Pepper Packing Co.

PEPPER PACKING CO. Pepper Packing Co. and United Food and Commercial Workers International Union, Local 641, AFL- CIO' and Dave O. Carr. Cases 27-CA-5887 and 27-CA 5949 June 29. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEI.I.O AND TRUESDALE On April 3, 1979, Administrative Law Judge Wil- liam J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel filed a brief in answer to Respondent's exceptions. and the Charging Party filed a brief in response to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act. as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Pepper Packing Co., Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I Effective June 7. 1979, the Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, merged with the Retail Clerks In- ternational Union, forming a new union identified as United Food and Com- mercial Workers International Union, AFL-CIO. Accordingly, we have sub- stituted the new name for the Amalgamated Meatcutters and Butcher Workmen of North America. 2 Respondent has excepted to certain credibility findings made by the Ad- mninistrative Law Judge. II is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In adopting the Administrative Law Judge's finding that Respondent vio- lated Sec. 8(aX 1) by threatening to reimpose Carr's suspension if Carr filed a grievance concerning that suspension, Member Penello would not rely on Daniel Construction Company' 239 NLRB 1335 1978)., in which he dissented. In his recommended Order and notice the Administrative Law Judge inadvertently omitted certain conclusions of law which he had made in the body of his Decision. Accordingly, we have modified herein the Administra- tive Law Judge's Order and notice to conform with his findings and conclu- sions. I. Substitute the following for paragraph l(a): "(a) Issuing warning notices to employees for smoking, and restricting the restroom access of em- ployees, because such employees filed charges or had charges filed on their behalf under the National La- bor Relations Act, or because such employees en- gaged in activities protected by Section 7 of the Act." 2. Substitute the following for paragraph (b): "(b) Threatening to indefinitely suspend employ- ees for filing grievances, saying that it intended to get rid of employees who filed grievances and resorted to the processes of the National Labor Relations Board, threatening disciplinary action against employees for smoking because those employees had filed charges under the Act and had engaged in union and/or pro- tected concerted activity, issuing warning notices to employees regarding their accident record because the employees had filed charges under the Act or en- gaged in protected concerted activities, telling em- ployees to keep their mouths shut during safety meet- ings, creating the impression that employees have been given more onerous work because of their par- ticipation in safety meetings, and interrogating and threatening employees with reprisals because those employees had filed charges under the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity ex- cept to the extent that the employees' bargain- ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members. In recognition of these rights, we hereby notify our employees that: WE WILL NOT issue warning notices to you for smoking or restrict your access to the restroom because you file charges or have charges filed on your behalf under the National Labor Relations 243 NLRB No. 37 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, or because you have engaged in activities protected by Sec. 7 of the Act. WE WILL NOT issue warning notices to you, restrict your access to the restroom, discharge or otherwise discriminate against you for engaging in activities on behalf of United Food and Com- mercial Workers International Union, Local 641, AFL-CIO, or any other labor organization, or for engaging in other concerted activity pro- tected by the National Labor Relations Act. WE WILL NOT threaten to suspend you indefi- nitely for filing greivances. WE WILL NOT tell you that we intend to get rid of employees who file grievances and resort to the processes of the National Labor Relations Board. WE WILL NOT threaten disciplinary action against you for smoking because you have filed charges with the National Labor Relations Board and WE WILL NOT threaten disciplinary action against you because you engage in ac- tivity on behalf of a labor organization or be- cause you engage in concerted activity protected by the National Labor Relations Act. WE WILL NOT issue warning notices to you re- garding your accident records because you have filed charges under the Act or engaged in pro- tected concerted activities. WE WILL NOT tell you to keep your mouths shut in safety meetings. WE WILL NOT create the impression that we are assigning more onerous work to you because of your participation in safety meetings. WE WILL NOT interrogate and threaten you with reprisals because you have filed charges un- der the Act. WE WILL NOT in any other manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL expunge from the personnel file of Dave O. Carr, and from any other records which we maintain, all references to the July 11, 1978, letter concerning smoking, and the September 6, 1978, letter concerning future accidents, which we issued to Dave O. Carr because unfair labor practice charges were filed against us involving Dave O. Carr and because of his union and pro- tected concerted activities. WE WILL make Dave O. Carr whole for any loss of pay he may have suffered as a result of his May 1978 suspension in the event that we refuse to process a grievance concerning that supsen- sion because it is untimely. PEPPER PACKING CO. DECISION STATEMENt OF rill C-'SE WIL.IAM J. PANNIIER 1L. Administrative Law Judge: This matter was heard by me in Denver, Colorado on De- cember 12, 1978.1 On July 31, the Regional Director for Region 27 of the National Labor Relations Board issued a complaint and notice of hearing in Case 27 CA-5887. based upon an unfair labor practice charge filed on July 3 alleging violations of Section 8(a)( I) of the National Labor Relations Act, as amended. 29 U.S.('.. §151. et seq., herein called the Act. On October 26 the Regional Director issued an Order consolidating cases, consolidated complaint, and notice of hearing, based upon the above-described charge in Case 27-CA-5887 and upon an unfair labor practice charge in Case 27-CA 5949 filed on September I alleging addi- tional violations of Section 8(a)(1) of the Act. On Novem- ber 24 the Regional Director amended the complaint to add violations of Section 8(a)(3) and (4) of the Act based upon an amended charge in Case 27 CA 5949 filed on Novem- ber 21. All parties have been afforded full oppportunity to ap- pear. to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, the briefs filed on behalf of the parties, and my observation of the demeanor of the witnesses, I make the following: FINIINGS OF FA(CT 1. JURISDICTION At all times material, Pepper Packing Co., herein called Respondent, has been a corporation duly organized under and existing by virtue of the laws of the State of' Colorado, has maintained its principal office and place of business at 901 East 46th Avenue, Denver, Colorado, and has been engaged in the wholesale packing and processing of meat products. In the course and conduct of these business op- erations Respondent annually sells and ships goods and materials valued in excess of $50,000 directly to persons and firms within the State of' Colorado, each of whom, in turn, annually derives gross revenue from retail sales in ex- cess of $500,000 and purchases and receives goods and ma- terials valued in excess of $10,000 from points and places directly outside the State of Colorado. Therefore, I find that at all times material Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2). (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 641, AFL- CIO. herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. i Unless otherwise stated all dates occurred in 1978. 216 PEPPER PACKING CO. III. TE UNFAIR LABOR PRACTICES A. Issues The instant case presents a series of incidents. Most are alleged to constitute violations of Section 8(a)(1 ) of the Act. These incidents correspond to the subheadings listed below and most involve employee David Carr, who had worked for Respondent for a number of years. In addition, two of these incidents-a letter of July I 11 concerning smoking and an instruction restricting Carr's access to the restroom are alleged to violate Section 8(a)(3) and (4) of the Act as well. B. The Alleged Threat of Indefinite Suspension if Carr Did Not Withdraw a Grievance During the morning of May 242 Carr had been perform- ing trimming work in the cooler at Respondent's facility when cooler Supervisor Charles Miller] had directed him to go to the breaking room to aid in hanging off chucks. Carr worked in the breaking room for the remainder of the pre- lunch period. When he returned to the cooler following lunch he was reprimanded by Dock Foreman David Rob- ert Sanchez' for not having completed the trimming as- signed to him. On the following morning Miller again told Carr to render assistance in the breaking room. After hang- ing off approximately 15 to 20 chucks, the employee with whom Carr was working said that he had to cut them down, a procedure that would necessitate a pause in Carr's work. Carr took advantage of this break to go to the east dock where he expressed concern to steward Albert Trujillo, em- ployed by Respondent as a laborer, concerning what had occurred the prior day and the possibility that Sanchez might again reprimand him. Trujillo replied that Carr should return to work; they could discuss the matter later. As Carr started to return to the breaking room, he encoun- tered Miller who reprimanded Carr for leaving his work station, saying that he could suspend Carr for having done so. When Carr responded that such action was Miller's pre- rogative, the latter punched out Carr's timecard, saying that Carr was suspended indefinitely.5 Carr and Trujillo, possibly in the company of Miller, then went to the office of Plant Manager Robert Rifkin 6 to complain about the suspension. After hearing their com- plaint, Rifkin said that he would have to consider the mat- ter,' and he instructed Carr to telephone him that after- noon. After leaving the plant Carr went to the Union's hall where a representative aided him in preparing a grievance alleging that the suspension had been unjust and seeking payment for all time lost; he instructed Carr to give the grievance to Trujillo so that it could be filed with Respon- dent. 2 Although there was some conflict as to whether this incident occurred on May 24 or 31. it was clear by the end of the hearing that the former date was the accurate one. 3 An admitted supervisor and agent of Respondent. ' An admitted supervisor and agent of Respondent. There is no contention that the suspension was unlawfully motivated. I An admitted supervisor and agent of Respondent. Rifkin testified that there were "a lot of things to weigh to see what amount the suspension might be," including looking into the offending em- ployee's personnel file. Rather than telephone Rifkin, Carr went to the plant at approximately 4 p.m. that same day. His description of his conversation with Rifkin following his arrival at the plant was vague and, at best, showed a lack of recollection as to what had been said during that meeting. To the extent that it was clear, Carr testified that after delivering a lecture on the need for kill-floor employees to remain at their posts so that the continuous flow of production could be main- tained.' Rifkin had said that Carr could return to work on the following morning. According to Carr., as he was leav- ing the office Rifkin had said to him, "I guess you'll file a grievance won't you?"' Carr testified that he had not an- swered this question but had simply continued out of the office. Rifkin's account of this conversation was more detailed. Like Carr he testified that he had described the need for employees to remain at their posts. Moreover, he testified that following a 25 to 35 minute discussion of this subject Carr had thrown up his hands and had said that he would just as soon fbrget about the whole thing,'" at which point Rifkin claims to have said. "In that case you can report to work tomorrow." Rifkin testified that at that point "I as- sumed the matter was settled." However, he denied that there had been any mention of a grievance at any time during this meeting. Further, he conceded that he had not asked Carr not to file a grievance, and that Carr had not promised not to file one. On the following morning Carr gave his grievance to Trujillo, who submitted it to Rifkin upon the latter's arrival at work. This led to an argument involving Carr. Trujillo, and Rifkin. with Rifkin asserting, admittedly, that he had believed that the matter had been settled during his discus- sion with Carr the prior afternoon and that "if Mr. Carr wanted to renege on his agreement, then I certainly would renege on mine and he could consider himself still under suspension."" Confronted with this alternative, Carr told Trujillo that while he wanted to pursue the grievance, he could not afford to be suspended. Accordingly, the griev- ance was pursued no further. C. The Allegations Pertaining To Warnings Regarding Carr's Smoking The complaint alleges that Respondent violated the Act by issuing a written reprimand to Carr on July I concern- ing smoking and, on August 3, by threatening to suspend Carr if he were found smoking. This conduct, alleges the I There is no contention or evidence to support a contention that Carr's brief absence from the breaking room, which Carr estimated to have been less than 5 minutes by the time that he had encountered Miller. had resulted in any cessation of production on March 25. 9 Carr appeared most uncertain as to precisely what Rifkin had assertedly said concerning the possibility that Carr might file a grievance. At various points in his testimony he attributed the very converse of the above-quoted remark, which was the final version upon which he settled, to Rifkin: "I guess you won't go filing a grievance, will you?". "I guess you won't be filing a grievance." and "I guess you won't file a grievance." 10 Carr denied specifically having made the remark that he would just as soon forget about the whole thing. " Rifkin testified that since his investigation of the incident had not been completed by the time of this conversation. he could not a) how long (arr's suspension would have lasted had the latter not agreed to abandon the griev- ance. 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, was engaged in by Respondent because Carr had caused charges to be filed against Respondent under the Act and because Carr had engaged in union and/or protected concerted activity. On July 3 Trujillo filed the charge in Case 27- CA-5887. That charge states, as the "Basis of the Charge," that "Since on or about December 1, 1977, the above-named Employer, acting by and through Bob Rifkin, threatened to suspend employees at its Denver, Colorado plant because of their attempts to engage in protected, concerted activi- ties." The return receipt shows that the charge was received by Respondent on Friday, July 7. On Tuesday, July II, Carr received a letter signed by Rifkin which stated: Notices have been posted in the past stating that U.S.D.A. and Company regulations forbid smoking in any edible area of the plant. In addition to the posted notice you were cautioned against smoking when observed on two occasions on July 11, 1978. In the event you do not immediately comply with this regulation, the Company will have no other re- course than to take disciplinary action against you. Although he acknowledged having smoked in an edible area and conceded that he had been cautioned at the time, Carr testified that this had occurred on the previous day. He denied that he had been given any verbal warnings about smoking on July 11. Rifkin claimed that he had been the supervisor who had observed Carr smoking twice on July 11. However, contrary to the statement in the letter. Rifkin did not testify that he had cautioned Carr about smoking on either of these purported occasions. The history of smoking at Respondent's facility has not been a straight line proposition. Respondent has main- tained notices on its bulletin boards reciting that U.S.D.A. and Respondent's regulations prohibit smoking in edible areas and warning that employees caught doing so will be subject to disciplinary action. There are also no-smoking signs in the plant. Further, between October 1975 and Au- gust 28, Respondent issued at least five warning notices to employees other than Carr regarding their smoking after having twice been cautioned on dates which are set forth in the letters that they received. Moreover, another employee was warned about smoking by Sanchez on the same day that the latter had warned Carr. These factors tend to sup- port Respondent's contention that the letter issued to Carr was no more than a continuation of Respondent's normal practice concerning the matter of smoking in edible areas. Yet other evidence was produced which tends to contra- dict that conclusion. For example, hook return employee William Holloway testified that the no-smoking rule was "very relaxed." Indeed, while Rifkin appeared as a witness, he did not deny that in July, he had been speaking with three maintenance employees about a broken down shackle conveyor and that during that conversation-which had taken place on the east dock, an edible area--all three maintenance employees had been smoking. So far as the record discloses nothing was said to any of the maintenance employees about their smoking, although each had con- sumed an entire cigarette during the course of their discus- sion with Rifkin. Nor did Rifkin deny that on August 3 he had spoken with a maintenance man on the top dock, also an edible area, about a newly installed automatic conveyor and that during that conversation the maintenance em- ployee had smoked a cigarette. Similarly, while Miller also appeared as a witness for Respondent. he did not deny that at the end of July he had come upstairs to the cooler with a lit cigarette. In fact, shortly before the hearing, an employee had been smoking while pushing beef, and although San- chez had been present he had said nothing to that em- ployee.' 2 As set forth above on page I, the complaint and notice of hearing in Case 27 CA 5887 issued on July 31. It alleged a single violation of the Act: "On or about May 31, 1978 the Respondent, acting by and through Robert Rifkin, threat- ened to indefinitely suspend its employee David Carr if he did not withdraw his grievance on a previous suspension." The return receipt for the copy' of the complaint served on Respondent shows that it was received on August 1. Two days later Carr and Holloway were among a group of em- ployees on the east dock, the same area where approxi- mately I month earlier the three maintenance employees had been smoking while conversing with Rifkin about the shackle conveyor. Also present at the time was Sanchez. Carr asked Holloway for a cigarette. Sanchez interjected that if Carr lit a cigarette, he (Sanchez) had orders to sus- pend Carr. Sanchez testified that he had made this state- ment to Carr "[b]ecause Bob Rifkin told me to enforce it, and it's on the bulletin board and posted on all the doors there will be no smoking around an edible area." Sanchez further testified that Carr had been warned previously about smoking, both by himself and by two other supervi- sors. However, he did not identify those other two supervi- sors, nor did he furnish any details of his purported prior warning to Carr. Significantly. it was later that same day that Carr had observed Rifkin on the top dock speaking to the mainte- nance employee who had been smoking at the time about the newly installed conveyor. It is undisputed that Carr had asked Rifkin why that maintenance employee was being permitted to smoke while he (Carr) was not permitted to do so. Rifkin replied only that he had spoken to the mainte- nance employee about the matter. Yet, it is undisputed that the latter had consumed the entire cigarette while speaking with Rifkin, and Rifkin did not testify to having made even a single comment to the maintenance employee regarding this matter. D. The Allegedy Unlaqful Restriction on Going to the Restroom Prior to July 17 employees working on the east dock, where Carr worked, simply told each other whenever they needed to go to the restroom and then would leave the dock. On that date Carr returned from one such trip to the restroom and was told by Sanchez that before going to the restroom Carr would have to tell the foreman or wait for a 12 Both Carr and Trujillo identified this employee as Charles Hurd. While Sanchez testified that he did not know an employee by that name, not supns- ingly in light of the size of Respondent's employee complement. he did not deny having been present. shortly before the hearing, when an employee had been smoking a cigarette while pushing bee.l: 218 PEPPER PACKING CO. utilityman to replace him. A sign to that effect was then posted in the guard office in Carr's department for approxi- mately I week after Sanchez' admonition to Carr.' Sanchez testified that he had given the same instruction as he had given to Carr to the other employees working on the east dock on an individual basis.' He claimed that the policy had been in effect prior to July 17, but that it had been unenforced on the east dock and that "my supervisor told me to make sure there was a relief man, because it was too much strain on the guys up there when one's taking off all the time."' Yet, Holloway testified that on jobs where teamwork was not essential, such as the roll-on job per- formed by Carr, employees were not normally required to ask permission before going to the restroom. Sanchez agreed that there was not the need for teamwork among employees on the east dock that existed in other areas such as the west dock. Indeed, Sanchez testified that there were "a few times" when there were no trailers to load during which employees were free to use the restroom. Significantly, while utilitymen were assigned to other de- partments, thereby making it possible for employees in those departments to be replaced whenever they needed to go to the restroom while maintaining the work of their teams, no utilityman had been assigned to Carr's depart- ment. Indeed, while Sanchez referred generally to the effect of an employee leaving to go to the restroom on the work that other department employees had to perform and, fur- ther, to Carr's trips to the restroom, he did not specify even a single instance where the work of Carr's department had been delayed by Carr going to the restroom. E. The Warning Letter of September 6 Concerning Accidents On Wednesday, August 30, Carr injured his knee while working. As a result he did not return to work until late September. In the interim two events of significance oc- curred. First, on Friday, September I, Carr filed the charge in Case 27-CA-5949, alleging that Respondent had "dis- criminated, harassed and intimidated" him for having filed charges with the Board. Second, by letter dated September 6, Rifkin issued the following warning to Carr regarding his prior accidents: As we are all aware, working conditions in a meat packing plant are difficult and can be hazardous if em- ployees do not exercise care and good judgement. Em- ployees must be in good physical and mental condition in order to perform the required work. In December 1975 you were cautioned on the amount of injuries sustained over a three year period. From employment date of October 11, 1972 through December of 1975, you had 14 reportable accidents. Since December 1975 through August of 1978, you have reported an additional 14 injuries. The Company '3 Carr testified that he had not seen the notice for 3 or 4 years. "4 Respondent did not call any employees to corroborate Sanchez in this respect. ' Sanchez did not identify this supervisor, nor did Respondent call any official to testify that he had given such an instruction to Sanchez. feels we can no longer tolerate your record of injuries, resulting in lost time, costs in dollars and cents for medical payments and insurance and time lost by other personnel due to your injuries and carelessness. On August 28, 1978, you were involved in accidents and injuries to three other employees, of which two required medical treatment. In addition, 26 quarters of beef were dropped on the floor. Since that day we have had no more than three quarters of beef dropped in any one day, which leads us to believe you are working in a very careless manner. Upon your return to work from your present injury, you will be given additional instructions in the proper way to load beef. Any further accidents caused by you to yourself or your fellow workers, due to neglect, care- lessness. failure to use provided safety equipment, or poor judgment, will result in disciplinary action, in- cluding discharge. Attached to the letter was a list of the dates and nature of Carr's accidents since December 11, 1975. Carr did not dis- pute this recitation of his accidents. However, it is worth noting that at least three of them involved injuries resulting from hooks used to convey carcass quarters of less than maximum strength. As Sanchez acknowledged, "Iwle had weak hooks." While he testified. Rifkin never did explain his reason for deciding on September 6 as the date on which to send Carr the letter. In fact, there was no testimony regarding the circumstances that led Respondent to transmit this warning to Carr. Respondent did produce two letters which had been sent to other employees which, contends Respondent, show that it was not unusual to send such letters to accident prone employees. Yet, there are perceptible differences be- tween the situations described in these two letters and the circumstances of Carr in September. On June 20, 1977, a letter was sent to employee Richard Lobberding for having a total of 45 injuries over a 57-month period. The letter sent to Carr on September 6 concerned a 71-month period: Oc- tober 11, 1972, through August, 1978. During that period Carr had been involved in only 28 injury incidents. More- over, Lobberding's letter recites that his injuries since Feb- ruary 1975 had caused him to miss 103 days of work. There was no showing that Carr's accidents had caused him to miss even nearly so much work. Similarly, the other letter, sent to Joe Babish on May 22, states that his injuries had caused him to miss "a total of 178 days due to on-the-job injuries." Consequently, if the Lobberding and Babish letters show anything, they show that Carr's accident record by Septem- ber had not been nearly so bad as the much more extreme situations of those two employees. Respondent had toler- ated more extreme accident situations before sending those two employees the same type of letter as had been sent to Carr on September 6. Furthermore, certain other matters are significant concerning the letter sent to Carr. First, Re- spondent produced no evidence to controvert Carr's testi- mony that he had been involved in accidents and injuries to only two-not three-other employees on August 28. Sec- ond, one of those two accidents had involved a hook that 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had straightened out-the problem referred to supra. '6 Fi- nally, when Carr did return to work in late September, he was not "given additional instructions in the proper way to load beef." F. The Alleged Comments of Mills to Carr Donald C. Mills is supervisor of the cooler department." Carr testified that on August 3 during the course of an explanation concerning how employee L. B. Jackson had been hit in the mouth when a hook had slipped out of a piece of meat, Mills had said to him (Carr): "You and L. B. are the only ones around here that get hurt. This is a haz- ardous job. If you don't like it, why don't you quit? We don't like you around here anyway." Later that same day Carr testified that he had asked Mills why Respondent wanted to fire him, to which Mills had replied: "Bob is going to fire all you people who filed grievances and go to the Labor Board with it." Mills denied telling Carr that Rifkin was going to get rid of all the troublemakers who filed grievances or charges. In fact, he later denied having any conversation with Carr on August 3, although he also testified that he did not recall any other employees with whom he had spoken on that date. No mention of Mills had been made in the July 31 com- plaint in Case 27-CA-5887. However, in the consolidated complaint issued on October 26, the foregoing comment, attributed to Mills by Carr, was alleged as a violation of Section 8(aXI) of the Act. Carr testified that on November 27 Mills had initially refused to issue a clean smock when requested to do so by Carr. Carr further testified that when he had protested, naming four or five other employees who were issued clean smocks whenever they asked for them, Mills had replied, "Why did you go to the Labor Board on me?"" After that, testified Carr, Mills had given him the smock. Although he denied having made any statement to Carr about the filing of charges with the Board, Mills did not recall having participated in any conversation with Carr on November 27. In fact, while he acknowledged having issued several smocks on that date, Mills did not recall whether he had given one to Carr. Carr testified that on December I he had become em- broiled in a mild dispute with Mills and Sanchez concern- ing whether Carr had left a job before it had been com- pleted. According to Carr, as he walked away from the plant Mills had either kicked or pushed open the door loudly and had hollered three or four times at Carr, "You 16 Sanchez testified that the problem could also be with the manner in which the meat was handled when moved by means of the hooks. However, there is no evidence that Sanchez had personal knowledge of how Care was handling the meat on August 28. Consequently, it cannot be found that the fault for that accident had been that of Carr. Interestingly, Sanchez testified that "all" of the employees had complained that the manner in which Can' performed his work tended to generate injuries, and that they were afraid to work with Carn. Yet. Sanchez described not even a single specific instance of such a complaint by an employee, nor did Respondent call any employee to corroborate Sanchez' account that "all" of the employees had lodged such complaints with him about Can. " An admitted supervisor and agent of Respondent. 1s At another point Carn testified that Mills' remark had been, "Why did you go lie to the Labor Board on me?" (Emphasis supplied.) However, he later testified that this had not been Mills' question, but that the question had been as quoted in the text, above. ungrateful bastard. I'm going to get you. I'm going to get you." Although admitting that he had been at the plant at the time that Carr testified that this event had occurred, Mills denied having participated in any conversation with Carr on that day, denied having made reference to Carr being an ungrateful bastard, and denied having made any statements that he would get Carr. G. The Alleged Comments of Mills to Holloway The complaint alleges two remarks made by Mills to Holloway as being unfair labor practices. Both were made in connection with the September safety meeting.' Mills, who had never previously attended such a meeting, had been selected to attend the September meeting as one of Respondent's representatives. Holloway testified that prior to that meeting Mills had said to him, "I want you to keep your damn mouth shut in that safety meeting." To this, testified Holloway, he had replied that he would "most cer- tainly" not keep quiet during the meeting but would "raise hell about these conditions that need to be done about here." Mills testified that he had been in a hurry to go home that day and so, in a kidding manner, he had told Holloway to cut the meeting short and keep his mouth shut about unsafe conditions. According to Mills, Holloway had not responded but had merely "laughed a little bit." During the meeting Mills had felt that Holloway "kept going over the same subject all the time which we had already gone over." Thus, he had told Holloway a couple of times during the meeting to be quiet because, "You sound like an idiot." 0 Due to an injury, Holloway had worked only on hook return since March because the condition of his leg had prevented him from doing other types of work at Respon- dent's facility. Although he had not submitted a doctor's excuse, he had advised Rifkin, Mills, and Sanchez of his condition. All of them had accepted his word regarding his condition. However, on the day after the safety meeting, Respondent had been short of employees to do roll-on work. Mills asked Holloway to fill in on that job for the day, but Holloway replied that he was unable to perform that type of work due to his leg. Unable to persuade Hollo- way to switch to the job, according to Holloway, Mills had said, 'If you can open your damn mouth in the safety meet- ing, then you can do roll-ons." Mills agreed that he had said to Holloway, "You can run your mouth last night, and it sure didn't hurt your leg last night when you was running your mouth." IV. ANALYSIS A. The Threat to Reinstate Carr's Indefinite Suspension if He Filed a Grievance In defense of Rifkin's remarks to Carr concerning the latter's attempt to file a grievance over his suspension, Re- spondent argues that Rifkin had not intended to deprive 9 Such meetings between representatives of the Union and Respondent are conducted periodically so that the former can bring to Respondent's attention assertedly hazardous and unsafe conditions. 10 There is no allegation that Mills' remarks to Holloway during the meet- ing constituted violations of the Act. 220 PEPPER PACKING CO. Carr of his statutory right to file a grievance. Rather. argues Respondent, Rifkin had believed that the dispute created by Carr's suspension had been settled as a result of their late afternoon conversation on May 25. with the result, as- serts Respondent, that it had been understood that the mat- ter would be forgotten in return for termination of the in- definite suspension imposed upon Carr. Respondent points out that such an argument, whereby an employer can "buy its peace.' was endorsed recently in American Postal 1Work- ers Union, AFL CIO. 240 NLRB 409 (1979), wherein the Board held that it was not unlawful for the employer to accord an employee a more favorable reporting date on condition that she not grieve the underlying dispute. When the emplovee declined that offer, the employer simply pro- cessed the matter as it would normally have done. Simi- larly. contends Respondent, when Rifkin had discovered that notwithstanding his May 25 conversation with Carr the latter had sought to file a grievance concerning his suspen- sion, Rifkin had simply pointed out that if Carr intended to file a grievance then Respondent would consider the agree- ment of the prior day to have been rendered a nullity and would restore Carr to the same status as he had occupied prior to their conversation, namely, as being on indefinite disciplinary suspension. It does appear that Rifkin truly had been motivated by his belief that the dispute had been settled as a result of his conversation with Carr on May 25. Further. it does appear that his remarks to Trujillo and Carr during the following morning had been intended as an expression of indignation because he viewed Carr as having "reneged" on that agree- ment, rather than being intended as an expression of hostil- ity toward Carr for having filed a grievance per se. Yet, the violation alleged because of Rifkin's remark is grounded in Section 8(a)(1) of the Act and "intent is not material to a finding of coercion within the meaning of Sec. 8(a)(1) of the Act." Perko's, Inc., 236 NLRB 884, footnote 2 (1978); see also American Lumber Sales, Inc., 229 NLRB 414, 416 (1977), and cases cited therein. Rather, the correct test is "whether, from the listeners' point of view, these statements . . .constituted forbidden coercion, threats, or intimida- tion," Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F.2d 100, 104 (5th Cir. 1963). Consequently, Rifkin's intent or motives for the statements which he made to Tru- jillo and Carr in connection with the latter's effort to file a grievance concerning his suspension are not material in ap- praising whether his remarks violated Section 8(a)(1) of the Act. Respondent does not quarrel with the principal that "the right to file a grievance with one's collective-bargaining rep- resentative over wages, hours, and working conditions has been a basic statutory right," General Motors Corporation, Packard Electric Division, 232 NLRB 335 (1977). Rather, as noted above, it argues that it had been willing to respect that right, and that Rifkin had only asserted that Carr's indefinite suspension would be restored when Carr had at- tempted to file a grievance in derogation of his prior ex- pressed desire to forget about the whole thing. In U.S. Postal Service, 234 NLRB 820 (1978), an employee's dis- charge was converted into a suspension in return for that employee's agreement not to file a grievance regarding the discipline imposed. The Board concluded that the employer had not acted unlawfully by conditioning conversion of that discharge to a suspension upon the employee's waiver of his right to process a grievance further. In American Postal Workers Union, supra, the Board concluded that it was not unlawful for an employer to offer a more favorable employment term to an employee so long as that employee was willing to forgo filing a grievance. In both cases the Board reached its conclusion on the theory that the em- ployer had been attempting to "buy its peace" to prevent further litigation of the matter. U.S. Postal Service. supra: American Postal Worker.s Union, supra. However, in both those cases at the time that the offer to change the planned employment action was made it was also made clear that the employees involved would have to relinquish their right to file grievances as a quid pro quo for the employers' change. By contrast, in the instant case, un- der the accounts of the afternoon conversation of May 25 given both by Carr and Rifkin, no similar equation had been drawn between the change in employer action and the waiver of the employee's right to process a grievance. In- deed, Rifkin testified specifically that no mention of griev- ance had been made during that meeting. As noted above, the right to file a grievance is "a basic statutory right" and the Board has a "well-established pol- icy against ready inference of of waivers of Section 7 rights." Daniel Construction Company. Inc.. 239 NLRB 1335-36 (1978). Indeed, the waiver of such a right in a bargaining agreement will be found only where the lan- guage is "clear and unmistakable," Insurance Corkers In- ternational Union, AFL CIO, Local 60 (John Hancock Mu- tual Life Insurance Company), 236 NLRB 440 (1978). Certainly no lesser standard can be imposed for finding a waiver of Carr's right to file a grievance as a result of his private understanding with Rifkin. Since it is clear from the versions of both Carr and Rifkin of the May 25 afternoon conversation that there was no such "clear and unmistak- able" waiver of Carr's right to file a grievance as a quidpro quo for termination of his indefinite suspension it cannot be found that there was an agreement that Carr would waive his statutory right as a condition to his immediate return to work. Nor can it be found that an employee's expression of a desire to "forget about the whole thing," made after a 25- minute to 35-minute discussion of the need to remain at his work station, could reasonably be construed as a waiver of his right to grieve his suspension. It is against this background that Rifkin's remarks of the following morning must be gauged. There is no evidence that Carr had agreed to waive his statutory right to file a grievance to recover the day's pay lost by virtue of his sus- pension of the prior morning. Nor, given Carr's and Rif- kin's descriptions of the May 25 afternoon meeting, can it be said that Carr would have reasonably understood that his restoration to employment had been contingent upon such a waiver. Accordingly, where the upset Rifkin con- fronted him with the accusation that there had been such an agreement and that Carr would again be suspended in- definitely if he insisted on processing the grievance, the only reasonable conclusion that could be drawn by Carr-the employee listener-was that Respondent was using its con- trol over his employment to retaliate under the guise of (to Carr), a nonexistent agreement against him for attempting to file a grievance. 221 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD This is not to say that Respondent is precluded from making an agreement to restore a suspended employee to work in return for a waiver of that employee's right to file a grievance concerning his suspension. However, what ap- pears to have happened is that Rilkin understood his con- versation with Carr to imply such an agreement when, in fact, there is no objective basis for finding that an employee would clearly and unmistakably have so understood that to have been the import of Rifkin's remarks. Thus, it could only have appeared that Rifkin's statements that the sus- pension would be reimposed if Carr attempted to file a grievance were designed as a threat of retaliation against Carr for trying to grieve his suspension of the prior day. Therefore, I find that Rifkin's statements to Carr concern- ing reimposition of the suspension if Carr attempted to file a grievance concerning his suspension violated Section 8(a)(1) of the Act. B. The Personnel Actions During the Processing of the Unfair Labor Practice Charges A rather striking pattern emerges when the history of this proceeding is compared to the adverse personnel actions taken against Carr during the summer. On Friday, July 7, Respondent received the charge in Case 27 CA-5887. That charge alleged a violation that, so far as the record dis- closes, could only have involved Carr. On the following Tuesday a letter was issued to Carr warning of disciplinary action if he did not comply with no-smoking regulations. One week later, during investigation of that charge, Carr was told that he had to tell his foreman or be replaced by a utilityman before he could go to the restroom. Sanchez ad- mitted that this was a change in procedure. After receipt by Respondent on August I of the complaint in Case 27-CA-- 5887, which named Carr specifically as the object of an unfair labor practice by Respondent, Carr was warned 2 days later that he would be suspended if he lit a cigarette on the east dock. On September 1 Carr filed his own charge against Respondent in Case 27-CA-5949. Five days later Respondent prepared a letter warning of disciplinary action if Carr caused further accidents. In sum, in each instance these warnings and/or restric- tions occurred very closely after some incident involved in the filing or processing of the charges which underlie the instant proceeding. Such proximity between protected ac- tivity and mesures taken against employees "is, as we have said, sufficient to establish a prima facie case .... " Union Camp Corporation, 194 NLRB 933 (1972), enfd. 463 F.2d 1136 (5th Cir. 1972). "Such proximity can lend support to a Board inference of unfair labor practices," N. L. R.B. v. Ten- nessee Packers, Inc., Frosty Morn Division, 390 F.2d 782, 784 (6th Cir. 1968); see also N.L.R.B. v. Drives, Incorpo- rated, 440 F.2d 354, 363 (7th Cir. 1971). Aside from the question of timing there are a number of unexplained inconsistencies when the conduct for which Carr was warned is compared to similar conduct of other employees. Most obvious was Sanchez' warning that Carr would be suspended if he lit a cigarette on the east dock. This is the same area where, during the prior month, three maintenance employees had each consumed a cigarette during a conversation with Rifkin. So far as the record dis- closes, nothing was said to them about their smoking. Fur- ther, Sanchez' warning to Carr was uttered on the same day as Ritkin had spoken with a maintenanceman in an edible area, and while that maintenanceman had also consumed an entire cigarette during their conversation, there is no evidence that he, unlike Carr, had been subjected to a warning of suspension. To the contrary, the fact that these employees smoked their cigarettes completely during their conversations with Rifkin tends to refute any inference that anything had been said to them. Had something been said, presumably they would not have completely smoked those cigarettes but would have extinguished them. Similarly, Carr was issued a warning letter in September for having been involved in 28 injury incidents in a 71- month period. Yet, earlier another employee had been per- mitted much greater latitude, not having been issued such a letter until he had been involved in almost twice as many such incidents during a much shorter period of time than the one for which Carr had received his letter. Furthermore, there has been no showing that Carr's injuries caused the extensive loss of worktime that those of two other employ- ees, whose records were produced at the hearing, had occa- sioned. These comparisons tend to show that Carr "was singled out for special treatment. This too, tends to indicate discrimination by the employer," N.L.R.B. v. Melrose Pro- cessing Co., 351 F.2d 693, 699 (8th Cir. 1965). Beyond these matters, there are a number of deficiencies in Respondent's defenses. For example, the letter concern- ing smoking issued to Carr on July 11 recites that he had twice been observed smoking that same day and had been cautioned against doing so on both occasions. Yet, Carr denied that this had occurred on July II. While Rifkin claimed to have been the supervisor who had observed Carr smoking twice on July II, he did not describe these pur- ported observations with any specificity, and, contrary to his letter, he never described or claimed to have cautioned Carr on these two purported occasions. In a like vein, while Sanchez claimed that he and two other supervisors had warned Carr about smoking prior to August 3, he did not describe these asserted warnings with any specificity, he did not identify the other two supervisors to whom he was re- ferring, and no other supervisor was called to corroborate Sanchez' testimony in this respect. The area of smoking was not the only one in which San- chez displayed a willingness to cast broadly worded but indefinite and uncorroborated assertions against Carr. As noted in footnote 16, supra, he claimed that "all" of the employees had expressed fear of working with Carr be- cause, purportedly, the latter's manner of working tended to generate injuries. Yet, Sanchez did not list even a single specific instance of such an employee complaint against Carr, and not one employee was called to corroborate his testimony in this respect. Similarly, with regard to Sanchez' July 17 admonition to Carr concerning the restroom, while Sanchez claimed that "my supervisor" had instructed him to issue the instruction which he did that day, he did not identify that "supervisor" and no "supervisor" corrobo- rated Sanchez' claim that he had been directed to issue that instruction. Moreover, while Sanchez claimed that he had told each of the employees on the east dock of the new rule, no employees were called to corroborate Sanchez' account in this respect. 222 PEPPER PACKING CO. The restroom incident is illustrative of the general failure of Respondent's actions pertaining to Carr to correspond to objective considerations that might support a plausible non- discriminatory basis for those actions. While Sanchez claimed that the July 17 instruction had been motivated by the fact that "it was too much strain on the guys up there when one's taking off all the time." no evidence was pre- sented to support this assertion. To the contrary, as Sanchez conceded, this was an area where teamwork was not essen- tial, and there were times when the absence of trailers to be loaded had left employees working there with free time dur- ing which they could, inter a/ia, use the restroom. Indeed, the failure to assign a utilityman to that area, thereby pro- viding relief to employees who sought to use the restroom, would tend to indicate Respondent's own recognition of the fact that employees could leave the area for brief periods without interference with the work to be performed there. In fact, there is no evidence of even a single instance of work interference caused by the absence of Carr or any other employee from the east dock. In sum, there are no objective considerations that would support the need for issuance of an instruction such as that issued to Carr by Sanchez on July 17. Similarly, in another area, Respondent produced no evi- dence to show why it had waited for I week after Carr's knee injury to issue the warning letter concerning accidents that it sent to him on September 6. Moreover, if it was as concerned about Carr's accidents as the letter states, then most surely it would have furnished him the "additional instructions in the proper way to load meat" as it promised in the letter. Yet, it did not do so, and no explanation was advanced for failing to provide such instruction in the face of its previous assertions of concern regarding Carr's in- volvement in these incidents. Consequently, the timing of the adverse actions directed against Carr, the inconsistent treatment accorded him when compared to Respondent's tolerance of similar conduct by other employees, the fact that Carr was the only employee, so far as the record discloses, involved in the charges filed against Respondent, and the basically unsupported nature of the offenses attributed to Carr when coupled with their inconsistency with objective considerations all tend to show that Carr had been singled out for special and disparate treatment related to the unfair labor practice charges stem- ming from his suspension which, as found above, Rifkin had believed to have been settled and which had led him to become upset when Carr attempted to file a grievance con- cerning the matter. Thus, the evidence supports the conclu- sion that the summer actions of Respondent had been di- rected against Carr in retaliation for prolonging that dispute and for making it an issue in an unfair labor prac- tice proceeding. Another motive besides simple retaliation is disclosed, at least for the smoking and accident letters, by supervisor Mills' remarks to Carr on August 3, the same day as San- chez had warned Carr about smoking on the east dock. Mills did not deny having invited Carr to quit because "We don't like you around here anyway." Although he did deny having told Carr that Rifkin was going to fire "you people who filed grievances and go to the Labor Board with it." his own recollection of the events of that day did not appear reliable. Further, his remark expressing hostility toward Carr for having made the suspension the subject of a griev- ance and for having invoked the Board's processes is consis- tent with Respondent's overall course of unlawful conduct against Carr for his involvement in such protected activity. Moreover, Mills appeared to be an individual of strong con- victions who lacked subtlety and would be quite likely to frankly express his views concerning subjects about which he felt strongly, as evidenced by his remarks to Holloway in connection with the September safety meeting. Conse- quently, I find that Mills did make this remark to Carr, and that it discloses an intent by Respondent to terminate Carr for his protected activity. Viewed in this light, the letters issued to Carr are not simply retaliatory but also can be found to have been part of an effort to build a record against Carr to support his termination thereby eliminating the source of a problem for Respondent. Therefore, I find that by issuing a written reprimand to Carr for smoking and by instructing Carr to notify a utility- man or foreman before going to the restroom Respondent violated Section 8(a)( ), (3) and (4) of the Act. Moreover, I find that by issuing the September 6 letter threatening Carr with discipline if he were involved in future accidents,2 by Sanchez' threat to suspend Carr if the latter smoked on the east dock, and by Mills' statement that Respondent in- tended to fire all people who filed grievances or sought re- lief through the Board's processes Respondent violated Sec- tion 8(a)(1) of the Act. C. The Comments tv Mills There is no dispute regarding Mills' remarks to Holloway before and after the September safety meeting. Mills, how- ever, claimed that his remark before the meeting had been motivated by his desire to shorten the meeting so that he could go home, and that the job assignment given Hollo- way on the morning after that meeting had been motivated by a shortage of employees and had nothing to do with Holloway's conduct at the meeting. Nevertheless, as pointed out supra, an employer's motive or intent is not material to a determination of whether Section 8(a)(1) of the Act has been violated, Perko's, Inc., supra. The employ- er's statements must be appraised "from the listeners' point of view," Hendrix Manufacturing Company, supra. More- over, in determining the effect of the employer's statements upon employees, the Board "must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinter- ested ear." N..L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969). Here, the safety meeting was conducted to discuss mat- ters of concern to employees pertaining to hazardous and unsafe conditions. Holloway's right to participate in that meeting was, accordingly, protected by the Act. Before that 1 It is not alleged that issuance of this letter constituted a violation of Sec. 8ta(3) and (4) of the Act, and since The Remedy provided lotr the violation of Sec. 8(aX I ) of the Act in connection with this matter, there s no need to pursue the possibility of finding violations under these other sections of the Act. 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting, however, Mills admonished Holloway to keep his mouth shut during the meeting. Twice during the meeting Mills told Holloway to be quiet. On the following morning Holloway was assigned to perform work that Respondent had refrained from assigning to him because of the condi- tion of his knee. When Holloway raised the matter of his knee in an effort to avoid possible further injury that might result from performance of the work, Mills retorted that the knee had not prevented Holloway from "running his mouth" the prior evening at the safety meeting. Such a re- tort is hardly responsive to the situation as Mills portrayed it to exist that morning. There is hardly a correlation be- tween Holloway's knee condition and his ability to partici- pate in safety meetings, nor is there any logical relationship between Holloway's participation in that meeting and his ability to perform roll-on work. Yet those were the very equations drawn by Mills' remark. The only conclusion left to Holloway as a result of Mills' retort was that because he had refused to adhere to Mill's premeeting admonition to be silent, he had incurred Re- spondent's enmity and consequently was to be assigned work to which he had not been assigned previously in re- taliation for his disregard of that admonition. In this re- spect, his position would appear similar to that of Carr who was concurrently being subjected to adverse personnel ac- tions because he had refused to cease pursuing the matter of his May suspension and his attempt to grieve that suspen- sion. Any possibility in Holloway's mind that Mills may have been joking by his premeeting remark would be erased by Mills' unwarranted reference to Holloway's failure to be silent the prior evening. Therefore, I find that Respondent did violate Section 8(a)(l) of the Act by virtue of Mills' comments to Holloway both prior to and following the Sep- tember safety meeting. The final allegations that Respondent violated Section 8(a)(1) of the Act pertain to Mills' alleged comments to Carr on November 27 and December . Carr testified that on November 27 Mills had refused to provide a smock, as Respondent did for other employees, and had demanded to know, "Why did you [Carr] go to the Labor Board on me?" Mills denied having made this remark. Yet it was apparent that he had virtually no recollection of the events of that day. Moreover, at the time of the incident the hearing in the instant matter was nearing, and Mills' August comment to Carr had been added to the consolidated complaint as an alleged violation of the Act. As found above, Mills was not an individual who was reluctant to express his opinions. Consequently, he possessed both the personality and, in his own view, ample motive for accosting Carr with his No- vember 27 question. Therefore, I credit Carr's account of Mills' question, and in light of the nature of the question and the circumstances under which it was asked, I conclude that it was coercive and a violation of Section 8(a)( ) of the Act. Similarly, I find that Mills did threaten "to get" Carr on December 1. He had previously displayed his animosity toward Carr, and his November 27 question demonstrated his concern and displeasure with Carr for the addition of his name to the complaint as a perpetrator of an unfair labor practice. I credit Carr's account of Mills' repeated comment of December I and conclude that in the circum- stances Carr could reasonably construe it as a threat to retaliate against him because an allegation that Mills had violated the Act had been added to the complaint. In view of the foregoing conclusions, I deny Respon- dent's motion to dismiss the allegations of the consolidated complaint. V. IHE EFF(CIS OF TIHE UNFAIR LABOR PRA(CTI(ES UPON (OMMER(CE The activities of Pepper Packing Co.. as set forth above, occurring in connection with its operations described in sec- tion 1, above, have a close, intimate, and substantial rela- tionship to trade, traffic and commerce among the several States and tend to lead and have led to labor disputes bur- dening and obstructing commerce and the free flow of com- merce. CONCLUSIONS OF LAW I. Pepper Packing Co. is an employer within the mean- ing of Section 2(2) of the Act engaged in commerce and in operations affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 641. AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By issuing a warning notice to and by restricting the restroom access of David Carr, Pepper Packing Co. violated Section 8(a)(4), (3), and (1) of the Act. 4. By threatening to indefinitely suspend an employee if he filed a grievance, by saying that it intended to get rid of employees who filed grievances and went to the Board, by threatening to suspend David Carr if he were found smok- ing because Carr had caused charges to be filed under the Act and had engaged in union and/or protected concerted activity, by issuing a warning letter to David Carr concern- ing future accidents because Carr had filed charges under the Act and had engaged in union and/or protected con- certed activity, by telling an employee to keep his mouth shut at a safety meeting, and by creating the impression that an employee had been given more onerous work be- cause of his participation in a safety meeting Pepper Pack- ing Co. violated Section 8(a)( 1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Pepper Packing Co. engaged in cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take cer- tain affirmative action to effectuate the policies of the Act. Pepper Packing Co. will be ordered to remove from the personnel file of David Carr all records concerning the July 11, 1978, letter issued to Carr concerning smoking and all records concerning the September 6, 1978, letter issued to Carr concerning future accidents. In addition, Pepper Pack- ing Co. shall be ordered to expunge any notations or other records concerning those letters from its files and records. While there is no allegation or evidence to support one that the May suspension of David Carr was motivated by 224 PEPPER PACKING CO. unlawful considerations, the fact remains that Carr did lose I day's pay by virtue of that suspension and was prevented from grieving that suspension by virtue of Rifkin's unlawful threat to place him on indefinite suspension if he did so. Consequently, the effect of this unfair labor practice was to deprive Carr of a chance to obtain backpay had he pre- vailed on the grievance which he sought to file. Further, should Carr now attempt to process that grievance Pepper Packing Co. may now argue that it is time barred. Accord- ingly, I shall recommend that if Pepper Packing Co. raised objections to the timeliness of a grievance concerning that suspension, should Carr seek to file one, it will be required to make Carr whole for the loss of earnings he suffered by reason of the I-day suspension, with interest to be paid on the amount owing and to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977): see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (9th Cir. 1963). Of course, if Pepper Packing Co. raises no objections to the timeliness of such a grievance, no back- pay will be owing. Upon the foregoing findings of fact, conclusions of law, the entire record, and pursuant to Section 1O(c) of the Act. I hereby issue the following recommended: ORDER2 2 The Respondent, Pepper Packing Co.. Denver, Colorado. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Issuing warning notices to employees, restricting the restroom access of employees, discharging or otherwise dis- criminating against employees with regard to hire or tenure of employment or any term or condition of employment for filing charges or having charges filed on their behalf under the Act or for engaging in activities on behalf of a labor organization or for engaging in activity protected by Sec- tion 7 of the Act. (b) Threatening to indefinitely suspend employees for fil- ing grievances, saying that it intended to get rid of employ- 22 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. ees who filed grievances and resorted to the processes of the National Labor Relations Board, threatening disciplinary action against employees because those employees had filed charges under the Act and had engaged in union and/or protected concerted activity, telling employees to keep their mouths shut during safety meetings, and creating the im- pression that employees have been given more onerous work because of their participation in safety meetings. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Expunge from the personnel file of David Carr and from any other records maintained by Pepper Packing Co. all references to the July 11, 1978, letter concerning smok- ing and the September 6, 1978, letter concerning future ac- cidents issued to Carr. (b) In the event that Pepper Packing Co. raises objec- tions to the timeliness of a grievance concerning David Carr's I-day suspension in May 1978, make Carr whole for any loss of pay he may have suffered as a result of that suspension in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and make available to the Board or its agents all payroll and other records necessary to compute the backpay rights set forth in "The Remedy" section of this Decision. (d) Post at its Denver, Colorado, facility copies of the attached notice marked "Appendix."23 Copies of the notice, on forms provided by the Regional Director for Region 27. after being duly signed by its authorized representative, shall be posted by Pepper Packing Co. immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Pepper Packing Co. to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 23 In the event that this Order is enforced by a Judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 225