo in order to have a fair and
free election, the Respondent argues. Such an elec-
tion was conducted at the Respondent's facility on
19 July 1985 among the production and mainte-
nance employees, and resulted in a vote of 282
votes for UFCW, 18 votes for the Industrial, Tech-
nical and Professional Employees Division, Nation-
al Maritime Union of America, AFL-CIO, and 722
votes against the participating labor organizations.
No objections were filed to the conduct of the
election, and the results were certified on 5 August
1985. Thus, the Respondent asserts, there is no
basis for an extraordinary access remedy in the
present case.
In his decision, the judge states that the proposed
remedies "should apply for 2 years from the date
of the posting of the notice or until the Regional
Director issues an appropriate certification follow-
ing a free and fair election, whichever comes first."
Since the election was held after the judge's deci-
sion issued, there is some ambiguity as to the mean-
ing of the judge's language. The UFCW maintains
that the proposed remedies should continue for 2
years after notice is posted or until an appropriate
certification issues following the Respondent's com-
pliance with the Board's Order. We do not agree.
To be sure, the Respondent's violations are serious
and pervasive. We have accordingly not only
given the appropriate conventional remedies for
each violation, but are also approving the special
mailed and published notice remedies and a broad
cease-and-desist order, requiring the Respondent to
The judge found 10 individuals to be supervisors within the meaning
of Sec. 2(11) of the Act. The Respondent has excepted to this finding
with respect to six individuals, arguing that the General Counsel has not
presented a prima facie case establishing their supervisory authority. In
agreement with the judge, we find that the General Counsel successfully
demonstrated the supervisory status of five of the six disputed individ-
uals. We fmd it unnecessary to resolve the supervisory status of the sixth
individual, Steve Mason, because the evidence in any event establishes
that he is an agent of the Respondent.
With respect to the judge's finding that the Respondent violated the
Act by not removing the sample ballot posted in the window of Gaylord
Hausen's office, we specifically note that although Hansen was on vaca-
tion at the time the ballot was posted, the night supervisor, Terry Hamp-
ton, Continued to use the office during that dine; his use of the office pro-
vided ample opportunity to remove the ballot.
6 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 will be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out m the 1986 amendment to 26 U S.C. § 6621. Interest on amounts
accrued prior to 1 January 1987 shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
1430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cease and desist both from committing the specific
violations found and from violating the Act "in any
other manner." Access remedies, however, are gen-
erally designed to assist a union in communicating
with employees when the employer's unfair labor
practices have otherwise virtually foreclosed the
possibility of holding a fair election. Teamsters
Local 115 v. NLRB, 640 F.2d 392, 399 (D.C. Cir.
1981). As noted above, however, the election held
in July 1985, without benefit of such required grant
of access, was not objected to as unfair by any
party. In these circumstances, we cannot justify the
extraordinary access remedies.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Monfort of Colorado, Inc., Grand Island,
Nebraska, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraphs 2(h) through 2(1), inclusive,
and reletter the subsequent paragraph.
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT unlawfully threaten to discharge,
discipline, or demote any of you for engaging in
union activities and/or protected concerted activi-
ties
WE WILL NOT unlawfully threaten to close our
plant in order to prevent union activities among
you.
WE WILL NOT unlawfully threaten to refuse to
promote you because of your union activities
and/or protected concerted activities.
WE WILL NOT unlawfully interrogate you con-
cerning your own and other employees' union sym-
pathies and activities.
WE WILL NOT unlawfully suggest that you form
an employee committee instead of selecting an es-
tablished union as your collective-bargaining repre-
sentative.
WE WILL NOT unlawfully Solicit your complaints
and grievances and thereby promise you increased
benefits and improved terms and conditions of em-
ployment.
WE WILL NOT unlawfully solicit you to influence
other employees to vote against selecting a union
as your collective-bargaining representative.
WE WILL NOT unlawfully promise you increased
benefits and improved terms and conditions of em-
ployment if you form an employee committee in-
stead of selecting an established union as your col-
lective-bargaining representative.
WE WILL NOT unlawfully state that there would
be a strike if United Food and Commercial Work-
ers International Union, AFL-CIO, was certified
as your collective-bargaining representative, there-
by implying a strike was inevitable and indicating
the futility of selecting United Food and Commer-
cial Workers International Union, AFL-CIO as
your collective-bargaining representative.
WE WILL NOT unlawfully announce changes in
our job postings, wage, and short-term disability
policies while objections to the conduct of an elec-
tion are pending.
WE WILL NOT unlawfully promise you a bonus if
you do not select United Food and Commercial
Workers International Union, AFL-CIO as your
collective-bargaining representative.
WE WILL NOT give unlawful assistance and sup-
port to National Maritime Union of America,
AFL-CIO during a union organizing campaign,
such as unequal access to plant premises and pro-
viding for a bonus to you if that Union is your col-
lective-bargaining representative.
WE WILL NOT unlawfully discharge, suspend, or
otherwise unlawfully discipline any of you or dis-
criminate against any of you in any manner because
of your union affection or because you engage in
union activities.
WE WILL NOT unlawfully deny knife grinders,
supply warehousemen, electronic technicians, and
janitors a wage increase in retaliation for their in-
clusion in the involved bargaining unit of employ-
ees.
WE WILL NOT withdraw or eliminate any wage
rates or other benefits, terms, and improved condi-
tions of employment that we have established.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
right to self-organization, to join or assist United
Food and Commercial Workers International
Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to re-
strain from any and all such activities.
MONFORT OF COLORADO

1431
WE WILL offer Patrice Blue and Dennis Nelson
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent jobs, without prejudice to their rights
and privileges.
WE WILL restore the above-named employees'
seniority and pay them the backpay they lost be-
cause of our discrimination against them, plus inter-
est.
WE WILL remove from Patrice Blue's and
Dennis Nelson's personnel files all documents that
relate to our actions regarding them, which actions
have been found to be unfair practices, and make
whatever record changes are necessary to negate
the effect of these documents and our unlawful ac-
tions.
WE WILL pay knife grinders, supply warehouse-
men, electronic technicians, and janitors for any
loss of earnings, plus interest, they suffered by
reason of our unlawfully refusing and failing to
grant wage increases to them effective 31, August
1981.
WE WILL send all our employees copies of this
notice; WE WILL read this notice to all our employ-
ees; and WE WILL publish copies of this notice in
local newspapers.
All our employees have the right to join United
Food and Commercial Workers International
Union, AFL-CIO, or any other labor organization,
or to refrain from doing so.
MONFORT OF COLORADO, INC.
Naomi L. Stuart, Esq., and Julie K. Hughes, Esq., for the
General Counsel,
Charles E. Sykes, Esq., and Richard London, Esq. (Alaniz,
Bruckner & Sykes), of Houston, Texas, for the Re-
spondent.
Peggy A. Hillman, Esq. (Cotton, Watt Jones & King), of
Chicago, Illinois, for Charging Party, United Food
and Commercial Workers International Union, AFL-
CIO.
Mr. Edward Jackson, of New York, New York, for
Charging Party, National Maritime Union of America,
AFL-CIO.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a
charge filed in Case 17-CA-10613 on September 24,
1981, by United Food and Commercial Workers Interna-
tional Union, AFL-CIO (UFCW) against Monfort of
Colorado, Inc. (Monfort) and on a charge filed in Case
17-CA-10623 on September 28, 1981, by the National
Maritime Union of America, AFL-CIO (NMU) against
Monfort, a consolidated complaint was issued October
29, 1981, alleging that Monfort violated Section 8(a)(1)
of the National Labor Relations Act (Act), by (1) threat-
ening to discharge, discipline, or demote employees be-
cause they engaged in union activities and/or protected,
concerted activities including wearing stickers, buttons,
T-shirts, and other union insignia, (2) threatening to close
the involved facility if the employees selected a union as
their collective-bargaining representative, (3) threatening
to refuse to promote employees because of their union
activities and/or protected concerted activities, (4) inter-
rogating employees concerning their own and other em-
ployees' union sympathies and union activities, (5) sug-
gesting employees form an employee'committee instead
of selecting an established union as their collective-bar-
gaining representative, and (6) soliciting employee com-
plaints and grievances, and thereby promising its em-
ployees increased benefits and improved terms and con-
ditions of employment.'
On a charge filed in Case 17-CA-10705 on November
6, 1981, by UFCW against Monfort, a complaint was
issued December 30, 1981, amended March 11, 1982, and
November 14, 1983, alleging that Monfort violated Sec-
tion 8(a)(1), (2), and (3), collectively, by (1) threatening
to close the involved facility if the employees selected a
union as their collective-bargaining representative, (2) in-
terrogating employees concerning their own and other
employees' union sympathies and union activities, (3) so-
liciting employees to influence other employees to vote
against selecting a union as the collective-bargaining rep-
resentative, (4) suggesting employees form an employee
committee instead of selecting an established union as
their collective-bargaining representative, (5) soliciting
employee complaints and grievances, and thereby prom-
ising its employees increased benefits and improved
terms and conditions of employment, (6) promising its
employees increased benefits and improved terms and
conditions of employment if the employees formed an
employee committee instead of selecting an established
union as their collective-bargaining representative, (7)
stating that there would be a strike if the UFCW was
certified as its employees' collective-bargaining repre-
sentative thereby implying a strike was inevitable and in-
dicating the futility of selecting the UFCW as the em-
ployees' collective-bargaining representative, (8) an-
nouncing changes in its job posting, wage, and short-
term disability policies while objections to the conduct
of the election, described fully below, were pending, (9)
promising its employees a bonus if its employees did not
select the UFCW as their collective-bargaining repre-
sentative, (10) rendering aid, assistance, and support to
the NMU by (a) entering into a contract amendment pro-
viding employees with a bonus if the NMU is the em-
ployees' collective-bargaining representative on a speci-
fied date, (b) distributing written material and telling em-
ployees that they would receive a bonus if the employees
did not select the UFCW as their collective-bargaining
1 Those allegations voluntarily deleted from the complaint by the Gen-
eral Counsel at the hearing herein, Tr. 1142, are not included here. Con-
sequently, while the General Counsel attempts to resurrect on brief that
portion of (4) above dealing with Tim Zuehlke, in view of the General
Counsel's position at the hearing, this portion of the complaint will not
be considered further. It is noted that a similar allegation is made in par.
5(b) in the complaint in Case 17-CA-10705, described infra.
1432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative, (c) allowing representatives of the NMU
access to the lunchroom at the involved facility for the
purpose of talking with employees while denying such
access to representatives of the UFCW, (d) allowing rep-
resentatives of the NMU access to the area surrounding
the guard shack at the facility for the purpose of hand-
billing employees, while denying such access to repre-
sentatives of the UFCW, (11) discharging Pat Blue and
failing and refusing to reinstate her because of her union
activities and her concerted protected activities, and (12)
failing and refusing to grant wage increases to employees
in specified job classifications2 in retaliation for their in-
clusion in the involved bargaining unit.3
By supplemental decision partially dismissing objec-
tions, order directing hearing on remaining objections,
and order consolidating cases, entered February 1, 1982,
the above-described proceedings were consolidated with
Case 17-RC-8878, which involved the election held at
the facility on October 9, 1981.4
On a charge filed in Case 17-CA-11337 on November
26, 1982, amended December 6, 1982, and January 10,
1983, by UFCW against Monfort, a complaint was issued
January 11, 1983, alleging that Monfort violated Section
8(a)(1) and (3) of the Act by suspending employee
Dennis Nelson and subsequently discharging him and
failing and refusing to reinstate him because of his union
activity and his concerted protected activity.
Monfort denies that it violated the Act.
By order dated November 18, 1983, all the above-de-
scribed cases were consolidated and set for hearing.
A hearing was held January 10-13 and March 13-16,
1984. By order dated February 1, 1984, Case 17-RC-
8878 was severed and remanded to the Regional Direc-
tor after the Board, by order dated January 16, 1984, di-
rected the Regional Director to approve the withdrawal
of Case 17-RC-8878 and process UFCW's petition in
Case 17-RC-9569. 6 Briefs were filed by the General
Counsel, Respondent, and UFCW on May 25, 1984.6
On the entire record in this proceeding, including my
observation of the witnesses and their demeanor, and
after considering the aforementioned briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Monfort, a corporation, is engaged in the business of
slaughtering and processing beef, as here pertinent, at its
facility in Grand Island, Nebraska. 7 The complaints
2 The classifications are knife grinders, supply-warehousemen, elec-
tronic technicians, and janitors.
3 Those allegations deleted from the complaint at the hearing herein,
Tr. 1143, are not included here
4 According to the Supplemental Decision, G.0 Exh. 1(o), there were
1012 eligible voters of which 293 voted for UFCW, 80 for NMU, and
469 against the participating labor organizations. There were 2 void bal-
lots and 101 ballots were challenged.
'As noted in G.C. Exh. 25(E), the purpose of the withdrawal was to
obtain another election.
6 NMU did not file a brief, it did not present evidence herein, and its
representative, while he entered an appearance, was absent from most of
the hearing.
7 Monfort also has a facility at Greely, Colorado, but it is not directly
involved in this consolidated proceeding.
allege, Monfort admits, and I fmd that at all times mate-
rial it has been engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. It is alleged, ad-
mitted, and I find that UFCW and NMU are now, and
have been at all times material, labor organizations
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Before the October 9, 1981 Election
Monfort acquired the Grand Island facility from Swift
and Company in June 1979. Subsequently, the National
Labor Relations Board (the Board) issued a decision
which, as here pertinent, speaks to Monfort's conduct at
Grand Island after the acquisition. Monfort of Colorado,
256 NLRB 612 (1981). Pertinent portions of the decision
read as follows:8
This case involves the Employer's [Monfort's]
meat packing and processing plant in Grand Island,
Nebraska. Prior to the Employer's commencement
of production at the plant on August 20, the facility
was operated by another meat packer, Swift and
Company. For the 13 years preceding Swift's termi-
nation of operations on June 15, its production and
maintenance employees were represented by the
Amalgamated Meat Cutters and Butcher Workmen
of North America. 6 This same Union also repre-
sents employees at the Employer's main plant in
Greeley, Colorado, located about 450 miles from
the plant involved herein.
The Employer purchased the facility from Swift
in early 1979, and in February began to build an ad-
dition to the plant. In this connection, the Employer
hired construction workers, with the understanding
that these workers would receive preferential con-
sideration as production and maintenance employees
when the Employer started its meat processing op-
erations that summer.
In early June, two representatives of NMU—Ray
Zaporowski and Tom Blessie—began to solicit
signed authorization cards from employees at the fa-
cility during working hours. Zaporowski and Bles-
sie were aided in their solicitation by John and
Steve Hiatt, who were employees of the Employer.
In their organizational activities, all four had virtu-
ally unlimited access to the plant and to the Em-
ployer's construction employees at all hours of the
day for the purpose of obtaining signed authoriza-
tion cards.7
These organizing activities were carried out on
the Employer's premises during working time with
the approval of, and frequently in the presence of,
supervisors of the Employer. One example of how
far the Employer was willing to go in assisting the
Union occurred on June 14, when all the Employ-
er's managers and supervisors left the plant together
for an extended lunch of approximately 2 to 3
hours, thereby providing the NMU organizers with
'All dates in the Board's decision refer to 1979 unless indicated other-
wise.
MONFORT OF COLORADO 1433
an opportunity to solicit cards unhindered. The pur-
pose of this mass exodus was made clear by a fore-
man who told an employee just before this lunch
that all the foremen and supervisors were going to
leave so that NMU could have the "run of the
plant," and employees could talk freely with the
NIVIU representatives.
In the circumstances of this case, the extraordi-
nary and unfettered access to the Employer's facili-
ty given to persons soliciting cards for NMU, cou-
pled with the direct pressure of employees being so-
licited while supervisors watched approvingly, con-
stituted unlawful assistance by the Employer to
NMU. Such conduct by the Employer delivered the
clear message to employees that the Employer
wanted them to choose NMU as their bargaining
representative.
In addition to the unlawful assistance given by
the Employer to NIVIU in its solicitation of cards,
certain statements and misrepresentations made by
NMU organizers to employees also had the effect of
coercing them into designating NMU as their repre-
sentative and of tainting the Union's majority, if it
ever existed.
For example, NMU organizers obtained some
cards on the misrepresentation that a collective-bar-
gaining agreement already had been signed. On
other occasions while soliciting cards, NMU orga-
nizers told employees that the contract was being
typed up at that moment, thus leading them to be-
lieve that signing a card was a mere—albeit neces-
sary—formality because NMU already was their
bargaining agent.
Further prior to the June 14 recognition, NMU
representatives advised some employees that if they
signed a card they would be guaranteed a job in
production once the construction phase was com-
pleted, and that, if they did not sign a card, no
promise could be made about future employment.
In the context of this case, these latter inducements
differed greatly from the usual permissible asser-
tions that employees would attain more job security
as a result of union representation. As mentioned
above, the employees being solicited by NMU prior
to June 14 were hired for construction work of lim-
ited duration, with only the promise of preferential
consideration for future employment, and therefore
references to their continued employment in a pro-
duction or maintenance job necessarily took on
much significance.
Thus, unlike the normal situation, where an orga-
nizing union lacks the ability to carry out threats of
possible job loss, here the NMU threats carried con-
siderable weight inasmuch as they were directed
toward individuals who were not yet permanently
employed, and Who were well aware of the Em-
ployer's support for NMU. While the exact number
of cards affected is unknown, the Administrative
Law Judge found, and we agree, that these NMU
statements, as well as the Employer's unlawful as-
sistance, tainted the cards to such an extent so as to
negate any possibility that a majority of the cards
were uncoerced.
On the same day—June 14—that the Employer
granted recognition to NMU (purportedly on the
basis of the tainted cards), the parties negotiated,
agreed on, and executed a collective-bargaining
agreement, which contained, inter alia, a dues-
checkoff provision. 8 In light of the unlawful assist-
ance and coercion previously referred to, the par-
ties' hasty movement from demand for recognition
to signing of a contract is further evidence that they
felt compelled to act quickly, regardless of whether
the NMU actually represented an uncoerced majori-
ty, in order to avoid any claim for recognition and
bargaining by a rival union, particularly the UFCW,
the Union which represented the Swift employees
and the Employer's employees at its Greeley plant.
In our view, the combination of unlimited access
to the Employer's facility provided to NM1J, the
direct pressure on employees of being solicited by
NMU while supervisors watched with approval, the
misleading and threatening statements made to em-
ployees by NMU organizers, and the rapid and un-
verified grant of recognition by the Employer rea-
sonably tended to coerce employees in the exercise
of their free choice in selecting a bargaining repre-
sentative and tainted the Union's majority showing.
The situation here is very similar to that presented
in Vernitron Electrical Components, Inc., Beau Prod-
ucts Division, 221 NLRB 464 (1975), where the
Board found a less flagrant combination of factors
to invalidate an employer's recognition of, and exe-
cution of a contract with, a union.8
We conclude, therefore, that the June 14 collec-
tive-bargaining contract" was the product of a co-
erced majority and unlawful Employer assistance
and recognition of NMU. As noted above, every-
thing resulting from that contract, including the
checkoff of NMU dues and the August 20 agree-
ment concerning the production and maintenance
employees, also was invalid. Accordingly, we find
that the Employer has violated Section 8(aX1) and
(2) of the Act, and NMU has violated Section
8(b)(1)(A) of the Act, and Respondents must cease
giving effect to the aforesaid collective-bargaining
agreement
6 The name of the Union prior to its merger with the Retail
Clerks International Union to form the UFCW.
7 For example, the Administrative Law Judge found that the
Hiatts were permitted to take longer lunch hours and leave work
earlier than other employees, and that the Hiatts told a fellow em-
ployee that they were getting paid $100 per week to get signatures
for NMU.
8 The collective-bargaining agreement is undated and the signa-
tories to it refused to comply with subpenas directing them to
appear at the hearing in this proceeding. We fmd that it was exe-
cuted on June 14, since it purports to be effective from June 14,
1979, through June 14, 1982, and the Respondents' conduct subse-
quently to June 14—particularly the start of checkoff—gives rise
to the Inference that the agreement was executed on that date.
9 See, also, TuschalcAlacobson, Inc. t /a Franklin Convalescent
Center, 223 NLRB 1298 (1976); Howard Creations, Inc., 212 NLRB
179 (1974); Yankee Department Stores, Inc. a Subsidiary of Hartfield-
1434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Zody% Inc, d/b/a Zodys, Elkhart, Indiana, 211 NLRB 306 (1974);
Allied Supermarkets, Ina-Allied Discount Foods Division, 169 NLRB
927 (1968).
10 NMU's organizing efforts continued on through the summer
until production began on August 20. On that date, the parties
signed a "Memorandum of Understanding" which purported to
expand the June 14 construction employees contract to include the
production and maintenance employees recently hired by the Em-
ployer. Because we find the June 14 contract to be unlawful, we
find that any attempt to expand that contract to cover other em-
ployees was invalid Consequently, we need not determine whether
the August 20 document constituted a proper accretion clause.
The Board adopted the recommended order of the ad-
ministrative law judge entered July 11, 1980, ordering
Monfort, as here pertinent, to:
1. Cease and desist from:
(a) Giving unlawful assistance and support to Na-
tional Maritime Union such as unequal access to
plant premises and such as supervisor coercion of
employees, during a union-organizing campaign.
(b) Assisting or contributing support to National
Maritime Union, by recognizing or bargaining with
such labor organization as the exclusive representa-
tive of its Grand Island, Nebraska, plant employ-
ees—unless and until National Maritime Union is
certified by the Board as the collective-bargaining
representative of said employees pursuant to Section
9(c) of the Act.
(c) Maintaining or giving any force or effect at
Grand Island, Nebraska, to the collective-bargaining
agreement effective June 14, 1979, between Re-
spondent Employer and Respondent Union, and to
the subsequent memorandum of understanding
dated August 20, 1979, or to any other renewal, ex-
tension, or modification thereof; provided, however,
that nothing in this Order shall authorize the with-
drawal or elimination of any wage increase or other
benefits, terms, and conditions of employment
which may have been established pursuant to the
performance of said contract.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
[Footnote omitted.]
2. Take the following affirmative action designed
to effectuate the purposes and policies of the Act:
(a) Withdraw and withhold all recognition from
National Maritime Union as the collective-bargain-
ing representative of its employees unless and until
said labor organization has been duly certified by
the National Labor Relations Board as the exclusive
representative of such employees at its plant at
Grand Island, Nebraska.
The Order of the Board was enforced in Maritime
Union (Monfort of Colorado) v. NLRB, 683 F.2d 305 (9th
Cir. 1982).
David Wadsworth, a Monfort employee, testified that
in the spring of 1981 he had a conversation with General
Supervisor Harley Thomas in his office and that no one
else was present; that he and Thomas were arguing over
something that had been done on the kill floor and
Thomas told him that he "would never make a good
leadman for Monfort because of. . . [his] attitude" and
that he was "just like [Robert] Trosper. He's got a bad
attitude and his union activities isn't [sicl going to get
him anywhere either"; and that Bob Trosper was a
fellow employee.
Trosper testified that on May 20, 1981, leadman Fred-
die Lee told him that Harley Thomas wanted to talk to
him and he, Trosper, went to Thomas' office; that
Thomas had a sheet of paper but Trosper could not see
what was on it; that Thomas said he was looking for a
leadman and that he, Trosper, would be a good leadman
except he was involved with the union organizers to
which Trosper answered until the Company changed his
mind he would be; that he worked for Swift and Compa-
ny at Grand Island, and was a member of the UFCW at
the time; that right after he was hired by Monfort he
began passing out union authorization cards for the
UFCW and union stickers; that he was on the in-plant
organizing committee for the UFCW; that he attended
union meetings for the UFCW; that he passed out litera-
ture for the UFCW; that he passed out union authoriza-
tion cards in the plant for UFCW; and that some of the
union authorization cards were signed and returned to
him.
Harley Thomas testified that in the fall or possibly in
the winter of 1980 he recalled speaking to some employ-
ees about a leadperson's job; that he spoke with Wads-
worth; that he told Wadsworth that Respondent was
looking for another leadperson and he wanted to know if
Wadsworth was interested; that Wadsworth said yes;
that he did not discuss Wadsworth's union activities with
him at that time; that he also talked with Trosper at that
time saying about the same thing; that he was making a
list of people who were interested in being a leadperson
and that he did not discuss union activities with Trosper
nor did he recall discussing Trosper's union activities
with Wadsworth; that when he testified herein, he did
not specifically recall what he said and what they said
when he spoke to the individuals regarding the leadper-
son job; that this applies equally to Wadsworth and
Trosper; that Jerry Walford was the one selected for the
leadman position; that he, Thomas, did not select anyone
for a leadman position in the spring of 1981; that he did
not interview people for a leadman's job in the spring of
1981; and that he did not discuss Wadsworth's or
Trosper's union activity if in fact they had any at the
time.
On May 26, 1981, representatives of NMU and Mon-
fort signed the following, General Counsel's Exhibit 4:
AMENDMENT TO COLLECTIVE BARGAINING
AGREEMENT
It is agreed by and between Monfort of Colora-
do, Inc. (MC) and the Industrial, Technical and
Professional Employees Division, National Mari-
time Union, AFL-CIO (NMU), that the Collective
Bargaining Agreement between MC and the NMU
effective from June 14, 1979, to June 14, 1982, cov-
ering MC's Grand Island, Nebraska, facility, shall
be amended, subject to and expressly limited by the
contingencies set forth in numbered paragraph three
(3) below, as follows:
MONFORT OF COLORADO 1435
1. MC agrees that it will pay on December 21,
1981, to every employee on the payroll on De-
cember 7, 1981, a bonus of fifty (.50) cents for
every hour per week that the employee has been
compensated for since June 1, 1981.
2. MC agrees that it will divide among the eli-
gible employees as defmed in numbered para-
graph 1 above, on a pro rata basis, on December
21, 1981, fifty (.50) cents per hour which was ac-
crued for employees from June 1, 1981, to De-
cember 7, 1981, who are not on the payroll on
December 7, 1981.
3. MC and NMU recognize and agree that
there is currently outstanding a Complaint in
Case Nos. 17-CA-9064 and 17-CB-2126 wherein
the validity of the NMU's representative status as
the exclusive collective bargaining agent for the
employees covered by the Collective Bargaining
Agreement is in issue.
In the event that it shall be determined by a
Court of competent jurisdiction or the National
Labor Relations Board, at MC's exclusive discretion
as to which, that the NMU is not the lawful exclu-
sive collective bargaining representative and/or that
the Collective Bargaining Agreement between the
parties is invalid, then MC shall not be required
under any circumstances to pay the monies speci-
fied herein.
In the event that the National Labor Relations
Board or a Court of competent jurisdiction, at MC's
exclusive discretion as to which, has not rendered a
decision relative to the foregoing by December 7,
1981, MC may, at its discretion; decline to pay any
monies under this Amendment pending a decision
by the National Labor Relations Board or a Court
of competent jurisdiction, at MC's exclusive discre-
tion as to which, relative to the validity of the Col-
lective Bargaining Agreement and/or the NMU's
status as the employees' exclusive collective bar-
gaining representative.
A number of witnesses testified herein regarding
whether Monfort unlawfully rendered aid, assistance,
and support to the NMU. Trosper testified that in
August 1981 he saw Ed Jackson, who is a representative
of NMU and not an employee of Monfort, and another
man in the plant lunchroom and they were talking to a
group of employees telling them how good the NMU
was; that he argued with Jackson and Jackson indicated
that employees at Northern States Beef were upset with
the UFCW and were filing a suit against it; that he did
not know how long Jackson remained in the lunchroom
this time; that there were no supervisors present; that
there is another cafeteria in the plant that the lunchroom
he uses is used by the slaughter division, the coolers and
hide room; that the fab division does not use that lunch-
room.
'
and he did not see Jackson leave the lunchroom
since he, Trosper, left first.
Blue, who works on the fabrication side, testified that
she saw Jackson in the plant five times before the elec-
tion; that on one occasion, approximately 2 weeks before
the election, Jackson was in the breakroom; that there
were about 185 to 200 fabrication employees present;
that Jackson had someone with him, but she did not
know who he was; that Jackson went from table to table
talking to people and telling them that the NIAU was
going to close the plant if the UFCW got voted in and
the employees told him that NMU could not close the
plant because they had no authority to close it; that
Jackson then said that Ken Monfort was going to close
the plant and the employees said no because Monfort
does not have complete authority either; that no supervi-
sors were present; and that to gain access to the break-
room an individual would have to go by the guard shack
or be let in through a special gate to which only supervi-
sors have the key.
Employee Lorrane Simons testified that she saw Jack-
son in the cafeteria in the plant before the election
making speeches about NMU on four occasions; that on
each occasion approximately 75 to 100 employees were
present; that Supervisor Steve Mason was present on one
occasion while Jackson was speaking to the employees in
the cafeteria during lunchtime; that Mason did not make
any effort to stop Jackson; and that she never saw a
UFCW official or representative who is not an employee
of Monfort in the lunchroom.
Employee Patrice LaBtie testified that she saw Jack-
son in the cafeteria of the plant twice before the election,
the first time being about 2 weeks before the election;
that Jackson was speaking to two UFCW supporters but
she could not hear what was being said; that a week
prior to the election she again saw Jackson in the cafete-
ria; that he went to the front of the cafeteria and spoke
to the people as a group; that he said that the NMU had
contracted for the bonus with Monfort and that if the
NMU was not reelected Monfort had the choice to
either give the bonus or withhold the bonus; that she
never saw any employee of the UFCW in the plant cam-
paigning and that the closest point to the plant that she
ever observed an employee of the UFCW campaigning
was outside the gate, which is outside the parking lot;
and that when Jackson, accompanied by then nonetn-
ployee Wayne Cooper, was in the cafeteria talking to the
employees, she could not recall whether anyone from
management was present.
Employee abier Rojas testified that he saw Jackson at
dinnertime in the plant lunchroom within 2 weeks of the
election; that he also saw Jackson on the kill floor and
walking all over the plant; that when he saw Jackson in
the lunchroom there were about 20 to 25 employees
present, who were on their lunchbreak; that Jackson was
talking to the employees about NMU and UFCW when
Supervisor Gaylord Hansen walked into the lunchroom,
purchased something and turned around and walked out;
that when Hansen entered he was no more than 10 feet
from Jackson; that while Hansen was in the room Jack-
son was telling the employees that the UFCW was not a
very good union because it caused a lot of strikes; and
that Hansen was the only supervisor he saW in the lunch-
room when Jackson was talking.
Three employees, Nelson, Trosper, and Larry Petit,
testified collectively that Jackson was in the plant cafete-
ria with Cooper speaking to a group of about 50 employ-
1436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees during the week before the election; and that two Su-
pervisors Harley Thomas and Gaylord Hansen, were
present while Jackson spoke to the employees but neither
supervisor did anything to stop Jackson from talking.
Lucinda Bauers testified that on several different occa-
sions she saw Jackson walking through the Monfort
plant in Grand Island; that on October 8, 1981, Jackson
was in the plant cafeteria during a break period; that
there were approximately 200 employees present; that no
supervisors were present at the time; that Jackson talked
to the employees openly telling them that their only
choice in the upcoming election was to vote for NMU
because if UFCW came into the plant it would almost
guarantee that the plant would either be closed or the
employees would be out on strike; that Jackson told the
employees that they would get their bonuses if they
voted for NMU but that if no union was voted in the
Company would not have to pay them and if UFCW
was voted in the Company would not have to pay; that
she never saw UFCW officials in that cafeteria or for
that matter anywhere else in the plant; that the involved
cafeteria is on the top floor over fabrication; and that at
the time to get to the cafeteria if you were not wearing a
hard hat you would have to go in the side entrance or
you would have to walk down a corridor and pass the
foreman's office, then go up two flights of stairs to the
cafeteria.
Harley Thomas testified that he knew Jackson as a
representative of the NMU; that just before the election
in October 1981 he saw Jackson in the plant "[n]ot in the
lunchroom; maybe in the hallways; not in the lunchroom
that I recall"; that when he saw Jackson in the plant in
the ball he was talking to people; and that the hallway is
located right off the kill floor.
Gaylord Hansen, who was then slaughter superintend-
ent, testified that he knows Jackson of NMU; that he
saw Jackson in the cafeteria about 2 or 3 weeks prior to
the election in October 1981; that he went into the cafe-
teria to get a pop out of the pop machine and he saw
Jackson there talking to some employees; that he ob-
served Jackson for maybe a minute or two and he
walked up to Jackson and asked him what he was doing
and Jackson said he was leaving the plant; that when he
spoke with Jackson he was in the hallway outside the
cafeteria; that Jackson then left; that he also saw Jackson
two or three times talking to employees outside by the
guard shack; and that he never saw the contract between
Monfort and NMU but he knows NMU had an office in
the plant.
On September 4, 1981, a Decision and Direction of
Election was entered in Case 17-RC-8878 by a Regional
Director of the Board directing an election by Monfort's
employees, General Counsel's Exhibit 7.
The following two documents, General Counsel's Ex-
hibits 5 and 6, respectively, are self-explanatory:
MEMO
September 11, 1981
TO: All Hourly Paid Knife Grinders, Supply
Warehousemen, Electronic Technicians
and Janitors
FROM: George Zahn
Maurice Dalton
Re: NLRB Decision on Election.
The National Labor Relations Board has ruled
[in the above-described September 4, 1981, Deci-
sion] that your job classifications will be included in
the production unit for any forthcoming union rep-
resentation election. That means that you would be
legally included as represented by any union that
might win the forthcoming election.
For one thing, this means that your job classifica-
tion would not normally be included in any benefits
or wage increases that would go only to non-union
personnel.
In the recent hearing held by the NLRB in
Grand Island, the Company requested that your job
classifications be excluded from the election unit.
However, the United Food and Commercial Work-
ers Union argued successfully that you should have
to be eligible to pay union dues if any union wins
the election.
If the majority of all the employees eligible to
vote in the election decide to vote no union, then
none of you will be requested to join the union and
pay union dues.
We think you have been better off without being
represented by a union and we encourage you to
vote 'no union' when the time comes.
MEMO
September 11, 1981
TO: All Hourly Employees Classified as Scalers,
Production Console Operators, Quality Control
Technicians, Beef Graders and Transportation
Maintenance Employees
FROM: George Zahn, Slaughter Plant Manager
Maurice Dalton, Processing Plant Manager
RE: Rate Review
As you may know we have been reviewing the
salary and wage status of our non-union employees
during the last month.
After reviewing your wage status we have con-
cluded that your hourly rate should be increased
50$ per hour effective August 31, 1981.
Future wage and salary reviews will be undertak-
en from time to time for non-union personnel and
we will keep you advised. You will, of course, receive
the bonus paid to non-union hourly employees in De-
cember. Non-union status includes personnel in
those job classifications determined not eligible to
vote in any union representation election.
We appreciate your service and we look forward
to your continued relationship with Monfort.
If you have any questions please let us know.
Employee John Heaton testified that in the fall of
1981, a couple of months before the election, he hand-
billed about 15 to 20 times for UFCW; that he handbilled
with representatives of UFCW, namely, Frank Jackson,
Skip Neiderdeppe, and Steve Thomas; that when he
handbilled with these representatives he did so by the
MONFORT OF COLORADO 1437
street next to the gate going into Monfort; that during
this 2-month period the only place he saw representa-
tives of UFCW handbill was at this location; that during
this period he saw representative Jackson of NMU hand-
bill down by the guard shack at the entrance of the
plant9 that the guard shack is 150 yards closer to the
plant than the street; that he never observed any repre-
sentative of UFCW inside the plant at Monfort; that he
did observe representatives of NMU inside the plant,
namely, Ed Zaperoskie, Jackson, and Cooper, all who
were not Monfort employees; that the organizing com-
mittee of which he was a member drafted a letter (C.P.
Exh. 3) dated September 10, 1981, addressed to Gene
Meakins, vice president of industrial relations of Mon-
fort, requesting that Monfort treat UFCW the same as
NMU and pointing out specific rights of workers; and
that employees on the organizing committee for the
UFCW would sometimes pass out literature by the guard
shack and when Jackson tried to stop them Heaton told
Jackson that he, Heaton, had just as much right to be at
the guard shack.
Steve Thomas, who is an International representative
of UFCW, testified that he was involved in the general
organizing campaign at Monfort's Grand Island plant in
1981; that he handbilled outside the gate leading into the
parking lot, between the gate itself and the roadway,
which is about 20 feet from the gate; that he never hand-
billed at any other location other than on the county
easement; that about 1-1/2 weeks before the election he
attempted to handbill inside the first gate, the outside
gate, on two or three different occasions; that he was ac-
companied by Gilbert Berarra and Vickie Helyer, two
International representatives for UFCW; that they
moved inside the gate about 50 feet and the security
guard came out and asked them to leave; that he did not
leave because Jackson from the NMU was inside the
inside gate handbilling employees, and he, Thomas, said
"if they are going to let those people in here why don't
you let us in," and she, the guard, said, "well you don't
have permission to be in here, you'll have to leave"; that
he stayed there until the police arrived, 10 or 15 minutes
later; that when they asked him to leave he left; that a
few days before the election he again attempted to hand-
bill inside the outer gate; that he was accompanied by
Neiderdeppe, who is president of Local 22, and Joe De-
Marus, a business agent for Local 7 out of Denver, Colo-
rado; that a security guard came out and asked him to
leave and he and the two men accompanying him left;
that it would not be fair to say that the UFCW would be
equally able to handbill the same people as Jackson
handbilled; that as far as he knew employees who were
supporters of UFCW were not denied the right to dis-
9 Employee Lucinda Bauers testified that about a week and a half
before the election she saw Jackson handbilling outside the guard shack
and that she never saw UFCW officials handbilling at this point but
rather they were out by the main entrance where the cars come on to the
property. And employee Linda (Tanner) Baltazar testified that Joe Rodri-
guez handed her a sample ballot by the guard shack during the campaign
before the involved election, G.C. Exh. 3 (described more fully infra);
that at the time Rodriguez was not employed at Monfort since he had
been either fired or quit; that Rodriguez was standing where the employ-
ees come out near the security guard shack; and that he was inside the
fence, which runs along the perimeter of the parking lot.
tribute literature inside the Monfort plant at Grand
Island; that he could not reach the same people as Jack-
son because company cattle trucks came in and out of
the gate and those handbilling would have to move clear
into the "barrow pit" to get out of their way and cars
would go in and out; that traffic became congested and
those handbilling outside the gate would have to step
back to allow traffic to begin flowing again, and people
would come by with their windows up; and that lots of
people were missed at the gates.
Howard Braden, who at the time was fabrication su-
perintendent, testified that during the campaign for the
election in October 1981 Monfort had a policy regarding
campaigning and handbilling, namely, that employees
could campaign in the plant and nonwork areas and
parking lot; that nonemployees were out on the highway;
that campaigning did occur in the guard shack area; that
he knew the NMU campaigned in the guard shack area;
that he knew the Company handed out bills and he was
sure that the UFCW did too, because "going through a
number of times, [he] . . . picked up different handbills"
and he recalled they were from the UFCW; that he did
not know for sure and he could not say that UFCW rep-
resentatives handbilled at the guard shack; that when he
passed through the guard shack area he did not to his
knowledge see nonemployees band out handbills or cam-
paigning and that the Company had a policy that did not
allow them in that area that nonemployees of the Com-
pany were not allowed on the premises; that he did not
recall seeing this policy written anywhere; that he really
did not know if it had ever been communicated to em-
ployees; that he knows Jackson who is with NMU and
who is not an employee; that he never saw Jackson
handbill at the guard shack; that some days he, himself,
passes by the guard shack on the way to the plant; that
he never saw a UFCW representative handbill at the
guard shack or on the premises; that the agreement be-
tween Monfort and NMU (C.P. Exh. 4, art. 25) states
that representatives of NMU were allowed to visit the
plant; and that he really did not know whether the Com-
pany had a policy under its agreement with NMU to
allow NMU representatives inside the plant.
A number of employees and one supervisor testified
regarding the above-described alleged threats. Nelson
testified that on September 23, 1981, he was standing on
the loading dock with employees Barry Decker, Randy
Buettner, Wilbert Timberland, and one or two more em-
ployees whose names he could not remember; that they
were talking about the UFCW T-shirt Nelson was wear-
ing and Forman William Zuehlke walked up and asked
what they were talking about; that when Nelson replied
the UFCW T-shirt, Zuehlke said "If that union gets in,
you're going to be on the unemployment line—if that
other union gets in, you're going to be on the unemploy-
ment line"; that Zuehlke then sent Nelson to push cold
meat and let the rest of the employees stay there; that
this occurred about 6 a.m. right before the employees
were getting ready to punch in; and that some of the
other employees with him at the time were wearing
UFCW stickers on their helmets but he was the only one
wearing the UFCW T-shirt.
1438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employee Bernard Hansen' testified that on September
25, 1981, employees Nelson, Jim Dory, Todd Shoemak-
er, and Bobby Hulagan were standing on the loading
dock after dinner break getting ready to go back to work
when Supervisor William Zuehlke "came by and told us
that we'd better hope that the other union got in or we'd
all be fired";" that Zuehlke was referring to the UFCW
as it was just prior to the election; that he, Hansen, had a
couple of stickers on his helmet one of which read Iflire
the NMU before they do it to you" and the other one
had a picture of a man with a screw through his body
saying "[v]ote for the NMU and get your reward"; that
all the employees with him had UFCW's stickers on
their helmets; that he had been active on behalf of
UFCW in that he passed out literature, wore UFCW
stickers on his helmet, and talked to employees about
why they should vote for UFCW; and that Zuehlke
never asked him or any other employee, to Hansen's
knowledge, to remove a union decal from his helmet.
Bernard Hansen also testified that on September 29,
1981, William Zuehlke spoke to him in the coolers with
Zuehlke saying that he just came back from a meeting
and they told him that if this union got in through the
election that they were going to open the Greely plant
and they would close down the Grand Island plant; that
what Zuehlke said was that Respondent was going to
open the Greely plant any day and that if the Union got
in, the Grand Island plant would be closed; and that
while Zuehlke did not specifically indicate which union,
Zuehlke was referring to the UFCW because the NMU
was already in the plant. William Zuehlke testified that
he did not recall ever discussing the reopening of the
Greely, Colorado plant with Bernard Hansen.
Blue testified that within 2 weeks before the election
she was sitting at a table in the lunchroom and Supervi-
sor Steve Mason said that if the UFCW got into the
plant that they were going to have a strike; that they
were going to close the plant down; that they would be
out on strike, and they would be out of a job; that she
said "no that was not the case because the TJFCW was
the employees and we didn't want to be out of a job";
and that when Mason stated that if UFCW was voted in
there would be a strike, she was aware of the fact that
strikes were commonplace with the UFCW in meat
packing plants in Nebraska.
Employee Diane Gillham testified that about 2 weeks
before the election she was in the lunchroom with
Debara Neibors and Lorrane Simons; that Mason sat at
the same table; that Mason said that if the union got in,
the plant would close and everything would be moved
out to Greely; that since NMU was already at the plant
in her opinion Mason was referring to UFCW; that the
first time she spoke to someone about the incident with
Steve Mason was 1-1/2 weeks before she testified herein;
that Mason's statement was made during a break; that it
was the afternoon break; that Mason usually sat with
10 Nelson also testified that on September 25, 1981, he was standing on
the loading dock in the coolers along with Bernard Hansen and Jim
Dory and William Zuehlke walked up to the group and told them to get
busy and said that "if that union gets in that you'll be fired." Nelson testi-
fied that the employees standing there at the time all had UFCW stickers
on their helmets.
them at most every break; that she did not recall any-
body who might have been sitting nearby; that she
knows Blue by sight and she was sure Blue was not
there; that she had a UFCW sticker on her helmet but
Supervisor Monte Wooster made her take it off and she
never put it back on; and that while she wore a UFCW
sticker on her helmet for a while, she did not engage in
any other activities on behalf of the UFeW. Neibors tes-
tified that approximately 2 weeks before the election
herein she was sitting in the lunchroom with Gillham
and Lorrane Simons eating lunch between 11 and 11:30
a.m.; that Mason was also there; that Mason said that if
the UFCW would be voted in, the doors would close to
the plant and everything would move out to Greely; that
while she signed a UFCW card she did not wear stickers
nor did she attend union meetings, nor did she ever dis-
cuss with other employees that she was for the UFCW;
that before Mason made this statement she had attended
a meeting that was held at a portable building adjacent
to the plant at which some company representatives
talked to the employees about the Union; that manage-
ment representatives told the employees at the meeting
that if the UFCW or NMU was voted in, that the Com-
pany would negotiate with either union; that she be-
lieved Gene Meakins, vice president of Respondent, was
present during the meeting at the portable building; that
she knew Blue and that she was not sitting at the same
table; that Mason was already at the table when she and
Gillham sat down; that she and Mason are friends and do
socialize outside the plant; that neither Gillham nor Lor-
ram Simons said anything when Mason made his state-
ment; that she discussed this matter with the Board rep-
resentative for the first time 1 week before she testified;
that she thought other people could have heard the con-
versation or rather the statements Mason made, namely,
all the employees who were sitting at the table could
have heard it; and that she did not think that someone
sitting at an adjoining table would have heard what
Steve Mason said because he did not say it loud enough.
And Lorrane Simons testified that in her presence and in
the presence of Gillham and Neibors, Mason once said in
the cafeteria about 2 weeks before the election that if the
UFCW came in the plant would close down and Dick
Monfort was moving to Colorado and he was going to
be right behind him; that she wanted to see the UFCW
become the representative of the employees; that she
wore a UFCW sticker; she attended UFCW meetings,
but she did not pass out literature for UFCW nor did she
ever distribute authorization cards for UFCW; that she
did sign a UFCW authorization card and she wore a
UFCW button for 1 day; that the statement she heard
Mason make was in the lunchroom while she was sitting
right across from Mason about 2-feet away; that she was
sure that Mr. Mason said that Dick Monfort was moving
back to Colorado and he would be right behind him; that
this statement was made at the same time as he, Mason,
said if the UFCW came into the plant it would close
down; and that neither she nor Neibors nor Gillham said
anything.
A number of employees testified about the above-de-
scribed allegations regarding interrogation. Marcia Lee
MONFORT OF COLORADO 1439
testified that a couple of weeks before the election, Su-
pervisor Cleo Dukes walked up to her while she was
making boxes in Offal; that Dukes asked her what she
thought about all the union stuff, and she told him that
she really did not know what to think about it; that he
told her that "he thought that if the union got in that the
plant would probably close because he didn't think they
would be able to negotiate, to agree on a contract"; that
while she was for the UFCW, signed a card, and went to
meetings, she did not wear a sticker on her helmet, she
did not pass out literature, but she did talk to people
about signing cards; that she passed out cards at work,
she got cards signed, she spoke to employees about why
she thought they should vote for th UFCW [a] little bit";
that Dukes said that he did not think they would be able
to come to an agreement, which meant to her that they
would not be able to get a contract; that she saw news-
paper articles that had been posted in the plant about the
strike that the UFCW had at Monfort's Greely, Colora-
do plant; that in the Company's literature and in the
films and slides a number of instances or examples were
cited where in Nebraska, the UFCW and various compa-
nies had been unable to reach an agreement and there
had been strikes; that she recalled information distributed
to the employees either through films or slides or litera-
ture about strikes by UFCW at IBP (Iowa Beef Proces-
sors) and Omaha companies and other companies around
the country because they were unable to reach an agree-
ment, and that with the strikes plants had closed; that in-
formation was distributed to the employees during the
campaign; and that certain contracts between a company
like Swift and UFCW, at least from what Monfort indi-
cated, were too expensive and the plants had to close.
Blue testified that approximately 2 weeks before the
election she spoke with Supervisor Dan Van Matre; that
Van Matre had been taking employees up one by one to
a little room off the cafeteria; that Van Matre asked her
how she felt the election was going to go; that she told
Van Matre that she believed it was going to go UFCW;
that Van Matre asked her then why did she feel that she
needed this union and she replied "because you're hurt-
ing and crippling and abusing my friends and . . [the
employees] can't stand to see the pain no more and
something has to be done about it"; that Van Matre then
asked her what she felt about nonunions and she said "I
wouldn't want to see this plant non-union"; and that she
then returned to work.
Karen Bottorf testified that on September 25, 1981,
Van Matre came and took her off the line up to the cafe-
teria, toward the back of the cafeteria; that Van Matre
asked her what she thought of the election and she told
him she really did not know; that he asked her what
complaints she had against the Company and she told
him that she was sick and tired of having to work two
jobs to make a living and she had a lot of dental work
that needed to be done but could not afford it; that she
also told him that she was tired of not being told that she
had to work on Saturday until Friday night, which
meant that she could not make any plans for the week-
ends, and she would not vote for NMU because she had
a complaint against the nurse and when she went to the
NMU she heard nothing from them; that Van Matre told
her that if the UFCW came in she would still have her
job but he could not be sure that she would be able to
keep it because of some recent problems she had; that
Van Matre said that if the UFCW got in, the employees'
bonuses would be tied up and it could be 2 or 3 years
before it went to court—before we could get them; that
the conversation lasted about 20 minutes; that she sup-
ported the UFCW, she wore a sticker, she passed out
cards, she signed a union card, she attended union meet-
ings all dealing with the UFCW, she had cards signed
for the UFCW, but she did not pass out any literature;
that she recalled Van Matre saying to her how can you
be sure you are going to get the bonus if the UFCW
comes in because if the contract is broken with the Mari-
time Union and it is taken to court it could be 2 or 3
years before you get any bonuses; that she was aware
before she spoke with Van Matre that the question of the
bonus had been taken to court; that she was one of the
complainants in the court case; that it was no surprise to
her that the bonus question was in court; that prior to
talking to Van Matre she wore a UFCW sticker; that the
day she spoke with Van Matre she had a UFCW sticker
on her helmet; and that she was wearing her helmet that
day.
Debris Kuta testified that about 10 days before the
election or about September 30, 1981, she was told by a
leadlady that Van Matre wanted to talk to her upstairs in
the cafeteria; that Van Matre told her that he was talking
to all his people about the Union in the upcoming elec-
tion; that he asked her what her feelings were about the
situation; that she told him she was undecided; that then
Van Matre said that if the employees go nonunion he
was thinking about forming a council or a committee so
that "we would resolve our problems"; that Van Matre
said that if 1UFCW should get in, the foreman's job
would be much more difficult and that even though
Kuta had a good work record, it would go against her if
she missed 3 or 4 days; that Van Matre said that if
UFCW gets in and the employees became dissatisfied
with it for any reason, it might be very difficult to get
rid of it; that she signed an authorization card for the
UFCW, she wore LTFCW stickers on her hardhat, she
did not attend any union meetings, she did not pass out
union literature, and she did not pass out union cards;
that she recalls stating to Van Matre in response to one
of his questions that she thought that both the foremen
and the employees would benefit by the Union being in;
that she and Van Matre talked for about 40 minutes; that
during the meeting she more or less expressed her opin-
ion about Unions; that she was not going to come out
and tell him she was for or not for the Union; that she
did not have a UFCW sticker on her helmet at the time;
that earlier she had one on and she tore it off and she put
another one on several, days before the election; that she
had a sticker on her helmet before this meeting and part
of the time she wore the sticker on her helmet while
working; that before she went up to the cafeteria to
speak to Van Matre other employees had told her about
what Van Matre was saying; that Van Matre did not en-
courage her to vote; that she told Van Matre that she
was in a union at her prior place of employment; that she
1440
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told Van Matre that she was undecided about the Union;
that Van Matre did not encourage her to vote nonunion;
that she removed the sticker from her hardhat probably
several days before the meeting because she did not want
anybody to know what her feelings were; and that some-
time after the meeting she put it back on because she
wanted to but she did not know why she did it.
Dan Puffins testified that in the latter part of Septem-
ber 1981, Supervisor Kim Vanderloo spoke to him on
the line floor for about 45 minutes; that Vanderloo asked
him how he thought the election was going to come out
and what he thought of UFCW and NMU; that Vander-
loo asked him if he did not, think that maybe nonunion
would be the way to go and that the employees could
get a committee together and appoint a spokesman and
that if this approach was taken Ken Monfort would not
have to spend about $15,000 for, lawyers to fight the
Union; that Vanderloo then gave Puffins a piece of paper
which indicated on one side what the Unions could do
for the employees and on the other side what they could
not do for the employees; , that Vanderloo said that
UFCW had closed several different plants and that if
Monfort's Grand Island employees ever did go out on
strike Monfort would probably, close this plant down
too; that he wore union stickers on his hardhat and was
never told to take them off; that he was an active sup-
porter of UFCW in that ,he Timed out literature for
them, he passed out union cards, he :went to union meet-
ings, he tried to convince other 'employees to vote for
UFCW and he was open about his support for the
UFCW; that after his conversation, with Vanderloo he
continued to pass out literature 'for the UFCW, he con-
tinued to wear his union stickers on his hat and he con-
tinued to attend union meetings and was a vocal support-
er of the Union in the plant; that previously he had
heard elsewhere that the UFCW had caused a number of
plants in Nebraska to close and it did not come as any
great shock or surprise to him When Vanderloo made
this statement to him; that ,before talking with Vanderloo
he was aware of the fact that there were some strikes in
Nebraska at meat packing plants and he remembered that
some of these meat packing plants had employees who
were represented by UFCW, and so Vanderloo's state-
ment did not come as a surprise; and that he did not ask
VanderIoo any questions during the conversation—he let
Vanderloo do the talking.
Nelson testified that on October 6, 1981, he was on his
way outside to seal a truck and Harley Thomas stopped
him in the hall and asked him who he was going to vote
for and Nelson pointed to the stickers on his hardhat and
said "it is kind of obvious isn't it" and Thomas said that
"he knew that I was handing out UFCW T-shirts in the
plant and UFCW stickers in the plant"; and that he then
went outside and sealed the loaded truck.
LaBrie testified that on October 8, 1981, Supervisor
Tim Zuehlke spoke to her about the election; that she
saw Zuehlke coming down the line speaking to several
people; that she heard Zuehlke ask the woman next to
her, who was Kathy Houser, how she planned on voting
in the election tomorrow; that she did not hear Houser's
reply; that Zuehlke then came to her, Laurie, and asked
her how she planned on voting in the election the fol-
lowing day; and that she told Zuehlke that she did not
feel that it was any of his business so he turned and
walked off.
At least seven employees who attended testified about
a speech Ken Monfort, president of Respondent, made to
about 200 fabrication employees on the first or "A" shift
about 2 weeks before the election. Blue testified that Ken
Monfort asked the employees to give him some time and
let him run the plant nonunion; that Monfort said that he
would set up some committees for the employees; that he
would have a grievance committee; that if the grievance
committee could not settle things for the employees, then
he would be available to the employees 1 day out of the
month; and that he would come and settle it personally
himself. Bauers testified that Respondent shut everything
down and the whole fabrication floor listened to the
speech; that Monfort made two comments-that interested
her, specifically, if UFCW was voted in, he said that it
would take 2 to 3 years to negotiate a contract and it
would probably take just as long to go through the court
for the employees to obtain their bonuses; that it was dif-
ficult to hear Monfort; and that she walked forward and
this is when she heard his comments about the UFCW.
Linda (Tanner) Baltazar testified that Monfort said that
he would negotiate with the UFCW if it won the elec-
tion. LaBrie testified that Ken Monfort indicated that he
was a fair employer and there really was no reason for a
union in the plant; that he, Monfort, believed he paid fair
wages and the employees were happy; and that if
UFCW should be voted in there could possibly be prob-
lems such as a shutdown of the plant if the UFCW did
strike; that if the employees voted for 'UFCW and it
asked for higher wages, Monfort could not afford them
and still show a profit and he would possibly have to
close down the plant, which would mean a loss of all
their jobs; that she could not recall whether Monfort
said anything about the bonus; that her memory of the
first speech was not too precise; that prior to the election
in October 1981 she was aware of the fact that there
were strikes in Nebraska at meat packing plants in which
UFCW represented the employees; that she was made
aware of this by the media, mainly TV and newspapers;
that she was also aware of the fact that at least some of
the Nebraska meat packing plants where employees were
represented by UFCW closed and she was made aware
of this by the TV and newspaper reports; that by TV
and newspaper she also became aware of the fact that
Nebraska meat packing plants where the UFCW repre-
sented the employees had been shutdown during the
term of the strike; and that she was aware prior to Mon-
fort's first speech both from TV and newspaper reports
that the UFCW had caused some meat packing plants in
Nebraska to close because the company could not afford
the wage demands. Nelson testified that Ken Monfort
said that if the UFCW won the election he would sit
down and negotiate with it; and that Ken Monfort's
statement about the bonus was that if the employees
voted for the Company they would get their bonus, if
they voted for NMU they would get their bonus, and if
they voted for the UFCW their bonus would be tied up
in court. Puffins testified that Ken Monfort said if he
MONFORT OF COLORADO 1441
ever decided to open the Greely plant again it would op-
erate nonunion; that the yard workers up there were
union at one time but they voted the union out and he,
Monfort, thought that they were better off now than
they were before they had the union there; that Monfort
at this meeting -did not specify which union had been at
the Greely plant and that actually he could not remem-
ber whether Monfort indicated what union had been at
the Greely plant; and that it was difficult to hear even
though Pullins was only about 15 feet away from Mon-
fort. Larry Smith testified that Ken Monfort said that if
either union, UFCW or NMU, was voted into the plant
that the bonus could be tied up for some time; that the
UFCW was the sole reason why the Greely plant was
shut down; that if no union was brought into the plant
there would be no tie up on the bonus and it would pos-
sibly be paid by December 21; that he would return to
the plant once a month and visit with employees on their
problems; that Monfort said that the bonus would be tied
up, he did not say that the bonus would be tied up in
court; that it was Jackson who said at one point in the
cafeteria that the bonus would be tied up in court; that
Monfort said he would not negotiate with the UFCW re-
garding benefits, medical, dental, and optical; that he,
Smith, was standing 40 feet away from Monfort when he
gave the speech; that Monfort said that if either union
won the election the bonus would be tied up; and that he
believed Monfort said that the bonus would be paid on a
specified date or by a specified date.
Tony Lopez testified that several weeks before the
election a meeting was held on the kill floor with ap-
proximately 80 employees attending in addition to the 19
from Offal and Supervisors Dick Decker, Chuck Oxnor,
Harley Thomas, and Gaylord Hansen were present. Ken
Monfort did the talking. Monfort was described as being
the plant manager. Lopez testified that the meeting lasted
20 minutes; that Monfort said if NMU won the election
the employees would get their bonuses but that if
UFCW won, their bonuses would be tied up in court;
that Monfort also said that he would like to see the plant
run the same way; that he wanted to see NMU and not
have any other union interfere; that he knew that there
was a lot of harassment on the job and people were get-
ting fired; that he would be back after the election
maybe once or twice a month to talk to any individual
about their problems on the job; and that there was no
past practice of sending a member of management
around to employees to talk about their problems or
complaints.
Lopez also testified that a second employee meeting
was held 1 week before the election on the kill floor and
it was attended by the same people, namely, the kill floor
and Offal people and some supervisors; that the meeting
lasted about 15 minutes and Ken Monfort said that he
would promise employees that they would get their
bonus; that the plant was a good plant to work for and
that he would be back to see employees after the elec-
tion to talk to individuals; that there would not be any
firings without his okay; that he, Monfort, wanted the
plant to win the election; that he indicated in his affidavit
to the Board in November 1981 that during the second
speech Monfort said he would promise the employees
that they would get their bonus on December 21, 1981;
that he was a plaintiff in a lawsuit filed against Monfort
before the election to compel the Company to pay the
bonus and he participated in a demonstration in front of
the courthouse regarding the lawsuit; and that Monfort
said there had been some job harassment and some fir-
ings that he did not think were fair and he was going to
put an end to that.
Kuta testified that about a week before the election
Ken Monfort spoke to about 250 people in fabrication;
that Monfort was standing on the platform about 5 or 6
feet up in the air; that Monfort talked about the problems
the plant was having, namely, the price of cattle and the
Grand Island tornado, then Monfort said that they had
made some money but not a whole lot; that Monfort said
that if they went nonunion he would be back every
month to help employees with their problems; that Mon-
fort said that the reason the Greely plant was closed was
because of union-related activities; that while Monfort
was trying to explain the circumstances surrounding the
Greely plant closure she did not understand all what he
was trying to say; that she did not recall Monfort saying
that if UFCW won the election he would sit down and
negotiate; that she did not recall Monfort saying that
wages and benefits would be subject to negotiation if
UFCW won; that when Monfort gave his two speeches
it was very quiet, that she was standing about 15 feet
away from Monfort; that Monfort said that the strike
was going on for such a long period at the Greely plant
and he could not afford to reopen it; and that Monfort
turned as he spoke and she could not hear everything he
said.
Linda (Tanner) Baltazar testified that Ken Monfort
spoke about a week before the election to everyone in
fabrication from a little scaffold over the line;, that Mon-
fort said that if NMU or no union won, everything
would stay the same; that if UFCW won, there would be
negotiations; that sometimes such negotiations, take up to
2 or 3 years; that her Board affidavit of November 17,
1981, regarding Monfort's speech does not indicate that
Monfort said to the employees that it could take 2 to 3
years to negotiate with the UFCW; and that when she
testified herein she was not sure that Monfort made the
statement.
A number of employees also testified about speeches
Ken Monfort gave to them 1 or 2 days before the elec-
tion. Kuta testified that about 2 days before the election
Ken Monfort gave the second speech that she heard to
about 250 employees in fabrication; that Monfort told the
employees about the bonus and benefits; that Monfort
said that if they would go nonunion, they would not lose
their bonus or benefits but he said that if they go UFCW
he could not guarantee them anything; that someone
asked about working on Saturdays—whether employees
could be notified on Thursday rather than Friday so that
the employees could plan their weekends and Monfort
said it would be very difficult to predict the market at
that time but he would work with us on that situation;
that Monfort said that if the employees voted for one of
the two unions he could not guarantee the employees
anything regarding the bonus and that she was positive
1442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of this," and Monfort used the word unions plural and
she was pretty sure of that; and that her affidavit indi-
cates that "He said we would be guaranteed our bonus
and other benefits if we went non-union, just like we had
under the NMU."
Bauers testified that Ken Monfort spoke to the em-
ployees on October 7, 1981; that everything was shut
down and all the fabrication employees listened; and that
Monfort went over the same ground indicating that he
really did not want to negotiate a contract with UFCW
and urged the employees not to vote in the Union.
Puffins testified that he attended another employee
meeting the day before the election; that the meeting was
held on the line floor and the whole A shift attended in-
cluding the supervisors; that again Ken Monfort did the
talking at the meeting, which lasted about 15 minutes;
that Monfort said that if the employees wanted to get a
committee together he would talk to them and would
bargain with the committee; that Monfort also stated that
if the employees voted nonunion or went with the NMU
they would get their raises on December 3, 1981, plus
their bonuses on the 21st, but if the employees went with
I.TFCW they would have to renegotiate the whole thing
and he, Monfort, did not know for sure when they
would ever get it; that it was his understanding that em-
ployees would receive a bonus if the NMU or no union
won the election; that Monfort did mention the fact that
he was going to come in 1 day a month from Greely to
air the employees' disputes or complaints and review fir-
ings that they did not believe were warranted; that Mon-
fort did not give a date as to when these programs
would begin; that Monfort had not in the past come to
the plant and talked to employees about their problems;
that, after refreshing his recollection by looking at his af-
fidavit, Monfort said that if the employees went non-
union or NMU he would come into the plant once a
month and air any complaints or any grievances or what-
ever, he would be there to talk to employees; and that he
sat about 15 feet away from Monfort at the second meet-
ing and Monfort said that if the employees voted for the
UFCW that their raise and bonus would have to be re-
negotiated with the UFCW.
Nelson testified that on October 8, 1981, Ken Monfort
spoke to employees from the kill floor, Offal, and the
coolers; that Monfort said that he wanted a chance and
wanted the employees to give him a chance; and that
Monfort told the employees that if they voted for the
Company, they would get their bonus and if they voted
for NMU, they would get their bonus, but if they voted
for the UFCW, their bonus would be tied up in court.
Blue testified that Ken Monfort spoke at the plant the
day before the election or possibly 2 days before the
election; that there were about 200 employees present;
that the speech was given on the fabrication floor; that
Monfort said that if the vote went UFCW that he was
not going to cooperate with them and he would not pay
the employees their bonuses; that he would keep it tied
11 Rojas testified when asked what did Monfort say a day or so before
the election about what would happen. to the bonus money if no union
won the election or if the Maritime Union won the election, that from
what he understood "it didn't matter what happened. We were going to
negotiate the bonus money. We wouldn't lose it. That's what he meant."
up in court, and employees would not see it for a couple
of years; that if the employees stayed with NMU, the bo-
nuses would be paid and the pension would be as usual;
that if we decided to go nonunion, that he would still
pay the employees their bonuses and he would also pay
employees back the pension; and that in one of his
speeches Monfort said that if UFCW came in, negotia-
tions of a contract would take several years, and that he
was going to take the pension plan away from the em-
ployees.
Smith testified that Monfort gave a speech the day
before the election—it was the week of the election; that
Monfort indicated that he would return to the plant once
a month and visit with employees about problems in the
plant; that this meeting was held on the fabrication floor
and all fabrication personnel attended; that Ken Monfort
spoke; that the meeting lasted 20 minutes; that Monfort
again said that if either Union was voted in, that the
bonus would be tied up and that if UFCW was voted in,
there would be no negotiations of any kind; and that the
bonus would be paid December 21 if no union was voted
into the plant.
Trosper testified that Kett Monfort was at the plant
the day before the election; that the line was stopped and
the foreman told the slaughter division employees to go
to a meeting with Monfort; that over 100 employees
were there; that Monfort said, regarding the bonus, that
if UFCW got in, the bonus would be tied up in the
courts; that the employees would not get it when it was
due in December; that Monfort knew that he had not
been coming around to see how things were going; that
Monfort was going to come around once every 30 days
and have a committee organized to tell him what the
problems were and he indicated that people can come
and talk to management; that he, Trosper, asked Fore-
man Chuck Oxnor if he could see Monfort but Oxnor
said that Monfort had already left; and that Oxnor went
on to say that "if things go as Mr. Monfort foresees, the
chance for a raise, and that the hide room is organizing a
committee to talk to him when he comes around and
stuff. And it'd be a good idea to do it on the kill floor."
Lee testified that about 1 day before the election,
Monfort spoke on the kill floor to employees in the
slaughter division; that the line was shut off and about
100 to 125 employees listened; that Monfort talked about
the bonus saying that he thought that if UFCW got in
the employees probably would not get it because it
would probably be tied up in court for sometime; that
he, Monfort, said he would guarantee the employees that
they would still get the bonus if they voted no union;
that he said that if NMU won, that the employees would
probably still get their bonus because it was in their con-
tract; that Monfort said he would come into the plant to
go over the employees' writeups and make sure that no
one was treated unfairly; that if they voted no union that
they could choose representatives to represent them and
he would meet with them and the employees could tell
the representatives what the employees wanted to have
done, if they voted no union that way they would have
some voice; that she works the day shift and she worked
the entire 2 weeks prior to the election, and Monfort
MONFORT OF COLORADO 1443
gave only one speech prior to the election and that was
the day before; that she did not ever hear about the
speech that Monfort supposedly made 2 weeks before
the election to employees in the plant nor did she hear
about a speech Monfort supposedly made to employees
about a week before the election; that she was pretty
sure that she was working during this time; that she
worked in Offal; that employees left the Offal area and
Went to where the speech was given; that the whole
slaughter side was shut down when the people went to
hear Monfort speak; that this happened only once re-
garding a speech that Ken Monfort gave; that employees
would discuss what Monfort said after he gave the
speech and these discussions would also take place at
union meetings, and she never recalled anybody at any-
time anywhere ever discussing more than one speech
that Monfort gave; that in his speech Monfort said that
the bonus would be subject to negotiations between the
Company and UFCW; that Monfort made the speech on
the kill floor and he was standing on metal steps; that she
did not remember hearing Monfort say that the UFCW
had called a strike at the Greely plant and that the strike
had gone on for some months and that the Union and the
Company had been unable to agree on a contract; and
that during a slide representation the Company told the
employees that Monfort and the UFCW had been unable
to agree on a contract at Greely and there had been a
strike for some months. Bruce Snyder testified that he
worked in Offal; that just before the election he attended
a meeting on the kill floor at 8 ani.; that the entire kill
department was present; that the meeting lasted about 20
minutes; that Ken Monfort spoke; and that the only thing
he could recall Monfort saying was that if NMU was
voted in everything would pretty much stay the same,
and if no union was selected, the benefits and the bo-
nuses, everything would stay the same.
LaBrie testified that she attended the second meeting
held by Ken Monfort on the fabrication floor the day
before the election; that the meeting lasted from 30 to 45
minutes; that Monfort said that he would like to see the
plant go no union; that he said he was a fair employer;
that the employees had done a good job, they worked
hard, and he was offering a bonus at the end of the year,
which he felt all the employees deserved; that Monfort
said that if the UFCW or NMU were voted in, things
could be difficult; that he said that if the NMU was re-
elected or if no union was voted in, the bonus that had
previously been scheduled for December 21 would be
paid as scheduled, but if UFCW were to win the elec-
tion, there was a possibility that the bonus would be
withheld for no certain period of time and that things
may have to be renegotiated; that at one point in the
speech Monfort said that he was a man of his word and
that he felt all deserved this bonus; that Monfort asked if
there were any questions; that LaBrie asked him if the
bonus was a gift to which he replied that it is a gift of
appreciation to his employees for their hard work; that
then LaBrie asked Monfort since he was a fair man, did
he feel that the bonus should be given out on December
21, 1981, to which Monfort replied that he had previous-
ly indicated that if the NMU or no union was voted in
the bonus would be given out; that LaBrie then stated to
Monfort that she believed that if he was a man of his
word and if the bonus was a gift of appreciation to his
employees for their hard work, that it should make no
difference what the outcome of the election was because
if he were a man of his word the bonus should be given
out as he scheduled it on December 21, 1981; that at this
point Dick Monfort, vice president of Respondent,
walked up to her and said "vote no union and you will
receive your bonus"; that Dick Monfort was not speak-
ing in a loud enough voice for everyone to hear but was
rather speaking directly to her; and that on the way back
to her work station her area foreman, Tom Claycomb,
stopped her and told her that she should not talk to her
boss that way and that she was being very disrespectful
to her boss. LaBrie received a bonus of approximately
$1100 on December 21, 1981.
Five employees, Lopez, Rojas, Nelson, Lee, and Petit,
testified that beginning a few days before the involved
election they saw the following on the window, which
was used as a bulletin board, to Slaughter Superintendent
Gaylord Hansen's office:
BALLOT
UFCW

NEITHER

NMU
STRIKE

$500 BONUS
THE CHOICE IS YOURS

GDI12
To get from the lockerroom or lunchroom into the plant,
employees had to pass Gaylord Hansen's office.
Gaylord Hansen testified that he began his vacation on
October 3, 1981, and he went to Colorado; that he was
nowhere in the Grand Island area during his vacation
(he returned on October 13 or 14); that the election was
October 9; that he was not on Monfort's premises in
Grand Island at all during his vacation; that he was not
present for the election; that he shared an office at the
time with a large glass window with Terry Hampton,
the night superintendent; that during the day he, Hansen,
did not lock the office; that he did not lock the office
while he was on vacation; that prior to leaving on vaca-
tion he posted an official Board ballot; that he did not
recall posting anything else pertaining to the election;
and that no one took his place while he was on vacation.
Nelson testified that on the afternoon of October 8,
1981, he had a conversation with Dick Monfort in the
coolers; that he, Nelson, was in a truck hooking at the
time and Dick Monfort came into the truck and said,
12 Nelson testified that it was taped on the inside of the window facing
out toward the hall; that GDI stands for God Damn Independent, which
he understood wanted the employees to vote for no union; that he also
saw copies of this "ballot" on cafeteria tables and on the desk used by his
foreman, William Zuehlke; and that employees can and do go into the
office used by William Zuehlke because that is where the equipment used
in the cookers is stored. William Zttehlke testified that he did not have an
office that he uses a desk, along with other specified individuals, in the
grinding station; and that he did not recall ever seeing the above-de-
scribed ballots on the desk be used.
1444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"Denny, you've got the influence out here to influence
people. I want you to tell the people to vote no Union";
that he advised Dick Monfort that he would not do that
and then Dick Monfort said, "Well, give us a chance";
that Dick Monfort then asked Nelson whether he had
ever been treated wrong and when Nelson responded
yes, Dick Monfort wanted to know what happened; that
Nelson then told him about what occurred during the
1980 tornado when Monfort hired luggers off the street
in Grand Island to help get the meat out of the coolers
before it was spoiled, and paid them more than Nelson
made for loading; that he and Dick Monfort also dis-
cussed working conditions in the plant, the equipment
that needed to be repaired and Dick Monfort asked for
another chance; that Jim Castleon, Kenny Simons, and
Larry Oakley were present; that while Dick Monfort
spoke only to Nelson the others standing there could
hear;" that he, Nelson, when he had this conversation
with Dick Monfort was wearing a UFCW sticker on his
hardhat but he could not remember whether he was
wearing a UFCW T-shirt; and that no one ever told him
to take the UFCW sticker off his helmet.
As noted above, the election was held on October 9,
1981, with the majority of the eligible voters voting
against the participating labor organizations.14
B. After the October 9, 1981 Election
Snyder testified that he attended a meeting, which was
held about a week after the election, on the kill floor;
that the entire kill department attended; that Ken Mon-
fort spoke indicating (1) that all terminations would go
through him, (2) that whether or not the employees had
to work on Saturday would be posted on Thursday, and
(3) that bonuses would be paid on schedule; and that
before this there was no guarantee that Monfort would
give its employees any type of advance notice regarding
Saturday work, and Monfort did not involve himself in
terminations, he did not review terminations prior to this
meeting.
On October 22, 1981, NMU filed objections to the
election, and UFCW filed its objections to the election
on October 23, 1981 (G.C. Exh. 10).
By memorandum dated November 9, 1981 (G.C. Exh.
24), which was placed on a bulletin board at the in-
volved plant, Respondent announced changes in, among
other things, wages, benefits, and working conditions.
15 Dick Monfort did not testify herein. Simons testified that Nelson
would always call Dick Monfort into the truck and ask him details about
what he was doing with the Union and what he was doing with his
people m the plant, why he was showing films and so forth. Subsequent-
ly, Simons conceded that his affidavit, G.C. Exh. 26, dated November 17,
1981, which describes a conversation he no longer recalls, states:
[w]ithin a week before the election, Dick Monfort came into a truck
where Dennis Nelson and I were working. Monfort told Nelson to
give him a chance with non-union. Monfort said Nelson did not help
any by trying to get people to go with UFCW. Monfort said he was
going to have the trolley tracks fixed. Nelson told him before this
about a beef coming down the track and the trolley that the beef
was on came off the track. The beef hit a man. Monfort said there
were going to be improvements in the mechanical parts in the
cooler.
14 The ballots, which were impounded for a reason not relevant here,
were not counted until October 19, 1981.
Blue began working at Monfort on July 10, 1979. As
indicated above, she was fired on November 13, 1981.
Regarding her termination, Blue testified that when she
came to work that morning there was a notice indicating
that the night shift had broken her shift's previous record
(the day shift) and Line Foreman Wooster had spread
the word that Blue's shift was out to break the night
shift's record; that Wooster had control over the chain
speed that brought the cattle into the fabrication floor;
that Blue asked somebody how fast the chain was going
and was told that it was moving 206 head per hour; that
previously they had been running around 185 head per
hour; that the rotomatic that she and another woman
were operating usually handles two bags a second but
that on this day they were getting three and four plus
bags a second and the machine was not running fast
enough; 15 that meat was getting stacked up; 16 that they
turned the machine up; that the machine was not va-
cuuming out the bags and they were getting rejects; that
the reject line, which was usually only attended part
time, was attended by two full-time people that day and
they could not keep up with it; that the meat was
stacked up on almost every line; that everybody was
behind; that they had extra help in bagging and boxing
but they could not use extra help on the rotomatic be-
cause there was only room for two rotomatic operators;
that she took a lunchbreak that day from 11:10 to 11:30
a.m. in the cafeteria; that during the hmchbreak she saw
Artie Ward and Gloria, whose last name she could not
remember, and they were both complaining and moaning
15 Wooster testified that the processing floor is where the meat is de.
boned and packed. The first step is to bring the dressed carcass out of the
holding cooler directly to the fab floor where it is broken down into four
primals, namely, chuck, rib, round, and loin. In the fall of 1981 there
were four boning tables where the primals were cut into subprimals or
finished product, which went from the boning table onto a common con-
veyor where a product picker picked it up and put it on the conveyor
system to be transported to one of the baggilig stations. There the piece
of meat is placed in a proper sized bag, and then the meat goes onto a
short conveyor and is transported to a rotomatic, a circular revolving 12-
nozzle machine that vacuums the air out of the bags. Three quarters of
the way around the rotomatic the bag has a metal clip placed over the
neck and is sealed. Then the bag goes into the shrink tunnel where 200-
degree water shrinks the bag tight around the meat. The bag goes to the
boxing area where it it labeled and boxed. The rotomatic is operated at a
controlled rate of speed, which is timed so that when two empty nozzles
come to the operators there will be two bags waiting to be placed on the
nozzles. The speed of the rotomatics is determined by the number of
head the main chain is running. The speed of the rotomatic is not
changed daily but rather is set at a constant speed. Wooster testified that
in the fall of 1981 the chain speed was set at a constant speed of between
195 to 200 head an hour; that if the rotomatic was going to slow for the
corresponding chain speed the operators would adjust the roto-matie so it
would correspond with the unvacuumized meat or they would get
behind; and that it is the rotomatic operator's responsibility to see that
the rotomatic is going at the correct speed.
16 Lorrane Simons corroborated this testifying that the workload that
day was very heavy, and that while she was able to keep up, other em-
ployees were not and the meat was stacked up. Bottorf testified that
there was a constant battle between the night and day shift trying to
break records and on November 13, 1981, the meat was stacked up ev-
erywhere; that she had a couple of gondolas full of meat; that the girls on
the rotomatic had meat clear up to their knees or above—meat on the
floor in bags; that she did not have much time to look around but the
tables were stacked up, and everybody seemed to be stacked up that day;
that she had meat all around her; and that no supervisors spoke to her
about her performance that day.
MONFORT OF COLORADO 1445
because they were aching and hurting so bad; and that
she said, "Oh you're hurting are you?" and when they
said, "Yeah," she said to them "I'm glad you're hurting
because you voted non-union and you asked for this bull-
shit, and now you're going to get it. And I hope you
hurt worse"; that when Blue went down to her line after
lunch she saw Ward in the foreman's office speaking
with Supervisor Wanda Kayl; that this would have been
around 11:30 a.m.; that on the way back to her work she
met with a maintenance man on the steps named Dean
(she could not remember his last name); that she said to
the maintenance man "this was all your fault"; that the
maintenance man asked her what she meant; that she
then said, "Well, you voted non-union and. . now this
is what we've got"; that she thought Cindy Bauers was
coming down the steps behind her when she spoke with
Dean; that she went back to her machine after lunch and
did her job; that someone later tapped her on the shoul-
der and told her to go to the foreman's office; that this
was about 12:30 p.m; that she went to Van Matre's
office; that Van Matre told her "I'm putting you on step
5" and she said "But there isn't any step 5," and then
she said, "Oh you're firing me?" and he said, "Yes, I'm
firing you," and she said, "But why? What'd I do?" And
he said, "You aren't doing your job. . . . you haven't
been doing your job all week," and she said, "That's a
°damn lie Dan. . . you know better than that," and he
said, "The girls are mad at you. . . [t]hey're all made at
you" and she said, "Well that'll be the day that you can
give me somebody and I can't out work them," she then
said, "You're not going to stick with that reason that
you're firing me because I'm not doing my job," and
Van Matre said, "Yes I am," and she then said, "It's a
damn lie," and she left; that she told Van Matre that she
was doing her job and he better fmd another excuse and
Van Matre said that he liked this one and he was going
to stick with this one; that the maintenance man had
been over to fix her machine that morning but could not;
that the foremen were aware of the fact that the machine
was not working properly on the day she was fired; that
her machine was not working properly the day before
that either; that on these 2 days it affected her ability to
perform her work properly; that her affidavit to the
Board given NOvember 18, 1981, does not indicate that
her machine was not working properly on the day she
was discharged; that she did not tell Van Matre that her
machine was not working properly because he was al-
ready aware of that fact; that two of the 12 tenacles on
her rotomatic machine were not working on the day of
her discharge; that one tenacle would not vacuum com-
pletely because it did not have whole vacuum and the
other tenacle kept losing the hose; that the machine had
been malfunctioning the week prior to her discharge the
same way that it had been malfunctioning several days
prior to her discharge; that one tenacle on that particular
machine had been malfunctioning for several weeks; that
when the maintenance man tried to fix the machine it
was not shut down; that the maintenance man told her
that it could not be repaired until there was time to shut
the line down, and tear the machine down and fix it; that
she worked with Linda Tanner Baltazar the last day she
worked for Monfort; that Kayl helped on the machine
for a short period that morning and she knew it was not
working properly and Blue assumed that she, Kay, told
Van Matre; that Kayl knew that the machine was not
working properly the day before Blue was discharged;
and that Linda Tanner Baltazar no longer worked for
Monfort. It was stipulated between counsel for Respond-
ent and the General Counsel that the first four steps in
the disciplinary system that were given by the Respond-
ent to Blue are not alleged to have been violative of the
Act in any manner.17
Bauers testified that she was present the day Blue was
fired; that she was on bag meat that day; that she was
pulling it from the product line and packing it in bags
and then placing it on a belt that went up to Blue's ma-
chine; that the workload that day was really bad, "it
probably was the worst we have had for a long time";
that rumor had been going around that they were going
to try to break a new record that day because the previ-
ous night the night shift had broken the most recent
record of the highest production by the day shift; that
1526 head of cattle were processed that day; that they
had so much meat lined up and piled up on the tables
that there really was no room to work and the bags that
were being placed on the line going up to the rotomatic
were stacked very high; that other lines were stacked up
that day; that she was not able to keep up that day; that
no official or supervisor said anything to her about her
work that day; that at the end of the day they posted
something on the door indicating that 1526 head were
processed that day and that this was a record; that nor-
mally they would have processed 100 to 150 head fewer
a day; that on November 13, 1981, there were a lot of
leakers because bags were not sealed and the meat kept
coming back; that on the way back from the lunchbreak
17 Howard Braden, who was the fabrication superintendent until Feb-
ruary 1982, testified that Blue's employment with Monfort was terminat-
ed because of her work performance, and she had progressed through the
disciplinary system; that it was a combination of absenteeism and work
performance; that he was responsible for discharging Blue; that for minor
infractions an individual goes through a 5-step progressive discipline pro-
cedure starting with a verbal warning or counseling with their supervi-
sor; that if the individual does not have another incident within a 4-
month period then this step is no longer considered for future discipline;
that if something does happen within the next 4 months they would
progress to the second step, then the 4-month period applies to the
second step, etc.; that at the third step the time goes to 6 months and at
that time the department manager or superintendent becomes involved;
that the fourth step is suspension with pay and if another incident occurs
after the fourth step within a 12-month period then the individual pro-
gresses to step five, which is termination; that Blue received a step one
(R. Exh. 31), for failure to call in (June 20, 1981); that Blue received her
second step for inhibiting the flow of product (August 4, 1981, R. Exh.
11); that Blue received her third step for an unexcused absence (R. Exh.
32, dated August 26, 1981); that Blue received a fourth step for excessive
absences (R. Exh. 12, dated September 26, 1981); that at that time Blue
was suspended for 1 day with pay; that Blue received a 4-1/2 step for
excessive absences and late "call ins" (R. Exh. 13, dated November 9,
1981); that at this time he sat down with Blue because she had enough
absence occurrences to result in a termination but Blue complained of
problems with her hands; that Blue had been to her doctor on that par-
ticular day and she complained about possible carpal tunnel syndrome;
that he told Blue that her lateness, absenteeism, and work performance
altogether could result in her termination and that it had to be corrected;
and that R. Exh. 33 is Blue's termination report dated November 13,
1981, which indicates, among other things, that her workmanship was
very poor and that she was not doing her share of the work.
1446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on November 13, 1981, she happened to be walking
down the hall the same time as Blue going back to work
and they ran into one of the maintenance men, Dean,
who had worked on Blue's machine that morning; that
Blue told the maintenance man that this was all his fault
and he asked what she meant and Blue responded, "you
voted no union and I have to work my ass off for it";
that the maintenance man kind of snickered and walked
away; that the work was as heavy on the other lines on
November 13, 1981, but the other lines were not having
as much trouble keeping up because Blue's machine was
not working properly; that she, like Blue, gave an affida-
vit to the Board regarding Blue's firing; that she did not
indicate in her affidavit that Blue was having a problem
with her machine that day; that this was not indicated
because the Board agent was asking a number of ques-
tions and the affidavit is her reply to the questions; that
the Board agent asked her if a record had been set of
1526 head of cattle the day Blue was terminated; that on
November 13, 1981, two tenacles on Blue's machine
were broken; and that she did not explain to the Board
agent in her affidavit about the problems Blue was
having with her machine because the Board agent was
asking questions and he just asked about the workload
that day, he did not ask her anything else so she assumed
that he did not want to know.
Linda (Tanner) Baltazar testified that on the day Blue
was fired she, Tanner, 18 was working on the line four
rotomatic with Blue; that the day Blue was fired "they
speeded up the chain and they were quite far behind,
there was meat stacked on the floor and both conveyor
belts were full and at one time a leadperson came over
and said that the chain was running at 230 and at the end
of the day they said that they had set a record that day,
there was a notice on the board saying congratulations,
good job you made a new record"; that the leadperson
who made the statement was Lynnette Marshall; that for
a short time in the morning a foreman came over and
helped them get caught up; that the foreman was Wanda
Kayl; that she, ICayl, helped on the machine for about 15
or 20 minutes; that Kayl did not talk to Tanner about her
performance on the machine at that time; that she,
Tanner, never received any discipline because of her
work performance on that day; that she ate lunch that
day in the locker room with Shelly Cunningham, Darla
Munoz, Donna Ethers, and Pat Schlund; that she knew
that Blue gave a lot of speeches in favor of the UFCW
during the campaign and that she, Blue, was a "big union
pusher out there"; 18 that on November 13 Elhers was
working, bagging on line 4; that Elhers' back was to
Tanner and Blue or her back was to the rotomatic; that
she was sure about this; that Kayl did come over and
assist on rotomatic 4 in the morning; that she was abso-
lutely sure of that; that some of the bags that Kayl
18 At the time involved herem this witness' surname was Tanner. Sub-
sequently she married For ease of reference herein she will henceforth
be referred to as Tanner.
19 Tanner signed an authorization card on behalf of UFCW, she wore
a UFCW sticker on her hat, she handed out UFCW pamphlets, she was
an active supporter on behalf of the UFCW, she was a member of the in-
plant organizing committee of the UFCW, and she was a named plaintiff
in the lawsuit against Monfort regarding the bonus.
placed on the rotomatic were picked up off the floor;
that she, Tanner, had her back to the other rotomatics
that day; that when she said everyone in her area was
backed up she was referring to line 4; that she was not
referring to lines 1 through 3; that she could not say
whether the other lines were backed up that day; that
she did not do any bagging on the day of Blue's dis-
charge; that on her lunchbreak she did not have some-
thing to say about Blue; that she did always complain
about working with Blue because she thought Blue was
not a likeable person, but Blue did do her job well; that
she, Tanner, sometimes complained about Blue's work
performance; that everybody complained about working
with Blue; that Blue did carry her weight on the rotoma-
tic; that Blue did her job as well as anybody else on the
rotomatic, but that at times she wouldd have to blow her
nose or something or take her glove off to unwrap
chewing gun, and sometimes Blue walked away from the
line to open a wrapper and allowed the nozzles to go
right by her and the meat to stack up; that she, Tanner,
would also do that; that Blue did this once or twice a
day; that she, Tanner, complained to other workers
namely Munoz and Ethers about Blue blowing her nose
or opening a piece of gum; that the only individuals she
ever complained to were Elhers, Munoz, Cunningham,
and Schlund because they always sat together and
talked; that she did not remember ever complaining to
Assistant Leadperson LaDonna Powers about Blue's job
performance; that she did tell Marshall that she, Tanner,
did not like Blue; that she never discussed Blue's job per-
formance with Marshall; that she never discussed Blue's
job performance with her foreman, ICayl; that she never
spoke with Foreman Van Matte about Blue's job per-
formance; that she never complained to Kayl or Van
Matre about Blue and she was sure she never did; that
she worked on rotomatic 4 all day on November 13,
1981; that she never moved off that rotomatic to bag that
day; that she did not tell these other employees during
the lunchbreak that she was going to quit if she had to
work with Blue anymore; that she could not quit; that
she could not recall discussing with Elhers on November
13 the problems she was having with Blue regarding
Blue's job performance; that she took her rust break and
her lunchbreak with Ethers; that she could not remember
discussing with Ethers the fact that she was fed up with
working with Blue; that she complained about Blue a lot
but it was not about Blue's job performance but rather
her attitude—she had a bad attitude because she never
talked to Tanner; that Blue would take her gloves off
and blow her nose but she never walked away to talk to
somebody; that she, Tanner, went back to her work sta-
tion after lunch and did not go down to see her foreman;
that she did not seek out Van Matre or Kayl that day;
that she did not tell anyone she was going to see Van
Matre about Blue that day; that she did not tell Elhers
that day that she was fed up and that she was going to
see Van Matre; that Powers did not work on that par-
ticular day, with Tanner on rotomatic 4; that Powers did
help on rotomatic 4 before November 13; that the only
help they received on rotomatic 4 that day was from
Kayl; that it was not possible that Mary Berney was run-
MONFORT OF COLORADO 1447
ming the rotomatic 4 on November 13; that she, Tanner,
did not exchange jobs with anyone else; that she might
have worked with Elhers bagging if someone else came
over to operate the rotomatic, like Powers; that Berney
was able to run the rotomatic; that Berney did not take
Tanner's place on the rotomatic on the day Blue was dis-
charged; that she was not sure about this; that she,
Tanner, worked on rotomatic 4 the entire day of Blue's
discharge; that after lunch Dana came over and spoke to
Blue; that just before that she saw Kayl in the back
where they packed the meat in the boxes, which is not in
the leaker area; that she, Tanner, never saw Kayl in the
leaker area immediately prior to Blue's discharge; that
she never saw Van Matre in the leaker area; that she did
not recall telling Elhers that they were up there watch-
ing Blue on that day; that she did not tell Wanda Kay!
or Van Matre just to watch Blue they would see what
she does; that she never talked to them on November 13,
1981; that she never told any other employee that she
told Kayl and Van Matre to come and watch Blue; that
she did tell Munoz, Ethers, Schlund, and Cunningham
that she was going to tell 1Cayl and Van Matre to watch
Blue with respect to taking her gloves off to blow her
nose and unwrap candy; that she told the other employ-
ees this may not be the lunchtime on November 13 but
on some other lunchtime; that when she gave her affida-
vit to the Board in January 1984 she did not say any-
thing about the repair of rotomatic 4; that she did not
recall whether rotomatic 4 was working properly on No-
vember 13, 1981; that she could not recall how it per-
formed the day before Blue's discharge; that regarding
the days before that she noted that Respondent had a lot
of trouble with the rotomatic but that she could not
recall on what days; that on November 13 Kayl helped
them catch up in the morning and they were not behind
in the afternoon; that at the time of Blue's discharge
there was meat all over the floor; that Dana replaced
Blue; that he worked with her for the remainder of the
day on rotomatic 4; that no one else helped for the re-
mainder of the day; that she and Dana were caught up
for the remainder of the day; that Dana turned the roto-
matic up so that it would go faster; that she did not see
any of the other rotomatics because they were behind
her and when she went on break she walked away from
them; that she did not like Blue because Blue was rude
and had a bad attitude and never said anything; that she
never complained to any supervisor about Blue; that she,
Tanner, could not quit her employment because she had
children to feed; and that she, Tanner, also let nozzles go
by.
Steve Long testified that he began working in the fab-
rication maintenance department in July 1981 on the day
shift; that he is the only maintenance man in the packag-
ing area of the A shift or day shift; that with the excep-
tion of possibly 1 month when he was being trained
when he first started no one worked with him on the
day shift except for someone who relieved him when he
took his break; that he only takes two breaks during the
shift; that he knew Blue; that he was working the day
Blue was discharged; that he was capable of repairing
rotomatic machines; that the machines would have minor
problems two or three times a day; that a major problem
would involve shutting the machine down for 15 minutes
and that he would have major problems with the roto-
matics once every 2 or 3 weeks; that he has repaired a
nozzle on a rotomatic that was not vacuuming properly;
that sometimes such a problem can be handled while the
machine is still operating, which is usually the case; that
other times he would have to tell the operator not to use
that nozzle until he had 10 or 15 minutes to fix it at
breaktime; that if he fixed it while the machine was oper-
ating it would usually take 1 to 2 minutes; that an opera-
tor could call him once or twice a day to fix a nozzle, a
nozzle problem is usually a simple cut and dry problem;
that a vacuuming problem could be a lot different be-
cause on vacuuming machines there are two things that
would affect how your package is vacuumed; that when
there is a vacuuming problem it must be determined
whether there is something wrong with the machine or if
the operator just was not doing it right; that he could
not recall whether Blue ever called on him to fa a ma-
chine that was not vacuuming properly in the fall of
1981; that sometimes he can repair a vacuuming problem
while the machine is operating, and sometimes he has to
put if off until a break; that if he was going to wait until
break to fix the vacuuming problem he would tag the
nozzle and the operator would not use that nozzle; that
there have been a couple of times when he would have
to wait until the second break or dinnerbreak to have a
half hour to repair the machine; that he could not recall
ever having a time when he was not able to fix a nozzle
by the end of the shift; that he never experienced a
nozzle that malfunctioned in any way for more than 1
day; that he never experienced a nozzle that was mal-
functioning in any way for more than 1 day; that he has
never shut down a machine because of a nozzle problem;
that he has had major repairs to rotomatics that required
that he shut the machine down on nonbreaktime; that he
could not remember whether he repaired Blue's machine
on the day of her discharge; that he could not recall how
much time he spent at or about rotomatic 4 on the day
of Blue's discharge; that the most time he has spent on
any given shift repairing rotomatic machines would
probably be 45 minutes or, in other words, both of his
breaks; that he has never spent the majority of his shift
repairing a rotomatic; that he knew of a maintenance
man at Monfort named Dean Medinger who did work
there and who was no longer employed at Monfort; that
Medinger was not working with him in the fabrication
department on the day of Blue's discharge because he,
Long, always worked alone; that it was possible that Me-
dinger did relieve Long during his break period on either
the first or second break; that he could not recall who
relieved him; that after he began in July 1981 he worked
in construction for a couple of months; that there have
been occasions when there has been more than one mal-
function at a time, he has had to ask someone to come in
and help him, but usually his problems are minor enough
that he can take care of them one after the other; that he
does not keep any written documents regarding the re-
pairs made to these machines; that it is possible that Me-
dinger relieved him, Long, on the day of Blue's dis-
charge; that, as indicated earlier, after being hired in July
1448 DECISIONS OF THE NATIONAL , LABOR RELATIONS BOARD
1981 he worked for a couple of months in construction
and then he was trained for a short period of time; that
he also worked as part of the rotating maintenance em-
ployees; that he could not recall how long it was (he be-
lieved it was a couple of weeks) before he was put on a
permanent shift, namely the A shift (day); and that when
he was rotated he was not rotated out of the packaging
area
Braden testified that Van Matre actually fired Blue at
his, Braden's, direction; that Van Matre came to Braden
and told him that there was a problem with Blue; and
that he, Braden, questioned Van Matre to make sure that
he had observed and then he, Braden, told Van Matre to
go ahead and terminate her.
Ethers testified that on November 13, 1981, she ran an
automatic bagging machine on line 4; that once she put
the meat in the bag she turned it to the right side and it
went behind her to number 4 rotomatic; that Blue and
Tanner were operating rotomatic 4; that she, Ethers, was
bagging on line 4 the day Blue was terminated; that Blue
and Tanner were both behind her; that she remembered
Blue opening candy, walking around, and stalling; that
Tanner was getting very, very upset; that Tanner said
something had to be done and she was going to the fore-
man or she was going to walk out; that Tanner said this
shortly before the dinnerbreak; that she, Ethers, had her
dinnerbreak with Tanner that day; that Tanner left break
early, stopping in and talking to the foreman; that when
Tanner came back she went on the rotomatic for about
15 minutes and then she started helping Elhers bag; that
Berney came over and started working on line 4 rotoma-
tic; that Blue left and LaDonna Powers worked on the
rotomatic; that she, Ethers, and Tanner were watching
and they could see Kayl and Van Matre standing over
by the leakers watching Blue shortly after the dinner-
break, which was after Linda Tanner left the rotomatic;
that Berney was there for about half an hour before Blue
left; that she, Elhers, saw Van Matre and Kayl standing
by the leakers after Tanner had been in the office and
after Tanner started helping Ethers bag while Berney,
Powers, and Blue, all three of them, were working on
the rotomatic; that Tanner observed Van Matre and
Kayl standing by the leaker area and she, Ethers, and
Tanner talked about it; that she, Elhers, and Tanner said,
"Look, there's Wanda and Dan. They're finally watching
her. They're not going to put up with the way she's been
working this"; that she, Elhers, heard Blue give three
speeches on the UFCW; that Blue wore UFCW stickers
on her helmet and Blue talked to people on line 4 about
the UFCW; that it was well known that Blue supported
the UFCW; that Blue did not think that Elhers bagged
correctly; that she did not like Blue at all; that Blue
never said good morning, goodbye, or anything; that she,
Ethers, was glad that Blue was fired; that Blue yelled to
Ethers to turn her bags so they were pointed in the right
direction so that Blue could pull them onto the rotoma-
tic; that she had no idea what the chain speed was on
November 13, 1981; that she did not remember a sign
posted that day that indicated a record had been broken;
that such signs had been posted before; that it is possible
that such a sign was posted on the day of Blue's termina-
tion; that during the break in the lockerroom Tanner said
that she had had it, that Blue was not doing her job and
that she, Tanner, needed some help; that Tanner said she
was walking out, could not work with Blue any longer,
and wanted off the rotomatic; that Elhers was aware of
the fact that Tanner had three children and a husband at
the time, and she, Tanner, was the sole supporter of her
children; that Powers came over and helped on the roto-
matic before the hmchbreak for about 15 minutes; that
she, Ethers, did not know if anyone else came over to
help; that Elhers did not remember whether Tanner
complained about the operation of the machine itself;
that there was trouble with the rotomatic but she could
not remember whether it was that day or not; that
Tanner went down from the lunchbreak early and she
stopped in and talked with Van Matre; that Ethers could
not remember if Kayl was there or not; that Ethers saw
Tanner in Van Matre's office, but she, Ethers, was not
present for the meeting; that Tanner told her, Elhers,
what she, Tanner, was going to say; that she, Elhers, did
not hear what Tanner said but she did see Kayl and Van
Matre watching right after Tanner spoke to him; that
she, Ethers, saw Tanner in the foreman's office talking
with Van Matre about 11:30 a.m.; that about 15 minutes
later Van Matre and Kayl stood watching beside the
leakers about 6 feet from Blue; that Van Matte and Kayl
stood there for 12 to 15 minutes watching the rotomatic
machine; that usually Kayl and Van Matre watched the
employees from a stand; that about 1:30 p.m. Blue was
told by Powers to go to the office; that Powers then
took Blue's place; that Tanner left the rotomatic when
Berney got over there, which was 8 to 15 minutes after
break; that when Tanner assisted Elhers in bagging,
Elhers was not behind but rather Tanner was trying to
learn how to bag; that even though they were behind on
the rotomatic that day, they took one of the rotomatic
operators, Tanner, off and put her with Ethers even
though Elhers was not behind; that Tanner told Elhers
that they were letting her, Tanner, cool off, "she was
really mad"; that when Tanner assisted Ethers bagging
they both saw Van Matre and Kayl and Tanner said,
"There stands Dan and Wanda; they're watching"; that
Tanner helped Elhers bag that day until they went home
around 2:30 p.m. so it would have been 1-1/2 to 2 hours;
that Berney remained on the rotomatic for the rest of the
day with her partner Powers; that she knew a man by
the name of Dana; that she did not observe Kayl help
out on the rotomatic machine the day Pat Blue was
fired, but since Kayl did come when they would get
behind she could have and she, Ethers, imagined that
Kayl was there; that during the time that Kayl and Van
Matte were watching Blue, the other worker was
Berney and Tanner was not on the machine during that
entire period; that after the dinnerbreak on November
13, 1981, Tanner did not work on the rotomatic machine
for the rest of the day; that she did not remember wheth-
er Tanner bagged with her for the rest of the day; and
that she did not think Tanner went back on the rotoma-
tic but that she did not know for sure.
Kayl testified that Tanner came into the foreman's
office toward the end of her dinnerbreak on November
13, 1981; that Tanner was very upset and asked to speak
MONFORT OF COLORADO 1449
to Van Matre and Kayl; that they asked her to sit down
and she, Tanner, said she could not work with Blue any-
more; that Tanner complained that Blue would not stay
at her work station; that they told Tanner to go back to
her job and they would be right out there after lunch;
that they did go out there after lunch; that Kay! moved
Tanner away from Blue and had Tanner bag on line 4
and she, Kay!, put Berney in Tanner's spot; that Ethers
was already bagging on line 4; that after she moved
Berney to rotomatic 4 she and Van Matre went and
talked to Braden and told him about the problems and
Braden said to go out there and observe and see what
happens now that Blue has a different partner working
with her; that they did go out and observe from the
leaker line, which was back behind where Blue was
standing; that they were probably 10 feet from Blue; that
Van Matre also observed Blue; that they were there for
20 or 30 minutes; that Blue did not see them because she
had her back to them; that during that 20- to 30-minute
period they learned, regarding Blue's work performance,
that she walked away from the rotomatic, walked over
and talked to somebody else and the meat was actually
falling on the floor and she, Kayl, was sure it was up to
their knees over there by that time; that after they
watched they went back and talked to Braden about
what they saw; that Superintendent Braden said to bring
Blue in the office and terminate her; that Braden was at
a meeting and he told them if there was any problem to
call him; that she, Kay!, put Powers on the rotomatic in
Blue's place and Blue went in the office with Van Matre;
that she, Kayl stayed out on the floor because Van
Matre was just in that area training at the time and she
had to clean up the mess; that Van Matre actually dis-
charged Blue; that she was not present when it occurred;
that rotomatic 4 was functioning properly on the day
Blue was discharged because otherwise it would have
been down and she would have had to transfer product
to another rotomatic; that the other lines were not
backed up that day; that she did not recall the number of
head of cattle processed at Monfort on that day; that the
average number of head processed in November 1981
would have been about 1500 a day; that she did not
recall how fast the main chain in the fabrication area was
moving on the day Blue was discharged; that Blue was a
pretty vocal supporter for UFCW; that she never heard
Blue's speeches in support of the UFCW; that she did
not remember hearing about speeches that Blue gave;
that Schlund complained to her about Blue only once
and that it would have had to be in November 1981; that
Schlund complained that Blue kept walking away and
would not fill her nozzles with meat; that she moved
Schlund and replaced her with Tanner; that she believed
Tanner and Blue were friends because she saw them vis-
iting and going back and forth from lunch together; that
she, Kay!, very rarely spent lunctime in the cafeteria;
that she did not know where Tanner spent her lunch-
break; that she did not know where Blue spent her
lunchbreak; that she did not recall that she assisted Blue
and Tanner on rotomatic 4 the day that Blue was fired,
but 1 that it was possible; that she assisted employees fairly
often; that when Blue was fired there was meat on the
floor and it was stacked up; that this happened on other
occasions as well; that it has happened fairly often; that
she, Kay!, had problems with Blue on rotomatic 3 and
that there were rounds all over the floor and when Blue
worked on line 2 that' also happened; that she, Kay!,
never had that problem with any other machine or oper-
ator—the fact that they would not do their job "you
know I'm not saying that there's hasn't been meat on the
floor"; that there have been times when meat has backed
up, and stacked up on rotomatic machines other than the
one Blue was working on, once every couple of weeks;
that this would occur if the shrink tunnel breaks down;
that the chain speed would not have anything to with
whether or not the meat was stacking up, and employees
getting behind because packaging can handle anything
that the tables put back there since they can speed up
those rotomatics; that she wrote under the comment por-
tion of Blue's termination report (R. Exh. 33), "I ob-
served Pat also . . ."; that Dana Osmanson, is still em-
ployed at Monfort as a rotomatic operator; that she did
not remember whether Dana replaced Blue on the day
she was fired; that he could have replaced Blue at some-
time because he was a qualified rotomatic operator at the
time; that on the day Blue was discharged she, Kay!, had
a discussion with Braden and then she went out and ob-
served Blue for 20 to 30 minutes; that Blue "walked
away from the roto-matic . . . she might have went
around the corner and talked to Linda [Tanner] I don't
know. I believe she did. Yeah that's what I remember. I
don't remember just standing there and not doing any-
thing. I know she walked away, probably to talk to
someone"; that she was sure that Blue talked to Tanner
but that she, Kay!, did not know how long the conversa-
tion took; that probably in the middle of 1980 Blue's
work performance began to slip; that it could be true
that none of these problems ever progressed to the point
of being written up until the summer of 1981; that when
Blue went from her station to Tanner's station she had
her back to Kayl at the leaker area but that when she
turned to return to her station Blue was facing the leaker
area; that Blue was about 5 feet from Tanner; that Blue
could not see her while she, Kay!, observed because "we
were at her backside"; and that to see them Blue would
have had to turn around.
Van Matre subsequently gave the following testimony:
Q. Mr. Van Matre, if you would, would you state
for us exactly what role you played in the discharge
of Ms. Blue?
A. Linda Tanner—came into the office after
break.
Q. Do you recall—excuse me, Mr. Van Matre, do
you recall which break that was?
A. Lunch break. And she was mad and said that
she was going to quit if she had to work with Pat
Blue anymore. So we—Wanda and I moved her to
the bagger on 4 and our lead person was over there
catching them up then.
Q. Mr. Van Matre, let me interrupt you for a
moment. Who'd you move to the bagger?
A. Linda Tanner. And then we moved Mary
Berney over to the rotomatic. We got with Howard
1450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
after that and told him what Linda had told us
about working with Pat Blue. And he told us to go
over there and watch her and see if it was true
what she said. And Wanda and I went over by the
leaker area, which was behind Pat. And it was true.
She was continuing to walk off the rotomatic.
Leaving her load on the other person. We got—
Q. Excuse me, Mr. Van Matre, how long did you
watch Ms. Blue for?
A. I'd guess an hour. I don't know. I'm not sure
how long.
Q. You mentioned—did you mention where you
were standing when you were watching Ms. Blue?
A. By the leaker belt.
Q. About how far from Ms. Blue would you
have been?
A. Twenty feet, maybe.
Q. Was Ms. Blue able to see you?
A. No, sir.
Q. Why is that?
A. Because there's machinery in the road there.
Q. Would Ms. Blue have been facing you or not
from her work station at that point?
A. She would not be facing us.
Q. Okay, Mr. Van Matre, you watched Ms. Blue
a while. What exactly did you see?
A. We seen her walking off the rotomatic. Just
walking a round. And her putting the overload on
the other person or it would pile up.
Q. Did Ms. Blue walk anywhere in particular?
A. No. Just leave the rotomatics, walk around.
Q. What, if anything, occurred after you watched
Ms. Blue—after you fmished watching Ms. Blue?
A. What happened then, you mean?
Q. Yeah.
A. Okay. We went back to tell Howard what we
seen. And he [said] go ahead and put her in a step
5. That if there was any questions, to call him.
Q. Okay. And did you follow Mr. Braden's in-
structions?
A. Yes, sir.
Q. Okay. And do you want to tell us what hap-
pened after you left Mr. Braden?
A. Wanda went out and told Pat to come into
the office. Pat walked into the office and asked
what was wrong. I told her that she was being put
in step 5. And she asked why. I said her poor work
performance. She said that that would be termina-
tion. That I would have to come up with a better
reason than that. I told her to wait there, that I
would get Howard Braden down there.
. . . .
Q. On the day of discharge, Linda Tanner
stopped into your office after the lunch break. Is
your office between the locker room and her work
station at the rotomatic?
A. Yes, sir. Our office is right off the Fab floor.
They have to go upstairs to the locker room.
Q. So she came directly to your office and from
the locker room? She didn't return first to her sta-
tion?
A. Excuse me now. Are you talking—who you
talking about?
Q. Linda Tanner.
A. Linda Tanner? No; she came down to—she
came down from the cafeteria, the locker room, to
our office.
Q. And you testified that you were present and
that Wanda Kayl was also present?
A. Yes, sir.
Q. And this was the end, now, of the dinner
period-11:30?
A. Yes, sir.
Q. And she was in your office for ten or fifteen
minutes. Who told LaDonna Powers to take Linda
Tanner's place? Did Wanda Kayl leave the office?
A. No; she just seen—
Q. Did it on her own?
A. Yes, ma"m—sir. Excuse me.
Q. Okay. Thank you
MR. LONDON: Just a couple questions.
Redirect Examination
By Mr. London:
Q. Mr. Van Matre, when Ms. Hughes was ques-
tioning you on cross-examination, I didn't fully hear
everything. Would you run through from the time
Ms. Tanner left your office on the day of the dis-
charge exactly what occurred?
A. We—Linda went back to the bagger on roto
4—or on line 4.
Q. And where did you go at that time?
A. Where did I go?
Q. Right.
A. I stayed in the office.
Q. At any time after Ms. Tanner left your office,
did you go to the leaker area?
MS. HILLMAN. I'm going to object. That's lead-
ing.
JUDGE WEST: Overruled.
THE WITNESS: After Linda went back to the line,
did we go to the—
By Mr. London:
Q. After Ms. Tanner came in and started to com-
plain to you and left your office.
A. Yes. Wanda and I went back to the leaker
area to watch Pat work.
Q. And how long did you stay at the leaker area?
A. Ten, fifteen minutes, maybe. I don't know.
Q. And what were you doing in the leaker area?
A. Just watching her work.
. . . .
Recross Examination
By Ms. Hughes:
Q. Mr. Van Matre, I guess I'm confused. After
you spoke with Linda Tanner the day Pat Blue was
fired, I thought you just testified that you stayed in
your office. That is not correct?
MONFORT OF COLORADO 1451
A. After Linda Tanner came into the office. Yes;
ma'm. That's correct.
Q. How long did you stay in your office?
A. Until Pat came into the office.
MS.. HUGHES: That's all I have.
MS. LONDON: I have nothing.
Ms. HILMANN: I have no questions.
By Judge West:
Q. Maybe I missed something. Is it now your tes-
timony that after Linda Tanner left your office, you
stayed in your office until Ms. Blue came in your
office?
A. Yes, sir. I misunderstood his question when he
asked me.
Q. Is it, therefore, your testimony that you did
not, in the interim between the time Linda Tanner
left your office and Ms. Blue came into your office,
you did not go into the leaker area and observe Ms.
Blue?
A. No, sir; I didn't. I didn't. Wanda went—
Wanda Kayl went out to get her and brought her
in—or sent her in. Excuse me.
Q. So then your initial testimony that you stood
for an hour in the leaker area with Wanda Kayl, ob-
serving Blue, on the day of Ms. Blue's discharge—
A. Some—
Q. —and your testimony just now that you stood
there for ten or fifteen minutes is not correct?
A. That is not correct. I misunderstood his ques-
tion when he asked it.
Q. Both times?
A. No. We stood by the leaker area many times a
day to look at things. Just—not particularly Pat, but
just—
Q. Both series of questions were specifically di-
rected to the day of discharge of Ms. Blue. So, in
other words, you now are saying you did not stand
by the leaker area on the day that Ms. Blue was dis-
charged?
A. Earlier that day, yes, sir; we did.
Q. Before Ms. Tanner came in to complain?
A. Yes, sir; before.
Q. You stood there to observe Ms. Blue specifi-
cally?
A. We had—yes, sir.
Q. What was the cause of that?
A. To see why the rotomatic was backed up. To
see what the problem was.
Q. How did you become aware of a back-up with
the rotomatic?
A. The meat on the floor.
Q. Who advised you of the meat on the floor?
A. We can see it.
Q. So, in other words, it's your testimony now
that you observed the meat on the floor, and you
observed Ms. Blue, but you took no action whatso-
ever until Ms. Tanner entered your office and ex-
plained what was going on?
A. That we took Ms. Tanner—
Q. That you took no action.
A. Not at that time; no, sir.
Q. You took no action before Ms. Tanner came
into your office and explained the situation as she
viewed it?
A. No, sir; not before Linda came in the office.
Q. So, based on your own observations, you
were unwilling to take action? You waited for an
employee to come and tell you what was happen-
ing?
A. Yes, sir.
JUDGE WEST: No further questions.
Ms. HUGHES: Nothing.
MR. LONDON: May I just have a moment, please.
Further Redirect Examination
By Mr. London:
Q. Mr. Van Matre, why didn't you take action
after you had seen Ms. Blue?
A. I don't know why I didn't—why we didn't.
MR. LONDON: Nothing further.
MR. HUGHES: Nothing, Your Honor.
Powers, who, as noted above, was a temporary lead-
person assisting Leadperson Marshall, testified regarding
November 13, 1981, that up to the time of the lunch-
break, she was not on the fabrication floor but rather she
was doing rework in the storage room in the back and
was not aware of what was going on in the fabrication
area; that about 15 minutes after the lunchbreak ended
she began helping on rotomatic 4; that while she helped
on rotomatic 4 she did not see Blue leave her work sta-
tion; that she had been working on rotomatic 4 for about
30 minutes when Kayl came out and asked her, Powers,
what the problem was; that she could not recall seeing
Kayl and Van Matre near the leaker area watching in
the direction of rotomatic 4 after lunch; and that Berney
is not a leadperson or temporary leadperson and, there-
fore, she would have no authority to rill in for someone
at the rotomatic without being told to do so by a super-
visor.
Interestingly, Leadperson Marshall testified regarding
November 13, 1981, that there were only two leadpeo-
ple, she and Powers, in the involved area; that she, Mar-
shall, spent the entire day in the rework area where she
would have seen Powers if Powers was there; that she
did not see Powers in the rework area that morning; that
if both were in the rework area, there would be no lead-
person on the fabrication floor packaging area; that it
was the normal policy that if Marshall was going to be
out of the area that Powers would be in the area to assist
and it was not a normal occurrence for Kayl to assign
both Marshall and Powers to be out of the area; that
either she or Powers would be out on the floor while the
other one was on the dock because you could not see
pack off [sic] that well from the dock area and a person
was needed in the packaging area; that on the day Blue
was discharged she, Marshall, was assigned rework right
at the start of the shift and was not in the area of the
rotomatics; that Powers was in the area of the rotomatics
because she, Powers, was not up on the dock and those
were the only two areas where she and Powers worked;
that she was assuming that Powers was in the rotomatic
1452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
area because Powers was not up on the dock with her;
that there is no other rework area other than the dock
area; that she was in the dock area all day; that if
Powers were in the same area doing rework she would
have been in a position to notice her; and that Powers
was not in the dock area that day.
After Van Matte, Powers, and Marshall gave the
above-described testimony Kayl was recalled to intro-
duce some photographs that counsel for Respondent rep-
resented were taken the night before and would clarify
certain aspects of the record. Kayl then gave the follow-
ing testimony regarding November 13, 1981:
Q. Okay. . . .
You testified that you observed Pat Blue at some
time during that day. And your testimony is that
that photograph is where you were when you ob-
served Pat Blue. My question to you is: When you
observed Pat Blue that day, how many employees
were operating that rotomatic machine?
A. Two.
Q. And that was who?
A. Pat Blue and Linda Tanner.
Q. Pat Blue and Linda Tanner.
A. Yeah, I observed them that day, is that what
you mean?
Q. Now, when you observed them and you put
on the Respondent's Exhibit 37, which is the blue-
print—
A. And observed Mary Berney, true, I did that.
Q. Pardon me?
A. And when Mary Berney was operating the
machine, I observed her and Pat Blue also.
JUDGE WEST: I'm sorry. You're adding Mary
Berney now? It's Blue, Linda Tanner and—
THE WITNESS: No. I didn't know what specific
time you were talking right now. I'm still—I don't.
By Ms. Hillman:
Q. Whom did you observe that day?
A. I observed—I observed Mary Berney working
with Pat Blue on Rotomatic 4. And at that time
Linda Tanner was bagging with Donna Elhers. Is
that the time you're talking?
Q. And you observed Pat Blue on other occa-
sions that day?
A. I observed all my rotomatic operators that
day, yeah.
Q. Do you have a specific recollection of observ-
ing Pat Blue on another occasion that day.
A. When she was working with—yes, I probably
did, uh-huh. There was meat on the floor. I ob-
served her that day.
Q. Do you recall when that was? Or are you just
saying you think you probably did?
A. No. A problem like that does not occur with-
out me seeing it, you know.
Q. I'm just asking you what you remember now
as you think back to that day when Pat Blue was
fired. Do you specifically recall observing Pat Blue
on more than one occasion or do you think you
probably did?
A. I'm sure that I did, yes. I observe all my roto-
wades periodically. They are the heart of packag-
ing.
Q. Do you recall specifically observing Pat Blue
working with Linda Tanner?
MR. LONDON: Objection, Your Honor. I don't
know what time frame she's talking about.
JUDGE WEST: Sustained.
By Ms. Hillman
Q. On that day. On that day of Pat Blue's dis-
charge. Excuse me.
A. I don't remember. I don't remember. We were
talking about this earlier I might have just messed
up putting people in places, you know. I didn't
know quite what you wanted—were asking me.
JUDGE WEST: I have a few questions.
Examination
By Judge West:
Q. This picture, Respondent's 38, depicts your
position on the day of discharge of Ms. Blue?
A. Yes, sir.
Q. And if I'm not mistaken, I think you testified
that you stood in that area for 20 to 30 minutes?
A. Yes, sir.
Q. What time did you begin standing in that
area?
A. It would have been after 11:30.
Q. How much after 11:30?
A. Well, it wouldn't have been 12:00. Just the
time that it took me to put Linda Tanner on the
bagger and to replace her with Mary Berney. And
then to observe Pat, which would have been, you
know, and then that time we went and talked to
Howard so I don't—it might have been a little
longer than that.
Q. So what time do you estimate you actually
began standing there?
A. I would say before 12:30, around that time.
Q. Before 12:30?
A. Yes. 12:00 to 12:30, I don't really—
Q. From approximately 12:00 to 1130.
Now, if we look at this photograph, the person in
the yellow hat would have been—on the day of Ms.
Blue's discharge, who would that have been?
A. That would have been Mary Berney after I'd
moved Linda Tanner off of that position. That
would have been Linda Tanner's position also
working with Pat Blue.
Q. But during the period when you observed—
A. Mary Berney.
Q. It would have Mary Berney, okay.
Now, if someone were working to the right of
Mary Berney, they would have been looking direct-
ly at you, is that correct?
A. Yes.
Q. Now, I notice you seem to have taken the pic-
ture from an angle that if you actually moved to
MONFORT OF COLORADO

1453
your right any further you would have been
blocked by the side of the shrink tank? There would
have been—
A. Right.
Q. —that obstruction if you moved further this
way, is that correct?
A. Yes. Well, I can see over the shrink tank.
Q. You can see over the shrink—
A. I'm five foot, six, I can.
Q. Okay. But you were actually standing to the
side, you weren't standing behind the shrink tank,
were you?
A. No, I was standing at an angle.
Q. As depicted on the blueprint, you were actual-
ly standing at an angle so that you had a clear view
of Ms. Blue?
A. That's right.
Q. On which side was Mr. Van Matre standing?
A. I would say he was standing to my right.
Q. So his view would have been blocked by the
shrink tank, at least the lower portion of his view?
A. Well, I can't—you know, I can't really say
that's where he was standing. I don't really remem-
ber where he was standing. I know we didn't want
to be observed. You know, he might have even
been behind me somewhat, you know.
Q. But he was with you for the full 20 or 30 min-
utes?
A. Yes, he was.
Q. Now, as the foreman in that area you would
become aware if there was a problem cropping up
in the area, wouldn't you? I mean, that's basically
your job?
A. Yes.
Q. Now, you had a lead person and an assistant
lead person, the first being Ms. Marshall and the
second being Ms. Powers?
A. Yes.
Q, It's my understanding that you are responsible
for assigning the job function or work for that
period of the day or the whole day for each of
those individuals or both of those individuals?
A. I don't—they don't come to work and get as-
signments from me, no. They go on their own and
they know what has to be done during the day. I
don't know that Lynnette Marshall is going to be
over putting out re-work or something or putting
out holdover or doing this in a certain time of the
day, no, I don't—I never know that.
Q. Okay. Then if you don't specifically assign her
tasks, it's just an understanding that she has to com-
plete certain functions during that day and she can
make the decisions herself as to how she's going to
go about them?
A. Uh-huh.
Q. Excuse me. Does she in turn tell her assistant
lead person what to do?
A. No.
Q. Who tells the assistant lead person what to
do?
A. She might—how can I say that? I'm not
saying Lynnette—it would be telling her somewhat
to do, I guess, to help train her.
Q. So you do, in fact, tell her what to do?
A. Yeah.
Q. Do you or does Ms. Marshall tell the assist-
ant—now, we're talking about the fall of '81. At
that time, who told the assistant lead person what to
do?
A. It would—well, I am their foreman but I'm
not saying that Lyrmette didn't tell LaDolma
[Powers] to do this or to do that or "We're going
to go do this now and show you how to do
that," you know.
Q. When did you first become aware on that day
that there was a backup?
A. To be—I would have to say actually when
Linda Tanner come in the office and said that No. 4
was backlogged that day, you know, or that she
was having trouble with Pat Blue not hitting the
nozzles that day, I would have to say.
Q. Were you in that area that morning before the
lunch break?
A. Yes.
Q. Did you see the meat stacked up on the floor?
A. Yes, I really do remember.
Q. Did that constitute a problem in your mind?
A. Yes. Yeah, I know what you're saying. I don't
know. See, every place I put Pat Blue there was
meat on the floor, to the knees, you know, towards
the latter part of, you know, so I don't—I can't ac-
tually say I seen a pile of meat there at eight
o'clock in the morning. I can't remember that.
Q. How many hours into the shift were you
before they took a lunch break? Are we talking
about four hours, halfway through?
A. Five.
Q. Five hours?
A. Yes.
Q. During that five-hour period, being in that
area, being paid to observe what's going on in that
area, did you observe the meat on the floor?
A. I'm almost sure I did.
Q. Do you know where Ms. Powers worked that
morning the first four hours?
A. The lead people usually got out all of the re-
work and holdover during the day. First thing in
the morning and at grade changes we have to
change—we have to take away certain meat and
put other meat back in to pack off at grade changes.
And in the morning usually the first hour is taken
up with that or the second hour. I don't know
when we had grade changes. And re-work is done
all day long back in—
Q. In the dock area?
A. Yes.
Q. One of the purposes of having lead persons is
to take over for someone when they have to take a
break or use the facilities, is that correct?
A. Yes, I use them for that.
1454 DECISIONS OF THE NAT/ONAL LABOR RELATIONS BOARD
Q. Do the employees have a break before the
lunch break?
A. Yes. They have a 15-minute break at 8:30 in
the morning, and they go to lunch at 11:00.
Q. Would it be the standard operating procedure
to have a lead person on the floor, on the Fab
Floor in the parking area during the morning? That
is, you have two. You have Marshall and you have
Powers, the assistant. If one was doing re-work,
would you make it a point to make sure that the
other lead person or assistant lead person was on
the Fab floor, [in] the packaging area?
A. No, not necessarily, no, huh-uh.
Q. So you would let both of them leave that
area?
A. Well, they wouldn't really be leaving the area,
you know. Back in here where they box beef, you
know, there's a lot goes on back there. You know,
it's very important certain pieces of meat get in the
right boxes and the right labels. And at that time I
also had my people go up in the box shop, you
know, my area goes up there too. I'm not saying ex-
actly where they were.
Q. Would you normally—or would the occasion
arise where you would assign both of those individ-
uals to work in the re-work area at the same time?
A. Yes. We have a lot of trouble with box stor-
age damaging a lot of boxes. And we've had refrig-
eration lines break out there that have gotten maybe
like—I've done up to 150 boxes of re-work a day in
those first years that Monfort opened up.
Q. Now, if you were experiencing a problem on
the Fab floor packing area with the rotomatics,
would it be your practice if the both of them were
in the re-work area to pull at least one of them out
of the re-work and help out on the floor?
A. Oh, yes.
Q. But on the morning of the day that Ms. Blue
was discharged, do you specifically recall?
A. Having?
Q. Pulling either one of those if they were, in
fact, both in the re-work area? Do you specifically
recall pulling either or both of them out of that
area?
A. No, I do not recall that. But when they do re-
work up on the dock, there is a big, you know, it's
an open, double wide door. They would automati-
cally see that. And both of those girls are—what
can I say—experienced enough, qualified enough, if
they saw trouble over here, I really don't think I
would have had to went over there and told one of
them to clean up. I have enough faith then they
would have automatically went over there.
Q. Is that your understanding with them?
A. Yes.
Q. That they are responsible when they're in the
re-work area to observe the Fab floor, the rotoma-
tic area, and if there is a problem they should return
from the re-work area and help out in the rotomatic
area? Is that your understanding with them?
A. Right.
Q. Is that explicit understanding with them?
A. Yes, especially if they're doing re-work be-
cause that can always wait. Even if I had trouble
back here boxing and I ran out of boxes or if I had
a problem back here, I'm sure they would automati-
cally go there without even coming to me and
saying, "Wanda, there's a problem back here."
Q. Explicit, meaning you have specifically told
them that that's what you want them to do?
A. Yes.
Q. You told Ms. Marshall and Ms. Powers both
that?
A. Yes, because a lead person, their next—to me
they're being trained to be a supervisor, and they
have to have their eyes going out further than just
one job they're working on.
Q. Now, apparently there are doors between the
rotomatic floor area and the dock area where the
re-work is done, is that correct? Apparently a big
door the size of a garage door and a smaller door?
A. Yes.
Q. Is there plastic hanging down to block the air
flow between these two area in those doorways?
A. There's been times that plastic hasn't been
there and it's been replaced or they'll—yes, but
when they do re-work they put them back and put
chains around them.
Q. I see. So that again is an understanding be-
tween you and them, that when they're in this area
doing re-work that they are supposed to part the
plastic so that they can see into the Fab area, the
rotomatic area and keep track of what's going on?
A. No, it just would make that job easier because
they're real thick plastic. They'd have it hitting
them in the face all the time, you know. If they're
doing re-work and—
Q. So they're moving back and forth?
A. Yeah.
Q. Through that entranceway?
A. Uh-huh.
Q. I see.
Do you know where Ms. Powers and Ms. Mar-
shall were the morning of the day that Ms. Blue
was discharged?
A. No, I don't. No.
Q. But if, in fact, there were a major problem
and you were aware of the major problem, and
they weren't on the floor to assist, you would make
it a point to fmd out where they were?
A. Yes, I would.
Q. But you don't specifically recall doing it that
way?
A. No. No, I don't.
Blue was warned about her work performance only
one other time (see R. Exh. 11), which indicates that
Blue violated Rule 5—namely inhibiting the flow of
product by [s]hutting off roto walking around to shrink
tunnel not hitting every nozzle with product." Kayl
signed the form as Blue's supervisor. The form also con-
tains the following: "Refused to sign." The space next to
"EMPLOYEE'S SIGNATURE" is blank. Regarding
this, Blue testified that on the day she received the warn-
MONFORT OF COLORADO 1455
ing for inhibiting the flow she was Working line 2; that
the clipper head that puts a little wire clip around the
bag so that the vacuum sealer remains sealed was cutting
the bags, snagging them and when they would go
through the heat shrink tunnel it would cause a leaker
where air gets into the bag; that they were getting ap-
proximately 8 out of 10 back; that she, Blue, was work-
ing next to the heat shrink tunnel so it was her responsi-
bility to keep an eye on the shrink tunnel to make sure
that no meat was caught in there; that if they suspected
the clipper head then they would have to get a mainte-
nance man to come to the machine, which took time;
that they would have to let him watch and see if he
agreed with what the problem was, and then he would
replace the clipper head; that on this particular day the
clipper head had been replaced a couple of times; that
the problem continued and the meat continued to stack
up and they had to run the meat through the line three,
four, or five times; that this was cooking the meat; that
after it goes through there so many times the heat value
on the meat reaches a point where you cannot seal the
bag anyway; that you then have to put meat in a tub and
wait for it to cool; that she asked Kayl to get mainte-
nance to come and look at the machine and see what the
problem was and it took sometime to find out that it was
a maladjustment on the clipper heads; that three of the
clipper heads on the floor had the same problem; that
the maintenance people were shown how to adjust it and
they never had that problem again; that it took time to
solve the problem; that rather than running the meat
through continuously and having leaker after leaker she
shut the machine off; that this is why she received the
writeup; that the machine was off a couple of minutes;
that the decision to shut the machine off was made by
the people on the rotomatic; and that she did not believe
that her partner received a writeup. Kayl testified that
she spoke to Blue in August 1981 about Blue's work per-
formance; that she told Blue that she was going to have
to improve her work performance; that she thought she
issued a step at that time but she did not remember; that
she thought it involved Respondent's Exhibit 11, which
has a date of August 4, 1981; that she called Blue into
the office on that occasion for shutting off the rotomatic;
that she personally observed what occurred; that it is her
handwriting on Respondent's Exhibit 11; that she could
not recall exactly where Blue went; that she really did
not remember what she observed; that she did not re-
member the meeting she had with Blue concerning the
step other than the time she talked to Blue about her
work performance, which involved leaving her work sta-
tion; that she could not recall what Blue said at this par-
ticular time; that Blue refused to sign the step "probably
because . . Blue had so many excuses all the time I
couldn't remember everyone of them"; and that she
could not remember the reason Blue gave for shutting
off the rotomatic.
Blue testified that she and about 14 other people pick-
eted the Stuhr Museum on July 14, 1981, because Ken
Monfort was having a meeting that day with the Grand
Island city fathers and the employees had not been able
to get him to talk to Monfort and they wanted to get his
attention regarding the fact that he had problems at the
plant and the employees needed some help getting them
solved. Those picketing carried a sign reading "Kill
Cattle Not People." Blue testified that she believed Ken
Monfort saw her that clay when she was picketing be-
cause she was the only one of the pickets to give Mon-
fort one-half of the peace sign or the "bird" and Monfort
commented on receiving half of the peace sign on the
night news.
As noted above, Blue gave speeches to Monfort's em-
ployees in support of UFCW. The first was given on
June 26, 1981, in the lunchroom cafeteria where she
asked Dick Monfort, who is the plant supervisor and son
of Ken Monfort, if he could do her a favor when he
went home to see his father, if he would have a copy of
the NMU contract written on White Cloud, a bathroom
tissue, because at least she could get some good out of it.
Then Blue asked the people if they would join her in
front of the lunchroom, holding hands, and asked Mon-
fort to "let us have our right to vote." All but about 6 of
the 200 people in the lunchroom did this. This lunch-
room is used by fabrication employees. When Blue gave
her speech in the breakroom some supervisors were
present, namely, Dick Monfort, Braden, and Kayl. Blue
gave the second speech about 2 weeks before the elec-
tion in the lunchroom with about 200 employees present.
Supervisors were also present, namely, Braden, Kayl,
and Dick Monfort. Blue believed the subject matter re-
lated to the campaign but she could not recall the specif-
ics of what she said. Blue gave the third speech the day
of the election, October 9, 1981, in the lunchroom with
about 200 employees present. This speech, given the
morning of the election, was a short speech in which she
asked the people to stop and think about what they were
going to do. No supervisors were present in the lunch-
room during that speech.
Blue was active in other ways during the campaign in
that she was on the organizing committee, gave out
cards, hap:Milled, talked to people, and wore stickers on
her work hat. She gave out between 30 and 50 authoriza-
tion cards between September and October 9, 1981,
handbilled about three times within 2 weeks to a month
of the election (Blue testified that supervisors saw her
handbilling but that she could not name them), and she
talked to about 15 fellow employees about UFCW.
After the election Nelson kept handing out authoriza-
tion cards and stickers and he kept handbilling for
UFCW. In January or February 1982 he was standing on
the loading dock with Jim Dory and Dory handed him
some authorization cards that he, Dory, had already
gotten signed in the plant. Gaylord Hansen walked up
behind Nelson and asked Nelson "You getting a lot of
cards signed?" Nelson told Hansen "I'm getting a heck
of a lot of cards signed." Nelson then asked Hansen if he
like to sign one and Hansen turned around and walked
off. After the incident with Hansen, Nelson continued to
pass out union cards.
On October 20, 1981, Dory, a lugger, and another man
who also worked in the same section, Mat Swaink, were
involved in an incident. Dory was already in step four of
the disciplinary procedure and even a minor infraction at
that time would have, therefore, resulted in his termina-
1456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion. Accounts as to what happened vary. It is noted,
however, that Dory's separation notice and attached in-
cident report (R. Exh. 44), refers to the use of a hook by
Dory. More specifically, the incident report indicates
that Dory came at Swaink with a hook in his hand held
about chest high, and that Dory denied this. According
to Nelson, who witnessed a part of the incident, Dory
and Swaink had a hold of each other but no blows were
exchanged. Buettner also witnessed the incident testify-
ing herein that the only thing he saw was Dory slide a
metal trolley across the floor and hit Swaink in the foot
with it; that no blows were exchanged; and that if there
was more to the incident he did not see it. William
Zuehlke testified herein that he observed Dory and
Swaink exchanging blows.
As indicated, Dory was terminated. Subsequently
there was a meeting with everyone in the cooler, the
chain gang, and the luggers. Gaylord Hansen conducted
the meeting the purpose of which was to inform employ-
ees that he did not want anymore fighting or horseplay.
Nelson and Lundell attended the meeting and they,
along with the others, were advised that a man was fired
for fighting and that if anyone engaged in fighting,
threatened anyone, or engaged in horseplay he would be
discharged immediately.
Nelson's December 8, 1982 affidavit to the Board (R.
Exh. 5), indicates that about a week before Nelson was
fired Buettner told Nelson and Simons that he, Buettner,
had been called upstairs over Dory's being fired, and
that Simons and Nelson should watch it because he
heard William Zuehlke say that he wished that it had
been Simons or Nelson that had been caught instead of
Dory. According to the affidavit, later that day Zuehlke
came to the loading dock and Simons and Nelson talked
to him with Simons asking Zuehlke about the fact that
they heard that he was trying to get rid of them. Ac-
cording to the affidavit, Zuehlke asked who told them
that, and Simons said a little bird. Zuehlke then said,
"Well you listen to that little birdie and we'll see what
we can do about it." Zuehlke then walked away. Nelson
testified that Buettner was the employee who told Kenny
Simons and Nelson about something he heard during the
Dory investigation. Specifically, he testified that
Buettner said that Zuehlke was going to get Simons and
Nelson and that Zuehlke wished it was one of them he
caught instead of Dory.
William Zuehlke testified that he spoke with Buettner
about the Dory matter since Buettner was standing in a
position nearby and Zuehlke asked him to explain to
Gaylord Hansen what happened, what he saw; that he
recalled having a conversation with Simons shortly after
the discharge of Dory, and Simons asked him if he was
out for his, Simons', job; that he, Zuehlke, asked Simons
who had told him that and Simons replied a little bird;
and that he, Zuehlke, told Simons not to pay any atten-
tion to that little bird just do his job, just worry about
his own job. Buettner testified that Simons' name was
not mentioned during his, Buettner's, discussion of the
Dory incident with Zuehlke and Hansen; that neither
Zuehlke nor Hansen said that they had wished it had
been Simons that they had caught fighting; that Nelson's
name was not mentioned by Zuehlke and Hansen during
his discussion with them of the Dory fight; that he never
told Simons or Nelson that Zuehlke or Hansen said any-
thing to the effect that they should watch out; and that
he never told anyone else that. And Kenny Simons testi-
fied that he witnessed the incident over which Dory was
terminated but that when he testified herein he could not
remember what he saw because "it was a long time
ago." It is noted that this incident occurred just weeks
before Nelson was fired and Simons testified regarding
the latter.
Rojas testified that in November 1982 after Dory had
been fired but before Nelson was terminated, he translat-
ed regarding an incident involving Pat Chase and Me-
lanie Correll; that his supervisor Richard Decker asked
him to give the translation in Gaylord Hansen's office;
that at the first meeting those present included Chase,
Correll, Decker, and himself; that Decker asked him to
ask Correll in Spanish what had happened; that Correll
said that she told Chase, who kept throwing water at
her, that if she did it one more time, she, Correll, would
use a shroud pin on her—poke or stab her with the pin;
that a shroud pin is a piece of wire about 2 to 2-1/2
inches long which has a ring on one end and is used to
hold a shroud in place on the carcass when it it being
frozen; that Correll told him that Chase had been throw-
ing water at her for what could have been 2 or 3 weeks
and that he told Decker this; that Decker told Rojas that
Chase had been stabbed in the arm; that Decker did not
want this to happen anymore; that the best thing to do
was to move Correll away from Chase to another posi-
tion; that about 15 or 20 minutes later he was called into
the office again by Decker; that this time Gaylord
Hansen was there in his office also; that Rojas again
translated; that Hansen said that he did not want to fire
either of them so he was going to reprimand them but
that if this ever happened again he would fire both of
them; that Correll claimed that she did not know that
she poked Chase with a pin—that she thought she just
pointed it at her; that as far as he knew the two employ-
ees were just reprimanded and told not tp do it again;
that he personally observed Chase's arm and saw a "kind
of a bruise in there, you know. It wasn't bleeding but
you can tell it broke the skin a little bit"; that at the first
meeting with Correll, Decker, and Chase, Correll said
Chase threw water on her and she just poked her with
the shroud pin; that Decker then said that "she had some
hole in her arm and he had seen it"; and that Correll
then said that she did not think she put that much pres-
sure or poked her that hard to make a hole in her arm.
Subsequently Gaylord Hansen testified that he knows
an employee named Chase who is under his supervision,
but he did not recall her ever fighting with another em-
ployee; that he recalled her having difficulty getting
along with another employee, namely Correll, who did
not speak any English; that the situation was brought to
his attention by one of his foreman, Decker; that Decker
informed him that Correll thought that she was getting
water thrown on her and Correll stuck Chase in the arm
with a shroud pin; that it was not deliberate; that an inci-
dent report was written; that he was involved in the in-
vestigation of this matter and present when Decker
MONFORT OF COLORADO 1457
asked the employees about the incident; that he did not
deem this incident a fighting incident because he be-
lieved it had a lot to do with a language barrier since
Correll did not speak English and she did not quite un-
derstand the job since she was a fairly new employee to
the job at the time; and that he believed they were both
told that if the incident happened again they could be
fired.
On November 18, 1982, Nelson was involved in an in-
cident with another man on the loading crew, Marlon
Lundell. Three individuals testified about the incident
itself Nelson, Lundell, and Kenny Simons. And Buettner
testified about what it was like to work with Lundell.
Nelson testified that on November 18, 1982, he was a
beef lugger in the coolers working on the loading crew;
that normally a loading crew consists of four individuals,
namely, a knifer who stands at the back of the truck and
separates the front quarters from the hinds of the side of
beef; that two luggers carry the meat from the dock into
the truck after the knifer cuts the hind from the front
quarter or cuts the front quarter from the side of beef;
that the pieces of beef weigh from 140 to 300 pounds;
that a hooker is in the truck; that if it is a down shot or
low shot the lugger takes it off his shoulder, puts it on
his thighs, and flops it over so that the hooker can hook
it (a down shot means a hook hanging from the rail,
which extends to the lower part of the truck); that the
down shots or low shots are hooked before the top shots;
that the down shot is the front quarter, which is loaded
first on the lower hook; that the hooker is supposed to
have the hook in one hand and with the other hand grab
the meat and shove the hook into the meat; that the
hooker is supposed to place the hook to hold three ribs;
that after the hooker hooks the meat the lugger lets it
go; that when this happens the meat goes up against the
wall suspended from the hook; that if the hooker does
not get the hook in the right place in the piece of meat
and it falls it is the hooker's meat and traditionally the
hooker has to pick it up off the floor and with the help
of the lugger, the hooker places the meat on his shoul-
der; that after the hooker has the meat on his shoulder
the lugger goes over to where the hook is and waits for
the hooker to bring the meat to him and he, the lugger,
now hooks it; that on November 18, 1982, he was load-
ing a Safeway Truck, which means that the lugger
brings in the meat and he and the hooker place two front
quarters on each side of the truck low and after those
four quarters are placed, the lugger brings in another
quarter and has to push the front quarter up to get it on
the top shot, or the high hook that hangs from a rail
against the wall of the truck on each side; that then the
hinds are brought in, namely, six hinds that are hung in
the middle of the truck; that on November 18 the load-
ing crew consisted of Kenny Simons, Larry Oakley,
Lundell, and himself; that Oakley was knifing, Simons
and he were lugging, and Lundell was hooking; that
they had to keep telling Lundell where to place the
hooks because Lundell could not remember from one rail
to the next where to place the hooks and the luggers
were standing with meat on their shoulders while Lun-
dell tried to remember where to put the hooks; that
when the trailer was one-half to three-fourths loaded, he,
Nelson brought in a front quarter of beef for a down
shot; that he brought it to his thighs and flopped it over
for Lundell to hook it; that Lundell stuck the hook in
the skirt, which is a part of the diaplwagm; that when he,
Nelson, let go of the meat the hook ripped out and the
meat fell on the floor; that Lundell picked up the piece
of meat and Nelson helped him put it on his, Lundell's,
shoulder; that he then went over to the side of the truck
to hold the hook and Lundell then walked over to him,
stopping about 3 feet away; that Lundell threw the front
quarter at him from a distance of 2 to 3 feet; that the
front quarter hit him, Nelson, in the stomach and chest
and it fell down to the floor at his feet; that he reached
over and shoved Lundell and told him "to knock that
shit off and Lundell said I'm sorry"; that then he and
Lundell picked the front quarter up and hooked it; that
they finishedli the load and did two or three more loads
that day and no more was said about it; that this oc-
curred sometime in the morning; that it took another 15
or 20 minutes to finish loading the Safeway Truck; that
he, Nelson, finished loading the Safeway Truck with the
same crew—Simons, Oakley, and Lundell; that Lundell
continued to hook; that he continued to lug; that when
the incident occurred Simons was standing outside the
truck on the loading dock about 35 to 40 feet from
Nelson and Lundell; that Oakley was outside the truck
so that he could not have seen what happened; that he,
Nelson, did not know whether Simons was facing
toward the inside of the trailer when the incident oc-
curred; that the heifer faces the truck; that the quarter of
beef that Lundell threw at him would have weighed be-
tween 150 and 200 pounds; that he was 31 years old,
stood 6 feet 1 inch tall, and weighed between 155 and
160 pounds; that previously he worked at Sunflower
Beef and then Swifts in Grand Island; that while he
worked for Swifts he was a member of the UFCW; that
Lundell also worked for Swifts and he belonged to the
Union; that he thought Lundell was in his late forties;
that he never harassed or bothered Lundell; that he
thought Lundell was about 5 feet 10 or 11 inches tall and
weighed about 160 to 165 pounds; that he shoved Lim-
dell with two hands but did not pin him up against the
trailer wall; that when he shoved Lundell he, Lundell,
went back against the other wall of the truck; that
Simons would have seen what happened; that he,
Nelson, did not throw the front quarter of beef at the
hook and miss; that the front quarter probably did hit
Lundell on his legs as it fell; that for at least several days
prior to the November 18 incident Lundell was having
problems hooking in that he could not remember from
one rail to the next where to put the hooks and the lug-
gers had to keep telling him over and over; that this irri-
tated Nelson; that he never told anyone in management
that he was unhappy with Lundell's work performance;
that he believed management knew how Lundell
worked; that only after the incident did he tell Gaylord
Hansen that Lundell should be shown how to perform
his job correctly; that while Lundell was a floater
moving from job to job, Lundell worked on the lugging
crew the whole week prior to the incident and the week
prior to that and the week of the incident except for Nel-
1458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
son's last day; and that when Lundell threw this approxi-
mately 200-pound front quarter of beef or rather unload-
ed it from his shoulder, it crossed a distance of approxi-
mately 2 to 3 feet and hit Nelson, who is approximately
2 inches taller than Lundell, in the chest and stomach.
Lundell testified that he had worked with this lugging
crew for about 3 weeks; that he would trade jobs and
every other truck he would lug and then hook; that at
the time in question the lugger would come in with a
front section for a down shot and it was supposed to be
set down and hooked but Nelson would not do that, he
would just throw it at Lundell; that Simons would do it
right; that "about everyone of Nelson's would hit the
ground and he [Lundell] would have to pick it up"; that
the truck in question was about three-fourths loaded
when Nelson came in with the last piece available at that
time and threw it at Lundell and it hit Lundell in the leg;
that he got mad, picked it up and did the same thing to
Nelson; that he threw it at Nelson from a distance of
about 3 feet, he threw it at the hook; that he did not
recall that it hit Nelson; that Nelson then said, "You
don't do that to me or I'll knock you right on your ass
. . I'll fight with you right now"; that he, Lundell, re-
plied, "You can hit me all you want, I will not hit you
back"; that he then got out of the truck and stood be-
tween Oakley and Simons; that before he got out of the
truck Nelson pushed him into the beef hooks; that
Nelson grabbed him by the shirt and shoved him into the
hooks and said he was going to knock him on his ass;
that he, Lundell, hit the side of the truck and the hooks
also but that he did not get hurt by them although he
easily could have been hurt; that at the time of the inci-
dent Simons was outside by the truck ready to carry in
another piece; that either Simons or Oaldey told Nelson
leave him, Lundell, alone; that afterwards, he, Lundell,
lugged in another truck and Simons hooked; that Simons
is about 6 feet 3 or 4 inches tall and weighs between 240
and 250 pounds; that Oakley is about 6 feet 1 or 2 inches
tall and weighs about 260 pounds; that the buggy nor-
mally used by the luggers was broken so they had to
carry the meat on their shoulders; that the quarters of
beef weigh anywhere between 150 to 200 pounds and
some weigh more; that the lugger has to carry the beef
up to 60 feet into the trailer; that the buggy was used
earlier in the day; that he was not having trouble remem-
bering where to place the hooks in the truck; that he has
lugged for many years and has no problem remembering
where to put the hooks; that there were another 10 head
to put in the truck but the meat was not available at that
time so they went on to the next truck; that they were
about three fourth fmished with the Safeway Truck,
which would mean that they were about 15 feet from the
back end of the trailer; that when Nelson came in with
the quarter of beef on his shoulder both Oakley and
Simons were outside the truck; that Nelson threw the
quarter at the hook before he, Lundell, was ready and
Nelson did it all the way through the truck that way
with the quarters of beef hitting the floor, three, four,
five, and six times; that he, Lundell, did not know
whether the quarter of beef hit Nelson; that Nelson did
move; that Nelson was backed up against the side of the
truck with his back to the wall and the quarter was lying
between them; that Nelson grabbed him and shoved him
into the hooks and told him that he was going to knock
him on his ass, knock him to pieces; that Nelson walked
around him and grabbed a hold of him and shoved him
into the hooks; that the piece of meat was to be set on
the left side of the trailer; that after he, Lundell, threw
the quarter of beef Nelson got up and around and he just
grabbed a hold of him and shoved him into the hooks
and said, "I'll knock you right on your ass you ain't
going to do that to me" and he, Lundell, said, "you've
been doing that to me all day"; that Nelson said, "I'll
knock you right on your ass I'll cripple you" and he,
Lundell, said, "I ain't going to fight with you and I don't
care what you do I'm not fighting with you"; that
Nelson shoved him, Lundell, into the hooks on the left
side of the truck; that Oakley and Simons told Nelson
"you leave him alone"; that at the end of the shift Fore-
man William Zuehlke came by and said it's time to go
home but he, Lundell, did not say anything to him about
the incident at that time; that he told Nelson that he was
not going to fight with him; that he didn't care what he,
Nelson, did to him he was not going to fight back; that
he told Nelson that "[y]ou've been doing that to me all
the time, why can't I do it to you"; that when he had the
quarter of beef on his shoulder he was looking down-
ward and does not know whether the beef hit Nelson;
that it could have hit Nelson; that when Nelson threw
this quarter of beef Lundell should have hooked it below
the second rib but was off by half an inch and hit the
second rib and the hook bounced off; that this quarter
was a down shot or meant to go on the lower hook; that
Nelson was improperly throwing for the down shots be-
cause it is supposed to be thrown for the upper shots;
that he, Lundell, had not said anything to Nelson before
this; that the other luggers would bring the quarter down
off the shoulder and Lundell would then hook them; that
he is 5 feet 8 inches tall and he was 52 years old in
March 1984; and that everyone throws the meat for the
up shot.
Kenny Simons testified that he did not witness the
whole incident between Nelson and Lundell but he saw
Lundell being slammed against the wall of the truck; that
he, Simons, was walking into the trailer carrying some
meat and Nelson was following him; that Lundell
hooked the meat Simons was carrying and as he, Simons,
turned around and started walking out of the truck, he
passed Denny and he heard the meat thump; that just as
he turned around Lundell was going up against the wall
and he, Simons, saw the meat on the floor; that Lundell
went up against the right side of the truck; that Lundell
apologized and said he was sorry and so forth and went
16 pick up the meat again; that he, Simons, then turned
around and walked out; that he was 8 to 10 feet away
from Nelson and Lundell when he saw the incident; that
for the down shot while he, Simons, would bear hug the
quarter of beef, Nelson would just kind of bring it down
and drop it to his knees real fast; that it is a lot easier for
the hooker if you take the meat down slowly; that
Nelson always called Lundell names, namely, "sonofa-
MONFORT- OF COLORADO 1459
bitch," or "old man"; 2° that the beef involved was of
medium weight about 200 pounds to a quarter; that he
has lugged beef for 2-1/2 years; that, in his opinion, it
would be impossible for Lundell to throw the involved
quarter from approximately 2 or 3 feet away and hit a 6-
foot man in the chest; that he, Simons, is 6 feet 5 inches
tall and weighs 220 pounds; that Lundell was older than
the other members on the loading crew and he was
smaller; that most of the time while Lundell worked on
the loading crew he worked as a hooker or a knifer; that
the normal procedure is for the hooker and lugger to
switch off so that members of the loading crew spend
the same amount of time doing each of the tasks; that
Lundell, because he was older and smaller, was unable to
spend as much time lugging as the other members of the
crew but rather spent most of his time hooking and knif-
ing; that Lundell took a while to figure out where to
place the hooks, he was a little slow on placing hooks on
the rail and in the meat also;21 that while normally lug-
gen have a buggy to help them bring the meat into the
trailer, on November 18 the buggy was broken and it
had been broken all day; that the luggers' job was, there-
fore, harder because they had to carry the meat into the
trailer rather than push it in on a buggy; that Nelson's
technique of throwing a quarter of beef at the hook was
the same throughout the year that Simons lugged with
him; that Simons never talked to a supervisor about the
way Nelson lugged; that Nelson is smaller than Simons;
that at the time of the incident the 40-foot trailer was ap-
proximately half full; that when the incident occurred he
was walking out of the truck; that the first thing he
heard was the meat hitting the floor; that when he,
Simons, turned around he saw Lundell going against the
wall, Lundell was being thrown against the right side of
the trailer or the side opposite that which they had been
loading; that the quarter of beef was being loaded on the
left side of the trailer; that he could not remember which
side of the trailer the quarter of beef was lying on; that
the first thing he saw was Lundell moving backwards
and Nelson was standing in front of Lundell; that Nelson
at this point was not touching Lundell; that he did not
see them touching; that Nelson and Lundell were about
3 or 4 feet apart; that Nelson's hands were at his side;
that Lundell said, "I'm sorry"; that before that he heard
Nelson call Lundell a few names and say do not do that
to me; that at this point Simons turned around and went
back out on the dock; that he did not say anything to
20 During his testimony herein Simons himself referred to Lundell as
the "old man."
21 Another witness called by Respondent, Buettner, testified that he
worked with Lundell on a lugging crew; that Lundell was older than
most of the men who worked on the lugging crew, and he, Lundell, were
smaller and he did not trade off as often at being a lugger as the other
people on the crew; that Lundell more often than not worked as a
hooker or knifer when he worked on the lugging crew; that he, Buettner,
has seen Lundell hook meat; that Lundell was slow at placing hooks in
the trailer but he tried; that it took Lundell longer than it would take
other hookers to place the hook; that the effect on the lugger would be
that he would be waiting with the quarter of beef longer than necessary
on his shoulder while Lundell was placing the hook; that Nelson was
known to be an active supporter of UFCW by employees and manage-
ment alike and that he had that reputation; and that he, Buettner, saw
Nelson handbilling once or twice and wearing union stickers on his hat
and a union T-shirt.
Nelson or Lundell; that later in the day William Zuehlke
was out on the loading dock and he, Simons, did not say
anything to him about the incident and neither did
Oakley as far as Simons knew; and that Nelson weighs
about 175 pounds and Lundell weighs about 150 to 160
pounds.
Lundell testified that the day after the incident he
talked to the pin puller and asked him if he would trade
jobs; that he then went and spoke to William Zuehlke
who was his foreman at the time; that he told Zuehlke
that he was getting too old for lugging and he would ap-
preciate it very much if he, Zuehlke, let Lundell trade
jobs and pull pins; that Zuehlke said it was okay; that
about 2 hours after he began pulling pins Zuehlke came
up to him and asked him if he traded jobs on account of
Nelson pushing him around; that he said yes; that
Zuehlke then asked him if he would go up and talk to
Gaylord Hansen about the incident; that he, Lundell,
then spoke to Hansen but he could not recall whether
Zuehlke was present; that someone gave him a statement
to sign and he signed it without reading it because he did
not have his glasses with him and he could not recall
whether someone read the statement to him before he
signed it; that he was told not to do it again, not to
throw meat again; and that he told Hansen "I just was
mad at the time and I just didn't think what I was doing.
I know it was wrong. . . . But when you're mad that's
what happens."
William Zuehlke testified that on November 19, 1982,
Oakley came up to him and told him what had happened
the day before between Nelson and Lundell; that he then
asked Simons what happened; that he then went to Lun-
dell who was pulling pins and asked him what happened;
that earlier Lundell had asked him to get off the loading
crew but Lundell did not say why he wanted to get off
the loading crew; that Lundell said that Nelson grabbed
him over a quarter of beef and kept telling him he was
going to knock his head off and pushed him against the
truck and Lundell said that he told Nelson he did not
want to fight and he was not going to fight; that he went
to see his supervisor, Gaylord Hansen, and told him
what the three employees said and Hansen told him to
get Lundell into the office; that Hansen spoke to Lundell
and told him, Zuehlke, to get Oakley and Simons and
bring them in; that Hansen then spoke to these two indi-
viduals; that when Hansen spoke with the three employ-
ees he, Zuehlke, took notes (G.C. Exh. 23); that Hansen
also called Nelson into his office and discussed the
matter with him and again Zuehlke took notes; that
Hansen told him to get Harley Thomas and have Nelson
suspended pending the investigation; that he told
Thomas that Hansen wanted to suspend "Denny" Nelson
pending investigation for fighting in the truck; that
Thomas called "Denny" Nelson in there and spoke to
"Denny" and he wrote up the suspension; that he,
Thomas, and Nelson signed an incident report suspend-
ing Nelson (R. Exh. 4) (the signatures of Thomas and
Zuehlke appear in the box designated as "Supervisors
Signature"); that regarding problems with Lundell's
work, Lundell was a little slow starting a job, it would
take a little time to tell him what to do and how to do it;
1460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he did not remember when Lundell asked to be
transferred on the morning of November 19, whether
Lundell said that he was too old to be a lugger; that he
never heard complaints before this incident that Lundell
was slow at hooking; that after the incident Nelson made
this assertion; that he believed that he and Hansen spoke
with Lundell twice; that Lundell was the first one that
Hansen spoke to; that they spoke to Lundell twice be-
cause they wanted to make sure that they had everything
straight before they called "Denny" Nelson into the
office; that he and Hansen spoke with each of the load-
ing crew members separately; that Hansen did not take
any notes but he, Zuehlke did, that General Counsel's
Exhibit 23 was later drafted by his wife from the notes
he made during these meetings; that when he first spoke
to Thomas all he said was that Hansen said that they
were to suspend "Denny" Nelson for fighting in the
truck; that he did not go into specific information with
Thomas until Nelson got into the office; that Respond-
ent's Exhibit 4 was filled out when "Denny" Nelson was
in the office; that when he brought Nelson to Thomas'
office, Thomas had not begun to fill out the report but
rather Thomas filled it out with Nelson sitting there; that
Nelson was asked to give his version of what happened
and Thomas listened to what Nelson had to say about
what happened; that he, Zuehlke, told Thomas he,
Zuehlke, had statements from the other employees on
the loading crew as to what happened and Hansen sat in
on the meetings, and Hansen said that Nelson was to be
suspended pending investigation; that he showed his
notes to Thomas but Thomas did not have an opportuni-
ty to read them over before he talked to Nelson or
before he filled out the personnel action record; that
Nelson said when he was in Hansen's office that Lundell
threw the quarter of beef at him; that Lundell also indi-
cated in Hansen's office that he threw the quarter of beef
at Nelson; that Respondent's Exhibit 4 indicates that the
beef fell on Nelson rather than the fact that Lundell
threw it; that Thomas drafted the comments on Re-
spondent's Exhibit 4 but he, Zuehlke, signed it along
with Nelson; that in his mind there is a difference be-
tween a quarter being thrown and falling; that beef lug-
gers can throw a quarter 2 or 3 feet in the air over to the
hook; that the investigation consisted of management
talking to other individuals (i.e., Barry Decker, Bob
Davis, and Bernard Hansen), none of whom saw what
actually occurred; that at one time he told Lundell to
punch out if he was not going to do a job and Lundell
did punch out and went to the cafeteria during working
hours; that he does tell people to punch out if they are
not going to do a job; that he did not know whether
Lundell punched out that time but Lundell did go to the
cafeteria and this was after Zuehlke told him to do a job
and Lundell refused to do it; that Gaylord Hansen saw
Lundell sitting in the cafeteria and asked him what he
was doing there and Lundell replied Zuehlke fired him;
that Lundell went back to work after Gaylord Hansen
spoke with Zuehlke; that Lundell did not receive any
discipline for this particular incident; and that Gaylord
Hansen did not suspend Nelson on the spot because "he
does not do that, he gives the order to have it done."
Gaylord Hansen, slaughter superintendent day shift,
testified that on November 19, 1982, William Zuehlke,
cooler foreman, told him that some employees came to
him and told him that there had been a fight the day
before; that he told Zuehlke to bring the people to his
office one at a time from the lugging crew; that he
thought Lundell was the first one to come in; that Lun-
dell said he was hooking and Nelson "threw a front
quarter at him and it fell to the floor"; that Lundell
picked it up and "threw it at Denny or it fell on Denny.
And then Denny grabbed him by the head and threw
him against the truck, pushed him around"; that Zuehlke,
at Hansen's behest, took notes during these interviews;
that he believed next he spoke to Simons and Oakley;
that they said that Lundell was hooking and Nelson
"threw a front quarter at" Lundell; that Lundell "went
to pick it up and Nelson started pushing him around";
that Lundell said, "Well, you don't do that to me—
Denny said you can't do that to me. And Marlon said,
"Well you do it to me and I don't want to fight"; that he
then spoke with Nelson; that Nelson said that he threw a
front quarter at a hook and Lundell missed it, and Lun-
dell picked it up and then threw it at Nelson and that he,
Nelson, said to Lundell "I'll knock you on your . . .
ass"; that he then told Zuehlke to get Larry Thomas and
suspend Nelson pending investigation; that a meat pack-
ing plant is a fairly dangerous place; that a number of the
tools that the employees work with are potentially very
dangerous and there is no safe place in a meat packing
plant to have a fight unless it is outside; that the five-step
disciplinary procedure had been in effect for a year or so
when Nelson was fired; that Respondent had made a dis-
tinction between major and minor infractions for a
number of years; that the fighting or horseplay are under
major infractions but termination is not automatic; that it
is within his discretion and it is not automatic termina-
tion everytime someone is involved in horseplay or fight-
ing; that to the best of his knowledge every employee
who has been involved in a fight and who he has had
dealings with has been terminated; that he means that the
aggressor in every fight was terminated; that he has been
involved in every incident of a fight but not necessarily
horseplay; that he would make the determination as to
who was the aggressor in each instance; that he would
be responsible for investigating allegations of fighting in
the slaughter area of the plant only; that he has nothing
to do with the fabrication side of the plant and the super-
intendent on the fabrication side would handle those
matters; that he had told Zuehlke to bring Lundell in
first on November 19; that he did not give Zuehlke any
other instructions regarding the order people were to be
called; that it was his decision to interview the people
separately so that they could speak more freely; that he
always does this; that the notes Zuehlke prepared are an
accurate account of what was said during the meetings;
that he did not tell Zuehlke to have the people sign their
statements but he did tell Zuehlke to have individuals
read over their accounts to verify that those accounts
were correct, which is a common practice of his; that at
the meeting on November 19 Lundell told him that he,
Lundell, threw meat at Nelson; that Nelson said that the
MONFORT OF COLORADO 1461
quarter of beef was not hooked correctly by Lundell and
Lundell had thrown meat at him, which was consistent
with what Lundell said; that he did not recall whether
Nelson asked him to bring Lundell in to talk in his, Nel-
son's, presence that day; that he did not recall Nelson
asking him what he would do if someone threw a quar-
ter of beef at him; that in response to the question do
you recall answering him that you would probably be
angry if someone did that to you, Hansen testified that
"if someone would do that to me, no matter who it is, I
would probably get angry about it"; that if a hooker was
standing ready and the lugger threw a quarter of beef at
him and knocked him off balance it is possible that he
could fall backwards and be impaled on one of the meat
hooks; that he took this into consideration; that he also
considered the fact that Nelson's method of unloading
the meat from his shoulder had been used by Nelson
throughout the trailer, namely, instead of bringing it
down or off his shoulder and helping the hooker he was
unloading it at the hooker; and that after he talked with
the individuals involved, he took into consideration the
fact that when Lundell did it it was not a shortcut so to
speak but rather it was an act of revenge.
Kenny Simons testified that on November 19, 1982, he
discussed the incident with William Zuehlke and later
with Gaylord Hansen in the superintendent's office; that
Oakley was present at the same time when he, Simons,
told Hansen what occurred; that the first time he dis-
cussed the Nelson-Lundell incident with Monfort man-
agement was on November 19, 1982; that while Zuehlke
was present along with Hansen, Zuehlke did not ask any
questions but rather Hansen did all the questioning; that
he does not recall if Zuehlke took notes; that this was
the only meeting that they had with members of manage-
ment regarding the incident and that he did not recall
Zuehlke giving him some notes to review.
Nelson testified that the day after the incident, No-
vember 19, 1982, he came to work and worked until the
first break, which occurred about 8:30 a.m.; that he went
on break and he was on his way back to work when his
foreman William Zuehlke stopped him in the hall and
told him to report to Gaylord Hansen's office; that he
went to Hansen's office; that Hansen, Harley Thomas,
and Zuehlke came in; that Hansen asked Nelson what
happened between Lundell and Nelson the day before;
that Nelson explained what occurred; that Thomas said
that he heard that Nelson had been harassing Lundell;
that Nelson asked them to bring Lundell in and let him
say this; that Thomas said no because Lundell is scared
of you; that he asked Hansen what would you do if
someone threw a front quarter of beef at you and
Hansen said, "I'd get pissed"; that they asked him,
Nelson, to step out of the office; that Nelson was then
informed that he was suspended until the matter was in-
vestigated; that Thomas then took Nelson over to his
office and made him sign a paper and told him to report
back the following Tuesday at 11 a.m.; that he did not
receive a copy of what he and Thomas had signed; that
Thomas filled in the form that he, Nelson, signed, that he
did read the form before signing it; that the form (R.
Exh. 4, dated Novembr 19, 1982) indicates that he was
suspended from November 19 to 23; that he had an op-
portunity to make a change in the supervisor's com-
ments, which read as follows:
Dennis was lugging beef in the trailer through a
[sic] front quarter at the hook. it [sic] missed the
hook and & hit Marlen Lundell on his legs, Marlen
went over & picked up the beef & it fell on Dennis,
then Dennis started yelling at Marlen and pushed
[the word "pushed" was inserted at Nelson's behest
to replace the word "grabbed"] him by the head
and through [sic] him against the side of the trailer.
this [sic] is a Major infraction in the policy book;
that he told Hansen that Lundell was too old to be out
there lugging and that they had to keep telling Lundell
where to put the hooks for every rail while they were
standing there with meat on their shoulders; that while
normally on a loading crew a lugger takes his turn hook-
ing and a hooker takes a turn lugging, when he worked
with Lundell, Nelson usually had him hook because he
was too old to be lugging; that when Lundell was on the
crew, therefore, the luggers had to lug all the time—they
could not change off with the hooker; and that while the
above-described document indicates that Nelson pushed
Lundell by the head this was not accurate.
Harley Thomas testified that he was the general fore-
man in the slaughter division which includes the cooler
and lugging area; that Nelson was fired for fighting, and
he, Thomas, drafted the suspension and separation forms;
that he learned about the fight from William Zuehlke
who is the foreman in the coolers and reports to
Thomas; that he believed Zuehlke told him about it the
day after the fight; that he, Thomas, did not witness the
fight; that when Zuehlke told him, Thomas, about the
fight he, Zuehlke, had already spoken with Hansen, who
is the plant superintendent and Thomas' boss; that
Zuehlke told Thomas that he was supposed to prepare
the suspension form for Nelson (R. Exh. 4); that he
could not recall Nelson saying anything to him when he
had Nelson sign the suspension form; that when he
wrote the suspension form, he was relying on what
Zuehlke told him about the incident; that he was not
present on November 19 when Lundell, Simons, or
Oakley spoke to anyone else in supervision about the
matter; that he did not speak to these three individuals
on the 19th about this matter; that when he drafted the
suspension form he was aware of the fact that Zuehlke
and Hansen had talked to the employees about the inci-
dent, but he was not shown any notes that Zuehlke or
Hansen may have written prior to the time he drafted
the suspension form; that Zuehlke gave him the com-
ments that he put on the suspension form; that Zuehlke
was present while he drafted the suspension; that he was
the only one who wrote the suspension form although
Zuehlke signed it; that Nelson was present when he,
Thomas, filled out the form; that Zuehlke told him what
to put on the form before he, Zuehlke went to get
Nelson, that he, Thomas, filled out the form with Nelson
present; that he did not ask Nelson any questions but
rather just announced that he, Nelson, was going to be
suspended; that he gave the form to Zuehlke to read;
that he was not involved in the investigation of the
1462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matter before Nelson's discharge on November 23; that
he was told to write the suspension up as a major infrac-
tion in the rule book; that Zuehlke did not have the
power to suspend Nelson on his own; that Hansen made
the decision to conduct an investigation and suspend
Nelson; and that he could not recall an occasion when
employees got into a fight and they were not discharged.
Lundell's employee performance record (G.C. Exh.
22) contains the following: "11-22-82 Marlen was told to
put a quarter of beef on a hook he was not to trow [sic]
it at the hook or drop it." William Zuehlke made this
entry after reviewing the procedure with Lundell.
Zuehlke testified that the writeup covered a verbal warn-
ing. Also Zuehlke testified that on Monday, November
22, 1982, he met with Lundell, Oakley, and Simons to-
gether to review the notes, he, Zuehlke made of the
meetings on November 19 (G.C. Exh. 23); that actually
Lundell was brought in by himself and Oakley and
Simons were brought in together; that he, Zuehlke, did
not ask them to sign the statement; that Oakley and
Simons read the statements and indicated that they were
correct; that neither Simons nor Oakley indicated that
they wanted to add anything; that he did not read Lun-
dell's statement to him; that he did not know whether
Lundell signed his statement; that he was not paying
much attention when Lundell was there and he did not
know whether Lundell can read without his glasses; that
he did not recall Lundell signing the statement but ac-
knowledged that there is a signature on General Coun-
sel's Exhibit 21, which appears to be a photostat of that
portion of Zuehlke's notes referring to what Lundell al-
legedly said to Hansen and Zuehlke on November 19,
1982; that all he asked Lundell to do was to read it and
Lundell did read it and Lundell said, That's fine"; that
he saw Lundell sitting there and reading it; that it took a
period of time to look at the piece of paper; that Lundell
was looking at it and talking about it, what it said, what
had happened, and Lundell said that's fme; and that Lun-
dell looked at it for 3 or 4 minutes.
On November 23, 1982, Nelson reported to Bruce
Holten, the personnel manager. Gaylord Hansen, Harley
Thomas, and William Zuehlke were also there. Holten
asked Nelson to tell him what happened with Lundell.
Nelson did. Nelson then said that he thought he had a
good work record in that he had never been written up
for discipline while employed at Monfort and he only
missed about 10 days of work the whole time he was
there. Nelson was then asked to step out of the office.
Nelson testified that when he was called back into the
office Holten said that they were going to start firing
people for horseplay because of what happened to Dory
2 to 3 weeks before that. Also, Nelson testified that
when he discussed the incident with Holten he told
Holten that part of the reason for what he did and why
he did it was because he was going through a divorce.
Gaylord Hansen testified that Nelson told management
that he was having personal problems at home and he
had been kind of hot tempered and pretty edgy and he
did lose his temper; that Nelson did not deny the inci-
dent; that Nelson was asked to leave the office and the
matter was discussed and he, Hansen, decided it would
be best if Nelson was terminated because it was very
dangerous where the luggers work with the swinging
meat and long and short meat hooks and a person could
really get hurt in that area and he believed that Nelson
was the aggressor of the two; that he consulted the com-
pany policy book prior to discharging Nelson, more spe-
cifically page 6 thereof under major infractions; that
rules 1, 2, and 7 are somewhat different from a step pro-
cedure involving matters like absenteeism or tardiness;
that before Nelson, he terminated Dory for fighting; that
he could not recall the name of any others who were
terminated for fighting; that Lundell was not disciplined
over the incident because he, Hansen, believed that
Nelson was more the aggressor of the two; that the work
rules (R. Exh. 42) treat horseplay and roughhousing dif-
ferent than fighting because horseplay and roughhousing
are minor infractions; that when he decided to fire
Nelson he knew that Lundell had thrown a quarter of
meat at Nelson and while Nelson had shoved or pushed
Lundell he concluded that this was a fight and not horse-
play or roughhousing because of the way Nelson
grabbed Lundell and threw him up against the truck;
that he concluded that Nelson was the aggressor because
he knew Lundell for quite a number of years and Nelson
was always more aggressive than Lundell; that the only
incident he recalled of someone being fired because of
fighting was the Dory incident; that he does not know of
anyone else who was fired for fighting who had an abso-
lutely clean record like Nelson; that he did not tell
Nelson that he was being fired for horseplay but rather
for fighting; that he does not recall ever saying that
Nelson was being fired for horseplay; that he did not
know if anyone used the term horseplay; that he believed
the Chase-Correll incident occurred a couple of weeks
or a month before Nelson was fired; that he was aware
that Correll said in an interview that she had threatened
Chase that if Chase threw water on her one more time
she would stick her with the shroud pin; that a shroud
pin is sharper than a meat hook and it is about 3 or 4
inches long; and that he never did see the puncture
wound but he did recall that Chase said she had been
wounded.
Harley Thomas testified that George Zahn, the plant
manager, also attended the above-described November
23, 1982 meeting; that when Nelson was sent out of the
room management talked about it and Hansen decided to
terminate Nelson; that he did not believe the decision to
fire Nelson had already been made before Nelson came
to the meeting in the personnel office; that he did not re-
member seeing any written notes about the interviews
with members of the lugging crew; that he was never
personally present when any member of the lugging
crew was interviewed; that Nelson was in the personnel
office for about 15 minutes; that the Company has a pro-
gressive disciplinary system consisting of five steps and
they discussed at the meeting the fact that Nelson did
not have any prior warnings under the disciplinary
system; that Hansen made the fmal decision to terminate
Nelson; and that later that day, he, Thomas, drafted the
separation notice which he concedes reads "The follow-
ing employee was separated TODAY 11-26-82."
MONFORT OF COLORADO 1463
William Zuehlke also testified that George Zahn was
also present at the above-described November 23, 1982
meeting; that Gaylord Hansen made the decision to ter-
minate Nelson; that Hansen is the only one who can ter-
minate anybody; that he imagined that Zahn could be-
cause he is Hansen's boss but he, Zuehlke, has never seen
Zahn do it; and that when Nelson left the room those
present asked what should be done and Hansen said
fighting is a major infraction and anyone fighting will be
dismissed and that they were going to have to discharge
Nelson.
Nelson testified that the day he started working at
Monfort in January 1982 he joined the in-plant organiz-
ing committee; that there were about 60 other people on
the committee; that he handed out authorization cards
and had them signed; that he distributed between 75 and
100 authorization cards in the plant on his breaks during
his dinner hour; that also he handed out UFCW stickers
and T-shirts, in the plant and he handbilled at the guard
shack outside the plant at the gate between 30 and 40
times distributing literature about UFCW and what it
was about; that supervisors saw him handbilling (i.e.,
Dick Monfort was handbilling right next to him just
before the election); that also Holten saw him handbilling
the same day that Dick Monfort saw him; 22 that he had
given handbills to management, namely, Jim Lovelady,
Zalm, Dick Monfort, and Harley Thomas; and that
others on the loading dock wore UFCW T-shirts,
namely, Dory and Bernie Hansen, and all wore UFCW
stickers on their helmets. Gaylord Hansen testified that
he was aware of Nelson's union activities and union feel-
ings since Nelson would go around and talk to other em-
ployees all the time; that the other employees would
come up to him, Hansen,and tell him that Denny was
talking about the union and he would say "so what";
that this occurred several times in 1980 or so and contin-
ued until Nelson's termination; that Nelson wore a
UFCW sticker on his helmet until the time he was termi-
nated; that he did not recall seeing Nelson wear a
UFCW T-shirt; that he never saw Nelson handbill or
hand out authorization cards, or offer an authorization
card to him to sign. Harley Thomas testified that he was
aware of Nelson's union activities in that he had seen
Nelson handbilling for UFCW three or four times, he
saw Nelson wear T-shirts with UFCW on it, and he saw
Nelson wear stickers with the UFCW slogan; that he
and the other managers present on November 23 were
well aware of Nelson's union feelings; that he never saw
Nelson handbilling after the election of October 1981;
and that, apparently about the time of the election,
Nelson asked Zuehlke if he wanted to sign an authoriza-
tion card, offered a UFCW sticker to Zuehlke to put on
his helmet, and asked Zuehlke why he would not sign a
UFCW authorization card. After initially testifying that
he believed that after the October 1981 election Nelson
kind of turned against the UFCW, William Zuehlke testi-
fied that at the time of his discharge Nelson may have
22 In connection with a subsequent unemployment compensation hear-
ing in January 1983, Holten admitted to Nelson that he, Holten, was
aware that Nelson was involved in signing authorization cards for
UFCW and in handing out UFCW stickers m the plant.
still supported the UFCW but he never told Zuehlke;
and that he never saw Nelson handbilling after the elec-
tion up to the time of his discharge.
Employee Renold Barnes testified that 2 days after
Nelson was fired he overheard a conversation that man-
agement had about Nelson; that he was in the foreman's
office off the kill and Offal area; that the office is divided
with a front part for kill management foremen and the
back part is for Offal offices; that he was in the back
office doing some paperwork that is part of his job and
no one else was there; that it was about 6:45 am.; that he
heard Harley Thomas and William Zuehlke coming into
the other room and Zuehlke said, "Denny was a good
worker but he'd rather sleep with the union"; that nei-
ther Zuehlke nor Thomas could see Barnes when the
statement was made because there is a wall between the
two offices; that he was on his way out of the door of
the rear office and he was picking up his paperwork; that
as he left the rear office, Thomas and Zuehlke saw him
and spoke so that he could not hear; that while he was
not looking at Zuehlke and Thomas when the statements
were made he knew it was Zuehlke making the state-
ment because he recognized his voice; that he has known
Zuehlke since 1979 and he was also familiar with
Thomas' voice since he has known him for about 3
years; that the door to the rear office was open; that he
just heard them make that one statement and as soon as
that statement was made he came through the doorway
and there was nothing else said except in murmurs; that
the first person he told about this conversation was
Denny Nelson and he told Nelson about 2 weeks after he
had been discharged by Monfort; that he told Nelson
when he saw him on the street in Grand Island; that
while he knew Nelson as a worker at Monfort he never
worked with him; that while he signed an authorization
card for UFCW he never attended any UFCW meetings;
that his shift normally starts at approximately 6:40 to
6:45 am. and the first thing he does when he comes to
work in the morning is to go to his office and get his
paperwork; that he usually arrives about 6:30 am. and
does his paperwork in the next 15 minutes; that the con-
versation he heard between Zuehlke and Thomas oc-
curred the same week in which Nelson was fired; that he
did not know the exact date Nelson was fired but he
knew approximately 2 days after he was fired, he heard
the conversation described above; that the conversation
occurred on a workday; that he did not hear Thomas say
anything in this conversation with Zuehlke; that Thomas
did murmur something to Zuehlke after Barnes came
through the doorway to the rear office but he did not
know what Thomas said; that when Zuehlke made the
last part of the statement, namely, "sleep with the union"
he, Barnes, was just coming to the doorway from the
back office; that Thomas was walking in front of
Zuehlke into the front office just going through tie
doorway coming into the front office; that actually
Thomas was already in the room of the front office and
Zuehlke was in the doorway; that he could hear them
coming down the hallway; and that he said nothing to
Zuehlke and Thomas and they said nothing to him at this
point.
1464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Harley Thomas testified that on November 25, 1982,
he and William Zuehlke went into the foreman's office,
which was located near the Offal office; that he did this
every working morning because it was his office; and
that while Zuehlke said to him that he hated to see
Nelson lose his job because he liked him, he was a good
man, Zuehlke never used the phrase "sleep with the
union or sleeping with the union." Zuehlke testified that
he discussed Nelson's termination with Thomas after
Nelson left; that he felt sorry for "Denny"; that he never
used the phrase "sleep with the union"; that he did not
recall telling Thomas after Nelson was discharged that it
was too bad that Nelson would rather "sleep with the
union"; that he did not say that; that he would not have
had any reason to say such a thing because after the
election Denny kind of turned against the Union in that
when they were going to Kansas City to count the votes
Denny came up to Zuehlke and he was hollering about it
saying that he was supposed to be going down to Kansas
City to witness the counting of the votes but instead they
took someone from fabrication in his place; and that at
the time of his discharge Nelson may have still supported
the UFCW but he never told Zuehlke.
Two employees were called as rebuttal witnesses. The
first, Duane Barrett, testified about two incidents that oc-
curred subsequent to Nelson's termination and involved
physical contact with (1) another employee and (2) a su-
pervisor. Barrett testified that no one received any disci-
pline over the contact with the employee and that Re-
spondent's Exhibit 48, which is an action report, indi-
cates that the violation was a general policy and rule
violation of rule 2, referring to tardiness, and then goes
on in the supervisor's comment section to indicate not
only that Barrett was tardy but also, apparently in a dif-
ferent ink but apparently written by the same individ-
ual—Wooster—indicates as follows: "He also threatened
a supervisor. If this happens again it will result in auto-
matic termination"; Barrett is employed on the fabrica-
tion side and he has never been supervised by William
Zuehlke, Harley Thomas, or Gaylord Hansen who work
on the slaughter side. The second, Stanley Bodehnal, tes-
tified that he had two fights on the slaughter side, one of
which occurred a couple of months after August 1981
and the second of which occurred about 6 months later;
that his supervisor William Shelton spoke to him on both
occasions; that he received a step for the second fight;
that during the meeting after both fights, "Shelton pulled
out his employee handbook and showed [Bodehnal and
the other persons involved] where fighting is grounds for
termination"; that in the second fight, which Bodehnal
started by throwing a piece of hide at the other worker
and then punching him when the other worker pushed
him down, Shelton gave the other worker, Rod Roe, a
warning and gave Bodehnal a step; 23 that he, Bodehnal,
23 A clerk of Respondent sponsored R. Exh. 44, which covers other
terminations for fighting prior to Nelson's discharge. The sponsor of the
exhibit conceded that the reports do not indicate in what step the individ-
ual was (as noted above, Dory was already in step four before his Octo-
ber 26, 1982 incident) and the sponsor testified that she was not sure be-
cause she was not asked to look for records indicating that there may
have been personnel action reports for employees receiving steps for
fighting who were not terminated.
did not speak with Hansen about either incident; and that
he did not know if the involved book was Respondent's
Exhibit 42.
HI. SUPERVISORY ISSUES
Whether 10 individuals are supervisors under the Act
must be determined.24
Section 2(11) of the Act reads as follows:
The term "supervisor" means any individual
having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employ-
ees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such
action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or
clerical nature, but requires the use of independent
judgment.
Employee Bernard Hansen testified that employees
wear white helmets, foremen wear yellow, and supervi-
sors wear green. As indicated by General Counsel's Ex-
hibit 15, Harley Thomas' title on September 1, 1981, was
general supervisor. He signed the personnel action
record (R. Exh. 4), suspending Nelson, in the box titled
"SUPERVISOR'S SIGNATURE." And Thomas sus-
pended Nelson. It was asserted that Thomas took this
action because he was ordered to by Gaylord Hansen.
Thomas listened to Nelson's version and gave no indica-
tion to Nelson that he, Thomas, had no discretion in the
matter. Thomas also filled out and signed Nelson's em-
ployee separation form as "Supervisor." (R. Exh. 41.)
Additionally, Thomas' signature appears on other disci-
plinary records (see R. Exh. 44 and 45), as "Supervisor."
Thomas shared an office and desk and wears a yellow
hardhat or helmet. As indicated above, when Respond-
ent needed a leadperson Thomas interviewed prospects
indicating at a minimum that he would make a recom-
mendation or at a maximim that he would and did select
the leadperson. Employees Petit and Trosper testified
that Thomas had about 100 employees working under
him, and that he had the authority to and did discipline
employees. In my opinion, Thomas is a supervisor, as de-
fined by the Act.
Regarding William Zuehlke, employee Bernard
Hansen testified that Zuehlke was a supervisor who held
the title of foreman of the coolers; that Zuehlke could
and did assign employees to do certain work; that
Zuehlke could recommend discipline to the supervisor of
the slaughter division; that Zuehlke had about 24 em-
ployees working under him; that if he needed time off
from work he would have to go to William Zuehlke
about obtaining permission to leave and if Zuehlke re-
24 Harley Thomas, William and Tim Zuehlke, Van Matre, Vanderloo,
Mason, Dukes, Oxner, Gaylord Hansen and Terry Hampton. Respondent
has admitted that Kenneth and Dick Monfort are supervisors under the
Act. Since no evidence was introduced herein regarding any alleged vio-
lation of the Act through Jim Finney, it is unnecessary to resolve his
status. While other individuals are also alleged to be supervisors under
the Act, it is not necessary to determine their status in order to dispose of
the proceeding.
MONFORT OF COLORADO 1465
fused he would have to speak to Gaylord Hansen, the
slaughter superintendent; and that Zuehlke wore a
yellow hardhat. William Zuehlke signed Dory's separa-
tion form (R. Exh. 44), in the space designated "Supervi-
sor." Also, he signed, along with Harley Thomas (Hoot),
Nelson's suspension (R. Exh. 4), in the box designated
"SUPERVISOR'S SIGNATURE." William Zuehlke
testified that he does not have his own desk but rather
uses a desk that other specified individuals also use.
Nelson testified that in the months immediately before
the election his supervisor was William Zuehlke; that
Zuehlke had responsibility for about 20 employees; that
Zuehlke wore a yellow hat; and that Zuehlke's job re-
sponsibilities were to keep the cooler chain running and
take care of any problems that the employees had on
their loadouts, to make sure he figured the weights up,
and to make sure the trucks got loaded. At one point
Nelson also testified that William Zuehlke assigned him
to push cold meat. Zuehlke testified that once when
Lundell refused to do a task that he, Zuehlke, had as-
signed Lundell, Zuehlke told Lundell to "punch out."
Later when Gaylord Hansen saw Lundell in the cafeteria
Lundell said that William Zuehlke fired him. Subsequent-
ly Lundell was put back to work. In my opinion, Wil-
liam Zuehlke is also a supervisor under the Act.
Employee LaBrie testified that her immediate supervi-
sor before the October 1981 election was Tim Zuehlke,
who wore a yellow hardhat, as did her general foreman,
Wooster. (Howard Braden testified that Wooster was
like an assistant superintendent at the time.) Tim Zuehlke
did not testify. The General Counsel introduced a seven-
page exhibit (G.C. Exh. 16), the first page of which is
dated September 1, 1981, and indicates that Timothy
Zuehlkes job title is production supervisor. The next
three pages of the submission are a printout dated
August 30, 1982, the second page of which indicates he
is a production supervisor, and the third page of which
indicates that he is salaried exempt with a current rate
pay of $21,001.76 up from $19,801.60. 25 The next page
of the submission, a management performance evalua-
tion, dated August 22, 1981, indicates that Tim Zuehlke
held management responsibilities for 1 year at that time.
Also, it is noted that Tim Zuehlke signed as a "Supervi-
sor" an incident report and warning notice included in
Respondent's Exhibit 46. While it appears that both are
dated in November 1981, it does not appear that
Zuehlke's supervisory functions changed substantially
from the preceding few months. In my opinion Timothy
Zuehlke is a supervisor under the Act.
Employee Kuta testified that Van Matre was a super-
visor or foreman in October, 1981; that he wore a yellow
hardhat; that he shared an office with other foremen;
that he had about 90 employees working under him; and
that he had given written reprimands to employees. Em-
ployee Bottorf testified that Van Metre took her off the
lineup to the cafeteria to talk to her. He, along with
Kayl, signed Blue's termination report (R. Exh. 33), in
the "SUPERVISOR'S SIGNATURE" space. Van
25 As noted in the disciplinary records introduced by Respondent, em-
ployees at the involved plant generally make between $6 and $7.10 (lug-
gers) an hour at the time involved herein.
Metre fired Blue, and even if Braden's assertion is cred-
ited—that it was his, Braden's, decision—it would appear
that it nonetheless was Van Matre's recommendation. It
is also noted that Van Metre signed employee warning
notices included in Respondent's Exhibit 45. In my opin-
ion Van Matre is a supervisor under the Act.
Employee Puffins testified that Vanderloo was his su-
pervisor in September and October 1981 immediately
prior to the NLRB election; that Vanderloo wore a
yellow hardhat; that 25 or 30 people worked on the line
for which Vanderloo was responsible; and that Vander-
loo had the ability to write people up or fire them if he
felt it was necessary. Vanderloo did not testify. It is
noted that Vanderloo signed incident reports and a
warning notice in the "SUPERVISOR'S SIGNATURE"
box on some of the disciplinary records included in Re-
spondent's Exhibit 46. In my opinion Vanderloo is a su-
pervisor under the Act
Collectively, four employees, Lorrane Simons, Nei-
bors, Gillham, and Blue testified that Mason was a super-
visor in packaging; that he wore a green hardhat; that he
had between 15 and 20 people working under him; and
that he had an office in the plant. Mason did not testify.
The General Counsel introduced a three-page exhibit
(G.C. Exh. 12), the first page of which is titled 90-Day
Salary Continuation eligibility and gives Mason's title as
shipping supervisor with a date of "9/1/81." The second
sheet, a personnel change notice dated July 20, 1982, in-
dicates that Mason was being changed from shipping su-
pervisor, which is a salaried exempt management posi-
tion at $27,800 a year, 25 to assistant manager "Credit &
[what looks like] claims," a salary exempt management
position at $29,000 a year. In my opinion it has been
demonstrated that Mason is a supervisor as defined by
the Act.
Collectively employees Lopez and Lee testified that
immediately preceding the Board election in October
1981 their supervisor was Dukes who was a foreman in
Offal; that Dukes had between 18 and 19 employees
under him; that Dukes wore a yellow hardhat; that if
Lopez needed time off to go to a doctor, etc., he would
ask his foreman, Dukes; that Dukes shared an office with
the kill foreman; and that Dukes disciplined employees
under his supervision. Dukes did not testify. The General
Counsel introduced a one-page exhibit (G.C. Exh. 8),
titled 90-day Salary Continuation Eligibility, dated
"9/1/81" for Cleo Dukes whose job title is production
supervisor. In my opinion it has been demonstrated that
Dukes is a supervisor as defined by the Act.
Employee Trosper testified that Oxnor is the slaughter
foreman; that Oxnor wears a yellow hardhat, he shares
an office in the plant, and he has 30 to 35 employees
working under him; and that Oxnor has the authority to
and did discipline employees. Oxner did not testify. The
General Counsel introduced a three-page exhibit (G.C.
Exh. 13), the first page of which is titled 90-Day Salary
Continuation Eligibility and indicates that Oxnor was
production supervisor as of "9/1/81." The remaining
26 As indicated in sec. 3 of the notice there are four pay rates: "Hourly
prod./maint," "Clerical-Support," "Sal. Prod./Maint.," and "Sal. Exempt
Mgt."
1466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two pages of the exhibit are a printout dated March 8,
1982. The second page of the printout indicates that
Oxnor has a title of production supervisor, his work class
is salaried exempt, and his rate of pay at that time was
$22,000. In my opinion Oxnor is a supervisor as defmed
by the Act.
Employee Bernard Hansen testified that Gaylord
Hansen wore a green hardhat; and that if he needed time
off from work he would first ask William Zuehlke and if
he refused he, Bernard Hansen, would ask Slaughter su-
perintendent Gaylord Hansen. It is Gaylord Hansen's
testimony that he has an office that he shares only with
his night-shift counterpart, Terry Hampton; 27 that it was
his decision to fire Nelson; and that it was his decision
not to fire anyone in the CorrelVChase incident. It is
concluded that Gaylord Hansen and Hampton are super-
visors under the Act.
IV. DISCUSSION AND CONCLUSIONS
The allegations in the various complaints will be treat-
ed chronologically, to the extent possible. In paragraph
5(c) of the consolidated complaint in Cases 17-CA-10613
and 17-CA-10623, it is alleged that Harley (Larry)
Thomas, in the spring of 1981 and on May 20, 1981,
threatened to refuse to promote employees because of
their union activities and/or protected concerted activi-
ties. Wadsworth and Trosper gave very specific testimo-
ny, as described above, in support of these allegations.
On the other hand, Thomas testified that he could not
specifically recall what he, or Wadsworth, or Trosper
said. Thomas also claims that he did not interview for a
leadman's job in the spring of 1981. This testimony is not
credited, however, for Thomas did not, for reasons dis-
cussed more fully infra, impress me as being a credible
witness. The testimony of Wadsworth and Trosper is
credited. Thomas unlawfully threatened both of them in
violation of the Act.
Paragraph 6(a) of the complaint in Case 17-CA-10705
alleges that on May 26, 1981, Respondent unlawfully
rendered aid, assistance, and support to the NMU by en-
tering into a contract amendment providing employees
with a bonus if the NMU is the employees' collective-
bargaining representative on December 21, 1981. The
amendment is set forth above. On brief, the General
Counsel contends that this agreement made payment of
the bonus contingent on the continued recognition of
NMU as bargaining representative and continued effec-
tiveness of the collective-bargaining agreement; and that
the intent and the effect was to coerce and restrain em-
ployees in the exercise of the right to select or totally
reject union representation in violation of Section 8(a)(1)
and (2) of the Act. Monfort engaged in flagrant unlawful
conduct with N'MU from the outset. The above-de-
scribed May 26, 1981 amendment to the original agree-
ment was a continuation of that unlawful conduct and, as
pointed out by the General Counsel, violates the Act.
27 G.C. Exhs. 11 and 13, respectively, indicate that Hansen and Hamp-
ton have a job title of production superintendent. It is also noted that R.
Exh. 47 contains a disciplinary record for a terminated employee, which
Hampton signed in the "SUPERVISOR'S SIGNATURE" line.
No evidence was introduced in support of that part of
paragraph 5(a) of the consolidated complaint in Cases
17-CA-10613 and 17-CA-10623, which refers to alleged
unlawful conduct on the part of Harley Thomas on June
17, 1981. Accordingly, it will be dismissed.
Paragraph 6(c) of the complaint in Case 17-CA-10705
alleges that Respondent rendered aid, assistance, and sup-
port to the NMU by allowing representatives of the
NMU access to the lunchroom at the facility for the pur-
pose of talking with employees while denying such
access to representatives of the UFCW in mid-August
1981 and on October 7, 1981. As set forth above, a
number of employees testified that they saw and heard
Jackson, along with others, of NMU campaigning in the
plant for some time before the election, and that on sev-
eral occasions a supervisor or supervisors were present,
viz, Gaylord Hansen, Mason, and Harley Thomas28 but
the employees witnessed no attempt to stop Jackson
from campaigning. The employees also testified that no
representative of UFCW was allowed to campaign inside
the plant. As set forth above, by letter dated September
10, 1981, UFCW requested Monfort to extend to it,
UFCW, the same treatment it gave NMU. From the
outset of their relationship Monfort and NMU engaged
in flagrant unlawful conduct. Before the involved Octo-
ber 1981 election NMU was given access to the plant
and Jackson and others openly campaigned in the plant
for NMU. While Respondent's supervisors were aware
of this, they did nothing because Respondent undoubted-
ly concluded that at a minimum if NMU was elected, it
would keep UFCW out of the plant and that possibly the
unfettered in-plant presence of only NMU, which some
employees viewed as a do nothing union, would dissipate
the support for any union representation. In granting
access only to NMU to the inside of the plant for cam-
paigning Monfort violated the Act.
Paragraphs 8(a) and (b) of the complaint in Case 17-
CA-10705 alleges that on September 11, 1981, Respond-
ent failed and refused to grant wage increases effective
August 31, 1981, to specified employees in retaliation for
their inclusion in the involved bargaining unit. On brief,
the General Counsel contends:
The general rule concerning such a withholding
of a wage increase is that any employer who is con-
fronted with a union campaign, or the pendency of
a petition should grant or withhold such an increase
without regard to organizational activity. The May
Department Stores Company d/b/a Famous-Barr
Company, 174 NLRB 770. The Respondent's memo-
randum [dated September 11, 1981 and set forth
above] to excluded employees constitutes evidence
that the wage review had been on-going for at least
28 Three employees, Nelson, Trosper, and Petit, testified that Harley
Thomas witnessed Ed Jackson's campaigning for NMU in the cafeteria.
Mason did not testify and so he did not deny that he witnessed Jackson's
campaigning in the cafeteria. Gaylord Hansen concedes that he saw Jack-
son in the cafeteria talking to employees but he waited for "a minute or
two" until Jackson left the cafeteria and was in the hallway before alleg-
edly asking Jackson what he was doing. Under these circumstances,
Thomas' claim that he could not recall seeing Jackson in the lunchroom
"but maybe in the hallways" is incredible and it is not credited.
MONFORT OF COLORADO 1467
a month, and that it had included "our non-union
employees" which, during the time, the Respondent
had considered and had argued to be excluded from
the unit. Thus, it can be inferred that the employees
included in the unit by the Regional Director's De-
cision, to whom the other September 11 memoran-
dum [also set forth above] was directed, would
have received the same increase. However, the only
reason given to them in that memorandum by the
Respondent is their inclusion in the unit, and the
Respondent further drives home the point by stating
that they would have been "better off" if they had
been excluded, as the Respondent has wished, there-
by indicating their exclusion from the raise was not
only because of the UFCW but in retaliation for the
UFCW's successful efforts including them in the
unit. This conduct is similar to that which took
place in Newberry Co., 249 NLRB 992, 1002-3,
in which the Board found a violation on the basis of
a granted wage increase to all its stores but the one
in which an RC petition had been filed, and in
which a make-whole remedy was ordered.
The Respondent's failure to grant the wage in-
crease to employees in the job classifications of
knife grinders, supply warehousemen, electronic
technicians and janitors is violative of Section
8(a)(1) and (3) and Respondent should be ordered to
make employees in those classifications whole for
any and all monetary and any other losses they
have incurred as a result of the Respondent's dis-
criminatory actions.
The Charging Party, after pointing out that the
Monfort/NMU contract excluded the specified employ-
ees, contends, on brief, that "the timing and the wording
leads inexorably to the conclusion that the denial of the
wage increase . . . was in retaliation for their having
been included in the unit eligible to vote in the election."
And Respondent, on brief, contends:
In the instant case, there is simply no evidence
that Monfort's decision to grant wage increases to
non-unit employees was designed to discriminate or
otherwise reflected a retaliatory motivation against
unit employees. The General Counsel failed to es-
tablish that the wage increase was standard practice
or that unit employees expected to receive such an
increase. In fact, the increase was merely a one time
wage adjustment for non-unit employees after the
Company had reviewed the current wage levels.
Monfort's decision not to grant wage increases to
the unit employees was entirely consistent with
Board precedent regarding interference with em-
ployees' right to a free election. If Monfort had in-
stituted the increase to unit employees during the
pending election campaign, it would have been
charged with interfering with employees' organiza-
tional rights. See, Equitable Equipment Co., Inc., 178
NLRB 302 (1969) (employers' refusal to grant wage
increase prior to election for fear of prompting alle-
gations of objectionable conduct, did not violate
8(a)(1)).
The only evidence presented by the General
Counsel regarding the wage increases were two (2)
letters from Monfort supervisors explaining the
wage adjustment. (G.C. Ex. 5, 6). These letters
merely explained the significance of the Board's di-
rection of election, and determination of the appro-
priate unit for the representation election. The let-
ters fall far short of establishing an unlawful motiva-
tion or unlawful interference.
Contrary to Respondent's contention the two September
11, 1981 memos do demonstrate that Respondent acted
unlawfully. One of the September 11, 1981 memos intro-
duced herein (G.c. Exh. 6) begins with [a]s you may
know we have been reviewing the salary and wage
status of our non-union employees during the last
month." During that period the involved employees
were nonunion employees. Until the Regional Director's
decision (G.C. Exh. 7), which was mailed just a few days
before the Respondent's memos were issued, it was ques-
tionable whether they would be included in the unit
voting in the election. As pointed out in Famous-Barr
Co., 174 NLRB 770 (1969):
As the Board has held, an employer confronted
with a union organizing campaign should decide the
question of granting or withholding benefits as he
would if a union were not in the picture; if his
course of action in granting or withholding benefits
is prompted by the Union's presence, he violates the
Act.
Respondent's two September 11, 1981 memos were a tac-
tical maneuver designed to discriminate against certain
employees and to interfere with the employees' freedom
of choice in violation of Section 8(a)(1) and (3) of the
Act. They were not merely informational but rather they
placed employees on notice that UFCW was assertedly
to blame for certain employees not receiving a wage in-
crease. Since the memos were "inherently destructive of
employee interests" and no evidence of a legitimate pur-
pose was given, there is no need to prove that Respond-
ent was motivated by an unlawful purpose. Great A & P
Tea Co., 166 NLRB 27 (1967). Nonetheless, as pointed
out by the Charging Party, "the timing and the wording
leads . . . to the conclusion that the denial of the wage
increase. . . was in retaliation. . . ." Additionally, this
is a part of Respondent's illegal pattern toward UFCW.
Respondent had displayed union animus toward UFCW
and this was one more step in its continuing flagrant un-
lawful conduct. Because the Respondent not only violat-
ed Section 8(a)(1) but also 8(a)(3) of the Act in that its
action was taken in retaliation, Respondent will be or-
dered to make whole with interest the employees who
lost money as a result of Respondent's unlawful with-
holding of wages.
Paragraph 6(d) of the complaint in Case 17-CA-10705
alleges that in mid-September and early October 1981
Respondent rendered aid, assistance, and support to the
NMU by allowing representatives of the NMU access to
the area surrounding the guard shack at the facility for
1468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the purpose of handbllling employees while denying such
access to representatives of UFCW.
As noted above, the Board in its above-described June
17, 1981 decision adopted the recommended order of the
administrative law judge entered July 11, 1980, and or-
dered Respondent to cease and desist from:
[gu ying unlawful assistance and support to [NMU]
such as unequal access to plant premises. . . during
a union-organizing campaign.
A number of witnesses testified that Respondent accord-
ed NMU and UFCW different treatment regarding hand-
billing in the area surrounding its guard shack. The evi-
dence demonstrates that on the one hand, Jackson of
NMU was allowed by Respondent to handbill in this
area. Gaylord Hansen conceded that he saw Jackson in
that area talking to employees. Others testified that Jack-
son handbilled in the area. On the other hand, when rep-
resentatives of UFCW attempted to handbill in Respond-
ent's parking lot they were advised by the guards that
they could not and on one occasion the local police were
summoned when the UFCW representatives initially re-
fused to leave Respondent's parking lot. As noted above,
by letter dated September 10, 1981, UFCW had request-
ed Respondent to treat it the same as NMU. The position
taken by UFCW, namely, that it was easier to handbill
employees while they were on foot before they got in
their cars (and possibly have an opportunity to talk to
them) than it was where they were in their cars, is rea-
sonable and is borne out by the evidence of record.
UFCW was not given equal access. It was discriminated
against in favor of NMU. This tactic was part of Mon-
fort's continuing pattern of unlawful conduct. As pointed
out in the Board's prior above-described decision, the
granting to NMU of unequal access was unlawful. The
law has not changed. Respondent, in this manner, and in
a number of other ways, as described herein, flagrantly
continued in its course of unlawful conduct.
Paragraph 5(a) of the consolidated complaint in Cases
17-CA-10613 and 17-CA-10623 alleges that Respondent
through Supervisor William Zuehlke on September 23
and 25, 1981, threatened to discharge, discipline, or
demote employees because they engaged in union activi-
ties and/or protected concerted activities. Nelson's testi-
mony that on September 23, 1981, Zuehlke told specified
employees that "if the [UFCW] gets in, your [sic] going
to be on the unemployment line," and Nelson's and Ber-
nard Hansen's testimony that on September 25, 1981,
Zuehlke told specified employees "if. . . [UFCW] gets
. . . you'll be fired" stands unrefuted. They are cred-
ited. Accordingly, these violations will be found.
Paragraph 5(g) of the consolidated complaint in Cases
17-CA-10613 and 17-CA-10623 alleges that on Septem-
ber 25 and 30, 1981, Van Matre unlawfully interrogated
employees. Paragraph 5(b) of the complaint in Case 17-
CA-10705 makes the same allegation but gives "late Sep-
tember" 1981 as the date. As indicated above, Van Matre
conducted a number of interrogations and during those
interrogations he allegedly committed other violations.
Consequently, the other alleged violations will be han-
dled here also, namely, paragraph 5(i) of the consolidat-
ed complaint in Cases 17-CA-10613 and 17-CA-10623,
which alleges that on September 25, 1981, Van Matte so-
licited employee complaints and grievances, and thereby
unlawfully promised employees increased benefits and
improved terms and conditions of employment, and para-
graph 5(d) of the complaint in Case 17-CA-10705 which
alleges that in late September 1981 Van Matre unlawful-
ly suggested employees form an employee committee in-
stead of selecting an established union as their collective-
bargaining representative.
The testimony of Blue, Bottorf, and Kuta regarding
the meetings Van Matre held with employees in a small
room off the cafeteria is summarized above. While Van
Matre testified herein, he did not deny any of the allega-
tions made regarding what was said during these meet-
ings. The unrefuted collective testimony of the three
above-named employees demonstrates that Van Matte
committed each of the violations described in the preced-
ing paragraph. Rossmore House, 269 NLRB 1176 (1984),
is not controlling because (1) at least one of the testifying
employees, Kuta, was not an active supporter who
openly declared her union ties, (2) Van Matre did not
deny Kuta's testimony that he told her he was "talking"
to all his people about the Union in the upcoming elec-
tion (it was not demonstrated that all of the many em-
ployees who work under Van Matre were active union
supporters who openly declared their union ties), and (3)
Van Matre's interrogations were not isolated, they were
not casual, and they were a part, albeit a small part, of a
continuing pattern of unlawful conduct on the part of
Respondent.
Paragraph 5(b) of the complaint in Case 17-CA-10705
also alleges that in late September Dukes unlawfully in-
terrogated employees. And paragraph 5(a) of the same
complaint alleges that Dukes in late September threat-
ened that the facility would be closed if the employees
selected a union as their collective-bargaining representa-
tive. Dukes did not testify herein. Consequently Lee's
testimony, described above, about both of these viola-
tions is not denied. Her testimony is credited. While Lee
did engage in some activity in support of UFCW, she
did not wear a UFCW sticker on her helmet, she did not
handbill for the UFCW and her other activities were not
such that, in my opinion, it reasonably could be conclud-
ed that she was an active union supporter who openly
declared her union ties. Consequently, Rossmore House,
supra, is not controlling regarding this interrogation alle-
gation.
There are two remaining allegations of unlawful inter-
rogation in the complaint in Case 17-CA-10705. Both
are included in paragraph 5 thereof. Because no evidence
was submitted herein regarding Jim Finney, that part of
the complaint will be dismissed. Evidence, LaBrie's
above-described testimony regarding October 8, 1981,
was submitted with respect to an unlawful interrogation
by Tim Zuehlke. He did not testify herein. While
LaBrie, like many others, wore a UFCW sticker on her
helmet, and went to UFCW meetings, she did not sign a
union card and never passed out literature for the
UFCW. As noted above, the extensive, flagrant, and
continuing unlawful conduct on the part of Respondent
MONFORT OF COLORADO 1469
distinguishes this situation from the type found in Ross-
more House, supra. LaBrie's testimony is credited. Re-
spondent through Tim Zuehlke once again violated the
Act.
Paragraph 5(b) of the consolidated complaint in Cases
17-CA-10613 and 17-CA-10623 alleges that on Septem-
ber 29, 1981, William Zuehlke threatened that the facility
would be closed if the employees selected a union as
their collective-bargaining representative. As set forth in
more detail above, Bernard Hansen testified that William
Zuehlke said that if this union got in (Hansen interpreted
this to mean the UFCW since NMU was there already,
albeit illegally), they were going to open the Greely
plant and close the Grand Island plant. William Zuehlke
gave the following testimony regarding this matter:
Q. Did you ever discuss the Greeley plant with a
. . . Mr. Bernie Hansen, do you recall?
A. No.
Bernard Hansen is credited; Zuehlke is not. The former
gave specific testimony. The latter's was less than specif-
ic. As indicated above William Zuehlke at this point in
time had already engaged in other instances of unlawful
conduct. William Zuehlke did not give credible testimo-
ny regarding this and other matters treated infra.
Paragraph 5(g) of the consolidated complaint in Cases
17-CA-10613 and 17-CA-10623 alleges that on Septem-
ber 30, 1981, Vanderloo unlawfully interrogated employ-
ees. And paragraph 5(h) of the same complaint alleges
that on the same day Vanderloo suggested employees
form an employee committee instead of selecting an es-
tablished union as their collective-bargaining representa-
tive. Puffins' testimony, as set forth above, demonstrates
that both of the above-described violations occurred in
one conversation. Vanderloo did not testify. Puffins is
credited. While Puffins conceded that he was active and
open about his support for UFCW, in view of the vast
differences between this case and Rossmore House, supra,
the latter does not control.
Paragraph 5(h) of the complaint in Case 17-CA-10705
alleges that in late September 1981 Mason told employ-
ees that there would be a strike if the UFCW was certi-
fied as its employees' collective-bargaining representative
thereby implying a strike was inevitable and indicating
the futility of selecting the UFCW as the employees' col-
lective-bargaining representative. As set forth above,
Blue testified about Mason's above-described statement.
Mason did not testify herein. Consequently Blue's testi-
mony is not refuted. She is credited. Again Respondent
violated the Act.
Blue and three other employees, as set forth above,
testified in support of the allegation in paragraph 5(a) of
the complaint in Case 17-CA-10705 that in late Septem-
ber or early October Mason threatened that the plant
would be closed if employees selected UFCW. As noted,
Mason did not testify. Respondent violated the Act
again. This paragraph of this complaint also alleges that
Ken Monfort committed the same violation in early Oc-
tober or late September. Within the last few weeks
before the October 9, 1981 election Ken Monfort gave a
number of speeches to the employees at the Grand
Island plant. The testimony of a number of employees re-
garding the content of these speeches is set forth above.
Ken Monfort did not testify herein. Allegedly Monfort
violated the Act in the manner described above and as
treated infra. As set forth above, LaBrie testified that in
one of the speeches Ken Monfort said that if the employ-
ees voted for UFCW and it asked for higher wages,
Monfort could not afford them and still show a profit
and he would possibly have to close down the plant
which would mean a loss of all the jobs. The Supreme
Court in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969) at 617-619, set forth the following standards to be
used in determining whether an employer's statements
are lawful:
But we do note that an employer's free speech right
to communicate his views to his employees is firmly
established and cannot be infringed by a union or
the Board. Thus § 8(c)(29 U.S.C. § 158(c)) merely
implements the First Amendment by requiring the
expression of "any views, argument, or opinions"
AA not be "evidence of an unfair labor practice,"
so long as such expression contains "no threat of re-
prisal or force or promise of benefit" in violation of
§ 8(a)(1).
Thus, an employer is free to communicate to his
employees any of his general views about unionism
or any of his specific views about a particular
union, so long as the communications do not con-
tain a "threat of reprisal or force or promise of ben-
efit." He may even make a prediction as to the pre-
cise effect he believes unionization will have on his
company. In such a case, however, the prediction
must be carefully phrased on the basis of objective fact
to convey an employer's belief as to demonstrably prob-
able consequences beyond his control or to convey a
management decision already arrived at to close the
plant in case of unionization. . . . If there is any im-
plication that an employer may or may not take
action solely on his own initiative for reasons unre-
lated to economic necessities and known only to
him, the statement is no longer a reasonable predic-
tion based on available facts but a threat of retalia-
tion based on misrepresentation and coercion, and
as such without the protection of the First Amend-
ment.. . . [A]n employer is free only to tell "what
he reasonably believes will be the likely economic
consequences of unionization that are outside his
control," and not "threats of economic reprisal to
be taken solely on his own volition." [Emphasis
added.]
And in Laborers District Council of Georgia (Southern
Frozen Foods) v. NLRB, 501 F.2d 868 at 874 (D.C. Cir.
1974), it was concluded that
It is well established that an employer has a right
to express his opinions and to predict unfavorable
consequences which he believes may result from
union representation. Such predictions or opinions
will not violate the Act if they have some reasons-
1470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ble basis in fact and are in fact predictions or opin-
ions and not veiled threats of employer retaliation.
Here, Monfort's statement, especially in light of all else
that was going on, was a threat. As such it violated the
Act.
Paragraphs 5(d) and (e) of the complaint in Case 17-
CA-l0705 allege, respectively, that on October 8, 1981,
Ken Monfort suggested employees form an employee
committee instead of selecting an established union as
their collective-bargaining representative, and solicited
employee complaints and grievances, and thereby prom-
ised its employees increased benefits and improved terms
and conditions of employment. The above-described tes-
timony by Trosper and Lee regarding what Monfort said
on October 8, 1981, about employees forming an employ-
ee committee and soliciting grievances is not refuted. It
is credited. These parts of Monfort's speech violated the
Act.
Trosper's above-described unrefuted testimony, which
is credited, regarding what Oxnor, who did not testify
herein, said to him on October 8, 1981, about forming an
employee committee supports the allegation of the com-
plaint described in the preceding paragraph as it relates
to Oxnor, and it also supports the allegation in paragraph
5(1) of the same complaint that on the same date Oxnor
promised increased benefits and improved terms and con-
ditions of employment if the employees formed an em-
ployee committee instead of selecting an established
union as their collective-bargaining representative. Re-
spondent through Oxnor violated the Act as alleged in
both of these paragraphs.
Paragraph 5(k) of the complaint in Case 17-CA-10705
alleges that on October 8, 1981, or in late September
1981 Ken Monfort promised the involved employees a
bonus if they did not select the UFCW as their collec-
tive-bargaining agent. 29 The General Counsel, on brief,
contends that Ken Monfort's message, albeit the words
changed, was clear, namely, if the UFCW won the elec-
tion the employees could not count on receiving their
bonus in December 1981 for at a minimum the bonus
would be delayed for an indefmite period. It is also
pointed out by the General Counsel that neither Ken
Monfort nor any other management official who was
present at the numerous employee meetings where Mon-
fort spoke denied the employee testimony concerning
Monfort's statements. UFCW, on brief, contends that
while there are minor discrepancies in what these wit-
nesses remembered, their accounts are remarkably con-
sistent regarding Ken Monfort's major point, namely, if
the employees wanted their bonuses as scheduled, they
should not vote for UFCW. As UFCW points out, the
timing of the bonus was important to the employees be-
cause it was scheduled to be paid a few days before
Christmas and a bonus of approximately $1100 (the
amount LaBrie received) was a significant amount of
money. Monfort, on brief, likens the bonus to a sched-
29 The paragraph also alleges that amor committed the same violation
on October 8, 1981, but no evidence was submitted herein on this pomt.
Consequently, this part of the complamt will be dismissed.
uled wage increase, which it contends would be subject
to negotiation if the UFCW won.
As can be expected, the testimony of different wit-
nesses who listened to different Monfort speeches differs
regarding what exactly he said with respect to the pro-
posed bonus. Unless Monfort read from the same pre-
pared text during each speech, it could be expected that,
especially in view of the fact that he fielded questions at
least at one speech, he would not say exactly the same
thing at each speech. Apparently a number of employees
were concerned about the position of Monfort regarding
the bonus in the light of UFCW's attempt to organize
them for they became plaintiffs in a lawsuit against Mon-
fort over the bonus.
The bonus was proposed after Monfort had been
placed on notice that an initial determination had been
made that the parties to this bonus plan had entered into
an unlawful relationship for an unlawful purpose. Indeed
the amendment covering the bonus makes note of the
fact that Monfort's relationship with NMU is question-
able. Nonetheless, Monfort went forward with its plan.
In my opinion, the proposed bonus was conceived in an
unlawful manner, nurtured in an unlawful manner, and
its purpose all along was unlawful. As contended by the
General Counsel, the message Ken Monfort conveyed
was that the only way the employees could guarantee re-
ceiving a nice bonus just before Christmas 1981 was to
make sure UFCW did not win the election in October
1981. UFCW did not win the election and the employees
received their promised money just before Christmas,
with at least one receiving over $1000. Monfort again
violated the Act.
Paragraph 6(b) of the complaint in Case 17-CA-10705
alleges that in late September 1981 and on October 8,
1981, Respondent rendered aid, assistance, and support
to the NMU by distributing written material and telling
employees that they would receive a bonus if the em-
ployees did not select the UFCW as their collective-bar-
gaining representative. The sample ballot posted in Gay-
lord Hansen's window is described above. The General
Counsel argues, on brief, that it was there for some time;
that even if Respondent did not initially post it, Re-
spondent adopted and ratified it by not removing it from
a place where only the Respondent was allowed to post
notices and the notices referred to work schedules and
similar work-related materials; and that even if Gaylord
Hansen was on vacation Respondent is not exonerated
because other supervisors, foremen, and Night Superin-
tendent Hampton continued to use the office the week
prior to the election. The General Counsel's position has
merit. At a minimum, Respondent gave the appearance
that it endorsed the message contained in the sample
ballot. Even if Gaylord Hansen was on vacation, Super-
visor Hampton used the office. While it was not demon-
strated that representatives of Respondent physically
handed out the sample ballot, Respondent achieved the
same effect by allowing it to remain in an area used only
by the Respondent to disseminate information to employ-
ees. Respondent violated the Act. Its inaction regarding
the sample ballot and its action in regards to statements
on the bonus demonstrate that while its primary position
MONFORT OF COLORADO 1471
was "no union" a backup or secondary position espoused
in its actions, inactions, and words was to have the NMU
vis-a-vis UFCW. In other words, if it could not have
nothing in terms of union representation, then it would
rather have a do-nothing representative, at least as far as
the involved employees were concerned.
Paragraph 5(g) of the consolidated complaint in Cases
17-CA-10613 and 17-CA-10623 alleges that on October
6, 1981, Harley Thomas interrogated employees concern-
ing their own and other employees' union sympathies.
Harley Thomas did not deny Nelson's above-described
testimony that he, Thomas, on October 6, 1981, asked
Nelson who he was going to vote for and advised
Nelson that he, Thomas, knew Nelson was handing out
UFCW T-shirts and stickers in the plant. While Nelson,
like many other of Respondent's employees, wore a
UFCW sticker on his hard hat, and he did play an active
role in the involved campaign, Rossmore House, supra,
cannot control in a situation such as the one at hand
where there is a flagrant continuing pattern of unlawful
conduct.
Paragraph 5(c) of the complaint in Case 17-CA-10705
alleges that on October 8, 1981, Dick Monfort solicited
employees to influence other employees to vote against
selecting a union as the collective-bargaining representa-
tive. Dick Monfort did not testify. Nelson's above-de-
scribed testimony that Dick Monfort asked him, Nelson,
to tell the employees to vote no union stands unrefuted.
To the extent Simons' testimony might be construed to
contradict Nelson's, the testimony of Simons is given no
weight. Not only is the inference left by Simons' testimo-
ny inconsistent with his own affidavit, which was given
November 17, 1981, but Simons, for reasons dealt with
more fully infra, did not impress me as being a reliable
witness. Nelson's testimony is credited. Respondent
through Dick Monfort once again violated the Act.
Paragraph 5(e) of the complaint in Case 17-CA-10705
alleges that on October 12, 1981, Ken Monfort solicited
employee complaints and grievances and thereby prom-
ised Respondent's employees increased benefits and im-
proved terms and conditions of employment. Snyder's
above-described testimony regarding what Ken Monfort
said to employees with respect to all terminations going
through him at a meeting held about one week after the
election is not refuted. Ken Monfort did not testify.
Snyder is credited. Respondent violated the Act.
Paragraph 5(j) of the complaint in Case 17-CA-10705
alleges that on November 9, 1981, when objections to
the conduct of the election were pending, the Respond-
ent announced changes in its job posting, wage, and
short-term disability policies. Citing Tennessee Handbags,
179 NLRB 1045 (1969), Respondent contends on brief
that the focus is whether the announcement was intended
to influence the employees' vote in the possible rerun
election; and that due to the uncertainty of the time
period in which a result on the objections is expected, an
inference that the benefits were conferred in an effort to
affect the employees' vote is unreasonable. Portions of
the six-page memo that announced the changes (G.C.
Exh. 24), read as follows:
As all of you are aware, you voted overwhelm-
ingly for "no union" in this plant, and as president
of the company I am very pleased with your deci-
sion. I accept your decision as a challenge to im-
prove our employee-management relationship.
Even though both unions have asked the NLRB
to set aside the results of the election, the company
believes that you clearly expressed your choice in a
free and secret ballot election. Therefore, we will
begin to operate this plant, effective Nov. 1, 1981,
as a non-union plant.
As a consequence, we will no longer continue to
recognize the NMU No union dues will be deduct-
ed from paychecks, effective immediately. Union
stewards no longer will be recognized as such.
However, we wish to assure all of our employees
that we in management intend to treat everyone
fairly as Monfort employees with all of us pulling
together. And, it is my hope that you too will view
each other as Monfort employees rather than as
supporters of this or that group as in the recent
election campaign.
After careful study of where we are in relation to
the rest of the industry in the areas of wages and
benefits, I would like to outline what we will at-
tempt to do in our Grand Island plant during the
months and years ahead. Our goal is to continue to
operate the plant on a profitable basis for all of us
with assurances of job security, seniority and wages
and benefits that are competitive within the indus-
try.
• • • •
B. At this time, I am pleased to announce a new
company-paid benefit to become effective on Jan. 1,
1982 for each employee after six months of employ-
ment. This is short-term disability or paid sick leave
coverage.
• . • •
III. Open Door Policy
A number of you have expressed concern that
your job may be less secure now that you are with-
out a union. I can understand that concern, al-
though it is not true that a union can provide job
security. Only the company can do that.
We intend to operate under the non-union con-
cept that any employee complaint is legitimate and,
therefore, must be investigated.
VII. Conclusion
I now conclude this already too long memo with
a thank you for voting your confidence in our abili-
ty to operate this plant for the benefit of all of us
without the interference of a third party. We are
fortunate to be able to increase wages and improve
certain benefits while others in our industry are
confronted with wage freezes, reduction of benefits
and layoffs.
1472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I am confident that we all can meet the chal-
lenges of this very competitive business by working
together for the benefit of each one of us.
Certain of the language on pages 1045 and 1046 in the
decision cited by Respondent, Tennessee Handbags, supra,
bears repeating herein:
At about the time of the Regional Director's de-
cision to order a second election and its subsequent
blockage by the intervening unfair labor practice
charge, Respondent began work on the retirement-
life insurance plan and the scholarship program. Re-
spondent had been "thinking about" the plan for 2
years, but took no steps to implement it before this
time. The scholarship program resulted from a sugges-
tion by a local school official that Respondent help an
employee's son attend college. Respondent's president
was a graduate of the university where the program
was established and had made personal contribu-
tions to it before.
With the exception of the isolated 8(a)(1) violation
found by the Trial Examiner, which we adopt, there is
no evidence that Respondent was conducting an un-
lawful antiunion campaign when it announced the two
employee benefits. The plan and program were an-
nounced to the employees by letter; the retirement-
life insurance plan on October, 31 and the scholar-
ship program on December 18. The Respondent as-
serts that the announcements were timed so that the
cost of the benefits could be charged against the
fiscal year ending November 30, 1968.
It is well established that Section 8(a)(1) prohibits
conduct by an employer "immediately favorable to
employees which is undertaken with the express
purpose of impinging upon their freedom of choice
for or against unionization and is reasonably calcu-
lated to have that effect." Under the circumstances
of this case, we are not convinced that the General
Counsel has established, by a preponderance of the
evidence, that Respondent granted and announced
the benefits for the purpose of causing the employ-
ees to reject the Union.
We agree with Respondent's contention that the
announcement of the benefits was not timed to
affect the employees' vote because, at that time, the
second election was blocked by the intervening
unfair labor practice proceeding. While, in fact, the
Union filed its "request to proceed" 1 month after
the announcements, Respondent, although faced
with the possibility of the second election, did not
know when, if ever, it would be held. When this
circumstance is considered together with the fact
that during the period after the first election, the
Trial Examiner found that Respondent committed
only a single unfair labor practice, and that by a low
level supervisor, it is unreasonable to infer merely
from the timing of the announcements that they
were calculated to achieve the alleged unlawful
purpose. Accordingly, we shall dismiss this allega-
tion of the complaint. [Emphasis added.]
There is no assertion herein that the involved changes
were contemplated for some time before the involved
campaign. And as found herein Respondent committed
much more than a single isolated unfair labor practice.
These changes were a part of its flagrant continuing pat-
tern of unlawful conduct. The timing and the above-de-
scribed wording of the memo itself leaves little doubt as
to what was the true purpose of the changes. Again Re-
spondent violated the Act.
Paragraph 7 of the complaint in Case,17-CA-40705 al-
leges that on November 13, 1981, Respondent discharged
Blue and since then failed and refused to reinstate her be-
cause of her union activities and concerted protected ac-
tivities. The evidence regarding Blue's., discharge is set
forth above. The General Counsel, on ,briefr contends
that with few exceptions, Kayl's testimony ,regarding
Blue was tentative, uncertain, and confused; that Van
Matre cast sufficient doubt on Respondent's version of
the events of November 13, 1981, to justify, discrediting
Respondent's witnesses; that Marshall's testimony again
illustrates the inconsistencies among Respondent's wit-
nesses for (a) albeit Powers allegedly =would have been
with Marshall on the morning of November 13, 1981,
Marshall did not see her and (b) although, according to
Marshall it is against Respondent's policy to have both
fabrication leadpeople away from the packaging area at
the same time (Kayl did not agree), if both. Powers and
Kayl are believed this is what occurred on the morning
of November 13, 1981; that Elhers was, an incredible wit-
ness in both senses of that word in view- of her claim that
she could read lips and could bag meat with her eyes
closed and at the same time observe Blue's work per-
formance while Blue was behind her; that Ethers demon-
strated an intense bias against Blue perhaps because Blue
criticized Elhers' work performance, which' criticism was
corroborated by Tanner; that Tanner, who 'voluntarily
left Monfort and who also indicated that she-did not like
Blue, testified credibly that she did not complain to Van
Matre and Kay! on November 13, 1981, about Blue; that
Blue's discharge was not simply the fifth step' in Mon-
fort's progressive disciplinary system because - after re-
ceiving her fourth step Blue was late to work three addi-
tional times after the involved election and received a
written warning for being tardy only one of these times,
which warning was not construed to be a fifth step re-
sulting in discharge; that one of the times Blue was late
Braden told her she had always been a good worker,
which testimony was not refuted; that with respect to
the only other warning Blue received for work perform-
ance, "inhibiting the flow of product," Kayl could recall
only that Blue had shut a rotomatic off and she refused
to sign the warning; that Blue was not discharged be-
cause of her poor work performance or poor attendance
record but rather because she once again on November
13, 1981, preached the virtues of UFCW to her fellow
workers; and that it is curious that an alleged complaint
from Tanner on November 13, 1981, would so concern
Respondent that it would result in Blue's discharge,
when an earlier alleged complaint from Tanner got no
results nor did an alleged complaint from Schlund, both
MONFORT OF COLORADO 1473
of which allegedly occurred after Blue's fourth step
issued.
UFCW, on brief, argues as follows:
The problem with the Company's story was that
it completely fell apart in the telling.
. .
The evidence is strong that two critical parts of
the Company's story never in fact occurred. The
first is the complaint from Linda Tanner Baltazar.
Baltazar repeatedly and emphatically denied that
she ever spoke to any supervisor about Blue's work
performance. . . .
Secondly, the evidence strongly indicates that the
Company invented the story, that Kayl and Van
Matre observed Blue's work performance before
her discharge. Kayl testified that she and Van
Matre stood in the lealcer area together to observe
Blue . . . . Another Company witness, Donna
Ethers, who intensely disliked Blue. . . . claimed
to have seen Kayl and Van Matre watching Blue
from the leaker area after lunch . . . Van Matre,
however, after dutifully reciting the Company's
story . . . finally recanted and admitted that he
never went out to the floor to observe Blue after
lunch on the day of the discharge.. . . When asked
about his previous testimony, he lamely explained
that he hadn't understood the questions . . . . His
recantation, of course, calls Kayl's and Ether's testi-
mony into serious question. Since Van Matre was
admittedly not there, how can Kayl be credited
when she claims to have been there with him, and
how can Elhers be believed when she claims to
have seen him.
. . .
The above are only the most basic contradictions
in the Company's version of events. There were
many other inconsistencies. For example, Howard
Braden claimed that before he decided to discharge
Blue, he questioned Van Matre to make sure Van
Matre had observed her.. . . Van Matre, however,
admitted he didn't observe Blue before Braden's dis-
charge. . . .
These contradictions and inconsistencies are far
from minor—they go to the very heart of major ele-
ments of the Company's story. They provide strong
evidence that the Company invented its version of
events leading to Blue's discharge and indicate that
Blue was not discharged for poor work perform-
ance, but was discharged because of her Union ac-
tivities.
Respondent, on brief argues as follows:
By the date of Blue's termination she had re-
ceived at least five (5) formal disciplinary notices
for her unsatisfactory work record. Just prior to her
discharge, Blue received another disciplinary warn-
ing for excessive absenteeism [R. Exh. 13]. Pursuant
to Monfort's progressive disciplinary scheme an em-
ployee is subject to termination upon receipt of her
fifth disciplinary notice [R. Exh. 30]. Although
Brayton [sic] succumbed to Blue's pleading and
gave her still another chance when she was disci-
plined on November 10, 1981, her employment
record supported her termination.
The Company's willingness to endure Blue's atti-
tude of indifference towards her job must be
viewed in light of the surrounding background im-
mediately preceding Blue's termination. In August
and September of 1981 the employees at Monfort's
Grand Island facility were in the middle of a union
election campaign, concluding in the election on
October 9, 1981. Like any cautious employer, Mon-
fort was extremely reluctant to take any employ-
ment action during this time period out of fear of
being accused of interfering with the election. Mon-
fort's willingness to allow Blue to continue her em-
ployment with the Company notwithstanding her
shoddy performance and record, was merely to
avoid election objections which were likely to
follow had she been terminated earlier.
If Monfort desired to terminate Blue because of
her union activities, it would stand to reason that
she would have been terminated prior to the elec-
tion when presumably it would have had the great-
est impact. If Monfort desired to terminate Blue in
order to punish her for her activities during the
election, it would stand to reason that she would
have been terminated at the earliest possible time
for any minor infraction. Thus, Blue's continued
employment even after receiving her fifth discipli-
nary warning shortly after the election, belies alle-
gations that her subsequent termination on Novem-
ber 13, 1981 was motivated by unlawful consider-
ations. Monfort's gracious attitude towards such a
staunch UFCW supporter, including the company's
leniency in allowing Blue numerous second chances
until finally receiving complaints from her co-work-
ers, simply exclude any basis to infer an unlawful
motive in her ultimate termination. See, The Great
Atlantic & Pacific Tea Co., Inc., 260 NLRB 482
(1982).
The testimony of Van Matre, Kayl, and Ethers regard-
ing Blue cannot be reedited. Van Matre lied under oath
in twice testifying that he and Kayl together observed
Blue work after the lunchbreak on November 13, 1981.
And Van Matre lied under oath again in his attempt to
extricate himself when he was caught in his original lie.
His testimony, set forth above, shows that it was not a
matter of not understanding the questions both times.3°
In recanting, Van Matre undermined the credibility of
Kayl, who even after the recantation still insisted she
stood with Van Matre after lunch on November 13,
1981, observing Blue work. Ethers' credibility was also
undermined for she testified she saw something she could
3° Van Matre also lied under oath when he changed his testimony indi-
cating that he watched Blue on the morning of November 13, 1981, be-
cause of the backup but inexplicably did nothing. This also raises another
question, viz., how was Braden able to make sure Van Matre had ob-
served Blue when he had not. Braden also cannot be credited.
1474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not have seen, namely, Van Matre standing with Kay!
observing Blue after lunch on November 13, 1981.
Even if Van Matre had not undermined the credibility
of Kayl, her testimony would not be credited. It is set
forth above in detail and, in my opinion, it demonstrates
that too often Kayl hid behind the shield of "cannot re-
member" or "cannot recall." Also, in other respects, she
changed her testimony when it became obvious as she
went along that it was becoming inconsistent.
Elhers, besides seeing things that did not exist, im-
pressed me as being a biased witness who would not
hesitate and did lie under oath on a number of occasions.
The inconsistency between the testimony of Assistant
Leadperson Powers and Leadperson Marshall was never
resolved making their credibility suspect.
In my opinion Tanner was a credible witness. She did
not complain to Van Matre and Kay! about Blue on No-
vember 13, 1981. Blue and the other witness called by
the General Counsel are credited. Consequently, it is
concluded that (a) Blue was a union activist for UFCW
and that fact was well known to Respondent's manage-
ment, (b) there was a great deal of union animus on the
part of Respondent toward UFCW, (c) the workload on
November 13, 1981, was very heavy and both the night
shift and Blue's day shift set records, (d) rotomatic 4 was
not operating properly on November 13, 1981, (e) there
was a backup on rotomatic 4 and there was a backup in
the rest of the department on November 13, 1981, (I) the
backup before lunch on November 13, 1981, was both
anticipated and accepted by management, (g) up to the
time of the lunchbreak on November 13, 1981, Respond-
ent had no reason to discharge Blue, (h) the only thing
that occurred between the beginning of the lunch period
and Blue's discharge was her ridiculing of certain em-
ployees for voting against UFCW, and one of those em-
ployees, Ward, subsequently talking with Kayl in the
foreman's office, (i) Braden did not tell Van Matre to ob-
serve Blue's work after the lunchbreak on November 13,
1981, because if he, Braden, had so directed Van Matre,
he would have done so and as noted above Van Matre
belatedly admitted that he did not, and (j) perhaps the
real reason for the delay lies in Ken Monfort's postelec-
tion statement to employees that henceforth all termina-
tions would go through him.31
By all credible accounts although Blue had a problem
with attendance and call ins, once there she was general-
ly a good worker. The only other time she was formally
warned about her work performance was in August
1981. Although not specifically alleged to be a violation
of the Act, the evidence of record demonstrates that
there were questionable circumstances surrounding this
warning, and for purposes of background it is my opin-
ion that Blue was justified in not signing it. Kayl, who
issued it, could not herein justify its issuance. If this is
the only formal documented adverse reflection on Blue's
work performance-and it is-then Respondent's alleged
position regarding Blue's work performance is at best
31 It is noted that the open-door policy described in Ken Monfort's
November 9, 1981 memo regarding changes (G.0 Exh. 24), speaks to
Ken Monfort's "upon request" "final step" involvement on employees'
complaints and does not appear to qualify Ken Monfores above-de-
scribed verbal assurance regarding terminations.
weak and, in my opinion, is not supported. Blue was not
discharged for her work performance and although Re-
spondent had the opportunity to place Blue in step 5 on
other occasions after the election, it did not. In my opin-
ion Blue was discharged because on November 13, 1981,
she demonstrated that she was still adamant in her sup-
port for UFCW. Monfort acted. But when it acted, it did
so unlawfully. Respondent knew this for the obvious and
concerted lies told under oath herein by Respondent's
witnesses would not have been necessary if there had
been a lawful reason for the discharge.
The alleged basis for Blue's discharge was a pretext.
There was no legitimate business justification for the de-
cision and so there was no dual motive. Notwithstanding
this, under Limestone Apparel Corp., 255 NLRB 722
(1981), Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), applies to all cases alleging viola-
tions of Section 8(a)(3) and (1) turning on employer mo-
tivation. Under Wright Line, supra, the General Counsel
demonstrated that Blue was viewed by Monfort as a
union activist; that Monfort harbored animus toward
Blue and her activities; and that even if a dual motive ex-
isted, which it does not, Monfort did not meet its burden
of demonstrating, after the General Counsel made a
prima facie case, that the same action would have taken
place irrespective of Blue's protected conduct.
Paragraph 5(a) of the complaint in Case 17-CA-11337
alleges that on November 19, 1982, Respondent indefi-
nitely suspended Nelson, and paragraphs 5(b), (c), and
(d), respectively, of the same complaint allege that on
November 23, 1982, Respondent discharged Nelson, at
all times since November 19, 1982, Respondent has failed
and refused to reinstate Nelson, and Respondent took
this action because of Nelson's union activity and his
concerted protected activity.
The General Counsel, on brief, contends that Re-
spondent's termination of Nelson constituted disparate
treatment; that Respondent failed to produce any evi-
dence to establish that its decision to terminate Nelson
was in accordance with past practice in that Hansen ac-
knowledged that he knew of no employee, other than
Nelson, who had been fired for fighting when the em-
ployee had no prior warnings pursuant to Monfort's five-
step disciplinary system; that although Respondent an-
nounced shortly after Dory's termination that it was
going to start terminating employees for "fighting" and
for "horseplay," there is no evidence they in fact did so;
that even assuming the Lundell/Nelson incident can
properly be classified as "fighting" or "horseplay" this
would apply to Lundell as well as Nelson; that the
record is replete with testimony that fights occurred
both before and after this announcement and resulted in
either no discipline or discipline pursuant to the five-step
disciplinary procedure; that the uncontradicted facts es-
tablish that Nelson's involvement in the November 18,
1982 incident cannot be characterized as fighting in the
normal understanding of the word since it involved, on
Nelson's part, only a push; that Nelson's alleged state-
ment "You don't do that to me or I'll knock you on your
MONFORT OF COLORADO 1475
ass" if made, is most fairly characterized as a warning to
Lundell to not repeat his act of throwing a quarter of
beef at Nelson and not an indication that Nelson intend-
ed to "knock him on his ass" at that time; that when
Nelson pushed Lundell it was clear to all that Nelson
had no intention of escalating the encounter into a fight;
that by leaving the truck without saying a word, after he
saw Nelson push Lundell, Simons indicated that he did
not expect anything to develop, and considered the
matter finished; that the extreme subjectivity of the Re-
spondent's use of the word fighting is illustrated by Han-
sen's remarkable assertion that he did not consider the in-
cident between employees Chase and Correll as fighting
but rather a "difficulty in getting along" notwithstanding
the fact that that incident involved one employee baiting
another over a period of time, a threat to stab the other
employee with a shroud pin, and then the act of stabbing
an employee with sufficient force to leave a wound; that
Respondent has strained to interpret Nelson's actions as
"fighting" so as to be able to view it as a major infrac-
tion and avoid the regular five-step disciplinary system;
that even assuming arguendo that Nelson's actions can
fairly be characterized as fighting, Respondent failed to
offer a persuasive explanation as to why it chose to dis-
charge Nelson because even a major infraction does not
mean automatic discharge but rather discipline is within
the Respondent's discretion; that past practice establishes
the Respondent does not generally discharge even the
aggressor in a fight, unless the employee has a prior dis-
ciplinary record; that the evidence fails to establish that
Nelson was the aggressor; that Lundell initiated the inci-
dent by throwing the quarter of meat at Nelson rather
than the hook and Nelson's action of pushing Lundell
was in response to that act; that the facts revealed to Re-
spondent during its investigation do not support its con-
clusion that the blame for the incident could be assigned
primarily to Nelson; that Lundell himself told Hansen
during the investigation that he knew he was wrong and
Lundell was disciplined for his part in the incident; that
the real motivation behind Respondent's termination of
Nelson was revealed by Supervisor Zuehlke's comments
2 days after Nelson's discharge that "Denny was a good
worker but he'd rather sleep with the Union"; that in ad-
dition to showing Respondent's true motivation for ter-
minating Nelson, Zuehlke's comment indicates the Re-
spondent still identified Nelson with the Union; that the
matter of union representation was still hotly contested
at the time of Nelson's discharge; that Nelson's continu-
ing union activity after the election as well as the fact
that Hansen continued to receive reports from employees
concerning Nelson's union activities up until the time of
Nelson's discharge indicate that the Union in general and
Nelson's union activities in particular were still a matter
of intense interest; and that Respondent's investigation
into the November 18, 1982 incident did not address
Lundell's admitted action as the aggressor and his moti-
vation for throwing the quarter of beef at Nelson, and
Respondent's written incident report was slanted in that
it fails to acknowledge Lundell's admitted action of
throwing the quarter at Nelson and states instead the
quarter "fell" on Nelson indicating that Respondent was
interested in making book on Nelson rather than fairly
investigating and reporting the incident.
UFCW, on brief, argues that, regarding Nelson's union
activity, Gaylord Hansen admitted that other employees
told him Nelson was talking about the Union right up
until the time of Nelson's termination; that it is also un-
disputed that William Zuehlke twice threatened Nelson
with discharge in connection with Nelson's support of
the Union; that not only was Nelson known to be pro-
Union, but the extent of his union activities and his lead-
ership role with the Union and his fellow employees was
known to the Company; that Lundell exaggerated his
fears and his reaction to the incident in that he claims
that when Nelson pushed him, he was so afraid that he
ran out of the truck to stand between Simons and Oakley
for protection but both Nelson and Simons refuted Lun-
dell's claim, with Simons, who was a company witness,
agreeing with Nelson that Lundell did not run out of the
truck, but apologized to Nelson and went right back to
work; that Lundell's apology indicates that he was the
aggressor; that while Zuehlke's notes show Oakley stat-
ing that Nelson grabbed Lundell by the head, not only is
it unclear whether Oakley saw anything at all but no
one, not even Lundell, has claimed Nelson grabbed Lun-
dell's head; that in view of the fact that Simons could
not have given the Company the account that appears in
Zuehlke's notes for Simons testified herein that the first
thing he saw was Nelson pushing Lundell, one suspects
that Oakley never gave the account attributed to him;
that it is Oaldey's version—that Nelson pushed Lundell
by the head—that appears on Nelson's suspension report;
that it seems clear that the Company was trying to paint
the worst possible picture, adding apocryphal "facts"
when necessary in order to support Nelson's discharge;
that despite the fact that Nelson and Lundell never came
to blows and they returned to work immediately after
the incident, Hansen decided that the incident was a
fight, rather than horseplay or roughhousing but he was
unable to give a cogent explanation for this decision and
when asked to explain how he could possibly have con-
cluded that Nelson was the aggressor, he stated that he
concluded Nelson was the aggressor because he believed
Nelson to be a more aggressive person than Lundell; that
although the Company claimed to follow a "progressive"
disciplinary system, in which an employee was to receive
four disciplinary steps before discharge Nelson was dis-
charged despite the fact that he had never received any
disciplinary steps or warning; that Hansen admitted that
Nelson was the only employee he knew of who was
fired for fighting who had an absolutely clean discipli-
nary record; that it is undisputed that employees other
than Nelson were involVed in actual fights, but were not
discharged; that Gaylord Hansen personally decided not
to impose discipline in one such incident in that he exer-
cised his "discretion" to conclude that the incident be-
tween Correll and Chase was a misunderstanding, not a
fight and neither employee was discharged in that inci-
dent, which occurred after Dory's discharge but before
Nelson's discharge; that two other employees, Barrett
and Bodehnal, testified that they had been involved in
fights, but were not discharged; that Monfort introduced
1476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a collection of termination reports for employees it
claimed were discharged for fighting but of the five em-
ployees only three appear to have been discharged for
fighting, and one of the three is Dory (the other two
were discharged for violating safety policy by throwing
fat, not for fighting); that the termination reports do not
indicate the prior disciplinary record of the discharged
employees and according to other evidence in the
record, Dory, for example, had already received four
disciplinary warnings before his discharge; that to Han-
sen's knowledge, Nelson was the only employee dis-
charged for fighting who had no disciplinary record; and
that since Respondent's Exhibit 44 includes only termina-
tion reports, it gives no indication of how many employ-
ees received disciplinary warnings but were not dis-
charged for fighting.
Respondent, on brief, contends that after Dory was
discharged, it held a general meeting with all of its em-
ployees who were told that the Company would not tol-
erate any fighting or horseplay; that apparently, Nelson
performed his duties so as to make Lundell's job as diffi-
cult as possible in an effort to start a fight with Lundell
hitting Lundell with a forequarter of beef being lugged;
that Lundell "attempted to demonstrate to Nelson that
he was not lugging properly"; that Nelson became agitat-
ed and without warning "attacked" Lundell, knocking
him into the sharp beef hooks and the side of the trailer;
that after a suspension pending further investigation, Su-
perintendent Hansen determined to discharge Nelson for
his "violent and dangerous" behavior; that there was no
evidence that Nelson had resumed or participated in pro-
tected activities prior to his discharge; that Nelson's dis-
charge came "long after the union election had ceased
and Nelson had abandoned his campaign activities"; that
no matter what prompted Nelson's discharge, it is unrea-
sonable and without justification to presume it had any-
thing to do with his union activities some 13 months
prior to his discharge; that it is undisputed that Monfort
has a "firm rule" that forbids fighting on company prem-
ises; that from all the facts and circumstances surround-
ing the incident, it is clear that Nelson was agitated at
Lundell; that when Lundell "dropped" the carcass and
thus stopped the steady flow of beef into the cooler car,
Nelson exploded; that Nelson attacked Lundell without
provocation or excuse; that such behavior cannot be con-
doned; and that the Company has the right, without
being subjected to inferences of discrimination, to dis-
charge the participant who initiates the fight and not
punish the employee who did not provoke or otherwise
instigate the assault.
Nelson was suspended and fired in violation of the
Act. Twice during the UFCW campaign in the fall of
1981 he was among those threatened with being fired for
his union activity. Monfort's union animus regarding
UFCW is detailed above. As treated below Respondent's
animus toward Nelson, as an individual, and his activities
were also demonstrated by other statements that Super-
visor William Zuehlke made both before and after Nel-
son's discharge. Nelson's activities in support of UF'CW
were varied and significant, as set forth above. And Nel-
soles union activities continued even after the election, a
fact known to Respondent's management. 32 And Re-
spondent's management believed that Nelson could have
an effect on employees as illustrated by Dick Monfort's
request that Nelson influence employees to vote against
the Union.
Within a few weeks of his discharge, Nelson was again
advised of Respondent's animus toward him when he
was told by Buettner that William Zuehlke said during
the investigation of the Dory incident that he, Zuehlke,
was going to get Nelson and Simons and that Zuehlke
wished it was one of them instead of Dory. Zuehlke
spoke to Buettner about the Dory incident. And Zuehlke
testified that subsequently Simons asked if he, Zuehlke,
was "out for Simons' job." Obviously for Simons to ask
the question someone had to relay the information to
Simons. When Zuehlke asked who, Simons replied "a
little bird." Zuehlke's testimony, that he then told
Simons "not to pay any attention to that little bird," is
not credited. Zuehlke had already openly threatened the
dock workers twice with being fired. According to what
the "little bird" said, Zuehlke threatened Nelson and
Simons a third time. Nelson is credited. Subsequently,
Zuehlke told Nelson and Simons to "listen to that little
birdie and we'll see what we can do about it."" Conse-
quently, before being discharged Nelson was threatened
with being fired four times and none of them related in
any way to his work performance.
As noted above, the Dory incident also resulted in em-
ployees being advised at a November 1, 1982 meeting
that anyone engaging in fighting, threatening anyone, or
horseplay would be discharged immediately, Gaylord
Hansen, however, testified that, as set out in Monfort's
work rules and policies, he had discretion. And he subse-
quently excused that discretion in the Correll/Chas e inci-
dent. While Hansen strained while testifying herein to
characterize that incident as something other than a
major infraction, his effort was meaningless for he con-
ceded that Correll and Chase were told at the time that
if the incident happened again, they would both be
fired. 34 In other words, he, Hansen, was not treating it
as a minor infraction that would only result in the em-
ployees receiving a step under Monfort's discipline with-
out punishment procedure. Consequently, even after the
November 1, 1982 meetings with employees Hansen was
exercising discretion and even though one employee
wounded another in the Correll/Chase incident, Hansen
decided not to fire them although under Monfort's rules
82 Hansen testified that employees told him that Nelson was talking
about the Union and this continued until Nelson's termination; and that
Nelson wore a UFCW sticker on his helmet until his termination. Not-
withstanding Hansen's assertions to the contrary, Nelson is credited re-
garding his testimony that early in 1982, well after the election, Hansen
discussed with Nelson the fact that he was getting union authorization
cards signed and in fact Nelson asked Hansen if be would like to sign
one.
3 8 Buettner's denial that he was the "little birdie" is not credited.
Zuehlke's testimony points to the fact that there was a little birdie or
else, obviously, why would, as conceded by Zuehlke, Simons have asked
the question. Who the birdie was, however, is not determinative on tins
issue.
34 Actually Hansen conceded that Correll and Chase were told they
"could" be fired. Rojas' testimony that Hansen said "would" be fired is
credited.
MONFORT OF COLORADO 1477
he could have. And Hansen reminded Correll and Chase
of this by telling them that the next time they would be
discharged.
As will be seen, Gaylord Hansen did not exercise his
discretion in a similar manner in the Lundell/Nelson in-
cident. In order to appreciate what occurred on Novem-
ber 18, 1982, and why it occurred it will be necessary to
reiterate some of the details set forth above. Lundell by
all credible accounts was slow at both placing the hooks
in the supports and in the meat. He had to be constantly
told where to place the hooks for support. Notwithstand-
ing his assertions to the contrary, Lundell because of his
age did not share equally the lugging duties. As he him-
self conceded the following day, he was too old to be a
lugger. At the time in question, the buggy the luggers
used to haul the meat into the trailer was broken. Conse-
quently, the luggers were carrying the quarters of beef
weighing about 200 pounds each on their shoulders into
the trailer. Lundell's slowness resulted in the luggers
having to shoulder this weight longer than necessary.
For Simons, who is young, 6 feet 5 inches tall and con-
servatively weighs a very muscular 220 pounds this
added burden may not have been significant. For Nelson,
who was at least 60 pounds lighter, the unnecessary
added burden eventually had a telling effect. Under-
standably he became irritated with Lundell. Lundell im-
pressed me as being an exaggerator. His testimony that
Nelson was responsible for dropping almost every quar-
ter of beef he lugged in the Safeway trailer that day is
not credited. Lundell could not lift the quarters himself
and Nelson had to help Lundell shoulder the beef when
he became the lugger because he did not hook the quar-
ter properly. This would be additional work for Nelson.
If Lundell is believed, it would mean after Nelson stood
longer than necessary with the 200-pound quarter on his
shoulder, he intentionally unloaded the quarter in such a
way that he would then have to help Lundell to shoul-
der it. And, if Lundell is believed, Nelson did this
throughout the trailer. Nelson did not. What Nelson did
was use the same procedure he had used for at least a
year in unloading for a downshot. While Simons, with
his enormous size and strength, could accommodate
Lundell's shortcomings, Nelson could or did not. But
Nelson did not, again, unload any differently for the in-
volved downshot than he had in the past. Lundell almost
placed the hook properly for he testified that the hook
hit the second rib and bounced off. In other words, he
was accorded the opportunity to properly hook the quar-
ter. It does not appear that that was the case when Lun-
dell unloaded the quarter at Nelson. Lundell testified
that he unloaded the quarter at Nelson and at the hook.
In my opinion it was strictly the former. Lundell im-
pressed me as being an obstinate individual who, as indi-
cated above, chose once to be fired rather than follow
his supervisor's order. Gaylord Hansen had to be aware
of Lundell's nature for he, Hansen, had to straighten Out
that situation. When Lundell shouldered the quarter of
beef he had one purpose, viz, to hit Nelson with it. Lun-
dell had just been hit in the leg with a quarter and he
was going to get even. It did not matter that what oc-
curred when Nelson unloaded the quarter was an acci-
dent and was, at least in part, his, Lundell's, own fault.
What was about to occur was not going to be an acci-
dent. Out of anger, Lundell himself testified he was mad,
Lundell threw the quarter of beef at Nelson. If Nelson
hooked the quarter, Lundell would not have accom-
plished his purpose. It was not his intent to give Nelson
a chance to hook the quarter so he threw it when he was
about 3 feet from Nelson. As Lundell conceded, Nelson
was forced backwards against the side of the trailer. No
one asserts that Nelson even touched the quarter with a
hook. Nelson's testimony that he was hit with the quar-
ter in the chest and stomach is credited. No one factually
disputes this. 35 Filled with rage Lundell accomplished
what he set out to do. As Lundell later told Hansen, "I
just was mad at the time and I just didn't think what I
was doing. I know it was wrong.. . . But when you're
mad that's what happens." Acknowledging at the time
that he was wrong Lundell said to Nelson "I'm sorry."
But first Nelson shoved Lundell and told him "to knock
that shit off." Was Nelson provoked? Was his reaction
reasonable under the circumstances? When later asked
what he would do in the same circumstances Hansen tes-
tified that he would get angry.
Lundell again exaggerated when he testified that he
ran out of the trailer seeking the protection of Simons
and Oakley. And he exaggerated when he testified that
one of these two believed it was necessary to verbally
warn Nelson. No one testified to corroborate Lundell on
these two points. In fact the testimony of record sup-
ports the conclusion that the incident ended with the
shove and a warning to Lundell from Nelson.
Gaylord Hansen considered these facts, including the
fact that when Lundell threw the quarter it was an act of
revenge. As noted, above, Hansen had discretion even if
he chose to treat the matter as a major infraction. Yet,
according to the testimony of Supervisor William
Zuehlke, at the November 23, 1982 management meeting
over Nelson, Hansen said that "fighting is a major and
anyone fighting will be dismissed and they were going to
have to discharge Nelson." As indicated above, the No-
vember 1, 1982 statement to employees regarding fight-
ing or horseplay did not preclude Hansen using his dis-
cretion. And as noted above, Hansen continued to exer-
cise his discretion after that meeting as illustrated by the
Correll/Chase incident. Yet in this situation Hansen did
not exercise his discretion in the same manner as he did
in the Correll/Chase incident, and while there he told
both Correll and Chase that both would be fired if it oc-
curred again, now he was treating Nelson and Ltuidell
disparately assertedly because notwithstanding the facts
of the occurrence, including Lundell's admissions, he be-
lieved Nelson had a more aggressive nature." Why?37
35 Simons' opinion must be viewed in the light of William Zuehlke's
statement that luggers can throw a quarter of beef 2 or 3 feet and in view
of the anger of Lundell. Simons did not impress me as being a reliable
witness regarding factual matters let alone someone whose opinion Could
be considered reliable.
36 Both the General Counsel and UFCW correctly point out that the
above-described Dory situation is dissimilar. Dory was already in his
fourth step and any infraction would have resulted in his discharge. Ad-
ditionally, some of the evidence suggests that Dory's conduct was much
more than a shove and a verbal warning.
37 As pointed out by the above-described rebuttal evidence, discretion
was exercised on both sides of the plant regarding major infractions.
1478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Perhaps the explanation lies in William Zuehlke's state-
ment made just 2 days after Nelson was fired that
"Denny was a good worker but he'd rather sleep with
the union." As noted above, Supervisor Zuehlke attend-
ed the November 23, 1982 management meeting at
which Nelson's discharge was ostensibly decided.
Zuehlke's and Harley Thomas' denials that such a state-
ment was made are not credited. Zuehlke's "reason" for
not saying such a thing, namely, that after the election
Nelson "kind of turned against" the UFCW because he
was not invited to witness the counting of the votes
cannot withstand scrutiny for Zuehlke, while conceding
as late as November 25, 1982, that Nelson was a good
worker, would have a difficult time reconciling this with
the fact that twice during the Dory investigation, which
occurred over a year after the ballots were tallied, he
threatened Nelson with being fired. As Harley Thomas
admitted regarding the November 23, 1982 management
meeting, he and the other managers present were well
aware of Nelson's union feelings. Barnes' testimony is
credited. He impressed me as being a credible witness.
Znehlke and Thomas did not for both did not hesitate to
lie under oath when they believed their responses might
adversely affect Respondent's case, even when their re-
sponses were absurd.
The alleged basis for Nelson's discharge was a pretext.
In my opinion, there was no legitimate business justifica-
tion for the decision and so there was no dual motive.
Notwithstanding this, under Limestone Apparel Coq.,
supra, Wright Line, supra, applies to all cases alleging
violations of Section 8(a)(3) and (1) turning on employer
motivation. Under Wright Line, supra, the General Coun-
sel demonstrated that Nelson was viewed by Respondent
as a union activist; that Respondent harbored animus
toward Nelson and his activities; and that even if a dual
motive existed, which it does not, Respondent did not
meet its burden of demonstrating, after the General
Counsel made a prima facie case, that the same action
would have taken place irrespective of Nelson's protect-
ed conduct.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Both UFCW and NMU are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by:
(a) Threatening to discharge, discipline, or demote em-
ployees because they engaged in union activities and/or
protected concerted activities.
(b) Threatening to close the facility if the employees
selected a union as their collective-bargaining representa-
tive.
(c) Threatening to refuse to promote employees be-
cause of their union activities and/or protected concert-
ed activities.
(d) Interrogating employees concerning their own and
other employees' union sympathies and union activities.
(e) Suggesting employees form an employee committee
instead of selecting an established union as their collec-
tive-bargaining representative.
(f) Soliciting employee complaints and grievances, and
thereby promising its employees increased benefits and
improved terms and conditions of employment.
(g) Soliciting employees to influence other employees
to vote against selecting a union as the collective-bar-
gaining representative.
(h) Promising its employees increased benefits and im-
proved terms and conditions of employment if the em-
ployees formed an employee committee instead of select-
ing an established union as their collective-bargaining
representative.
(i) Stating that there would be a strike if the UFCW
was certified as its employees' collective-bargaining rep-
resentative thereby implying a strike was inevitable and
indicating the futility of selecting the UFCW as the em-
ployees' collective-bargaining representative.
(j) Announcing changes with job posting, wage, and
short-term disability policies while objections to the con-
duct of the election were pending.
(k) Promising its employees a bonus if they did not
select the UFCW as their collective-bargaining repre-
sentative.
(1) Rendering aid, assistance, and support to the N/vIU
in the manner described below.
(m) Discharging Pat Blue on November 13, 1981, sus-
pending Dennis Nelson on November 19, 1982, discharg-
ing Dennis Nelson on November 23, 1982, and denying
specified employees a wage increase in retaliation for
their inclusion in the involved bargaining unit of employ-
ees.
4. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (2) of the Act by ren-
dering aid, assistance, and support to NMU by;
(a) Entering into a contract amendment providing em-
ployees with a bonus if the NMU is the employees' col-
lective-bargaining representative on December 21, 1981.
(b) Distributing written material and telling employees
that they would receive a bonus if the employees did not
select the UFCW as their collective-bargaining repre-
sentative.
(c) Allowing representatives of the NMU access to the
lunchroom at the facility for the purpose of talking with
employees while denying such access to representatives
of the UFCW.
(d)Allowing representatives of the NMU access to the
area surrounding the guard shack at the facility for the
purpose of handbilling employees while denying such
access to representatives of the UFCW.
5. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by dis-
charging Pat Blue on November 13, 1981, by suspending
Dennis Nelson on November 19, 1982, and by discharg-
ing Dennis Nelson on November 23, 1982, and by failing
and refusing to grant wage increases effective August 31,
1981, and thereafter, to knife grinders, supply warehouse-
men, electronic technicians, and janitors, in retaliation
for their inclusion in the bargaining unit of the employ-
ees.
MONFORT OF COLORADO

1479
6, Except as specifically found herein, Respondent en-
gaged in no other unlawful conduct.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be directed to cease and desist
from engaging in such conduct and take affirmative
action, more fully described below, designed to effectu-
ate the policies of the Act.
Respondent will be directed to offer Patrice Blue and
Dennis Nelson reinstatement to their former positions
and to make them whole for any loss of earnings they
may have suffered by reason of the above-described un-
lawful actions by making payments to them of a sum of
money equal to that which they normally would have
earned had Respondent not engaged in the above-de-
scribed unlawful action, with backpay and interest there-
in to be computed in the manner prescribed in F. W
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977). 38 Respondent will be di-
rected (a) to preserve and make available to the Board,
on request, all payroll records, and reports, and all other
records necessary and useful to determine the amount of
backpay due in compliance with this Decision and
Order, and (b) to remove from Patrice Blue's and Dennis
Nelson's personnel file all the documents related to those
of Respondent's actions which were determined above to
be unlawful labor practices.
Respondent will be directed to make whole knife
grinders, supply warehousemen, electronic technicians
and janitors for the Respondent's retaliatory denial of
wage increases by making payments to each of them of a
sum of money equal to that which they would have
earned had Respondent not engaged in the above-de-
scribed unlawful action with backpay and interest therein
to be computed in the manner set forth in the preceding
paragraph.
In view of the degree and pervasiveness of the unfair
labor practices, a broad cease-and-desist order shall be
recommended precluding Respondent from "hi any
manner" interfering with, coercing, or restraining em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
Also UFCW, on brief, contends that the Board has
consistently granted extraordinary notice and access rem-
edies in cases in which the respondent's unfair labor
practices were numerous, pervasive, or outrageous, or
the respondent has shown its proclivity to violate the
Act; that the very number of incidents that occurred, the
many supervisors involved, and the personal involvement
Of the company president, without more, should be
enough to establish that the unfair labor practices were
pervasive and outrageous; that the premeditated nature
of the Company's violations is an additional reason for
the imposition of extraordinary remedies; that the Com-
pany orchestrated a campaign regarding the bonus that
was clearly premeditated and was devastating to the
38 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
Union's chances of success in the election; that not only
was the Company forewarned by the Union, but it was
aware that the Board had held that the precisely identi-
cal conduct was unlawful in that the previous Board de-
cision issued in July 1981, several months before the
election campaign at issue in the present case, the Board
held that the Company had unlawfully assisted and sup-
ported the NMU to the prejudice of the UFCW, men-
tioning specifically access to the plant as one of many
items of assistance; that nevertheless, the Company con-
tinued to assist and support the NMU, ignoring the
Board's decision; and that it is obvious that a simple
cease-and-desist order would mean nothing to this Com-
pany. Citing United Dairy Farmers Cooperative Assn., 242
NLRB 1026 (1979), enfd. in pertinent part 633 F.2d 1054
(3d Cir. 1980), UFCW requests the following remedies:
The notice to employees should not only be posted in
the Company's Grand Island facility, but should also be
published in appropriate company publications and
mailed to every employee of the Grand Island plant, in-
cluding, but not limited to, all employees on the payroll
at the time the unfair labor practices were committed.
The notices should be signed personally by Ken Mon-
fort, the Company's president. Ken Monfort should also
be required to read the notice to current employees as-
sembled for the reading, and the Board should have a
reasonable opportunity to provide a Board agent to
attend the assembly of employees at which the notice is
read. The Company should also be required to publish
the notices at least two times per week for 4 weeks in
local newspapers of general circulation. The Company
should be ordered to grant UFCW and its representa-
tives reasonable access to company bulletin boards and
other places where notices to employees are usually
posted, reasonable access to employees in the plant in
nonwork areas during nonwork time, and notice of and
equal time and facilities for the Union to respond to any
company speech made to employees regarding union
representation. The Union should also have the right to
deliver a 30-minute speech to employees on working
time prior to any Board election that may be scheduled
in which the Union is a participant. These remedies
should apply for 2 years from the date of the posting of
the notice or until the Regional Director issues an appro-
priate certification following a free and fair election,
whichever comes first. Furthermore, the Company
should be ordered to supply the Union with the names
and addresses of its current employees, on the Union's
request, within 1 year from the issuance of an order in
the present case. In view of the circumstances of this
case, this approach appears to be reasonable and re-
quired.
Nothing herein shall be construed to authorize or re-
quire the withdrawal or elimination of any wage in-
crease, or other benefits, terms, or improved conditions
of employment that may have been established by Re-
spondent.
1480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Monfort of Colorado, Inc., Grand
Island, Nebraska, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening to discharge, discipline, or demote em-
ployees because they engaged in union activities and/or
protected concerted activities.
(b) Threatening to close the facility if the employees
selected a union as their collective-bargaining representa-
tive.
(c) Threatening to refuse to promote employees be-
cause of their union activities and/or protected concert-
ed activities.
(d) Interrogating employees concerning their own and
other employees' union sympathies and union activities.
(e) Suggesting employees form an employee committee
instead of selecting an established union as their collec-
tive-bargaining representative.
(f) Soliciting employee complaints and grievances, and
thereby promising its employees increased benefits and
improved terms and conditions of employment.
(g) Soliciting employees to influence other employees
to vote against selecting a union as the collective-bar-
gaining representative.
(h) Promising its employees increased benefits and im-
proved terms and conditions of employment if the em-
ployees formed an employee committee instead of select-
ing an established union as their collective-bargaining
representative.
(i) Stating that there would be a strike if the United
Food and Commercial Workers International Union,
AFL-CIO (UFCW), was certified as its employees' col-
lective-bargaining representative thereby implying a
strike was inevitable and indicating the futility of select-
ing the UFCW as the employees' collective-bargaining
representative.
(j) Announcing changes in its job posting, wage, and
short-term disability policies while objections to the con-
duct of an election are pending. Nothing in this Order
shall be construed to authorize the withdrawal or elimi-
nation of any wage increase or other benefits, terms, and
improved conditions of employment that Respondent has
established.
(k) Promising its employees a bonus if they did not
select the UFCW as their collective-bargaining repre-
sentative.
(1) Rendering unlawful aid, assistance, and support to
the National Maritime Union of America, AFL-CIO
(NMU), by (1) entering into a contract amendment pro-
viding employees with a bonus if the NMU is the em-
ployees' collective-bargaining representative, (2) dissemi-
89 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
nating written material and telling employees that they
would receive a bonus if the employees did not select
the UFCW as their collective-bargaining representative,
(3) allowing representatives of the NMU access to the
lunchrooms at the facility for the purpose of talking with
the employees while denying such access to the repre-
sentatives of the UFCW, and (4) allowing representatives
of the NMU access to the area surrounding the guard
shack at the facility for the purpose of handbilling em-
ployees while denying such access to representatives of
UFCW.
(m) Unlawfully taking any disciplinary action against
any employee because the employee exercises rights
guaranteed under Section 7 of the Act.
(n) Unlawfully denying knife grinders, supply ware-
housemen, electronic technicians, and janitors a wage in-
crease in retaliation for their inclusion in the involved
bargaining unit of employees.
(o) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Patrice Blue and Dennis Nelson immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
or privileges and make them whole for any loss of pay
they may have suffered by reason of Respondent's dis-
crimination against them with backpay and interest
thereon to be computed in the manner set forth above.
(b) Remove and expunge from Patrice Blue's and
Dennis Nelson's personnel files all documents that relate
to Respondent's actions that have been found in the at-
tached decision to be unfair labor practices, and make
whatever record changes are necessary to negate the
effect of these documents and Respondent's unlawful ac-
tions.
(c) Make knife grinders, supply warehousemen, elec-
tronic technicians, and janitors whole for any loss of pay
they may have suffered by reason of Respondent's un-
lawfully refusing and failing to grant wage increases to
them effective August 31, 1981, and thereafter with
backpay and interest thereon to be computed in the
manner set forth above.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Mail a copy of the attached notice marked "Ap-
pendix"'" to each and every employee at his or her
49 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
Continued
MONFORT OF COLORADO

1481
home address, post copies thereof at its plant in Grand
Island, Nebraska, and include a copy in appropriate com-
pany publications. Copies of said notice, on forms pro-
vided by the Regional Director for Region 17, shall be
personally signed by Respondent's president, Kenneth
Monfort. Copies of said notice shall be mailed by Re-
spondent to each and every employee working at its
plant on the date on which such notice is mailed, as well
as each and every employee who worked in its plant
during the period of Respondent's unfair labor practices,
and additional copies shall be posted by Respondent im-
mediately on receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(0 Publish in local newspapers of general circulation
copies of the attached notice marked "Appendix." Such
notice shall be published twice weekly for a period of 4
weeks.
(g) Convene during working time all employees at its
Grand Island, Nebraska plant, by shifts, departments, or
otherwise, and have Respondent's president and owner,
Kenneth Monfort, read to the assembled employees the
contents of the attached notice marked "Appendix." The
Board shall be afforded a reasonable opportunity to pro-
vide for the attendance of a Board agent at any assembly
of employees called for the purpose of reading such no-
tices.
(h) On request of the UFCW made within 1 year of
the issuance of the Order herein, make available to the
UFCW without delay a list of names and addresses of all
employees at the time of the request
(i) Immediately upon request of the UFCW for a
period of 2 years from the date on which the aforesaid
notice is posted, grant the UFCW and its representatives
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
reasonable access to the plant bulletin boards and all
places where notices to employees are customarily
posted.
(j) Immediately upon request of the UFCW for a
period of 2 years from the date on which the aforesaid
notice is posted, permit a reasonable number of union
representatives access for reasonable periods of time to
nonwork areas, including but not limited to canteens,
cafeterias, rest areas, and parking lots, within its Grand
Island, Nebraska plant so that the UFCW may present its
views on unionization to the employees, orally and in
writing, in such areas during changes of shifts, breaks,
mealtimes, or other nonwork periods.
(k) In the event that during a period of 2 years follow-
ing the date on which the aforesaid notice is posted any
supervisor or agent of Respondent convenes any group
of employees at Respondent's Grand Island, Nebraska
plant and addresses them on the question of union repre-
sentation, give the UFCW reasonable notice thereof and
afford two union representatives a reasonable opportuni-
ty to be present at such speech and, on request, give one
of them equal time and facilities to address the employ-
ees on the question of union representation.
(1) In any election that the Board may schedule at Re-
spondent's Grand Island, Nebraska plant within a period
of 2 years following the date on which the aforesaid
notice is posted in which the UFCW is a participant,
permit, on request by the UFCW, at least two 1JFCW
representatives reasonable access to the plant and appro-
priate facilities to deliver a 30-minute speech to employ-
ees on working time, the date thereof to be not more
than 10 working days, but not less than 48 hours, prior
to any such election."
(m) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
41 Subpars. (i), (j), (k), and (1) herein shall be applicable only so long as
the Regional Director has not issued an appropriate certification follow-
ing a free and fair election.