Mellman Food Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meilman Food Industries, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 304, AFL-CIO. Cases 18-CA- 4479 and 18-CA-4859 February 6, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 2, 1977, Administrative Law Judge Phil W. Saunders issued the attached Decision in this proceeding. Thereafter, the Respondent and General Counsel filed exceptions and supporting briefs; the Charging Party filed cross-exceptions and a support- ing brief, as well as a brief in opposition to the Respondent's exceptions; and the Respondent filed an answering brief to the Charging Party's cross- exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and attached Decision in light of the exceptions, cross-exceptions, and briefs, and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as modified herein. I. We find, in agreement with the Administrative Law Judge, that the Respondent violated Section 8(a)(1) and (5) of the Act when it refused to pay the cost-of-living increase effective the first pay period after January 1, 1975. In doing so, however, we rely on the fact that the cost-of-living clause in the collective-bargaining agreement is clear on its face and requires no construction or interpretation be- yond its plain meaning. The pertinent part of article 8.02 reads as follows: "If as of any May 15 or November 15 of any year during the life of this I The Respondent and the Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to 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 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In affirming the Administrative Law Judge's finding and conclusion that Kathy Shatto was constructively discharged in violation of Sec. 8(a)(3) and (I) of the Act, we note that, contrary to the statement of the Administrative Law Judge, the work of chuck boning and nb boning does not involve the use of different knives, nor do boners receive different incentive rates, although they tend to earn more incentive bonuses by boning ribs rather than chucks. In determining that the unfair labor practice strikers did not lose their protected status when they stopped work on February 12, 1975, and refused to leave the Respondent's premises even when ordered to do so by the Respondent and the police, the Administrative Law Judge relied on Advance Industries Division-Overhead Door Corporation, 220 NLRB 431 (1975). Member Penello agrees with the Administrative Law Judge's finding and conclusion that the strikers did not lose their protected status, but he would 234 NLRB No. 94 agreement the Consumer Price Index. . . is at a level higher than 162.1, then effective with the first pay period beginning on or after the following July I or January I .... " (Emphasis supplied.) Clearly, as long as the May 15 or November 15 date falls within the life of the agreement, and as long as the cost-of- living level reaches or exceeds 162.1, then the cost-of- living increase is payable on the following July I or January 1. Since the collective-bargaining agreement expired on December 6, 1974, and the Consumer Price Index level exceeded 162.1 on November 15, 1974, then the cost-of-living raise was payable on January 1, 1975. The Respondent's refusal to effectu- ate that increase on January 1, 1975, was a unilateral change in the existing wage structure in violation of Section 8(a)(1) and (5) of the Act,2 as found by the Administrative Law Judge.3 2. We find merit in the Charging Party's excep- tion to the Administrative Law Judge's failure to find a violation of Section 8(a)(3) and (1) of the Act for the discipline of second-shift employees on January 28, 1975. The discipline, in the form of written reprimands, warning notices, and in some instances short suspensions, was administered by the Respon- dent because the second-shift employees failed to show up for work on January 21, 1975. The Adminis- trative Law Judge found that the second-shift em- ployees were unable to work on January 21, 1975, because the Respondent had closed its plant and locked its gates subsequent to the work stoppage by first-shift employees on that same day. The discipline was meted out on January 23, 1975, shortly after the Union had protested the lockout of the second shift on January 21, 1975. The Respondent contends that this exception should be dismissed because it was neither alleged in the complaint nor fully litigated at the hearing. We reject this contention, as there is substantial evidence in the record concerning the events of January 21, not rely on Advance Industries Division-Overhead Door, in which he dissented, to support that conclusion. In that case, unlike the present one, there had been no unfair labor practice committed by the employer, there had been no discussion or attempt to discuss the grievance by the employees with the employer, and the employees had seized the means of production. 2 We further agree with the Administrative Law Judge's recommended remedy for the cost-of-living increase violation, but we note that the Administrative Law Judge inadvertently included the boning division employees among those entitled to backpay for the increases withheld by the Respondent. It is undisputed that the boning division employees were covered by a separate cost-of-living clause which had terminated upon the expiration of the collective-bargaining agreement. Therefore, the remedy herein excludes the boning division employees from those entitled to backpay for the cost-of-living increases withheld by the Respondent. 3 In agreeing with his colleagues that the cost-of-living issue should not be deferred to arbitration, Member Penello would not rely on General American Transportation Corporation, 228 NLRB 808 (1977), in which he dissented, but would rely on the fact that the collective-bargaining agreement expired prior to the time that the grievance arose and, as found by the Administrative Law Judge, the Respondent had unilaterally repudiat- ed the grievance and arbitration procedure. 698 MEILMAN FOOD INDUSTRIES, INC 1975, as well as the discipline meted out on January 28, 1975. The Respondent was accorded every opportunity to cross-examine the General Counsel's witnesses regarding the events of January 21 and 28, 1975, and the Respondent also examined on direct examination its own witness concerning these events. It should also be noted that the discipline of the second-shift employees was alleged in the original charge filed by the Union. However, in deciding the appeal from the Regional Director's dismissal of the original charge in Case 18-CA-4479, the General Counsel's Office of Appeals denied, inter alia, the appeal as to the discipline of first-shift employees on January 28, 1975, but made no mention as to the status of the charge concerning the discipline of the second-shift employees on January 28, 1975. In addition, the General Counsel never objected to the introduction of evidence regarding the events of January 21 and 28, 1975. Thus, we are not precluded from finding an additional violation of Section 8(a)(3) of the Act based on the failure to allege such conduct in the original complaint or to add it at the hearing, as long as the allegation was fully litigated.4 Therefore, since the Administrative Law Judge declined to consider the Respondent's conduct with respect to the discipline of the second-shift employ- ees as potentially violative of the Act, yet found facts which support such a violation, we find that the Respondent violated Section 8(a)(3) and (1) when it disciplined second-shift employees on January 28, 1975. Thus, we will order the Respondent to expunge from its records any disciplinary action it may have taken against any second-shift employee on January 28, 1975, which discipline was based on such employ- ee not showing up for work on January 21, 1975, because the gates to the plant were locked. In the event that any second-shift employee was suspended on January 28, 1975, for any period of time based on such employee not showing up for work on January 21, 1975, because the gates to the plant were locked, we will order that such employee be reinstated with full backpay for each day of suspension from work. 3. We also find merit in the Charging Party's exception to the Administrative Law Judge's denial of reinstatement to Sheldon McConniel, who alleged- ly engaged in misconduct near the Respondent's plant in the course of the unfair labor practice strike. The Administrative Law Judge found that Sheldon McConniel had threatened Barbara Todd that he would "get" her children if she did not quit working at the Respondent's plant, and at the same time he 4 "It is a well-established principle that a material issue which has been fairly tried should be decided by the Board regardless of whether it has been specifically pleaded." Tamper, Inc., 207 NLRB 907, fn. 2 (1973). See American Boiler Manufacturers Association v. N L.R.B., 366 F.2d 815, 821 (C.A. 8, 1966), and the cases cited therein had broken the outside rearview mirror on Todd's car as she was driving through the picket line near the plant. The Administrative Law Judge concluded that McConniel had engaged in an overt act of violence coupled with a threat of bodily harm, thus justifying a denial of reinstatement. We note that Todd's testimony was often confusing and contradictory, rendering it inherently unreliable. Todd had difficulty remembering when the above incident took place; she first testified that the incident occurred as she was leaving the plant accompanied by a coworker whose name she could not remember, and then contradicted herself by stating that it occurred while she was going to work accompanied by a different, vaguely identified co- worker. Neither coworker testified. She also admitted that, at the time the mirror was broken, there were 10 people in the area, she was looking ahead and did not stop, and the incident happened so fast that she was not sure what happened or how the mirror was broken. She also denied knowing McConniel or his wife, whereas McConniel, who denied breaking the mirror or making the threat, testified that he had known Todd for 10 years and that his wife had gone to school with Todd. Accordingly, we do not find Todd's testimony credible, based on our independent evaluation of its content, and further find that it has not been clearly established that McConniel engaged in the strike misconduct alleged by the Respondent.5 4. We find merit in the General Counsel's excep- tion that the Administrative Law Judge inadvertently omitted the name of Ted Dubbelde from the list of strikers entitled to reinstatement. The record reveals that Dubbelde was named in the complaint, and that he was on the Respondent's payroll when the strike began. Therefore, we will add the name of Ted Dubbelde to the list of unfair labor practice strikers named in Appendix A, attached hereto, who are entitled to reinstatement. We also find merit in the General Counsel's exception that the Administrative Law Judge inad- vertently omitted the name of Daniel Roach from the list of employees entitled to reinstatement. The General Counsel argues that, although Roach was not on the payroll as of the date of the strike, it was because he had been discharged during January 1975 and there was a grievance pending which made his employee status unclear. It should also be noted that 5 In addition, we hereby affirm the Administrative Law Judge's denial of reinstatement to the remaining II strikers who were found to have engaged in serious misconduct during the strike. 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roach was in the same position as four other employees 6 who had been discharged in January 1975 and who all had grievances pending regarding their discharges. The Administrative Law Judge included these four employees on the list of employ- ees entitled to reinstatement. Since all five employees were not on the payroll when the strike began, they cannot be considered unfair labor practice strikers entitled to reinstatement based on the record before us. However, in light of the Respondent's unilateral abrogation of the griev- ance procedure, which at least to the date of the hearing had prevented the grievances of these five employees from being heard, we would be remiss in our duty if we were to ignore the question of their employee status. Accordingly, we will require the Respondent to process to a conclusion the grievances filed by or on behalf of employees Roach, Gibson, Namanny, Sandhurst, and Brower arising out of their discharges in January 1975. If the Respondent refuses or otherwise prevents the resolution of these grievances on the merits pursuant to a full utilization of the grievance and arbitration procedure of the collective-bargaining agreement, then upon proper application by the parties we would out of necessity presume, for the purposes of this proceeding, that these employees would have prevailed on the merits, thus entitling them to reinstatement and backpay. 7 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall recommend that it cease and desist therefrom and take certain affirmative action set forth below designed to effec- tuate the policies of the Act. We have found, in agreement with the Administra- tive Law Judge, that the strike was an unfair labor practice strike, and we shall therefore order that the Respondent offer the unfair labor practice strikers named in Appendix A attached hereto immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their se- niority and other rights and privileges, discharging, if necessary, any replacements in order to provide work for such strikers. We shall also order that the Respondent make them whole for any loss of earnings that they may have suffered by reason of the Respondent's discrimination against them, by paying to these employees a sum of money equal to the amount they normally would have earned as wages from January 12, 1976, to the date of the Respon- dent's valid offer of reinstatement, less net earnings during said period. The amount of backpay due shall I Gerald Gibson, James Namanny, Steven Sandhurst, and Larry Brower. I Cf. Local Union No. 2088, International Brotherhood of Electrical Workers, AFL-CIO (Federal Electric Corporation). 218 NLRB 3% (1975). be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).8 Payroll and other records in possession of the Respondent are to be made available to the Board or its agents, to assist in such computation and in determining the right to rein- statement. All of the above shall likewise apply to Kathy Shatto, except that her backpay date is April 7, 1976. The above shall also apply to any second- shift employee who was suspended by the Respon- dent on January 28, 1975, for failing to show up for work on January 21, 1975, with backpay to be paid for each day of such suspension. By withholding the cost-of-living increase from the first pay period after January 1, 1975, the Respon- dent has deprived unit employees of such wages, and in order to make them whole the Respondent shall pay to all bargaining unit employees, except those employees in the boning division, cost-of-living increases which would have been payable beginning January 1, 1975, including the payment of backpay and interest for such unpaid increases, and shall maintain such increases in effect until such time as a new agreement is negotiated with the Union, or until the parties have bargained in good faith to an impasse. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Meilman Food Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalga- mated Meat Cutters and Butcher Workmen of North America, Local 304, AFL-CIO, with respect to wages, hours, and conditions of work, as the exclu- sive representative of its employees in the following appropriate unit: All employees of Meilman Food Industries, Inc., at its Sioux Falls, South Dakota, plant, excluding livestock buyers, guards, engineers, professional employees, and electronic scale maintenance men, office employees, supervisors, working su- pervisors, and salesmen. (b) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, Local 304, AFL-CIO, or any other labor organization, by refusing to reinstate or otherwise discriminating against employees with regard to their 8 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 700 MEILMAN FOOD INDUSTRIES, INC. hire, tenure, or any other terms and conditions of employment because of their engaging in union or other protected, concerted activities. (c) Making any further unilateral and discriminato- ry changes in jobs or other terms and conditions of employment. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which we find necessary to effectuate the policies of the Act: (a) Bargain collectively with the aforesaid Union as the exclusive representative of all the employees in the above-described unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to the employees named in Appendix A, attached hereto, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, replacement employees hired after the start of the strike. (c) Make whole all such named employees for any loss of earnings they may have suffered from the date of their unconditional offer to return to work to the date the Respondent unconditionally offers or of- fered them reinstatement, as set forth in the section of this Decision entitled "The Remedy." (d) Make whole all bargaining unit employees, except those in the boning division, for cost-of-living increases, as provided in the section of this Decision entitled "The Remedy." (e) Offer to Kathy Shatto immediate and full reinstatement and make her whole for any loss of earnings, as provided in the section of this Decision entitled "The Remedy." (f) Restore the weasand rodding job on the kill floor and the position which was eliminated on the offal pack chain in the cooler department, and also restore the grievance procedure which was in effect under article 23 of the collective-bargaining agree- ment as it was applied and practiced prior to January 1975. (g) Expunge from its records any disciplinary action taken against any second-shift employee on January 28, 1975, which was based on such employee not showing up for work on January 21, 1975, and make whole any such employee for any loss of earnings suffered by reason of such disciplinary action. (h) Process to a conclusion any pending grievances concerning the discharges in January 1975 of Daniel Roach, Gerald Gibson, James Namanny, Steven Sandhurst, and Larry Brower. (i) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (j) Post at its plant copies of the attached notice marked "Appendix B." 9 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's represen- tative, shall be posted by it 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. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (k) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. 9 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A Lester Garner Virgil Shelquist James Jones Jack Bradley Charles Sievers Robert Henrickson Everett O'Meara Lyle Weeldreyer Robert Larson Robert Meyer DelRoy Walters Bruce Dyer LeRoy Kerrboldt Edward Hanisch Robert Parker Lawrence Weisenbach Jack Smith George DeBoer Steven Thompson Murlyn Tunender Wayne Weeg David Bergh Dwayne Mammenga Duane Peterson Marvin Bultje Gary Weeg Burnette Rens Ellsworth Andal Robert Bossman Russell Henning Arlen Mohr Henry Quien James Weeg Larry Poppens Elver Atwood Myren Tiggelaar Richard Wold ElRoy Mundhenke Donald Boll James Trottman Terry Lindstrom Richard Memmenga William Morrison John Docken Eugene Broughton Dan Drew Lauritz Clauson James Roti Maurice Mammenga Ronnie Brower Harvey Jansen Mel Groth Robert Hadrath James Morrison Oliver Boterman Richard Olson 701 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richard Heil Gene Plucker Larry Englund Richard Fedt Vernon Hansen David Weibel William Metzger Gerald Albers Duane Heer Albert Burgers Maynard McMichael Walter Fee Cliff Breen Norman Christensen Leslie Broughton Paul Carpenter Lee Doohen Daniel DeBoer Roger Craig Keith McClung Gerald McGovern Curtis Olson Leon VandenBos Edwin Johnson Lyle DeNeui Michael Roling Delwin Meyer Roger Nelson Darwin Otten Leo DeWitt Lester Ramstad Donald Hood Dennis Reiners Clifford Larson Steven Spielman Mark Petrie Barry Maeshen Kenneth Olson Richard Cable Clarence Bauer Ralph Britton Kathy Shatto* John Miles Marolyn Krieger Gerald Barnes Barbara Gran LuBertha Klitzke Darrell Whittington Bastian VanEck Betty Stansbury Esther Hixson Leonard Block Lonnie Beynon Jack Parliament Steven Polzin Robert Bucknell Earl Harms Elson Tiggelaar Stanley Heeren Jan Riddle Elmer Andal Donald Buus Paul Sehr Dale Jensen Dale Hinrichs Rick Krieger Bradley Weber Larry Bethke Don Fischer John Nelson James Murdock Peter Albers Robert VanNoort David Lane Allen Zahn Charles Leuth Charles Tims Doug Stavenger Timothy Callies Bruce Hartz Robert Morris Maurice VanAckeren Alan Benson Eldon Witkop Roger Kooi Gregory Anderson Rodney Javers Randy Silvis John Munce John Veolker Bruce McCain Ken Gillespie Mary Rens Ron Mann Brendon Klein Phil Becker Ron Buus Steve Wallenstein Connie Ulthoven Margaret List Rebecca Schipper Richard Johnson William Hintz Tom Johnson Darrell Grebin Marjorie McCarty Patricia Farley Steve Finney Cary Hamilton Steven Foster Virginia Caine Charles Reno Randy Helwig Barbara Dunham Richard Malone William Christensen Edward Bornitz, Jr. Rick Johnson Otto Everson Fred Smith Randy Christensen Mickey Nesseim Steve Hanson Dona Pearson Beverly Cook Nancy West Tom Watson Mary Thesenvitz Ken Brune Roy Elliott Rebecca Twaddle Iona Christensen Mark Parrish Mike Werner Keith Hoffer James Baumann Gale Berven Jim Drotzman David Church Reed Tieszen Ronald Sinning Jim Dunkelberger Robert Rock Jerry Wieczorek Jackie Harms Dave Smith June Kappenman Robert Otten Timothy Huyck Merwyn Hoffman Gary Roberts Lori Bly James Tidwell Floyd Haan Leslie Walters Angie DeWitt David Calvet Thomas Shatter Mark Holling Patrick Vostad Clarence Safar Larry Hendricksen Darla Hendricksen Paula Sunde Harold Larson Ted Dubbelde Sheldon McConniel Dom Stricherz * (See "The Remedy.") APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with the Amalgamated Meat Cutters and Butcher Work- men of North America, Local 304, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: All employees of Meilman Food Industries, Inc., at its Sioux Falls, South Dakota, plant, excluding livestock buyers, guards, engi- neers, professional employees, and electronic scale maintenance men, office employees, supervisors, working supervisors, and sales- men. WE WILL NOT discourage membership in Amal- gamated Meat Cutters and Butcher Workmen of North America, Local 304, AFL-CIO, or any /02 MEILMAN FOOD INDUSTRIES, INC. other labor organization, by refusing to reinstate or otherwise discriminating against employees with regard to their hire, tenure, or any other terms and conditions of employment because of their engaging in union or other protected con- certed activities. WE WILL NOT make any further unilateral or discriminatory changes in jobs or other terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, including the Union herein, to bargain collectively through a bargaining agent chosen by our employees, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. WE WILL bargain collectively with the aforesaid Union as the exclusive representative of all the employees in the above-described unit and, if an understanding is reached, embody such under- standing in a signed agreement. WE WILL offer immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees named in Appendix A, attached hereto, and will make them whole for any loss of earnings they may have suffered from the date of their uncondi- tional offer to return to work to the date we offer or offered them reinstatement. WE WILL make whole all bargaining unit employees, except those in the boning division, for cost-of-living increases which were payable the first pay period after January 1, 1975. WE WILL offer to Kathy Shatto immediate and full reinstatement to the job she held prior to her unlawful termination or, if such position no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and WE WILL make her whole for any loss of earnings she may have suffered from her unlawful termination. WE WILL restore the weasand rodding job, the position which was eliminated on the offal pack chain, and the grievance procedure as it was practiced prior to January 1975. WE WILL expunge from our records any dis- criminatory disciplinary action taken against any second-shift employee on January 28, 1975, which was based on such employee not showing up for work on January 21, 1975, and we will make whole any such employee for any loss of earnings suffered by reason of such disciplinary action. WE WILL process to a conclusion any pending grievances concerning the discharges in January 1975 of Daniel Roach, Gerald Gibson, James Namanny, Steven Sandhurst, and Larry Brower. MEILMAN FOOD INDUSTRIES, INC. DECISION STATEMENT OF THE CASE PHIL W. SAUNDERS, Administrative Judge: Based on charges filed by Amalgamated Meat Cutters and Butcher Workmen of North America, Local 304, AFL-CIO, herein called the Union or Local 304,1 a complaint was issued on May 13, 1976, against Meilman Food Industries, Inc., herein the Respondent or Company, alleging violations of Section 8(aX)(1), (3), and (5) of the National Labor Rela- tions Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged unfair labor practices. The General Counsel, the Charging Party, and the Respondent all filed briefs in this matter.2 Upon the entire record, in this case, and from my observation of the witnesses and their demeanor,3 I make the following: FrNDINGs OF FACT I. THE BUSINESS OF THE COMPANY Respondent is engaged in the business of slaughtering, processing, and selling livestock at its plant in Sioux Falls, South Dakota. Annually, Respondent sells and ships meat products valued in excess of $50,000 from its plant in Sioux Falls directly to customers located outside the State of South Dakota and, by virtue of such operations, Respon- dent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES It is alleged in the amended consolidated complaint that, beginning on or about January 7, 1975, and at various times thereafter, the Union requested Respondent to pay to I The charge in Case 18-CA-4479 was filed on February 20, 1975, and the charge in Case 18-CA-4859 was filed on January 22, 1976. 2 Hearings in this matter were held before me during various dates in May, July, September, and December 1976. 3 The facts found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entin trestimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N. L R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradic- tion to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the bargaining unit a cost-of-living allowance which Respondent was obligated to pay by a collective- bargaining agreement, but that Respondent has failed and refused to pay such cost-of-living allowance.4 It is also alleged that on or about January 27, 1975, Respondent eliminated a job in the unit on the offal pack chain in the cooler department without notice to or bargaining with the Union, and that on the same date Respondent changed the procedure for handling grievances without notice to or bargaining with the Union. It is further alleged that on or about February 10, 1975, Respondent combined a job in the unit called "weasel (or weasand) rodding," with another unit job and again without notice to or bargaining with the Union. It is alleged that on or about February 13, 1975, certain employees ceased work and went out on an unfair labor practice strike; and until about January 8, 1976, engaged in such concerted work stoppage and strike, but that on January 8 and 12, 1976, the Union made an unconditional offer to return the strikers to their former or substantially equivalent positions. Finally, it is alleged that on or about April 7, 1976, Kathy Shatto was constructively discharged because of exercising her concerted activities by engaging in the strike. Respondent is engaged in the operation of a meat packing plant in Sioux Falls, as aforestated, having acquired the plant from Spencer Foods during the terms of an existing contract between Spencer Foods and Local 304. The contract covered the period September 7, 1971, through December 6, 1974, and there is no dispute concerning Respondent's assumption of the contract, nor is there any dispute concerning the Union's status as collec- tive-bargaining representative for Respondent's slaughter and boning division employees at all times material herein. When Respondent acquired the Sioux Falls plant in January 1973, the plant did not have a boning division. However, during the term of the above contract Respon- dent established such a department, and coverage of the boning division employees was then incorporated by reference into the basic bargaining agreement. 5 Prior to the December 6, 1974, expiration date of the contract, the parties engaged in several collective-bargain- ing negotiations but, having failed to arrive at agreement on a new contract, the parties then orally extended the old contract through December 10, 1974. However, no agree- ment was reached during this 4-day extension period, but on December 10, 1974, the Company advised that work was still available at the plant and that employees would be scheduled; it also announced that it would not make any unilateral changes in terms and conditions of employment. Subsequently, and for about a 2-month period after the contract terminated, the employees continued to work. With respect to the cost-of-living increase, the parties stipulated that the amount of this increase, if payable, would be 25 cents per hour for all bargaining unit employees, except boning division employees. This stipula- tion is further supported by the Consumer Price Index 4 The following-described collective-bargaining unit is appropriate for the purposes of collective-bargaining within the meaning of Sec. 9(b) of the Act: All employees of Meilman Food Industries, Inc., at its Sioux Falls, South Dakota plant, excluding livestock buyers, guards, engineers, figures for November 1974, as provided by the United States Department of Labor, Bureau of Labor Statistics. 6 The Company admits that it has refused to pay the cost-of- living increase due on or about January 7, 1975, but contends that it has no obligation to pay that increase. Respondent also concedes the elimination of a bargain- ing unit job on the offal pack chain in the cooler department on or about January 27, 1975, and also the combining of a bargaining unit job called weasand rodding on or about February 10, 1975. However, Respondent denies that it had any obligation to bargain concerning these changes. Respondent also denies making any unilat- eral change in the grievance procedure, as alleged in the complaint. Respondent contends that the strike which began on February 13, 1975, and lasted until the employees uncondi- tionally offered to return to work on about January 8, 1975, was an economic strike, that the strikers had been perma- nently replaced, and that for these reasons Respondent had no obligation to immediately reinstate the strikers, notwith- standing their unconditional offer to return to work. In accordance with its position that the strike was an economic strike, Respondent has reemployed many of the strikers in various bargaining unit positions as openings became available; however, in some instances, the General Counsel and the Union maintain that these employees have not been reinstated to their former jobs. This record further shows that, prior to the strike here in question, there were also work stoppages on January 21 and on February 12, 1975.7 The General Counsel argues that these were nothing more than concerted work stop- pages motivated by Respondent's unlawful unilateral actions, and constituted a continuing series of related events culminating in the unfair labor practice strike which officially began on February 13. The cost-of-living clause in the most recently expired contract, as aforestated, sets forth the terms and conditions of employment for the Company's slaughter division employees. Thus, §8.02 of the contract in pertinent part provides: If as of any May 15 or November 15 of any year during the life of this Agreement the Consumer Price Index . . .is at a level higher than 162.1, then effective with the first pay period beginning on or after the following July I or January 1, as the case may be, the cost-of- living allowance shall be adjusted so that all employees shall receive an allowance of I per hour for each full .4 by which the Consumer Price Index exceeds the level 162.1. .... The cost-of-living allowance payable at any time shall be in addition to the wage rate payable under the terms of this Agreement . . . the cost-of-living allowance shall be included along with the regular hourly rate in computing all payments under this Agreement which are based on the regular hourly rates .... professional employees and electronic scale maintenance men, office employees, supervisors, working supervisors and salesmen. 5 See G.C. Exhs. 2 and 3, Appendix C. a See G.C. Exh. 4. 7 All dates hereafter are 1975 unless stated otherwise. 704 MEILMAN FOOD INDUSTRIES, INC. It is undisputed that the cost-of-living allowance due pursuant to this provision on the first pay period in July 1974, based upon the May 15 Consumer Price Index, was paid by the Company and, on or about January 7, Union Business Agent Francis Krier requested of Dan Meilman, president of Respondent, that he pay the cost-of-living increase due in January based upon the preceding Novem- ber 15, 1974, Consumer Price Index. Dan Meilman replied that he was not sure about this matter and requested that Krier send him a letter. Krier then advised Meilman that not to pay the scheduled increase would be a unilateral change in conditions but agreed, nevertheless, to send the requested letter. The next day, January 8, in a letter to Meilman, Krier reiterated his request and confirmed the Union's position.8 On January 10 Meilman orally respond- ed to this letter in a meeting, at which time he told the Union that the Company was not prepared to install the 25-cent-an-hour cost-of-living increase because it would have been a unilateral change on the part of the Company as the contract had expired, and that this subject matter was also in the process of negotiation.9 It appears that the next discussion between the parties regarding the cost-of-living increase occurred in the con- text of a bargaining session on February II 1. At this time the Union again requested that the cost-of-living increase be instituted advising that refusal was a unilateral change in terms and conditions of employment, and the Union's International vice president, Bud Simonson, also accused the Company of cheating the workers out of 25 cents an hour. The Company responded that it had no obligation to pay the cost-of-living increase and was not going to pay it. Respondent argues that the cost-of-living issue should be deferred to arbitration but, absent such deferral, the initial intent of the parties indicated that the cost-of-living provisions expired on the termination of the contract, on December 10, 1974, and that section 8.02 of the agreement (G.C. Exh. 2) provides and states that this section is only effective "during the life of this agreement." Respondent maintains that the use of this phrase in the section involved clearly indicates that the parties intended the cost-of-living adjustments only "during the life or term" of the contract, and that construing the cost-of-living adjustments provided for in section 8.02 of the agreement in favor of General I See G.C. Exh. 5. 9 In October 1974, the Union had submitted a contract proposal to the Company to be effective December 6, 1974, which included a change in art. 8 under their then existing contract. The union proposal included an increase in the base labor rate to $5.29 an hour and a change in the Consumer Price Index base figure. i0 This fact was even corroborated by the testimony of Respondent's witness James Bryant, vice president of industrial relations for Spencer Foods. He stated that the only thing one needs to do to determine the amount of the increase is to look to the actual Cost of Living Index, and then apply the formula. 11 In United Aircraft Corporation. Hamilton Standard Division (Baron Filament Plant), 199 NLRB 658, 662-663 (1972), enfd. in pertinent part sub nom. N.L.R.B. v. United Aircraft Corporation, 490 F.2d 1105, 1109-11 (C.A. 2, 1973), the employer, like the Company in the instant case, promised a wage increase to its employees effective on a specified future date, but then unilaterally withheld the increase in the context of collective bargaining, to use the increase as a item in bargaining. The Board held that the employer's refusal to grant the increase affected a change in conditions of employment, violative of the Act. On appeal the employer argued that its refusal to pay the promised wage increase was not an unlawful change inasmuch as a promise of an accrued wage increase is not a condition of employment. The court of appeals in rejecting this argument stated 1490 F.2d at 1109.]: Counsel's assertion that an increase was due, subsequent to expiration of the contract, would constitute a narrow and technical construction of section 8.02 which would frus- trate the obvious intent of the parties to terminate the contract on its expiration date; further, that the intent of the parties relevant to disputes over contracts - is the intent at the time and place of contracting, and maintains that the testimony of James Bryant is in support thereof. Article 8.02 of the collective-bargaining agreement, as aforestated, provides for cost-of-living adjustments based upon the Consumer Price Index figures as of May 15 and November 15 of each year during the term of the contract. Therefore, the employees' right to a wage increase based upon the Consumer Price Index figures for November 1974 matured and vested on November 15, 1974, prior to the contract expiration date which was December 10, 1974. Furthermore, the facts in this record show that on November 15, 1974, the Consumer Price Index had risen to a level so that the increase under the contract formula was automatically invoked.l ° Thus, on November 15, 1974, the increase had accrued and was then payable starting the first pay period in January. Moreover, there can be no serious dispute but that this cost-of-living benefit was a condition of employment duly established and embodied in the recently expired contract and, therefore, it was a condition of employment which the Company could not unilaterally withhold." As pointed out, the fact that it was not scheduled to go into effect until January, at a time after the contract terminated, does not derogate from this conclusion as it is well settled Board and court law that, notwithstanding the termination of a labor contract, pending its renewal or renegotiations, the employer has the obligation to maintain existing conditions of employment. Here, too, the cost-of-living increase was also an integral part of the wage structure which was paid as a matter of course in July 1974, which the employees had every reason to expect would be also forthcoming in January. Clearly, the cost-of-living issue, under the circumstances in this case, should not be deferred to arbitration. As indicated, the resolution of this dispute does not turn on the interpretation of a contract clause. Where, as here, the issue involves a legal matter arising from the obligation under the Act to refrain unilaterally from changing It is clear that conditions of employment include not only what an employer has already granted but also what it has announced it intends to grant. Eg., Armstrong Cork Co. v. N.LR.B., 211 F.2d 843, 847 (5th Cir. 1954); N.LR.B. v. Dothan Eagle, Inc., 434 F.2d 93, 99 (5th Cir. 1970). The promise here, absolute on its face and made a year in advance, that a wage increase of a definite size would be put into effect on a specified date would seem to fall well within this rule. lid at I 1110.1 The employer in United Aircraft also argued that it was entitled to withhold the increase to improve its bargaining in negotiations with the union. The court in rejecting this argument stated: If the Company's position were accepted, an employer would appear to be entitled, in the hope of improving his bargaining position, to alter all conditions of employment .... The devastating impact that such action would have upon employee exercise of section 7 rights is indisputable. While the business purpose would be "substantial," we could not characterize it as "legitimate." 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment, such is within the special competence of the Board, not an arbitrator. Thus, an arbitrator's interpretation of the contract, even if the provisions were ambiguous, would not resolve the unfair labor practice issues which, inter alia, are inextricably interwoven with other issues, including allegations involv- ing 8(a)(3) charges,12 and matters over which an arbitrator would have no jurisdiction. I also find there is no serious issue of impasse here. In essence, Respondent did not attempt to justify its refusal to institute the cost-of-living increase on the grounds of impasse, and there is no record evidence to that effect. Company President Dan Meilman testified that at the time he refused to implement the cost- of-living increase the subject matter was under negotiation, and that he refused to pay the increase because, in his view, to do so would have been a unilateral act. Although legally he was in error that to institute it would have been unilateral in view of the Union's request that he do so, nevertheless, his testimony reflects an accurate understand- ing that negotiations had not been exhausted on the topic of wages and cost of living, nor had the avenues to agreements in these areas become deadlocked. In the final analysis, the cost-of-living increase, set forth in the recently expired contract, was an established and existing working condition and promised a future wage increase. The clause, on its face, revealed all that was required to automatically implement the increase based upon information found in the Consumer Price Index, and involving no employer discretion whatsoever. The facts also reflect that the cost-of-living provision was a continua- tion of the earlier contractually established pattern to which the Company had committed itself and which employees had a right to expect. Plainly, it was violative of the Act for the Company to refuse to pay the cost-of-living increase effective the first pay period after January 1, and the Respondent's refusal to implement this contractual provision constitutes a unilateral change in the existing wage structure in violation of Section 8(a)(1) and (5) of the Act. Before considering the remaining allegations in the complaint, other contentions and events which preceded these allegations should first be noted. Respondent main- tains that commencing on or around January 20 the productivity of employees dropped dramatically. Respon- dent argues the kill floor employees began exhibiting poor workmanship and negligence, losing skills they had previ- ously exhibited, and that similar occurrences of poor workmanship and slowness of experienced personnel also exhibited itself in the stockyard and boning departments. Respondent points to the testimony given by Business Agent Krier to the effect that, during periods material hereto, he told unit employees that those working "over normal" ought to slow down to "a normal day's work," but then gave them no guidelines as to what "normal" meant. The Company contends that from the foregoing evidence a definite pattern emerged, and that beginning on January 20 the Union planned to "whipsaw management" between a unilaterally imposed requirement to instantaneously render settlements of numerous grievances and then, at the same 12 See General American Transportation Corporation, 228 NLRB 35 (1977). time, to keep management too occupied by slowdowns to operate its plant, and that the net effect was to impose severe economic stress on the Company adding up to a "partial" strike of the nature declared unprotected, as in Pacific Telephone and Telegraph Company, 107 NLRB 1547 (1954); Honolulu Rapid Transit Company, Limited, 110 NLRB 1806 (1954); and Elk Lumber Company, 91 NLRB 333 (1950). On January 21 there was a work stoppage in the plant. It appears that employee Norman Christensen wished to process a grievance as he had been transferred from his permanent job to a less desirable one and had been replaced by a "utility man." The Union maintained that the utility man should have been given the job Christensen was assigned to. On the morning of January 21 the kill floor union steward, Allen Benson, raised this issue with Foremen Herb Rose and Adam Broughton, and also inquired of the kill floor supervisor, Steve Matney, about the matter, but was told that nothing could be done. At this point all the employees on the kill floor stopped work in support of the grievance. Plant Superintendent Ludwig Wolf then appeared and Benson explained the situation to him. Wolf told Steward Benson that he would discuss it with him if Benson would tell the department to start working again, but Benson and Krier declined as they wanted an immediate settlement of the matter. Superinten- dent Wolf then directed his supervisors to ask the men on the kill floor to go back to work and, if they did not, to indefinitely suspend them. Such instructions were then carried out by management. However, during the day there was a meeting of company officers where the Union made an unconditional offer to return to work, but the offer was declined at this point, and the day-shift employees were told to go home. That evening, company representatives again met with union representatives and exchanged letters. The Company sought clarifications in order to determine whether stoppages were going to be continued. The Company responded to the Union's answer by advising union representatives that due to the nature of its business it would have to take action if such slowdowns or strikes continued, and a letter to employees similarly advised production personnel.' 3 As a result of the meet- ings, agreements were reached between the parties and employees reported for work as usual on January 22, but some were absent or late in doing so and, although the Company made no effort to recall those who could not get into the plant on the second shift because the gates were locked, nor did the Company advise those who had been sent home on the first shift, nevertheless, the employees who were absent or tardy on January 22 were disciplined. The discipline meted out took the form of written repri- mands, warning notices, and in some instances short suspensions. Virtually all of this disciplinary action was taken on January 28, several days after the Union protest- ed the lockout and the January 21 suspensions. The complaint alleges that, on or about January 27, the Company violated the Act by eliminating a job on the offal pack chain. Offal packing is a job performed in a separate room within the cooler department, usually by seven '3 See C.P. Exhs. 5, 7, and 8. 706 MEILMAN FOOD INDUSTRIES, INC. employees - four of whom worked at the offal pack table. The job duties of these four on the pack table involved removal of offal products - tongue, heart, livers, and tails - from the chain as it comes from the kill floor, then trimming, wrapping, boxing, and labeling such products; according to the credited testimony of Union Steward Bradley Weber, the jobs on the offal pack table had been performed by four employees at least since 1972, and even during periods of low production. In December 1974, an opening had developed on the offal pack and the job was then posted and filled by employee Jerry Gibson. A short while later, still in December 1974, Gibson left the plant and Steward Weber then again asked his supervisors, Bob Kelvey and Dick Moffett, to post this job opening on the offal pack table. At this time the job had been filled by a new employee without posting and bids. Weber also informed his supervisors that he still had a regular "cooler man," Les Broughton, who had been assigned outside the cooler department and was working on the kill floor. Under company policy, it appears that Les Broughton would retain bidding and seniority rights within the cooler department. Weber testified that, when he mentioned that the job in question should be posted, McKelvey merely laughed and replied, "File a grievance." Several weeks then went by but, on January 27, Weber pursued this matter with Plant Superintendent Wolf, and again requested that the job be posted so that Les Broughton could bid on it and with his seniority get back into the cooler department. Weber said that postings and bids were the past practices of the Company on openings that occurred on the offal pack table. At the time Weber consulted Wolf on this matter, the new employee had been terminated, and as a result there were now only three people doing the work of four on the offal pack table. Later in the day, on January 27, Wolf informed Weber that they did not need another employee on the offal pack table, and he would just leave it as it was - three instead of four. Weber said that never before had there only been three people on the offal pack table. On the same day Weber then related the above to Union Business Agent Krier, and in turn Krier informed Wolf that the parties had to negotiate such contractual changes in jobs, that there had always been four employees on the offal table, and also told Wolf that the Company was trying to do away with a unit job. But again Wolf said he would leave it at three employees. Plant Superintendent Wolf testified that manning re- quirements in the offal pack area have generally been dictated by market demands and killing levels; if the kill floor was producing less, then there was a corresponding reduction in work in the offal area. He stated that during the periods here involved the plant was receiving less offal product from the kill floor, hence there was a correspond- ing reduction in work in the offal pack area. Supervisors Herbert Rose and Adam Broughton testified that they would staff the offal pack area depending on whether there was a need to perform certain functions such as skinning livers or removing the caps from hearts. Company Presi- dent Meilman stated that at different times some offal products are saved and some are not, depending on the 4 As pointed out, the grievance procedure established by the contract is a prevailing term and condition of employment and, as such, survives the expiration of the agreement and cannot unilaterally be changed. specific markets. In summary, Respondent argues that any change in the offal pack jobs was a result of a continuing daily practice of assigning work depending on availability of product from the kill floor and market conditions for company products and, therefore, management made no unilateral change violative of the Act. I conclude and find otherwise. It appears that, in this instance, management eliminated the problem in the offal pack room by eliminating a job. The record is clear that the Company did not discuss this job change with the Union despite an established practice of negotiating such changes, and also a specific condition set forth in section 15.01 of the recently expired agreement, requiring the Company to fill vacancies pursuant to seniority principles except when it interfered with plant operations. Moreover, Foreman Herbert Rose admitted on cross-examination that, except for filling temporary vacan- cies, such as for I or 2 days, the past practice had been to post such openings in the offal pack area for bidding among the employees in the cooler department, with the senior employee bidding for the job being entitled to the assignment. However, at the time here in question, there was no explanation by Wolf or any of his supervisors that the change from four employees to three on the offal pack table was pursuant to any temporary conditions or slow- downs. A four employee operation would be left to three employees without any specified reasons or time limita- tions, and this final decision by management also required the three remaining bargaining unit employees working on the offal pack table to perform the same amount of work previously performed by four employees. It is thus plain that the elimination of a job in the offal pack, without notice to or bargaining with the Union, was a unilateral change in violation of Respondent's obligation under the Act. It is alleged in the complaint that on or about January 27 the Company also changed the procedure for handling grievances without bargaining with the Union. The terms and conditions of employment regarding the established grievance procedure are set forth in article 23 of the most recent collective-bargaining agreement. 4 This procedure provides progressive stages for the handling of grievances commencing with the first step - between the affected employee and the immediate supervisor - and thereafter, if unresolved, through additional steps involving middle and upper management and union representatives. Section 23.05 specifically accords the union business agent access to the premises at any time while the plant is in operation provided management is so notified; §23.06 provides for the processing of grievances on company time; while §23.07 sets forth the provision that processing grievances should not "unduly" interfere with plant operations. There is no serious dispute that under these established proce- dures the prevailing practice was that most grievances were routinely resolved at the departmental level first step on company time during working hours, and that Union Business Agent Krier as well as Union President Francis McDonald had ready access to the plant, and on a number of occasions did visit the plant to meet and discuss 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance problems and other matters with the employees and to help in processing grievances with management. Even Respondent President Dan Meilman acknowledged that prior to the contract expiration grievances were resolved on the first level by the foreman and department steward, that first- or second-step grievances were routinely adjusted during working hours, and that it had been a practice for the union business agent and the union president to visit the plant to assist in the handling of grievances. Meilman further acknowledged that during this period he only became aware of problems second hand, except where he was personally involved, and that most grievances were handled without coming to his attentions On January 27 Maintenance Department Steward Wil- liam Hood attempted to process a grievance concerning the posting of a tractor driving job. Hood testified that this position had been filled without posting in the customary manner, and that he first attempted to initiate this grievance by discussing it with his immediate supervisor, Chuck O'Conner, which was the usual procedure for processing such grievances, but O'Conner told Hood to take the grievance up with Dutch Holland who had made the assignment and who was head of the maintenance department.?6 Having been referred to the maintenance department head, Hood then sought and obtained the assistance of Business Agent Francis Krier. Hood and Krier then met with Holland for the purpose of discussing the grievances which Hood was pursuing but, after Hood briefly outlined the substance of the grievances, Holland told them that he had no authority, and then asked Personnel Manager Pat Trussoni, who was also present in the room, to call Plant Superintendent Wolf. Shortly thereafter, Hood, Krier, and Holland were instructed to go to the cattle buyer's office where they met Company President Dan Meilman and Vice President Marshall Chernin. At this meeting Meilman informed the union representatives of the changes he was making in the grievance procedure. As testified by both Krier and Hood, in response to Meilman's inquiry as to what they wanted, Krier replied that they had grievances they had tried to settle at the department level, but that Holland told them he did not have authority to handle them. Meilman then stated that there would be no more grievance meetings on company time, that in the future Krier would not be permitted access to the plant, that in the future he, Meilman, would personally handle all grievances after hours and by appointment, and that such meetings were not going to interfere with production because they would be after hours. Krier protested that Meilman was ignoring the Company's commitment to not make unilateral 1' On January 23, in accordance with established procedure and practice, Krier came to the plant premises in order to discuss and attempt to process grievances, but was denied immediate access by Respondent Vice President Marshall Chernin. Chernin stated that he informed Krier there had been disruptions in the plant production during his last visits, and he would rather have him use his office, but that he would call any employee to the office Krier wished to see. Though Krier protested to Chernin that such conduct on his part was unacceptable and was a unilateral change in conditions, it was not until employees engaged in a very brief work stoppage in support of their business agent's right to enter that Krier was finally permitted access to the plant. i6 It appears that Hood also had another grievance involving a more senior employee who wanted to work on the day shift. changes in the terms and conditions of employment that existed under the old contract, to which Meilman replied, "You don't have a contract and you don't have grievances under these circumstances." Krier further objected, but Meilman replied, "That's the way it is," and the meeting then ended with Chernin presenting Krier a copy of the letter dated January 27 to Steward Benson regarding the revision in the "sticking"job.17 Following this meeting with Respondent's supervisory personnel, Krier returned to the kill floor area of the plant where he informed Stewards Allen Benson and Bradley Weber that Meilman had just informed him that the grievance procedure had been eliminated, and that he (Krier) would no longer be permitted access to the plant. It appears that the grievances Hood was attempting to present, on this January 27 occasion, were never processed, notwithstanding the established past practice of processing such grievances during working hours. Relating to the January 27 meeting, Meilman testified that he received a call advising that Holland, the plant engineer, was having a problem. Meilman related that grievances in the maintenance department were generally handled through the department head or Wolf and not Holland but, nevertheless, he had instructed these people to come over to his office. Meilman acknowledged that Krier, Holland, and Maintenance Department Steward Hood then appeared and he asked what the difficulty was. Holland related that the problem related to a change in handling some equipment, that Hood wanted a new classification posted, but that it was not a new job. Meilman then stated, "We can't hold grievance meetings every time you have a whim. We are going to have to set these meetings so that they do not interfere and interrupt production," and then explained that there was no change in the job involved other than logging the use of the new piece of equipment. Krier then asked if Meilman was changing the grievance procedure and Meilman replied, "No, it was just that we were going to schedule them as not to have them interfere and interrupt production." The Company points out that Krier returned to the plant and visited the kill floor on January 28, 29, and 30, and, in summary, the Company submits and argues that there was no unilateral change in the grievance procedure on January 27, that Meilman's testimony reveals that management was simply reminding Krier that past practice in processing grievances had entailed accommodations to production needs, and that Meilman expected everyone to follow that procedure. First of all, as pointed out, there is no evidence that the Union's attempt to process these grievances on January 27 17 The Charging Party urges that the Company also effectuated a unilateral change in the job of"sticking." It is argued that previously thejob of sticking consisted of inserting a knife into the animal and severing the main artery in the thorax area, such duties being performed as the animal is propelled down the kill chain. The Union maintains that on January 27, his first day with the Company, Slaughter Division Superintendent Millard unilaterally changed this job of the sticker by adding the additional duty of "pushing the cattle to fill the gaps" in the chain. However, such is not alleged in the complaint and, as the record stands in relation thereto, such an assignment, if considered, would probably fall within the category of a temporary change or arrangement in accordance with daily operational needs and requirements in efforts to increase production. 708 MEILMAN FOOD INDUSTRIES, INC. at the department level interfered in any way with production, let alone an "undue interference" as section 23.07 of the previous contract makes reference. Indeed, the department level meeting was not impromptu but, after O'Conner refused to be involved, a meeting was then set up with Holland at a time and place designated by Holland, and then shortly thereafter at a meeting arranged by Meilman, at which Meilman admitted telling the union representative, "We are going to have to set these meetings so that they do not interfere with and interrupt produc- tion." I agree that from this statement it is clear that management viewed any grievance handling, in accor- dance with the established past procedures, as an unwar- ranted interference with production. This record reveals that in the past, as provided for under the most recent contract, the business agent had free access to the plant by merely notifying management; that griev- ances were frequently and most generally handled on company time; that most were settled at the first step of the grievance procedure with the immediate foreman of the employee or employees involved; and on January 27 there is no evidence that the efforts to settle the grievances by Bill Hood involved any interference with production. This announcement made by Meilman on January 27, as duly attributed to him by Krier and Hood, as aforestated, unilaterally changed most of the past provisions and practices in handling grievances. Subsequent developments also reveal that after these changes were made, and from then on, there were no actual grievance procedures avail- able to the employees.18 In summary, the grievance procedure was an established term and condition of employment contained in the expired agreement and followed as a matter of general practice, and Respondent's unilateral changes of it consti- tuted coercion upon its employees in derogation of their rights, and a breach of Respondent's obligations to bargain in good faith. Its conduct, therefore, was violative of Section 8(a)(1) and (5) of the Act.'9 Before going on to the next specific allegation in the complaint, it should first be noted that Respondent's plant was shut down for I full week during the first 10 days in February. Superintendent Wolf stated that the plant was closed for economic reasons due to the lack of production and the losses being incurred. During this 10-day interval, Wolf denied that supervisors made any changes or mlodifi- cations in equipment, but admitted that some repairs and a "minor amount" of maintenance work was done. Wolf testified that management also wanted to look over the plant to see whether they were dealing with "sabotage" or whether they actually had real maintenance problems. The Union argues and maintains that, during the February 1-10 day layoff, bargaining unit work was performed by supervisory personnel, in spite of Krier's requests that, if unit work were to be performed, unit employees should do it. The Union also solicited testimony from Hood, Benson, and Christensen to the effect that upon their return they observed that maintenance and 1s For background purposes the Charging Party introduced testimony involving employee Randy Christensen and the alleged promise which Meilman made to him relative to medical insurance coverage for his wife. The Union now argues that to promise insurance benefits to discourage Christensen from participating in a strike is violative of the Act. I accept the testimony for background purposes only. repair work had been performed during the layoff. Hood said he was also advised of this by various supervisors, and Weber testified he found out that a load of returned meat had been trimmed and shipped. The Union maintains and argues that this unilateral change in conditions in the performance of unit work by nonunit personnel during the layoff, along with announcing the layoff as afait accompli, is an additional violation of Section 8(aX5) and (I). As indicated, there is no allegation in the complaint on the above and, as this record stands, it appears that the changes made were of a minor nature, in accordance with a desire on the part of management to better understand its production problems in the overall operations of its business. As alleged in the complaint, the General Counsel and the Charging Party maintain that Respondent unilaterally and summarily combined the weasand rodding job with the gullet clearing job on February 10, in much the same manner as it had earlier eliminated the job in the offal pack chain. Prior to February 10, employee and Union Steward Al Benson worked as a weasand rodder. This job is performed on each carcass and involves the use of a metal rod to separate the weasand or gullet from the wind pipe, cutting the gullet at the head end and tying the loose end with a rope or rubber ring so that the contents of the food intestine will not contaminate other red meat on the gut table. Benson had performed the weasand rodding job continuously from 1974. On February 10, immediately after the 1-week layoff, as aforementioned, when Benson reported for work, he was advised by Millard, the new superintendent of the slaughter division, that the job of weasand rodding had been eliminated and that it was being combined with the job duties of the employee clearing gullets. There is no serious dispute that since 1973, until this change on February 10, the job of rodding weasands and the job of clearing gullets were two separate jobs, each performed by different employees. The credited evidence in this record also reveals that no one from management discussed this change in the weasand roddiig job with the Union before effectuating it on February 10; at the time in question Steward Benson specifically asked Millard if the Union had been consulted, and suggested that such consultation was the proper procedure to follow in chang- ing or combining jobs. But Supervisor Millard replied that he was boss on the kill floor, that the change was none of Benson's business, and that he (Millard) was going to do whatever he wanted to do. The Company solicited testimony, and now argues, that jobs are often combined to meet production requirements where there are manning problems, and that the Company would, as a practice, temporarily eliminate some jobs, double up on jobs, and also transfer people. Superinten- dent Wolf testified to the fluctuations in staffing the plant's operations, and Supervisor Matney stated that the Compa- ny had changed jobs before to increase the plant's kill. Foreman Adam Broughton described his understanding of the procedure for notifying the Union when there were job 19 The fact that Krier entered the plant the last couple days of January on business does not detract from this conclusion or excuse Respondent's conduct. The record reflects that no grievances were processed subsequent to January 27. 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes. Broughton said the Company would explain to the steward the basis for the change, and thereafter bargain with the Union about it if the Union wanted to do so, and the Company maintains this is what Supervisor Millard did on the date in question. Millard also testified that he explained the market need for the change in the weasand rodding job after Benson asked about it, and that nothing else was said until Benson later reported to him that Reiners, the man assigned to the combined task, was having difficulty on the job, and Millard replied that he was not surprised, since it was a new job. In summary, the Company points out that management followed the parties' established procedure in combining the two functions; that Millard notified the appropriate steward of the change, explained the reasons for it at Benson's request, and effectuated the change without protest from Benson; and that there is no evidence that the Union raised the matter any further with the Company. It appears to me that the Respondent's attempts at a business purpose justification for the unilateral changes are without a factual basis and plainly pretextual. Millard and Meilman testified the reason for the change in the weasand rodding job was because of a decline in the pet food market, and Millard testified he told Benson that because of market conditions "it didn't make any difference if it [the job] was done properly or not." However, as also indicated, Plant Superintendent Wolf, in testifying about the weasand rodding job, said: "The main issue is not whether you do or do not save the weasand as a product. The main thing is the weasand must be properly separated, it must be properly tied, it can't be cut because if the stomach contents come out you are contaminating the carcass. .... The quality of the work is more important than the saving of the product." Kill Floor Supervisor Adam Broughton testified that the chain speed determined the number of persons necessary to do the jobs of weasand rodding and gullet clearing, and both Millard and Brough- ton admitted that after the change the man doing the combined job had difficulty with it and could not keep up. In the final analysis, this was not a temporary, ordinary, or usual change or transfer of employees due to manning problems because of daily absenteeism, sickness, or injuries but, to the contrary, as this record indicates, this was a permanent arrangement whereby two jobs were combined into one. The past practice with respect to the elimination or change in bargaining unit jobs was that Respondent and the Union would meet and negotiate concerning such changes, and then reduce their agreement to writing; Respondent's unilateral combining the weasand rodding job with the gullet clearing job on February 10 was clearly a departure from past practice. This departure, coupled with Respondent's unequivocal refusal to even discuss the subject with the Union, was clearly a breach of the duty to bargain and a violation of Section 8(a)(l) and (5) of the Act, and I so find. On February I I there was a special union meeting of about 200-250 Meilman unit employees, at which the items of discussion pertained to the subject matters as previously outlined herein. Several employees voiced their anger and resentment over Respondent's failure to pay the cost-of- living increase, and the other unilateral actions which had been taken, as aforestated. However, before any final action or strike vote was proposed, union officials prevailed upon the employees to exercise restraint, and to return to work the next day. The employees then agreed to be at their jobs after assurances by the Union that another negotiation session with management was scheduled for the next day, insuring there was still some possibility that Respondent could be persuaded to pay the cost-of-living increase, to restore the grievance procedure, and to rescind the other unilateral actions taken. On February 12, Steward Al Benson arrived at work on the kill floor and was met by Kill Floor Foreman Herb Rose. Rose told Benson that he would not be working on the kill floor that day, but was being assigned to "banding boxes" in the offal room which is a part of the cooler department. Benson protested this action during his con- versation with Foreman Rose and pointed out that such an assignment also effectively prevented him from his func- tion as kill floor steward for the 75 or so kill floor employees, but Rose would do nothing about it; Benson then mentioned this situation to Cooler Department Steward Bradley Weber. Shortly after 7 a.m. on February 12, Benson was also informed that kill floor employee Dennis Reiners was being discharged or indefinitely suspended for splashing water on a foreman's coat. During a conversation in the personnel office with Kill Floor Supervisor Millard, Ben- son protested the discharge or suspension of Reiners and tried, but without success, to obtain a date and time when a grievance concerning the disciplinary action against Rein- ers could be discussed. During this same conversation Benson also mentioned to Millard that three kill floor employees had been assigned to jobs in the cooler depart- ment and asked Millard if those assignments could be changed. Millard refused, but as a result of Respondent's action in transferring Kill Floor Steward Benson to the cooler department, suspending kill floor employee Dennis Reiners, refusing to establish a date for processing a grievance concerning Reiners, and also refusing to discuss the assignment of three other kill floor employees assigned to the cooler department, and other factors detailed later - the relationship on the morning of February 12 between Respondent and its bargaining unit employees deteriorated significantly, and culminated in a confrontation on the kill floor between Supervisor Millard and Stewards Al Benson, Bradley Weber, and Roger Reynolds. By this time the kill chain and all production had been stopped and the stewards then informed Millard they had decided not to return to work unless and until a decision was made on a date for processing the above grievances. Millard then asked for 15 minutes to make a decision and/or to set up a meeting. The three stewards informed Millard that he could have whatever time he needed to make a decision, but that the employees would not return to work until Respondent agreed to process their grievances. By this time Supervisors Adam Broughton, Herb Rose, and Fred Perez had come into the area, and Millard then asked Broughton if work had been stopped for 5 minutes. Broughton replied that it had and Millard said, "I consider that a voluntary quit. I want you people to leave the premises." Millard then turned to Benson and stated, "Tell your people to leave the no MEILMAN FOOD INDUSTRIES, INC. Kill Floor," but Benson replied that he did not have such authority. Millard and the other supervisors present then directed Benson and the other kill floor employees to leave the kill floor and to go to the locker room, because they had been suspended and/or discharged. Benson then got in touch by phone with officials and agents of the Union and received certain advice in relation to their situation. As a result Benson then informed the unit employees that they were to stay in the locker room until the end of their regular work shift - to play cards or whatever. Shortly thereafter, Millard came into the locker room and an- nounced to employees that work was available for those who wanted to work and, if they did not want to work - to leave the premises or they would be trespassing. A few minutes later Benson again encountered Millard. This time Benson told Millard that on behalf of all the employees he was making an "unconditional offer to return to work." Millard refused the offer, contending that he did not have authority to accept or reject it. Just prior to noon on February 12, a deputy sheriff appeared at the plant with officials of the Company and informed Benson that the employees had been accused of trespassing, but he had no eviction papers and he soon left the plant with no further action. Many of the employees remained in the locker room until the end of their regular work shift in hopes that Respondent might change its position and accept their unconditional offer to return to work. The Company produced testimony through several of its witnesses to the effect that, on February 12, the events at the plant began with production "just like a slow motion movie," including slowdowns in the cooler and boning departments. There was testimony that cattle were intro- duced into the "knocking pens" backwards and were getting loose from the chutes and other areas on or near the kill floor. A few witnesses also testified as to other abnormal happenings relating to the head chain, air hose, fuse box, and cattle hoists. Additionally, there was testimo- ny that, by the first break on the morning of February 12, there were only 50 cattle in the coolers after 2-1/2 hours of production, when normally 200 cattle would be in the cooler. It is pointed out that, at or about 9:15 a.m., Plant Superintendent Wolf received a call from Foreman Millard relating the fact that he had been approached by the stewards and they wanted a number of grievances settled "on the spot"; they would not return to work until such grievances were settled, as aforestated. Wolf then told Millard to tell them to go to work and if they refused they would be indefinitely suspended. Respondent points out that about this time the plant superintendent called guards to the premises to watch over refrigeration equipment after someone threw a main switch, and that supervisors also had to clean up the kill floor. Respondent points out, additionally, that Wolf felt it necessary to take the disciplinary measures he did on February 12 because of the pattern of operation from around mid-January. In summary, the Company submits and argues that the manner in which the "quickie work stoppage" occurred on February 12 also shows that the "partial slowdown-quickie strike" was still on. Moreover, Respondent asks, if Benson had such pressing grievances, why were not they raised with Millard prior to 9:15 a.m., before or while he was on break, and that when the stoppage occurred Benson demanded that the grievance be "settled" or "resolved" on the spot, and refused Millard's reasonable request that they go back to work so he could have 15 minutes to set a meeting up to discuss the grievance. The Company submits that the foregoing reveals that the work stoppage on February 12 was merely activity to foster the continuation of the program of "quickie strikes" and "slowdowns." On the morning of February 13, another union meeting was held for Respondent's employees. On this occasion the union leadership reported on the lack of progress with the Company during negotiations on the previous day, and the employees also again discussed Respondent's continuing failure and refusal to pay the cost-of-living increase, to process grievances, and Respondent's other unilateral eliminations and changes in jobs and working conditions at the plant, as aforestated. The employees then unanimously voted to go on an unfair labor practice strike. It is well settled that, if an unfair labor practice is a mere "contributing cause" of a strike, the strike must be considered an unfair labor practice strike as a matter of law. Here Respondent's unilateral conduct and actions, as all detailed herein, were the sole causes for the strike and, therefore, the conclusion is inescapable, and I so find, that the strike commencing February 13 was an unfair labor practice strike, requiring that all strikers be reinstated upon their unconditional offer to return to work. I turn briefly to the contention and argument by the Company to the effect that, during the period between January 20 and February 13, the union employees engaged in slowdowns, work stoppages, and partial strikes, all to the extent and degree that their conduct and activities were unprotected. At the outset, it is important to note that the instant case is directed against the Company and is not a complaint or indictment of the Union's conduct. The complaint charges that by its actions the Company committed practices in violation of the Act. I am called upon, therefore, to specifically rule on the Respondent's conduct. As pointed out, the unfortunate sequence of events which occurred during the relatively short period between December 10, 1974, and February 13, 1975, shows that the bargaining unit employees were rapidly converted from a very productive work force, at least during December 1974, to a frustrated, demoralized, desperate, and very angry group of people by February 13, and, as suggested by the General Counsel, the blame for this unfortunate situation and chain of events should be placed squarely on the Respondent, where it belongs. The wounds of Respon- dent's employees began to fester when Respondent failed and refused to pay the cost-of-living increase, and then quickly spread when Respondent unilaterally eliminated the job on the offal pack chain in the cooler department and unilaterally combined the weasand rodding job with the gullet clearing job on the kill floor, coupled with the unilateral changing of the grievance procedure, thereby wresting from the hands of the employees and the Union an effective remedy for their industrial ills. As also indicated, it is well settled that the right of employees to engage in concerted activity, including a strike or work 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppage, does not depend upon the question of whether or not the decision to go on strike is a wise decision, nor does it depend upon any abstract evaluation of the relative merits of the position of the parties. In the absence of a current and viable no-strike clause in a collective-bargain- ing agreement, the employees' right to strike and to engage in a concerted work stoppage must be held inviolate. 20 In summary, the General Counsel concludes as follows: "It is perhaps axiomatic that nearly all strikes result in inconvenience and economic hardship upon employers as well as upon the employees involved. But let us not permit Respondent to lead us into the misconception that these unfortunate consequences of concerted activities render such activities unlawful or unprotected. Neither should we permit Respondent to divert our attention from the focal points of this case. Respondent's persistent and continuing unfair labor practices motivated, precipitated, and pro- longed the unfortunate strike under consideration here. The record clearly shows that Respondent's employees were literally driven to the wall and left with no effective means to remedy Respondent's unfair labor practices other than to engage in their unfair labor practice strike." On January 21 there was a work stoppage over a grievance, but subsequent meetings during the day between the Company and the Union reached satisfactory accords and arrangements whereby all employees returned to work on the following day. It appears to me that, whatever differences the parties and employees had on this occasion, they were mutually handled and worked out to the general satisfaction of all concerned. Moreover, on this occasion there was no violence or sabotage of any kind. On the morning of February 12, there was undoubtedly slow production, great confusions, and other abnormal happenings in several areas of the plant, coupled with a work stoppage over grievances, as aforestated. However, in consideration of this entire record, I do not believe that these activities are so "indefensible" that employees should be deprived of their protected rights of the Act. In the instant case, the slowdown and work stoppage resulted because the Company would not bargain in good faith, and from time to time was also engaged in unilateral changes. In Advance Industries Division - Overhead Door Corpora- tion, 220 NLRB 431 (1975), the Board found that the facts therein supported the conclusion that the employees' action in not leaving the employer's premises was protected concerted activity within the ambit of Section 7 of the Act because of mitigating circumstances which were grounded on the employer's change of the employees' shift hours during the strike, a change of which the employees were not informed in their invitation to return to their "regular shift," of which they were unaware upon their return to work, and which they reasonably assumed would affect their regular wages and their qualifying for holiday pay. Thus, the employees were protesting an immediate situa- tion in which there was a direct cause-effect relationship in 20 In the instant case it is undisputed that the collective-bargaining agreement had an expiration date of December 6, 1974, and Respondent specifically declined to extend the contract beyond December 10, 1974. Therefore, as argued by the General Counsel, the Respondent's bargaining unit employees had no legal obligation to refrain from striking any time after December 10, 1974. 21 Respondent refused to recall the other strikers because it regarded the grounds for protest, the necessary immediacy for the employees' action and the means utilized to express their protest. The Board found, in substance, that, under these circumstances, the accommodation of the varying rights and interests favored the employees. In the instant case, the employees were likewise protesting an immediate situation, and by February there was little or no other choice available since they had no regular grievance procedure. Under such circumstances it appears to me that the varying rights and interests favored the employees. However, I doubt very much if any further discussion is warranted because, in the final analysis, the Company "lifted" its February 12 suspension of employees at the time the Union made its January 1976 unconditional offer to return the strikers. If the conduct on the part of these employees had been so detrimental as to forfeit their protected status - then, in my view, it is highly unlikely that at a later date their suspensions for alleged misconduct, culminating on February 12, would be lifted. Moreover, concerning both the dates of January 21 and February 12, the Union also made an unconditional offer to return the employees on each occasion, as aforestated, and at the time such return offers were made, the work stoppage, in each instance, was of a relative short duration. By letter dated January 8, 1976, the Union "on behalf of all striking employees . . . [made] an unconditional offer and request to return to work" on January 10, 1976. When the Company advised that the plant would not operate on January 10 or 11, 1976, the Union responded that the strikers would return to work commencing January 12, 1976. Strikers did report to work on this date, but only two strikers, Ralph Britton and Kathy Shatto, were returned to employment that day.21 When the Union, on behalf of all the strikers, made an unconditional offer to return to work on January 12, 1976, the striking employees were entitled to full and immediate reinstatement to their former or substantially equivalent jobs even if, to accommodate them, the Company had to discharge striker replacements, and the Company's refusal to reinstate the strikers on the date violates Section 8(aX3) and (I) of the Act. It is alleged in the complaint that Kathy Shatto was constructively discharged on or about April 7, 1976, in violation of Section 8(aX)(l) and (3) of the Act. Before the strike Kathy Shatto had been a rib boner, and was never assigned as a full-time chuck boner and normally did not bone chucks, although she might have boned a few chucks at the end of a day. However, upon Shatto's return to work on January 12, 1976, she was assigned work as a chuck boner. It appears that the work of chuck boning is significantly different, heavier than that of rib boning, with different incentive earnings.2 2 As a result Shatto found the work of chuck boning more onerous, complained about it, and requested that she be returned to the rib boning work; but despite such protests her requests were refused. As them as having the status of economic strikers, therefore, only being recalled as vacancies arise. 22 The work of chuck boning and the work of rib boning are also performed at different locations in the department, paid different incentive rates, involve the use of different knives, and the meat handled by chuck boners is much heavier than that handled by rib boners. 712 MEILMAN FOOD INDUSTRIES, INC. admitted by her supervisor, William Martin, he was not about to give Shatto work that had been assigned to replacement employees; and, although two openings in rib boning developed after her return, and despite her high seniority (she was second in seniority in the boning room), Shatto was not returned to her former job as a rib boner, but replacements were assigned the openings. On April 7, 1976, Shatto terminated her employment with Respondent. Her reasons were two-fold: First, because the chuck boning job was too difficult, and secondly, because of the hassle she was given by the Company in not accepting her excuse for an absence necessitated by her daughter's illness. The Company maintains that Shatto was absent from work some six or seven times between January through April 1976. Moreover, Boning Room Foreman William Martin, her immediate supervisor, testified that employees in the boning room did not exclusively bone any one type of cut, and although Shatto primarily boned chucks initially, during the last month of employment she was not primarily boning chucks. Martin stated that he told Shatto on April 7, 1976, that she was missing too much work, and that the reason her incentive pay was low was because of high absenteeism, that Shatto made the decision to termi- nate her employment, and not the Company. Shatto testified as follows: On April 5 and 6, 1976, she had stayed home with her young daughter who was sick; that prior to the strike Respondent's practice had been that the illness of an employee's child was an acceptable excuse for absence from work. Notwithstanding this past practice, Foreman Martin told her on April 7, 1976, that henceforth even a doctor's excuse concerning her children's illness would not be an acceptable excuse for absence from work, and that if she felt she should stay home to take care of her sick child, then she might as well "turn in her equipment." Faced with this unusual reprimand by Martin, and Re- spondent's continuing refusal to return her to her former rib boning position, notwithstanding openings in that job as aforestated, Shatto left her employment at Respondent's plant. I find that she was thereby constructively discharged on April 7, 1976.23 In its answer the Respondent named 15 employees who it contends are guilty of strike misconduct of such a nature as to justify denial of reinstatement; but Respondent then amended its answer and withdrew its contention as to any strike misconduct on the part of Mark Petrie, Gary Roberts, and Steve Wallenstein. Thus, Respondent's re- maining contention is that 1224 out of approximate 240 strikers were engaged in some form of strike misconduct. 25 23 It is maintained that other strikers who were ultimately returned to work when a vacancy arose were likewise not assigned to their former or substantially equivalent positions. Thus, it is argued that Mary Thesenvitz, whose prestrike work was wrapping meat., was required to use a knife upon her retun, that Randy Christensen was switched from maintenance work in the boning department to cutting meat, and that Bradley Weber, who was a beef lugger and steward in the cooler department, was called back as a boner in the boning department. However, there are no specific allegations in the complaint as to these individuals or any of the other returning strikers and, in the final analysis, if such people were not returned to their substantial equivalent positions, arguendo. the remedy provided herein will now so direct. 24 Darrell DeJong, Rodney Ensz, Lester Hagen, William Hood, Annie The General Counsel argues that in most instances the misconduct of which the strikers here involved were accused was minimal and the quality of testimony to support those allegations was marginal. The General Counsel also cites Coronet Casuals, Inc., 207 NLRB 304 (1973), wherein the Board observed, inter alia, that not every impropriety committed during the course of a strike deprives employees of the protection of the Act, and holding that pickets were not disqualified from reinstate- ment despite participation in various incidents of miscon- duct which include using obscene language, making abu- sive threats against nonstrikers, engaging in minor scuffles and disorderly arguments, momentarily blocking cars by mass picketing, and engaging in other minor incidents of misconduct. The Union points out and maintains that even assuming, arguendo, a few of the incidents were attribut- able to some of those accused, such were minor in nature, occurred over a period of 11 months of a heated unfair labor practice strike, and are not of the type of misconduct warranting refusal to reinstate. This is especially so when balanced against Respondent's severe and pervasive unfair labor practice conduct which provoked the strike. Sheldon McConniel: Barbara Todd testified that she was employed by the Company as a replacement worker and that, sometime in June or July 1975, while attempting to cross the picket line and enter the plant in her automobile, the outside rearview mirror was broken by one of the picketers. Although Todd was unsure as to the proper pronunciation of the name of the picketer who broke her mirror, she positively identified Sheldon McConniel at the hearing. She further testified that, after McConniel broke the mirror, he then threatened that she had better quit Meilman or her kids were "going to get it," and that this threat upset her so much that she immediately quit her job at the Company.26 As in all cases where the right of reinstatement is challenged, the test is whether the miscon- duct is so flagrant as to render the striker unfit for further service. Coronet Casuals, Inc., supra. In this incident, McConniel broke the car mirror belonging to Todd and then made threats of personal physical harm to her children, with such severity that Todd immediately quit her job. This amounts to an overt act of violence along with a threat to do bodily harm and, in my view, such strike misconduct justifies a denial of reinstatement. Ann Lund: Loyd Weber testified that he was employed by the Company on March 19 and on this day his car was hit by a rock as he was proceeding out the driveway from the plant. He then stopped his car and reported the incident to a nearby policeman who issued a warning over his PA system to the people or pickets assembled. Weber Lund, Sheldon McConniel. James Quien, Roger Reynolds, Patricia Savold, Ray Schaeffer, Ralph Scholten, and John White. 25 Moreover, in its answer Respondent also maintains that a number of employees (the whole first shift) were suspended on February 12 and, therefore, were not entitled to reinstatement. However, Respondent Vice President Marshall Chernin admitted that Respondent lifted these suspen- sions at the time the Union made its unconditional offer to return to work on January 12, 1976. Therefore, I must conclude that such employees are entitled to recall rights the same as other striking employees. 26 Although McConniel denied breaking the mirror as alleged by Todd, he did admit that he was picketing during the time of the incident and had seen Todd's car while he was on the picket line. 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then attempted to resume his driving but, after turning out of the plant driveway, another rock hit his automobile. Minnehaha County Deputy Sheriff Ken Headrick testified that he observed Ann Lund throw an object at Weber's automobile on the date in question and arrested her on the scene for so doing. Weber also testified in Municipal Court against Lund as a result of this incident. Although he did not personally see Lund throw the rock, Weber was told by Deputy Sheriff Headrick that she had thrown it, and Deputy Sheriff Headrick testified that he actually saw Lund throw an object at Weber's car.27 Lund's throwing of a rock at Weber's car while he was using a driveway to leave the plant must be considered as an overt and flagrant act of violence designed to cause physical harm, and particularly so since a second rock was also thrown. In my view, such conduct justified a denial of reinstatement. Rodney Ensz: Philip Vogelaar testified that he hauled meat in a leased truck for the Company during the period of the strike and that on June 1, at approximately 6 a.m., his truck was hit by rocks as he was turning into the driveway at the plant. The rocks were thrown by three individuals and broke his windshield and outside mirror. Vogelaar personally observed these individuals throwing the rocks. He then positively identified Rodney Ensz as one of those who threw the rocks from a picture he was shown when he went to the police station to make a deposition on the matter. On cross-examination, Vogelaar again testified that there was no doubt in his mind that Ensz threw the rock.28 The throwing of a rock by Ensz at the truck being driven into the plant by Vogelaar, with glass damage to his windshield and mirror, must also be deemed as an overt act of violence designed to cause physical injury, and is taken out of the category of a single isolated event when one considers that rock throwing incidents resulted on frequent occasions. The conduct of Rodney Ensz also justified his denial of reinstatement. John White: Jeff Searles was working at the plant as a replacement. On the afternoon of April 18, he and his riders left the plant to go home in his Bronco. While he was stopped at the intersection of Highway 16 and the plant driveway, they were approached by between 12 to 15 persons. After gathering around one of them began beating on the window, making remarks, and shouting obscenities, and also threatened that "we're going to get you some day." Searles then felt the rear of his Bronco going down and observed four or five persons standing to the rear of his vehicle. After getting out he discovered that his right rear tire had been slashed and was flat. He reported this incident to a nearby sheriff or policeman, but while going back to his Bronco he was approached by a man who said to him, "It was your tire this time. Next time it is going to be your neck." Searles then pulled his Bronco off the road and walked to the plant to tell his foreman about the incident. After explaining the incident to his foremen, Dick 27 Lund testified that she was employed by the Company until the strike occurred, and was engaged in picketing on March 19; although she knows Weber and saw him on March 19, she denies throwing a rock at his car or at anyone else's car. However, Lund admits that she was arrested by Deputy Sheriff Headrick on March 19, but that the charges against her were dismissed. Moffit and Bob McKelvey, he pointed out the man who had made the last threat to him. Although Searles had seen him on the picket lines many times, he did not know his name, but his foreman identified the man as John White, and this was further substantiated by the police and guards present that day. Searles does not claim that White did anything to his vehicle nor did he testify that White slashed his tires. Allan Carlsen testified that he was employed by the Company as a cattle buyer from June 1974 until March 1976. He stated that on the evening of July 19, after returning from a trip with his wife and three children, he went to the cattle buyer's office at the plant to get his company car. After discovering that the battery in the company car was dead, he left the premises in his own car to get mechanical assistance, and his wife drove the car with two of the boys in the front seat with her while he and the other boy were in the back seat of the car. As they drove south on the plant driveway, between the guard shack and Highway 16, Carlsen observed a man standing to his right who suddenly pulled a rock from behind his back. The man then approached the car shouting several obscenities and told Carlsen, "Get out of there and I'll whip your ass"; he then threw a rock, hitting the car on the front passenger door. By this time his oldest son wanted to get out the car because his mother had heard the obsceni- ties the man had shouted, but Carlsen would not allow him to do so and the Carlsen auto then proceeded to Weeg's Standard Station, where Carlsen telephoned his supervisor. The supervisor instructed him to go back to the guard shack at the plant and report the incident. The guard then informed Carlsen that the man who threw the rock was still standing in the same approximate area, and when the sheriff arrived on the scene the man involved was then identified as John White. Carlsen testified that the sheriff told him they could identify White because of other incidents involving him. Carlsen filed a complaint against White regarding the incident, but later the complaint was dropped. Neither the General Counsel nor the Union called White to testify in rebuttal to the actions and statements attrib- uted to White by Carlsen or Searles. Therefore, the undisputed testimony clearly indicated that White was engaged in strike misconduct on at least two occasions, and the circumstances and events of at least the Carlsen incident, wherein bodily harm by vulgar threats and rock throwing were involved, take the matter out of a minor and isolated category and elevate it to the extent where John White must also be denied reinstatement. Lester Hagen: John Barker testified that he was em- ployed by the Company on April 17 and, on this date, while he was leaving work with his wife and three children, he observed approximately 150 to 200 people standing outside the gate of the entrance to the plant. Barker stated that a pickup truck then pulled in front of his car forcing him to stop. At this time an individual approached and tore 2s Ensz denied throwing rocks on the occasion in question, but testified that he was employed by the Company until the strike, that he participated in picketing, and he saw Vogelaar's truck enter the plant premises on June 19. Ensz testified that there were "hard feelings" between himself and Vogelaar because of an incident involving Vogelaar's father and himself prior to June 18. 714 MEILMAN FOOD INDUSTRIES, INC. the swivel mirror off his car door, and as soon as the pickup got out of his way he then proceeded to leave, but as he drove off he heard someone in the crowd yell "that a way to go Les." The next day he was informed that the person who had ripped the mirror off his car was Lester Hagen. Jack Benefiel, Minnehaha County Chief Deputy Sheriff, testified that on April 17 he observed and arrested Lester Hagen for tearing a mirror off an automobile that was leaving the company plant; he also testified that it was his opinion that Hagen purposely ripped the mirror off the automobile.s In my view, and from the total circum- stances in this case, this incident cannot be deemed isolated or minor, but an overt act of violence sufficient to deny reinstatement. Roger Reynolds: Diana Gibson testified that she left work at the Respondent's plant on April 23 with some of her riders and drove to Ben Hur Ford, but as she attempted to leave a van with six men pulled up beside her and blocked her exit. The men then got out of the van, attempted to open the door to her car, and began pounding on the doors, but she was then able to drive away. However, the van pursued her and shortly thereafter a car pulled in front of her and forced Gibson to stop. The van stopped in the rear of her car and then the men from both vehicles got out and approached her car. They again attempted to get the occupants of her car out and also began beating on the Gibson's car and jumping on the rear bumper. At this point, Roger Reynolds, an occupant of the van, stood outside Gibson's car and stated that, if either the car or the people inside the car were seen at work the following day, no one would be able to recognize either the car or its occupants. Although Gibson did not know Reynolds' name at the time of the incident she was later informed of his name by Brian Toberson, an occupant of her car during the incident. Gibson also identified Reynolds in the courtroom during her testimony. Neither General Counsel nor the Union elicited any evidence to rebut Gibson's testimony on the above. Although there was no personal injury or property damage in the incident, the specific threat by Reynolds, coupled with the physical actions of violence by Reynolds and the others, as aforestated, is sufficient to construe this incident as serious strike misconduct, and sufficient to deny rein- statement.30 Pat Savold: Lois Heumiller testified that she worked for the Company and, on June 20, as she was driving with Jim Winters to work, she observed a gathering of picketers west of the driveway entering the plant; as they went into the plant the picketers threw 15 to 20 rocks at her car. Heumiller specifically testified that one of the picketers who threw the rocks was Pat Savold, whom she knew because Savold had given her trouble before. Savold also accompanied her rock throwing on June 20 with obsceni- ties directed toward Heumiller, and the rock throwing smashed the back window and one of the side windows of Heumiller's car, and also caused her finger to be cut by the broken glass. After arriving at the guard shack Heumiller " Hagen did not appear at the heanng and, therefore, the above testimony stands undenied. got out of the car and then further observed Pat Savold throwing a rock at a semitruck coming into the plant, busting its windshield on the driver's side. Since Savold's conduct resulted in both property damage and personal injury to Heumiller, it must be construed as serious strike misconduct, and a bar to reinstatement. Jim Quien: Gary Baartman testified that he was working at the plant on March 20 and while driving to work he observed a crowd of people standing on a corner of the entrance driveway to the plant. Baartman testified that as he was getting closer to the driveway he observed a man step out to the center of the street and throw a rock at the windshield of his car, breaking it and causing minor cuts to his hands and face. He reported the incident to nearby police and told them he had seen the man who had thrown the rock and pointed him out. He then heard the police call for assistance and, when that assistance arrived, they arrested the man, but as they were effecting the arrest the striker stated to Baartman that he was going to come to his house that night and get him. Baartman then reported this incident to his supervisor, Marshall Chernin or Lou Wolf, and after identifying the man they told him it was Jim Quien. Harry Millard testified that he worked at the plant from January through July and that in June, while driving to work along the plant driveway, he observed 15 to 20 people assembled and a couple of them threw rocks, hitting his car. Police then stopped his car at the entrance gate and asked him to identify the persons throwing the rocks. After making the identification, the police then asked Jim Quien to come over to the car, but after he did so Quien reached between the two policemen and took a swing at Millard, grazing him. Millard testified that he actually saw Quien throw a rock. (He knew him by both name and sight.) Neither General Counsel nor the Union chose to have Quien rebut the conduct and statements attributed to him by Millard and Baartman. Their testimony clearly shows that Quien engaged in conduct during the strike that resulted in personal injury and property damage along with threats to do bodily harm; this must be construed as serious strike misconduct and a bar to reinstatement. William Hood: Patrick Trussoni testified that he was employed by the Company as personnel director for a few months. On February 17 he was driving to work, but in the plant driveway a car being driven by Fred Perez was in front of him and, since there was a group of people formed in the driveway, the Perez vehicle was forced to stop, necessitating Trussoni to stop his vehicle. While he was stopped, Roger Reynolds then told him to open his truck and, upon his refusal to do so, people gathered and started shouting obscenities. About this time William Hood jerked his car door open, grabbed Trussoni's hair, and shouted, "You can't run over us, you son of a bitch." After trying to move his car, striker Pat Schaeffer began kicking Trussoni's car, Reynolds struck him in the face with an object that 30 Reynolds was also involved in senous strike misconduct involving Patnck Trussoni. as will be detailed later on. 715 DECISIONS OF NATIONAL LABOR RELATIONS BOARD looked like a billy club, and Hood then struck Trussoni in the face with his fist.31 In my view, there is no question that Hood engaged in overt acts of physical violence of a serious nature, which conduct is a bar to his reinstatement. Darrell DeJong, Ray Schaeffer, and Ralph Scholten: Adam Broughton testified that he was employed by the Company for the previous 8 years and was kill floor foreman. He stated that on February 17 he took Foremen Steve Matney and Fred Perez home from work in his pickup, and as he did so he observed pickets outside the plant gate as they were leaving work. As Broughton drove his pickup in front of Perez' mailbox, he observed one car pulling up in front and another car pulling up to the rear of his pickup. Two or three men got out of the car in front and three or four men got out of the car in the rear, and approached his truck. Broughton then got out of the truck and saw DeJong, whom he personally knew, grab Perez and pull him out of the truck. By this time, Dick Wagner, an employee of Morrell Packing Company, hit Broughton on the side of the head, knocking his glasses off. He was then thrown on the hood of the car and elsewhere, but observed Foreman Perez on the ground being held down by Ralph Scholten and with Ray Schaeffer standing over him with an object in his hand that looked like a piece of pipe or a broom handle. As a result of this incident Broughton was taken to the hospital. Respondent Foreman Perez testified that, on the date in question, DeJong pulled him out of the pickup, hit him a few times, and then threw him to the ground; and that Schaeffer hit him across the nose with a yellow metal pipe object. Schaeffer and DeJong also told Perez that if he kept bringing "scabs in" they were going "to kill" him. He further testified that he knew Schaeffer and DeJong personally and gave a statement to the police in reference to this incident. Although Perez did not know Scholten's name, he was subsequently told his name by Adam Broughton, and Scholten was one of those who was kicking at Perez. As a result of the beating, Perez spent 3 days in the hospital with a broken nose, concussion, cuts over his eye, separated ribs, bruises, and abrasions. Foreman Steve Matney worked at the plant through March as a kill floor foreman, and substantiated the above incident. Matney testified that he was also pulled out of the truck, hit in the head, kicked by DeJong, and then thrown against the mailboxes. He positively identified DeJong and stated that he could smell alcohol on his breath during the incident. As a result of the incident, Matney's glasses were broken and he was sent to the hospital with a concussion and bruised ribs. Neither General Counsel nor the Union chose to call any witnesses to refute the allegations against DeJong, Schaef- fer, and Scholten. From the uncontested testimony, these three individuals engaged in actions that must be construed as serious strike misconduct, to say the least, and therefore, will not be given any reinstatements. 31 Hood admitted being present when the Trussoni incident occurred, but claims he never approached Trussoni's car, did not see anyone approach THE REMEDY Having found, as set forth above, that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below designed to effectuate the policies of the Act. I have found that the strike was an unfair labor practice strike, and I will therefore recommend that Respondent offer the unfair labor practice strikers, named in Appendix A, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging, if necessary, any replacements in order to provide work for such strikers. I also recommend that Respondent make them whole for any loss of pay that they may have suffered by reason of Respondent's discrimination against them, by paying to each of these employees a sum of money equal to the amount that he normally would have earned as wages from January 12, 1976, to the date of Respondent's valid offer of reinstatement, less his net earnings during said period. The amount of backpay due shall be computed according to the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289 (1950). Payroll and other records in possession of Respondent are to be made available to the Board, or its agents, to assist in such computation and in determining the right to reinstatement. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). All of the above shall likewise apply to Kathy Shatto, except that her backpay date is April 7, 1976. By withholding the cost-of-living increase from the first pay period after January 1, 1975, Respondent has deprived unit employees of such wages, and in order to make them whole Respondent shall make payment to all bargaining unit employees cost-of-living increases which would have been payable any time beginning January 1, 1975, includ- ing the payment of backpay and interest for such unpaid increases, and shall maintain and continue such increases in effect until such time as a new agreement is negotiated with the Union, or until the parties have bargaining in good faith to an impasse. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By denying reinstatement to strikers upon their unconditional application, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 4. By unlawfully discharging Kathy Shatto, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. Trussoni's car, and did not pull his hair or hit him. He admits, however, that charges were filed against him by Trussoni because of the incident. 716 MEILMAN FOOD INDUSTRIES, INC. 5. The unit, as previously set forth herein, is an appropriate one for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times material herein the Union has been and continues to be the exclusive representative of all the employees within said appropriate unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, within the meaning of Section 9(b) of the Act. 7. By refusing to bargain collectively with the Union as the exclusive representative of its employees in an appro- priate unit - refusing to pay the cost-of-living increase, unilaterally eliminating and combining jobs, and changing procedure in handling grievances - the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 8. The strike, starting on February 13, 1975, was an unfair labor practice strike. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 717