Laredo Packing Co.

LAREDO PACKING COMPANY Laredo Packing Company and United Food and Commercial Workers International Union, AFL-CIO, Local No. 171. Cases 23-CA-7063, 23-CA-7418, and 23-CA-7214 January 12, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 28, 1980, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions and a supporting brief, the Charging Party filed exceptions and a supporting brief, and Respondent filed cross-exceptions and brief in support thereof and in response to the other parties' exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,l and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Laredo Pack- ing Company, Laredo, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. In his discussion of "The Events Between the October 5 and Novem- ber 20 Meetings," the Administrative Law Judge inadvertently refers to Salinas when he intended Rendon, and vice versa. These errors are hereby corrected. 2 For the reasons fully explicated in his dissenting opinion in Roadway Express. Incorporated, 246 NLRB 174 (1979), Member Penello would defer to the settlement reached by the parties concerning the grievance of employee Moncivais DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: This proceeding in which I conducted a hearing on April 15 and 16, 1980, is based upon unfair labor practice charges filed by United Food and Commercial Workers International Union, AFL-CIO, Local No. 171,1 herein I The name of the Charging Party, formerly Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, Local No, 171, is amended to reflect the change resulting from the merging of 254 NLRB No. I called the Union, on May 12, 1978, in Case 23-CA-7063; on August 23, 1978, in Case 23-CA-7214; and on Febru- ary 27, 1979, in Case 23-CA-7418. The Regional Direc- tor for Region 23 of the National Labor Relations Board, herein called the Board, on behalf of the Board's General Counsel issued separate complaints in these cases on August 11, 1978, and September 4, 1978, and May 11, 1979, respectively. The complaint in Case 23-CA-7063 was amended at the outset of the hearing. The com- plaints were consolidated for hearing pursuant to an order issued by the Regional Director. The complaints, as amended, alleged that Laredo Packing Company, herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, herein called the Act. Respondent filed answers to the complaints den- ying the commission of the alleged unfair labor practices. The questions presented by the pleadings are as fol- lows: 2 Whether in violation of Section 8(a)(1) of the Act Respondent threatened an employee with possible dis- charge for filing a grievance and suggested to another employee that the employees represented by the Union form an employees' committee to represent the employ- ees, instead of the Union, and remove the Union's secre- tary-treasurer and promised said employee improved terms of employment if the employee acted upon these suggestions; whether in violation of Section 8(a)(l) and (3) of the Act Respondent reprimanded Union Steward Moncivais and suspended Union Steward Gutierrez for engaging in union activity; whether in violation of Sec- tion 8(a)(5) and (1) of the Act Respondent suspended its slaughtering and related operations without affording the Union an opportunity to bargain about this decision and its effect upon employees; whether in violation of Sec- tion 8(a)(1) and (5) of the Act Respondent conditioned the execution of a collective-bargaining agreement on the Union's agreeing to certain nonmandatory bargaining subjects and refused to execute an agreed-upon collec- tive-bargaining agreement because the Union refused to accept said nonmandatory subjects as part of the agree- ment. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the post-hearing briefs, I make the following: FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates a slaughterhouse in Laredo, Texas. In November 1976 the Union commenced a cam- paign to organize Respondent's employees. On January 21, 1977, the Board certified the Union as the collective- bargaining representative of Respondent's production, maintenance, and truckdriving employees. Respondent Retail Clerks International Union and Amalgamated Meat Cutters and Butcher Workmen of North America on June 7, 1979. 2 Respondent admits it meets the Board's applicable discretionary juris- dictional standard and is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. Also, Respondent admits that the Union is a labor organization within the meaning of Sec. 2(5) of the Act 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Union thereafter engaged in contract negotia- tions which resulted in the execution of a collective-bar- gaining agreement on September 9, 1977, which was ef- fective from September 11, 1977, to September 10, 1978. The negotiations for a new agreement commenced in August 1978 and have thus far not resulted in an agree- ment. In Laredo Packing Company, 241 NLRB 184 (1979), the Board held that during and subsequent to the Union's organizational campaign Respondent in 1976 and 1977 violated Section 8(a)(1), (3), (4), and (5) of the Act as fol- lows: discriminatorily discharged 15 employees and re- duced the hours of another; unilaterally granted wage in- creases during negotiations although no impasse had been reached; on numerous occasions interrogated and threatened employees regarding their and others' union activity; threatened to close the plant if employees sup- ported the Union; prohibited employees from wearing union insignia; and created the impression of surveillance of the employees' union activities. B. Personnel Director Mendiola Allegedly Threatens Employee Castillo With Discharge for Filing a Grievance (Case 23-CA-7063) 1. The evidence On January 11, 1978,3 Supervisor Ramon Pena re- moved employee Mario Castillo from his position on the production line and replaced him with another employee, explaining to Castillo that his work was not satisfactory. Castillo was reinstated to his former job in I or 2 days. During the interim he was not reclassified and did not suffer a reduction in his pay. On January 13 Castillo filed a written grievance against Respondent over this matter pursuant to the con- tfactual grievance procedure. The grievance was written in English and signed by Castillo and Union Steward Homero Moncivais. It alleged that Castillo on January I "was unjustly removed from his job position and dis- criminated against" and asked that Respondent cease dis- criminating against him and reinstate him to his former job classification. On January 17 Respondent's personnel director, Fernando Mendiola, replied in writing to this grievance as follows: By recognizing that an employee is doing an unsa- tisfactory and inefficient workmanship is in no way discriminating against such an employee. Castillo has at no time been reclassified. The grievance was not resolved and was still pending when the events described below occurred. On April 15 Castillo visited Mendiola in his office and spoke to him about a personal problem. During his con- versation Mendiola brought up the subject of Castillo's grievance. Mendiola told Castillo he had some questions about the grievance which Castillo had filed against the Company. Castillo answered, "What grievance?" Men- diola stated that he understood Castillo had signed a grievance alleging that the Company had removed him from his position. Castillo stated he did not recall signing 3 Unless otherwise specified all dates herein refer to 1978. such a grievance. Mendiola showed him a copy of the grievance which bore Castillo's signature. This refreshed Castillo's memory. He informed Mendiola that a union representative had approached and asked him to sign the grievance, but that Castillo was unable to read English. Mendiola read the grievance to Castillo and told him that the grievance was without merit because Respon- dent had never reclassified him and he had continued to work at the same job without any loss of pay. This much of the meeting is undisputed. What took place from his point on, however, is in dispute. Mendiola testified that, after having explained to Cas- tillo that his grievance was without merit, he stated that Castillo had not known what he was signing and as a result had signed a false statement and asked Castillo, "Do you understand what might be the consequences by signing this [grievance]. You better go back to the Union representative . . . and you better talk to him about this" and testified he ended the conversation by advising Cas- tillo, "Before you sign anything, you better know what you are signing." On the other hand, Castillo testified that "Mendiola told me that I should remove the griev- ance, as they had done nothing to me, as far as I had stayed with the same job, the same classification and I had not lost anything" and further testified that Men- diola directed him "to go and tell them, the Union, that they are wrong, because you are going to have problems with the Company," so, "you better go and talk to them or you might lose your job" and ended the conversation by instructing Castillo to come back and tell him what the union representative said. Since Castillo impressed me as the more credible witness,4 I have credited his version of the disputed portion of the conversation. 2. Conclusions It is settled that "the filing and prosecution of employ- ee grievances is a fundamental, day-to-day part of collec- tive bargaining and is protected by Section 7." Crown Central Petroleum Corporation v. N.L.R.B., 430 F.2d 724, 729 (5th Cir. 1970). Hence, an employer violates Section 8(a)(1) by interfering with, restraining, or coercing an employee to discourage the prosecution of a grievance. John Klann Moving and Trucking Company v. N.L.R.B., 411 F.2d 261, 263 (6th Cir. 1969); N.L.R.B. v. East Texas Pulp & Paper Company, 346 F.2d 686, 687 (5th Cir. 1965). The existence of a violation is not dependent upon an ap- praisal of the grievance's merit. N.L.R.B. v. Halsey Taylor Co., 343 F.2d 406, 408 (6th Cir. 1965). On April 15, as described in detail supra, Personnel Di- rector Mendiola explained to employee Castillo why the grievance he had filed against the Company lacked merit and threatened him with discharge or other employment "problems" if he did not go to the Union and withdraw the grievance. This conduct, in my opinion, had the fore- seeable effect of discouraging Castillo from prosecuting his grievance and of coercing Castillo and other employ- ees from exercising their Section 7 right to file griev- ances with the Union against Respondent under the con- 4 I reached this conclusion based upon my observation of the witness' demeanor. 2 LAREDO PACKING COMPANY tractual grievance-arbitration procedure. I therefore find that Respondent violated Section 8(a)(l) of the Act by threatening Castillo with discharge or other reprisals if he did not withdraw his grievance. 5 C. Personnel Director Mendiola Allegedly Suggests to Chief Steward Gutierrez That the Union and the Union's Secretary-Treasurer Be Replaced by an Employees' Committee and Promises Gutierrez Improved Terms and Conditions of Employment if He Acted Favorably Upon This Suggestion (Case 23-CA- 7063) 1. The evidence Encarnacion Gutierrez is employed by Respondent and is the Union's chief steward. Erbey Rendon, the Union's secretary-treasurer, is its principal official. Fer- nando Mendiola is Respondent's personnel director. During the time material herein there were a significant number of grievances filed by employees under the con- tractual grievance procedure which remained unre- solved. Rendon, for the Union, and Mendiola, for Re- spondent, were responsible for ultimately resolving grievances short of arbitration. On May 22, 1978,6 Gutierrez visited Mendiola's office for the purpose of discussing the reinstatement of an em- ployee. After the discussion of this matter, Mendiola asked whether Gutierrez knew about his "personal prob- lems" with Rendon. He advised Gutierrez that he was having personal problems with Rendon and that Rendon was placing a lot of pressure on him in connection with grievances. Mendiola stated he did not want to talk to Rendon anymore, but instead would talk to the Union's president, Vera, or to Union Business Agent Esquivel. Mendiola also stated that, if Gutierrez formed his own committee, Mendiola would deal with the committee and Gutierrez directly instead of dealing with the Union. Gu- tierrez replied that he had been under the impression that Mendiola and Rendon had gotten along all right and told Mendiola that the employees were satisfied with Ren- don's representation and did not need another union or another business representative to represent them. Men- diola explained that in his previous employment he had dealt with the Teamsters Union and never had as many problems with that union as he was having with the Union. Gutierrez remarked that Mendiola was not the only one with problems inasmuch as he, Gutierrez, was having problems with Mendiola's supervisors who, Gu- tierrez alleged, were constantly threatening rank-and-file employees and accused Mendiola of threatening an em- 5 As described in detail supra, Mendiola testified that, when he told Castillo that his grievance lacked merit, he asked him to go back to his union representative and talk to him about the grievance and asked Cas- tillo if he realized what "the consequences" were for filing a nonmeritor- ious grievance. I have rejected this testimony for reasons already noted. In any event. I am of the opinion that Mendiola's reference to "the con- sequences" which Castillo might suffer for filing a nonmeritorious griev- ance, when considered in the context in which it was expressed, was rea- sonably calculated to restrain and coerce Castillo into asking the Union to cease prosecuting the grievance and to discourage Castillo and other employees from filing grievances. I therefore find that even if Mendiola's version is credited it would constitute a violation of Sec. 8(a)(1) of the Act. 6 Unless otherwise specified all dates herein refer to 1978. ployee. Mendiola repeated that, if the employees would form their own committee, Mendiola would deal directly with Gutierrez. During this conversation Gutierrez com- plained he had worked from 50 to 60 hours a week while assigned to the shop, but since he had been transferred to the kill floor he had only worked between 20 and 30 hours a week. Mendiola acknowledged he knew that in the past Gutierrez was assigned more working hours and promised "if Gutierrez would help him out with his problems [that] he [Mendiola] would see what he could do to have [Gutierrez] back in the shop again," thereby enabling Gutierrez to work more hours. Gutierrez stated he would consider Mendiola's offer and asked him to ar- range for a meeting between the employees and Roberto Salinas, the president of Respondent. Later that day, after working hours, the employees met with President Salinas. Gutierrez told him that Men- diola had asked that the employees change their bargain- ing representative, but that the employees were satisfied with Rendon's representation and did not desire to have another union represent them. Mendiola, who was pre- sent, denied making this statement. The aforesaid description of what took place on May 22 is based upon Gutierrez' testimony which conflicts with Mendiola's. Mendiola testified he had no recollec- tion of the purpose of the May 22 meeting between him- self and Gutierrez, but testified they started talking about "the problems, the difficulties [Mendiola] was having and the relations with Rendon and [Mendiola]," and testified that he told Gutierrez he was having a lot of problems dealing with Rendon.7 Mendiola further testified he ad- vised Guiterrez that "he would be glad to deal with any- body else aside from Rendon, whether it was Vera [the Union's president] or [Union Representative Esquivel]," or that perhaps grievances could be resolved directly be- tween Chief Steward Gutierrez and Mendiola and the ones they could not resolve would then be submitted to a union business agent. Gutierrez indicated he favored this method of resolving grievances, whereupon, Men- diola told him to ask the Union to give him authority to institute such a system and that he, Mendiola, would speak to Salinas to determine if Salinas was amenable to such a procedure for resolving grievances. Mendiola spe- cifically denied suggesting that the employees replace either the Union or Rendon with an employees' commit- tee or with Gutierrez or that he offer to increase Gutier- rez' hours of work if he voted favorably upon such sug- gestions. Finally, with regard to the meeting between Sa- linas and the employees, which Mendiola testified took place on May 23, rather than May 22, Mendiola testified that he said nothing at the meeting, but conceded that Gutierrez informed Salinas that the employees were happy with the Union and Rendon as their representa- tives. I Mendiola admitted that at the time he "no longer wanted to work with Rendon on grievances because of the personal problems they were having." When asked to describe these "personal problems." Mendiola testified that one of the union stewards took it upon himself to settle one of the grievances with a supervisor and that Rendon was not happy about this and had spoken to Mendiola about the matter. 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions As described in detail supra, the testimony of Mendiola and Gutierrez concerning their May 22 conversation conflicts in significant respects. Although they agree that Mendiola indicated he no longer desired to deal with Rendon, as the employees' bargaining agent, they dis- agree about what, if anything, Mendiola proposed as a substitute for Rendon. Since Gutierrez impressed me as the more credible witness,8 I have credited his version of those portions of the conversation which are in dispute. I therefore conclude, based upon Gutierrez' testimony, that Mendiola suggested to Gutierrez that the employees replace the Union and Rendon with an employees' com- mittee headed by Gutierrez and that for the purpose of persuading Gutierrez to act favorably upon this sugges- tion promised him more hours of work. Since the em- ployees have a statutory right to select as their collec- tive-bargaining agent whomever they wish, Mendiola's conduct violated Section 8(a)(1) of the Act because it was reasonably calculated to coerce Gutierrez and the Company's other employees in their choice of bargaining representative, particularly since it was accompanied by a promise of benefits. D. Personnel Director Mendiola Allegedly Reprimands Union Steward Moncivais Because of His Union Activity (Case 23-CA-7063) 1. The evidence Homero Moncivais is employed by Respondent and is a union steward. On January 11, 1978,9 the supervisor of Moncivais' department, Ramon Pena, transferred em- ployee Mario Castillo from one job to another because Pena thought he was working too slow. When informed of his transfer Castillo protested and argued with Pena. Moncivais observed them arguing. He went to where they were standing. According to Moncivais' undenied and credible testimony, Pena informed him that Castillo was not doing his job, whereupon, Moncivais said noth- ing to Pena but, "just told Castillo to stop [arguing] and do his work." This was the extent of what took place. Later that day, Supervisors Pena and Veliz met with Moncivais and asked why he had interfered in the con- versation between Foreman Pena and employee Castillo. Moncivais explained that he had simply told Castillo to stop arguing with Pena and to do his work. Thereafter Personnel Director Mendiola informed Moncivais that he was receiving verbal reprimand for his conduct on January 11, explaining to Moncivais that he was not supposed to talk when a supervisor was trying to correct an employee's work but should follow the contractual grievance procedure. Although the repri- mand was a verbal one it was placed in Moncivais' per- sonnel file' 0 and under the Company's progressive system of discipline could eventually adversely effect his employment status. s I reached this conclusion based upon my observation of the wit- nesses' demeanor. 9 Unless otherwise specified all dates herein refer to 1978. 'O On January II Foreman Pena filled out a form which he placed in Moncivais' personnel file which stated that Moncivais had violated the Company's rules by "interfering with other employees." On January 13 the Union filed a written grievance, under the contractual grievance procedure, protesting Moncivais' reprimand and asking that it be expunged from his personnel file. On January 17, by letter, Men- diola responded: Moncivais has no authority to countermand or modify or interfer [sic] with the issuance of orders by a foreman. On or about January 9, 1978 Mr. Moncivais proceeded to interfer and modify the verbal orders of a company foreman to an employ- ee. For this reason we have no choice but to let the reprimand stand. On March 8, Rendon, the Union's secretary-treasurer, wrote Mendiola as follows: I have talked to Homero Moncivais as I agreed I would do so. He understands the contract relative to confering with the supervisor as provided in step #1 of the grievance procedure. Accordingly, I would still request that the Compa- ny expunge from Moncivais' file the reprimand issued on January 11, 1978. You indicated should the Union talk to Moncivais with regard to the pro- cedure that you would consider removing said rep- rimand from his file. Please advise. On April 4 Mendiola replied as follows: In the interest of showing our good faith and will- ingness to maintain good relations with the Union; the Company will expunge from Moncivais file the reprimand issued on January 11, 1978. This is in re- sponse to the agreement that you would talk to Moncivais and that he understands the contract rel- ative to confering with the supervisor as provided in step #1 of the grievance procedure. 2. Conclusions As described in detail supra, Mendiola reprimanded Union Steward Moncivais because he believed that in performing his duties as a union steward he had exceed- ed his authority. The record however does not establish that in fact Moncivais exceeded his authority as a union steward or otherwise acted improperly. Moncivais did not, as Personnel Director Mendiola thought, "proceed to interfere and modify the verbal orders of a company foreman to an employee." Rather Moncivais in an at- tempt to assist Foreman Pena in his dispute with employ- ee Castillo instructed Castillo to stop arguing with Pena and start working on his new assignment. This conduct was not precluded by the first step of the contractual grievance procedure, as suggested by Mendiola's corre- spondence with Rendon," nor does it violate the Com- " Step one of the contractual grievance procedure reads as follows: The aggrieved employee shall first attempt to settle his grievance with his supervisor by presenting his grievance to his supervisor ver- bally, with or without the steward, within 3 working days of the ag- grieved employee after its occurance [sic]. The supervisor will give Continued 4 LAREDO PACKING COMPANY pany's rule which prohibits "on or off duty interfering with the employees on the job," as suggested by the verbal reprimand placed in Moncivais' file by Foreman Pena, inasmuch as Moncivais did not interfere with Cas- tillo's work but, in his capacity as union steward, at- tempted to assist Foreman Pena by telling Castillo to accept his reassignment and grieve later. Nor is there evidence that Moncivais acted in such a way as to inter- rupt, slow down, or alter the normal operations of the Company in any way. Based upon the foregoing I find that Respondent repri- manded employee Moncivais because of an erroneous belief that, while engaging in protected concerted activi- ties associated with his position of union steward, he had interfered with and modified the verbal order of Fore- man Pena given to employee Castillo. I therefore find that this reprimand violated Section 8(a)(1) of the Act. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 22-24 (1964).12 I reject Respondent's contention that this is a proper case to defer under Spielberg Manufacturing Company, 112 NLRB 1080 (1955), to the grievance settlement of the parties concerning Moncivais' reprimand. For, al- though the contract provides for a grievance procedure culminating in binding arbitration, the parties, as de- scribed in detail supra, settled the grievance at an earlier stage of the procedure. In these circumstances, I con- clude that there is no showing that the Spielberg require- ments have been met. T & T Industries, Inc., 235 NLRB 517, fn. 2 (1978). E. Personnel Director Mendiola Allegedly Suspends Union Steward Gutierrez Because of His Union Activity (Case 23-CA- 70643) 1. The evidence The Union's chief steward, employee Encarnacion Gu- tierrez, was suspended for 5 days effective May 29, 1978,'3 under the following circumstances. On Thursday, May 25 Gutierrez immediately prior to his work shift was waiting to "punch" the timeclock out- side of the supervisor's office where the timeclock was located and was "kidding around" with employee Lopez who was working inside the supervisor's office or right outside the office. Gutierrez, joking with Lopez, reached into the office through the open window and picked up a white hardhat laying on the office desk, which he thought belonged to Lopez, and dropped it into the trash can. Plant Superintendent Asayel Gonzalez walked into the office and asked Gutierrez why he had thrown his (Gonzalez') hat into the trash can. Gutierrez stated that he was joking with Lopez and did not know it was Gon- zalez' hat. Gutierrez removed the hat from the trash can, wiped it off, and placed it back on the desk. This ended the conversation. The hardhat was white, which is the color of the hardhats worn by the employees whereas his answer within 3 working days after the grievance is presented to him. 12 In view of this conclusion and since the remedy is the same, it is unnecessary to decide whether or not Respondent also violated Sec. 8(a)3) as alleged in the complaint. 13 Unless otherwise specified all dates herein refer to 1978. supervisors, including Gonzalez, wear blue hats with their names stenciled on them. 14 The next day, May 26, Personnel Director Mendiola called Gutierrez into his office and stated he was con- ducting an investigation about Gutierrez having thrown the hardhat into the wastebasket the previous day and asked Gutierrez to explain his conduct. Gutierrez stated he had been playing a prank on the employee who was working in the office and, because the hardhat which was on the desk in the office was white, thought it was the employee's rather than a supervisor's hat. Gutierrez also told Mendiola that he had apologized to Gonzalez for the mistake. Mendiola stated that it was his under- standing that the hat which Gutierrez had thrown in the wastebasket was blue, not white, and informed Gutierrez that he intended to conduct a further investigation. He instructed Gutierrez to report to his office Monday. 5 On Monday, May 28, Gutierrez reported to Mendio- la's office at which time Mendiola told him that Gonza- lez was mad because of the hardhat incident and that Mendiola would have to suspend him for 5 days without pay, and that the suspension would begin the next day. Gutierrez was in fact suspended for 5 days without pay. On a date not disclosed in the record Mendiola gave Gutierrez a written notification of his suspension, dated May 29, signed by both Gonzalez and Mendiola. It states that Gutierrez had engaged in "disorderly conduct" by "throwing superintendent Gonzalez' hard hat into a waste basket" and was suspended for 5 days without pay because this conduct "constituted disorderly conduct in violation of plant and safety regulations." Mendiola testified that it was his decision to suspend Gutierrez and that he suspended him for throwing Su- perintendent Gonzalez' hardhat into the trash can which was "discourtesy to a supervisor." Mendiola also testified that this is the kind of misconduct which violated the Company's rule 35 prohibiting, among other things, "dis- orderly conduct" and which mandates a 5-day suspen- sion for a first offense. 2. Conclusions As described supra, the record establishes that employ- ee Gutierrez threw the hardhat which Superintendent Gonzalez had apparently been wearing into a trash can and was suspended for 5 days, ostensibly for engaging in this conduct, pursuant to the Company's work rule which punishes "disorderly conduct" with a 5-day sus- pension. There is no evidence that in punishing Gutierrez for what he did Mendiola treated him disparately. If this "4 The description of what took place May 25, including the color of the hardhat, is based upon Gutierrez' testimony. I realize that Superinten- dent Gonzalez, like Respondent's other supervisors, normally wore a blue hardhat with his name stenciled on the hat. However, Gutierrez, who in general impressed me as an exceptionally convincing and reliable witness, gave this particular testimony in a straightforward and sincere manner and was not cross-examined concerning the events of May 25. In addi- tion, his testimony was not denied by Gonzalez who did not testify. Re- spondent's unexplained failure to call Gonzalez to refute Gutierrez' testi- mony persuades me that his testimony would have corroborated Gutier- rez . 15 Mendiola's and Gutierrez' testimony of their May 25 conversation does not conflict in significant respects; accordingly, the description set forth in the text is based upon a composite of their testimony. 5 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is all there was to this matter, in agreement with Respon- dent, I would conclude that the General Counsel failed to establish by a preponderance of the evidence that the real reason for Gutierrez' suspension was his union activ- ity. But, I am of the opinion that the whole record dem- onstrates that Respondent seized upon the hardhat inci- dent as a pretext for suspending Gutierrez for his union activity. I am motiviated by the following considerations, taken in their entirety, in reaching this conclusion: (I) Respondent knew that Gutierrez was one of the leading union adherents among its employees inasmuch as he was the Union's chief steward. (2) Respondent's hostility toward the Union is abun- dantly demonstrated by its numerous unfair labor prac- tices committed in the not too distant past. Laredo Pack- ing Company. supra. (3) As described supra, in section C, Personnel Direc- tor Mendiola, the person who decided to suspend Gutier- rez, was hostile toward the Union and its principal offi- cial, Secretary-Treasurer Rendon, and in an effort to re- place the Union and Rendon, promised Gutierrez im- proved benefits of employment if he would form an em- ployees' committee to take their place. It was within I week of Gutierrez' refusal to form an employees' com- mittee to replace the Union and Rendon, as requested by Mendiola, that Mendiola decided to suspend Gutierrez. (4) The reason advanced to justify Gutierrez' suspen- sion-the fact that he threw the hardhat which Superin- tendent Gonzalez had apparently been wearing into a trash can thereby exhibiting discourtesy toward a super- visor-does not withstand scrutiny. Gutierrez, while joking with another employee, threw the hardhat Gonza- lez had been wearing into the trash can under the mistak- en belief that the hat belonged to the employee he had been joking with. Since the hat was an employee's hat (white), rather than a supervisor's hat (blue), and since the employee with whom Gutierrez was joking was working either inside the supervisor's office or immedi- ately adjacent thereto, Gutierrez' explanation to Gonza- lez was a reasonable one.' 6 And there is no evidence to explain why Gonzalez would have rejected this explana- tion. I realize that Personnel Director Mendiola, the person who decided to punish Gutierrez, testified in effect that based upon what Gonzalez told him about the incident he (Mendiola) was under the impression that the hardhat involved was a blue one with Gonzalez' name on it and that Gutierrez had thrown the hat into the trash can knowing it was Gonzalez'. But, Gonzalez was not called by Respondent to corroborate Mendiola's tes- timony nor did Respondent explain its failure to call him as a witness. Respondent's unexplained failure to call Gonzalez, the fact that the description of the events in- volving the hardhat which Mendiola advanced at the hearing is not a true description, and the fact that Men- diola in general did not impress me as being a trustwor- 16 I note that while a first violation of rule 35 calls for a 5-day suspen- sion that the preamble to Respondent's work rules states that "where there are circumstances indicating that the action shown below [referring to the penalties imposed for violating a rule] should not be taken, the Company will take such circumstances into consideration." thy witness, 7 have led me to reject in its entirety Men- diola's testimony about what Gonzalez supposedly told him about the hardhat incident. Based upon the foregoing I find that Superintendent Gonzalez knew Gutierrez did not intend to act discourte- ously toward him, but had thrown the hardhat into the trash can while joking with another employee and that the impression that the hat belonged to that employee and that Personnel Director Mendiola seized upon this incident as an excuse to punish Gutierrez because he was one of the leading union adherents in the plant and be- cause Gutierrez had just recently refused Mendiola's re- quest to form an employees' committee to replace the Union and its secretary-treasurer as the employees' col- lective-bargaining agent. It is for these reasons that I fur- ther find that in suspending Gutierrez for 5 days without pay Respondent was motivated by its union animus. I therefore conclude that by suspending Gutierrez Respon- dent violated Section 8(a)(1) and (3) as alleged. F. Respondent Suspends Its Slaughtering Operation and Lays Off Employees Without Affording the Union an Opportunity To Bargain (Case 23-CA-7214) 1. The evidence Respondent entered into a collective-bargaining agree- ment with the Union covering its production, mainte- nance, and truckdriver employees, effective from Sep- tember 11, 1977, to September 10, 1978. The "Manage- ment Rights" clause of the agreement, article II, reads as follows: Section 1. It is understood that the Company re- serves all the rights, privileges, powers, preroga- tives and authority which it had or possessed prior to having entered into contractual relations with the Union, excepting only those expressly and specifi- cally abridged or modified by this Agreement. Section 2. It is recognized and agreed between the parties hereto that the management of the plant, its operations and the direction of the working force shall be vested exclusively in the Company. It is further recognized that management has the prerog- ative and responsibility of the Company, including the right to direct all personnel, to select, hire, dis- charge, promote, transfer, discipline, schedule and assign work to be performed, transfer or lay off em- ployees because of lack of work or other legitimate reasons, and otherwise manage the operation of the plant and the business, all of which are the exclu- sive prerogative of the Company. Section 3. The Company shall have the exclusive right to establish new jobs and new operations; to abolish or change existing jobs and existing oper- ations; to increase or decrease the number of jobs and operations; to determine the times and extent to which the plant will operate; to determine the work schedule of each employee; to determine the size and composition of the working force; to determine 7 This latter conclusion concerning Mendiola's credibility as a witness is based upon my observation of his demeanor. 6 LAREDO PACKING COMPANY the materials, processes, products, equipment and methods of operation; and to establish the standards for the quality and quantity of work required to be performed in all jobs. Section 4. It is expressly agreed and understood that the Company shall have the right and discre- tion, and the Company hereby reserves such right and discretion, to sell or otherwise dispose of any of its operations, assets or properties by sale, merger, or otherwise, and to terminate, discontinue or trans- fer operations due to any economic factors which, in the Company's judgment, justify or warrant such action, whether or not jobs of employees covered hereby are in any way affected, and without incur- ring any liability of the Union or to the employees except to the extent that the Company agrees that it will discuss with Local Union representatives its in- tended actions that it may take in exercising its dis- cretion to alter its operations as noted previously in this Section of this Article. Section 5. The Company agrees that it will not engage in subcontracting for the sole and only pur- pose of reducing the number of employees in the bargaining unit, it being understood that such pur- pose shall not be ascribed to the Company if it acts to effect a saving, to increase efficiency or for any other business or economic reason. However, in such event, there shall be no reduction in unit per- sonnel without first conferring with the Union. Nothing in this Agreement shall be construed to in any way prohibit or interfere with the Company's purchase of materials, supplies or merchandise of any kind. Section 6. The employees and the Union (to the extent applicable to the Union) shall comply with Company rules and regulations now in force. The Company shall have the right to reasonably modify, amend or add to such rules and regulations from time to time, provided that the Union is first con- ferred with prior to the effectuation of said rules and regulations. Furthermore, the Local Union shall be provided with copies of said rules and regula- tions. Section 7. It is expressly understood that this Ar- ticle is not intended to include an exclusive enu- meration of Company prerogatives, those listed being by way of illustration and not intended by way of limitation. Section 8. The Company shall not use any of the rights specified in this Article for the purpose of in- justly and unreasonably discriminating against any employees or to avoid any provisions of this Agree- ment. If the Union believes that any action taken by the Company pursuant to this Article violates the rights of the Union or any employees under this Agreement, it shall have the right to grieve thereon. Article XXVII of the agreement, entitled "Notice of Closing," provides that "the Company agrees to notify the employees concerned at the earliest possible moment that it decides to close the plant." The Union's initial contract proposal concerning this article provided for Respondent to give the Union written notice at least 6 months prior to the closing of "the plant or department" or 6 months pay in lieu thereof, in the event of "a clos- ing of the plant or a department." The parties engaged in extensive bargaining before ar- riving at the aforesaid collective-bargaining agreement. They held approximately 20 bargaining sessions and ex- changed numerous proposals. Other than the aforesaid ultimate management rights and notice of closing clauses negotiated by the parties, the record contains only the initial contract proposals concerning these clauses. It does not contain any evidence about the subsequent pro- posals or about the discussions which took place in con- junction with the negotiations of these proposals. Respondent is in the business of slaughtering live cattle and processing the beef from the slaughtered cattle which it sells at wholesale to various business enterprises. On July 7, 1978,'8 Respondent decided to temporarily discontinue slaughtering cattle and processing beef. It laid off all of the production workers involved in the slaughtering and processing of beef. The reasons for Respondent's decision to suspend its slaughtering operation are as follows: In 1976 and 1977 Respondent lost large amounts of money in the operation of its business and as a result was having continuous dif- ficulties securing loans from the bank to purchase cattle. During the first week in July management learned that the Company lost over $50,000 the previous month. In addition management learned it was costing the Compa- ny between 15 and 17 cents a pound more to slaughter the beef it was selling, than its customers were paying for the beef. Under the circumstances management con- cluded it would be cheaper for the Company to purchase already processed beef carcasses to sell to its customers. Lastly, on Friday, July 7, Respondent, if it wanted to slaughter cattle for the next week, had to purchase 2,500 head of cattle costing $750,000. In order to avoid incur- ring further losses, management decided to temporarily discontinue the Company's slaughtering and processing operations and lay off the employees. Respondent did not intend to discontinue its slaughtering operation per- manently. The temporary nature of the shutdown was clearly stated to the employees in the notice which they received from management July 7 with their paychecks. The notice in pertinent part read as follows: Because of economic reasons, we have had to sus- pend work of the killing and other related depart- ments. We expect that these critical times will not be for very long and we will let you know when we start our work of the killing and other departments. The suspension of the employees effected has been made by the departments following the mandate of the [union contract] in seniority, et cetera. On July 7 Respondent notified the Union by mailgram of its action. The mailgram, received by the Union July 8, reads as follows: 1' Unless otherwise specified all dates herein refer to 1978. 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to Section 2 of Article III of the Contract and in compliance with Article V Section 1 and 7 thereof, we are hereby giving you notification pur- suant to Section XXVII that we are discontinuing a portion of the operations of the plant. Accordingly beginning July 8 employees in the kill floor, offal packing, rendering, boning, truck maintenance, night crew and plant maintenance depts will be laid off. As soon as practicably possible we will forward list of employees laid off. This was Respondent's first notification to the Union about the matters referred to in the mailgram. On July 14, pursuant to Section 301 of the Act, the Union filed a complaint against Respondent in the United States District Court for the Southern District of Texas (Civil Action No. L-78-43) which in substance asked the court to in adjoin Respondent from effectuating its deci- sion to discontinue its slaughtering operation and to compel Respondent to arbitrate a contractual grievance which the Union had filed concerning the shutdown of the slaughtering operation and the layoff of the employ- ees. Count one of the complaint alleged that Respondent unilaterally ceased or discontinued operations in viola- tion of section 4, article 3, of the governing contract. Count two alleged that Respondent had unilaterally en- gaged in subcontracting, to the detriment of the unit em- ployees, in violation of section 5, article 3, of the con- tract. On August 1 at the conclusion of the hearing con- cerning the Union's request for a temporary restraining order the court granted Respondent's motion to dismiss because, in the court's opinion, "the layoff was economi- cally motivated" and the "collective bargaining agree- ment does not prohibit layoff in this particular situation." Thereafter the Union failed to prosecute its request for a preliminary injunction and the other relief which it had sought, so, on November 25, 1979, the court, ruling on Respondent's motion to dismiss, issued an order dismiss- ing the Union's complaint with prejudice for lack of prosecution. In connection with its July 7 decision to temporarily discontinue slaughtering cattle and processing beef, Re- spondent on July 7 laid off all of the employees who slaughtered cattle and within a day or two laid off all those employees who processed the slaughtered cattle or worked in related departments, as soon as the work in process was completed. Of the approximately 200 em- ployees represented by the Union approximately 150 were laid off because of the suspension of Respondent's slaughtering and processing operations. Under the terms of the governing collective-bargaining agreement the laid-off workers, who were eligible to bump into other departments not affected by the shutdown, exercised their contractual bumping rights and representatives of Respondent and Union met to discuss the employees' bumping rights. 9 Despite the suspension of its slaughtering and process- ing operations Respondent continued to sell beef to its 19 Art. V, sec. 7(2), of the contract states that "an employee reduced from his department because of lack of work or reduction in force shall be given the right to exercise plant wide bumping. That is that the affect- ed employees will bump parallel or down within the plant." customers. It purchased entire carcasses of beef which were already butchered and processed from other slaughterhouses. Respondent's truckdrivers picked up these carcasses and stored them in Respondent's facility and then loaded them on Respondent's trucks for deliv- ery to Respondent's customers. Since Respondent intended the shutdown of its slaugh- tering operation to be only temporary, it did not sell or dismantle any of its production facility or the equipment in the facility, but continued to maintain the facility and equipment. In February 1979 Respondent resumed its slaughtering operation and at the time of the hearing in this case was slaughtering cattle 3 days each week and using the same employees to process the beef during the remaining 2 workdays. 2. Conclusions On July 7, as described in detail supra, Respondent, without notifying or consulting the Union, temporarily shut down its slaughtering operation for legitimate busi- ness reasons and laid off the employees employed in that operation. The complaint in Case 23-CA-7214 alleges in substance that Respondent was obligated to afford the Union an opportunity to bargain about the decision to shut down the slaughtering operation and the effect upon the employees, and further alleges that by failing to do this Respondent refused to bargain within the meaning of Section 8(a)(5) of the Act.2 0 Respondent contends prin- cipally that under the terms of its collective-bargaining agreement with the Union it had the right to temporarily discontinue its slaughtering operation and lay off the em- ployees without affording the Union an opportunity to bargain about these matters. In other words, Respondent argues that the Union, by virtue of the collective-bar- gaining agreement, waived its right to bargain. In evaluating Respondent's waiver defense I have taken into account the well-established principle that a waiver of a statutory right may not be lightly inferred but must be expressed in "clear and unmistakable lan- guage" (N L Industries, Inc. v. N.L.R.B., 536 F.2d 786, 789 (8th Cir. 1976)), and that "the Board will not find that contract terms of themselves confer on the employer a management right to take unilateral action on a manda- tory subject of bargaining unless the contract expressly or by necessary implication confers such a right." New York Mirror, Division of the Hearst Corporation, 151 NLRB 834, 839-840 (1965). Respondent takes the position that section 2 and 3 of the contractual management rights clause gave it the right to act unilaterally concerning the suspension of its slaughtering operations and the resultant layoff of the employees. I agree with Respondent for these reasons. Section 2 and 3 of the management rights clause which was in effect at the time Respondent made its decision to temporarily discontinue its slaughtering operation and took the basic steps to implement the decision gave to Respondent "the exclusive right to," among other things: "Abolish or change existing operations"; "decrease oper- 20 The complaint does not allege that the decision to shut down the slaughtering operation or the layoff was discriminatorily motivated or otherwise violated Sec. 8(a)(3) of the Act. 8 LAREDO PACKING COMPANY tions"; "determine the extent to which the plant will op- erate"; "determine the methods of operations"; and the "exclusive prerogative" to "layoff employees because of legitimate reasons." When taken together these terms ex- pressly, or at the very least by necessary implication, clearly and unequivocally confer upon Respondent the right to unilaterally discontinue its slaughtering operation temporarily and instead sell beef slaughtered by other slaughterhouses, and to unilaterally lay off the employees effected by this change in method of doing business. I therefore find that Respondent did not violate Section 8(a)(5) of the Act by refusing to bargain over the deci- sion to temporarily discontinue its slaughtering operation and the effect upon the employees since the duty to bar- gain about these matters, if any, had been effectively waived by specific language contained in Respondent's collective-bargaining agreement with the Union.2 ' In concluding that by virtue of section 2 and 3 of the contractual management rights clause that the Union ef- fectively waived its right to bargain about the matters in dispute herein, I have carefully considered and rejected the General Counsel's contention that sections 2 and 3, when read in the light of section 4 of that clause, require that Respondent afford the Union and opportunity to bargain about the disputed conduct herein. Section 4, in pertinent part, states that Respondent has the right and discretion to do the following: . . . to sell or otherwise dispose of any of its oper- ations, assets or properties by sale, merger, or other- wise, and to terminate, discontinue or transfer oper- ations due to any economic factors . whether or not jobs of employees covered hereby are in any way affected, and without incurring any liability to the Union or to the employees except to the extent that the Company agrees that it will discuss with Local Union representatives its intended actions that it may take in exercising its discretion to alter its operations as noted previously in this Section of this Article. I agree with Respondent that this section by its express terms, when read as a whole, contemplates a permanent cessation of operations rather than a temporary cessation as was involved in the instant case.22 In this regard I note that the word "discontinue," as used in section 4, normally refers to permanent cessation of something. For "The Random House Dictionary of the English Lan- guage" (unabridged edition, 1979) defines "discontinue" as follows: v.t. to cause to cease; put an end; stop: to discontin- ue nuclear testing. 2. to cease to take, use, etc.: to discontinue a newspaper. 3. Law. to terminate or abandon (a suit, claim or the like).-v.t. to come to an end or stop; cease; desist. 21 In view of this conclusion I have not considered Respondent's other defenses. 22 I recognize that Respondent in its July 7 mailgram to the Union used the term "discontinue." However, the whole record overwhelming- ly establishes that the discontinuance of the Company's slaughtering op- eration and resultant layoff of employees was from its inception only in- tended to be temporary. Lastly, I reject the General Counsel's contention that Respondent in the past in connection with its truck main- tenance department interpreted section 4 of the manage- ment rights clause inconsistently with its present inter- pretation. The record establishes, in this regard, that in April 1978 Respondent which had previously operated and maintained its own trucks commenced to lease its trucks from the ABC Leasing Company. This company did its own truck maintenance. Accordingly, Respondent discontinued its truck maintenance department and per- manently terminated all of the mechanics in that depart- ment except for one. Prior to doing this Respondent no- tified the Union in writing that it was considering "ter- minating the maintenance department" and bargained with the Union about this matter. Thus, in sharp contrast of the instant situation which involved the temporary closing of the slaughtering operation, the closing of the maintenance department was a permanent state of affairs. Based upon the foregoing, I find that on July 7, 1978, when Respondent temporarily discontinued its slaughter- ing operation and laid off the employees, without afford- ing the Union a opportunity to bargain about these mat- ters, Respondent did not refuse to bargain within the meaning of Section 8(a)(5) of the Act because Respon- dent acted strictly within the confines of the manage- ment rights clause in the governing collective-bargaining agreement. I therefore shall recommend that the com- plaint in Case 23-CA-7214 be dismissed in its entirety. G. Respondent Allegedly Conditions the Execution of a Contract Upon the Union's Agreeing to Certain Nonmandatory Bargaining Subjects and Refuses To Execute an Agreed- Upon Contract Because of the Union's Refusal To Accept Said Nonmandatory Bargaining Subjects as Part of the Contract (Case 23- CA- 7418) 1. The evidence Respondent and Union were parties to a collective- bargaining agreement effective from September 11, 1977, to September 10, 1978. The negotiations for a successor contract began in August 1978 and continued thereafter without success. Respondent, as described in detail supra, in July tem- porarily discontinued its slaughtering operation. On August 23, 1978, the Union filed its unfair labor practice charge in Case 23-CA-7214 which in substance alleges that Respondent violated the Act by discontinuing its slaughtering operation and laying off the employees. The Board's Regional Director dismissed this charge on Oc- tober 16, 1978. The Union appealed the dismissal. In ad- dition the Union on July 14, 1978, as described in detail supra, filed civil suit in Federal district court against Re- spondent concerning the discontinuance of the slaughter- ing operation and the layoff of the employees. Also rel- evant to an understanding of the negotiations in this case is the fact that the Union on May 12, 1978, filed an unfair labor practice charge against Respondent in Case 23-CA-7063 upon which the Board's General Counsel on August 11, 1978, issued a complaint. Finally, on Sep- tember 12, 1978, Administrative Law Judge von Rohr 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued his Decision in Laredo Packing Company, supra. Administrative Law Judge von Rohr concluded, among other things, that Respondent discriminatorily discharged 15 employees and recommended that Respondent offer them reinstatement and reimburse them for any loss of earnings. Respondent filed exceptions to this Decision. On approximately August 16, 1978,23 the parties com- menced negotiations for a new contract. During August and September they failed to reach agreement on a number of essential items. All of Respondent's proposals during this period omitted a wage increase during the first year of a 3-year contract. On September 15 Respon- dent transmitted its "final offer" to the Union which was rejected by the Union's membership. In the letter of transmittal which accompanied the "final offer" Respon- dent, among other things, informed the Union: upon the parties agreement to the terms of collec- tive-bargaining agreement we shall "start out with a clean slate" in regard to prior relationships. Ac- cordingly, it is assumed that if the attached agree- ment is accepted [by the Union] that all charges pending before the National Labor Relations Board filed by [the Union] against [Respondent] will be withdrawn and, likewise, the civil suit in Cause L- 78-43 shall be withdrawn. Respondent was represented at the negotiation meet- ings which culminated in Respondent's September 5 final offer by its lawyers and personnel director. Respondent's president, Roberto Salinas, did not participate in these negotiations. However, in an effort to break the bargain- ing deadlock, Commissioner Richard Horn of the Feder- al Mediation and Conciliation Service arranged for a meeting to be held on September 25 between Salinas and the Union's secretary-treasurer, Erbey Rendon. a. September 25 meeting On this date Rendon and Salinas met with Commis- sioner Horn. Horn left them alone. Salinas expressed his disappointment about the number of problems he had en- countered during the term of his first contract with the Union. He specifically complained about the large number of grievances filed during the term of that con- tract which were still pending. Salinas stated in substance that he would agree to sit down personally with Rendon and negotiate the terms of the new contract if the Union agreed to settle all of the pending grievances, the pend- ing law suit filed by the Union, and the Company's liabil- ity under Administrative Law Judge von Rohr's recently issued unfair labor practice decision, all in a manner fa- vorable to the Company. Rendon said nothing to indi- cate that the Union would not, as Salinas proposed, dis- cuss these matters. Rather, Rendon indicated he would start working on Salinas' demands. They then discussed the disputed contract items which were preventing the parties from reaching an agreement on the terms of a collective-bargaining agreement. When Commissioner Horn rejoined them at the end of this meeting, Salinas told him that he would agree to personally negotiate with Rendon, but before the parties entered into the col- 21 Unless otherwise specified all dales herein refer to 1978. lective-bargaining agreement that all of the Company's bad past experiences with the Union would have to be gotten out of the way. Rendon declared: "We want to start with a clean slate." Rendon and Salinas agreed to meet on October 3.24 b. October 3 meeting On October 3, as scheduled, Rendon and Salinas met to negotiate the terms of a collective-bargaining agree- ment. At the beginning of this meeting Salinas told Rendon that whatever was agreed on would have to be taken by Salinas back to his family and his lawyer for their approval. They then discussed the terms of a con- tract. They reached agreement on virtually all of the dis- puted items which had previously kept the parties from reaching a collective-bargaining agreement and agreed that Rendon would draft a memorandum of agreement reflecting this agreement. On the subject of wages Salinas offered a 5-percent wage increase during the first year of a 3-year contract. He told Rendon that this proposal was contingent on the parties reaching agreement about the Company's back- pay liability arising out of the von Rohr decision2 5 and asked Rendon to determine the Company's backpay li- ability. Rendon stated he would attempt to get the back- pay figures for the Company. Salinas also told Rendon that the parties must settle all of the pending contractual grievances and showed him a list of these grievances.2 6 b. October 5 meeting On October 4 Rendon prepared a memorandum of agreement based upon his understanding of what had been agreed to by the parties at the October 3 meeting. On October 5 Rendon met with Salinas at the Compa- ny's plant and they discussed each item included in this memorandum of agreement. They went through the memorandum page by page initialing a page at the bottom margin to indicate that they had reached agree- ment on the items contained on that page. They also made several corrections and changes in the memoran- dum which they likewise initialed. By the end of this process it is undisputed that Rendon and Salinas had placed their initials on each page of the memorandum and had reached tentative agreement on the terms of a collective-bargaining agreement with the following quali- fications: (I) The agreement was subject to the approval of Salinas' family and attorney; (2) although the memo- randum of agreement provides that a Catholic priest would serve as the fifth and impartial member of the ad- 24 Salinas and Rendon testified about this meeting. Their testimony conflicts in certain significant respects. In those instances where their tes- timony conflicts I have credited Salinas inasmuch as he impressed me as the more credible witness. 25 Salinas, prior to this meeting, met with other members of his family, who owned a part of the business, and they decided that if Respondent could reach an agreement with the Union which included the settlement of the Company's backpay liability in the von Rohr decision that Respon- dent would offer a 5-percent wage increase during the first year of the contract as part of its proposed contract. 2e Salinas and Rendon testified about this meeting. In those instances where their testimony conflicts I have credited Salinas inasmuch as he impressed me as the more credible witness. 10 LAREDO PACKING COMPANY justment board included in the contractual grievance procedure, Salinas specifically reserved the right to con- sult with his family about this matter; (3) although Sali- nas and Rendon agreed upon the concept of a minimum guaranteed number of hours of work as set forth in the memorandum, they agreed that their attorneys would review the language; and (4) Salinas and Rendon agreed that the contractual language for an incentive program for kill floor workers, the substance of which was de- tailed in the memorandum, would be drafted by their at- torneys. When Rendon and Salinas finished revising, correct- ing, and initialing the memorandum of agreement, herein called the October 5 memorandum of agreement, Rendon signed it and asked Salinas to affix his signature. Salinas refused. He explained to Rendon that the terms included in the October 5 memorandum of agreement had to be approved by his family and his attorney and that, although they had agreed upon the terms of a col- lective-bargaining agreement, the parties still had to reach agreement about the unsettled pending grievances, the von Rohr decision, and that the Union had to with- draw its lawsuit. Rendon expressed his dissatisfaction. Salinas, in response, stated that Rendon and Salinas had originally agreed that they would settle these matters before a contract was signed. At this point the von Rohr decision was discussed. Rendon, at the request of Salinas, agreed to determine the Company's backpay liability and the names of the discriminatees who wanted reinstatement. Salinas also asked Rendon to agree that if discriminatees Santos and Gaona were reinstated that Respondent could place them on probation for 6 months. Rendon stated that he thought 6 months was too long a period but stated he felt the parties could work out something in the vicinity of 3 months. On the subject of the pending grievances Salinas and Rendon agreed that they would attempt to settle them among themselves and present the unresolved ones to Commissioner Horn. At the end of the meeting Salinas gave Rendon copies of the following documents: (1) A list of the pending grievances; (2) the notice to employees attached to the von Rohr decision which listed the names of the 15 dis- criminatees; and (3) the October 5 memorandum of agreement. 2 7 d. Events between the October 5 and November 20 meetings On October 7 Rendon, by mailgram, notified Salinas that: The parties had agreed to the terms of a collective- bargaining agreement, the terms of which were con- tained in the October 5 memorandum of agreement; the agreement was conditioned upon the Union notifying Respondent which of the 15 employees found by Admin- istrative Law Judge von Rohr to have been illegally dis- charged wanted reinstatement; Salinas had determined that 5 of the discriminatees did not presently wish rein- 2" Salinas and Rendon testified about this meeting. In those instances where their testimony conflicts I have credited Salinas inasmuch as he impressed me as the more credible witness. statement, but their backpay would have to be paid in accordance with von Rohr's decision; and the Union, upon the reinstatement of discriminatees Goana and Santos, was agreeable to having Respondent place them on probation for a period of 3 months. The mailgram ex- pressed the view that since Rendon had complied with the only conditions for a contract which had been im- posed by Salinas that Rendon intended to submit the Oc- tober 5 memorandum of agreement to the Union's mem- bership for approval and would advise Salinas when the membership approved the agreement. On October 8 the membership ratified the October 5 memorandum of agreement. On October 9 Rendon, by mailgram, notified Salinas. Rendon suggested to Salinas that Respondent reduce the October 5 memorandum of agreement into contract language and arrange for the parties to meet for the purpose of working out the con- tractual incentive program language. On October 24 Rendon phoned Salinas to ask about the draft of the contract. Rendon explained that there had been some delay in the matter because his lawyer, Ben Foster, was moving his law offices. Rendon and Sa- linas agreed that they would meet November 3 to discuss the contract and the outstanding grievances. Salinas as- sured Rendon that the Company's draft of the contract would be delivered to him by October 27 so Rendon would have sufficient time to read over the document before the November 3 meeting. On October 24 Rendon wrote Salinas confirming their November 3 meeting and stated that any grievances which remained unresolved after that meeting would, "if possible," be presented to Commissioner Horn for dispo- sition. On October 27 Respondent's lawyer, Ben Foster, wrote the Union's lawyer, Frank Herrera, as follows: As promised in our recent telephone conversation, I am enclosing suggested draft language for the par- ties to consider including in the terms of a collec- tive bargaining agreement. I am taking the liberty of forwarding a copy of this letter and enclosure to your client, Mr. Rendon, as well as Mr. Salinas. I will attempt to complete the rough draft of the entire collective bargaining agreement this next week. There are still a number of areas that need to be finalized between Erbey Rendon and Roberto Salinas. By way of example only, there needs to be some letter agreement executed between the parties that upon the finalization and execution of the col- lective bargaining agreement the union will with- draw, with prejudice, its complaint in Cause No. L- 78-43, as well as its charge alleging the commission of unfair labor practices in Case No. 23-CA-7214. I realize this last charge has been dismissed, but 1 do think a final commitment from your client in this regard would be beneficial. Likewise, as agreed, an agreement between Mr. Rendon and Mr. Salinas needs to be made evidencing the parties' under- standing to submit all pending grievances, whether arbitrators have been selected or not, to a joint meeting (which I understand is now being sched- I! DECISIONS OF NATIONAL LABOR RELATIONS BOARD uled for Laredo on November 3) for final settle- ment. Those grievances in which agreement is im- possible shall be immediately submitted to Commis- sioner Richard Horn for his ultimate determination; provided, of course, Commissioner Horn will be willing to act in such capacity. On October 31 Salinas wrote Rendon stating, among other things, that "before a final collective bargaining agreement can be reached in which you and I are bound, there are many items that are left unsettled and need to be resolved." Rendon conditioned the signing of any col- lective-bargaining agreement upon the following occur- rences: (1) The settlement of all pending grievances which had arisen under the old contract and specifically noted that the Company's 5-percent wage offer was con- tingent upon the settlement of the grievances; 28 (2) the Union's withdrawal of its lawsuit and unfair labor prac- tice charges in Cases 23-CA-7214 and 23-CA-7063;2 9 (4) an agreement limiting Respondent's backpay liability in the von Rohr decision. On November 2, upon receipt of Salinas' October 31 letter, Rendon phoned Salinas and told him that his letter did not reflect their agreement. Salinas argued that it ac- curately reflected the parties' agreement. During the conversation they agreed to reschedule their November 3 meeting to November 20. On November 15 Rendon wrote Salinas confirming that they would meet on November 20 and, among other things, denied that the Company's offer of a 5-percent wage increase had been contingent upon the resolution of the pending grievances and expressed reservations about using Commissioner Horn to settle them because of his role as the mediator in the contract negotiations. Regarding the von Rohr decision and the Union's other unfair labor practice charges filed against Respondent, Rendon stated: "I will reiterate my position relative to the von Rohr decision and all unfair labor practice charges pending before the NLRB, I will work with you in order to achieve a resolution of those problems." Lastly, on the question of the withdrawal of the Union's lawsuit, Rendon stated: "If the plant can be reopened on a date satisfactory to both parties, I do not see any reason why we can not work out something on the law- suit." As described supra, Salinas and Rendon agreed that Respondent would assume the responsibility of reducing the October 5 memorandum of understanding into con- tract language. On October 31 Respondent's lawyer, Ben Foster, forwarded to the Union a draft of a collective- bargaining agreement which he had prepared. On No- vember 3 Foster, by letter, notified the Union that he had inadvertently failed to include as a part of the appen- dix to the agreement rules 33 through 40 and now in- cluded a copy of those rules. In this regard the record reveals that appendix A of the recently terminated con- 28 Salinas also stated that on November 3 he would meet with Rendon to settle these grievances and any grievances which they could not re- solve would be submitted to Commissioner Horn for disposition. 29 Regarding the charge in Case 23-CA-7063 Rendon stated that the Company would agree to submit the cases of the three alleged discrimin- atees named in that case to Commissioner Horn for final disposition. tract contained a list of 32-numbered work rules which were a part of the contract. The contract's management rights clause provided that the employees would comply with said rules and further stated that Respondent had the right to "reasonably modify, amend or add to such rules and regulations . . . provided the Union is first conferred with prior to the effectuation of said rules and regulations." In March 1978 after giving the Union notice Respondent modified two of the existing rules and added seven new rules, rules 33 through 40, and 13 "Rules for Truck Drivers." The Union objected to these modifications and additions and filed a grievance which was still pending during the time material herein. Re- spondent's contract proposals during August and Sep- tember, prior to the meeting of September 25, contained the aforesaid modifications and additions to its rules as a part of the proposed contract. e. November 20 meeting On November 20 Rendon, accompanied by Chief Ste- ward Gutierrez, met with Personnel Director Mendiola. They were joined during the meeting by President Sali- nas. Rendon pointed out certain discrepancies to Men- diola between the draft of the collective-bargaining agreement submitted by Foster and the October 5 memo- randum of agreement. Rendon, who had corrected his copy of the contract to jibe with the October 5 memo- randum of agreement, asked Mendiola to sign it. Men- diola refused stating he was there to discuss and to at- tempt to resolve the pending grievances which had been filed under the old contract, not to sign a contract. Rendon stated the grievances would not be discussed until after the contract was signed. At this point Salinas entered the room and stated that the Company would not sign a collective-bargaining agreement until the grievances and all of the "other matters" were taken care of.3 0 f. The events between the meetings of November 20 and December 12 On November 20, after the meeting, Rendon phoned Respondent's lawyer, Ben Foster. He complained to Foster that Salinas was conditioning the signing of a col- lective-bargaining agreement upon the settlement of the grievances, which was not Rendon's understanding of the parties' agreement. Rendon stated he was agreeable to settling the grievances as soon as the contract was signed and would sign a memorandum of accord to that effect. Foster, later that day, informed Rendon that he would draft a memorandum of accord for Salinas' signa- ture. On November 22 Foster sent Salinas and Rendon a letter accompanied by a "Memorandum of Understand- ing and Joint Statement of Accord," herein called the Respondent's November 22 statement of accord. Respon- dent's November 22 statement of accord provides for two meetings. At the first meeting Rendon and Salinas 30 Rendon, Mendiola, and Salinas testified about this meeting. I have credited the testimony of Mendiola and Salinas where it conflicts with Rendon's inasmuch as they impressed me as the more credible witnesses. 12 LAREDO PACKING COMPANY would complete negotiations on a collective-bargaining agreement, the basics of which were set forth in the draft contract submitted to the Union by Foster on October 3. The statement of accord further provided that the collec- tive-bargaining agreement would not be signed by the parties and become effective until: (1) All unresolved grievances filed under the old contract were settled or disposed of under an expedited grievance-arbitration pro- cedure, set out in detail; (2) the parties met in an attempt to reach agreement tolling Respondent's backpay liability under the von Rohr decision to the maximum extent pos- sible; and (3) the lawsuit filed by the Union was with- drawn with prejudice. Items (1) and (2), above, were to occur at the second meeting provided for in the state- ment of accord. Rendon took his copy of Respondent's November 22 statement of accord to Union Attorney Frank Herrera and complained that it was contrary to the terms of the parties' agreement which Rendon stated was embodied in the October 5 memorandum of agreement. Herrera phoned Foster and advised him of Rendon's position. Herrera specifically stated that although Rendon and Sa- linas discussed the resolution of the grievances which were pending under the old contract that they had not agreed that this would be a condition precedent to the signing of the collective-bargaining agreement; that the Union had no objection to withdrawing its lawsuit, but only after the agreement was signed; and that for Her- rera to agree to Respondent's proposal regarding the von Rohr decision would "border on malpractice." Foster re- plied that Salinas' position was that the provisions of Re- spondent's November 22 statement of accord had to be effectuated before any collective-bargaining agreement negotiated by the parties would become effective. The conversation ended with Herrera and Foster agreeing to meet with Commissioner Horn. This meeting was subse- quently scheduled for December 12. g. The December 12 meeting 1 On December 12 the representatives of the parties met with Commissioner Horn at Herrera's offices. Present for the Union were Herrera and Rendon. Present for the Company were Foster, Salinas, and Mendiola. At the outset Herrera stated that he believed the par- ties had agreed on the terms of a collective-bargaining agreement. Foster replied in substance that a settlement must be reached about the pending grievances and the von Rohr decision and that the Union must agree to withdraw its lawsuit before the Company signed any contract.32 In addition, Foster declared that he felt there s Unless otherwise noted the description herein of this meeting is based upon the testimony of Herrera and Rendon which was not contra- dicted. 32 Based upon Salinas' testimony. When asked whether Foster made such a statement Herrera testified that he did not "believe" the statement was made in the aforesaid context. However, the preheating affidavit submitted to the Board by Rendon admits that Foster made the statement attributed to him by Salinas. Rendon's admission, considered in the light of the convincing and sincere manner in which Salinas gave his testimo- ny both on direct and cross-examination, has persuaded me to credit Sali- nas' testimony. Moreover, the surrounding circumstances bolster the plausibility of Salinas' testimony. Thus, Foster's December 12 statement conditioning the collective-bargaining agreement on the withdrawal of were certain unresolved contractual issues which must be discussed. He referred to the incentive pay language and the use of a priest as the fifth person on the adjustment board. Herrera stated that he accepted the incentive lan- guage which had previously been proposed by Foster and was agreeable to using a member of the Federal Me- diation and Conciliation Service instead of a priest as the fifth person on the adjustment board. Foster stated this was agreeable to the Company. Foster stated that this did not resolve all of the terms of the collective-bargain- ing agreement because the Company had other items it wanted to discuss. Foster asked that the wording of the contractual grievance procedure be changed by substitut- ing "personnel director" for "plant superintendent" whenever it appeared in that provision. Herrera agreed to this. Foster then stated he wanted to change the por- tion of the October 5 memorandum of agreement which provided that an employee injured on the job would re- ceive 8 hours pay for the day, to 2 hours pay. Commis- sioner Horn, at this time, told Foster to stop bringing up the items in dispute piece by piece but told him to state all of the items which the Company wanted to discuss. Foster agreed to do this and, after speaking with Salinas, listed the following changes that the Company wanted: A reduction from 8 hours pay to 2 hours pay for em- ployees injured on the job; the substitution of Washing- ton's Birthday for New Year's Day as a paid holiday;3 3 the effective date of the contract would be the date it was executed by the parties;3 4 the first wage increase would be effective November 15, 1978, and the increases in the second and third years of the contract would be effective on the contract's anniversary date, the date it was executed; in the event of a layoff of less than 2 weeks employees would not be able to exercise contrac- tual bumping privileges; 35 the fifth member of the ad- justment board would be selected from the Federal Me- diation and Conciliation Service; and3 6 the incentive pay language would be the language which had been drafted and submitted by Foster. After speaking with Rendon, Herrera informed the Company's negotiators that he could not agree to a re- duction in the bumping privileges or in the reduction of pay received by an injured worker or that the effective date of the contract would be the date it was signed rather than September 11, but was agreeable to all of Foster's other proposals. On the matter of the wage in- creases Herrera proposed that the first one would be ef- fective November 15, 1978, and the next two would be effective on September 11. Foster, after speaking with Salinas, informed the Union's negotiators that the Union's counteroffer was acceptable except for the effec- the lawsuit and a settlement of the Company's liability in the von Rohr decision was consistent with the bargaining position taken by Respondent ever since its September 15 final offer. a3 The October 5 memorandum of agreement provided that starting in the second year of the contract New Year's Day would be a paid holi- day. "4 The October 5 memorandum of agreement provided that September I would be the effective date of the contract. 35 The October 5 memorandum of agreement provided for unlimited bumping rights. 36 The October 5 memorandum of agreement provided for a priest. 13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive date of the contract and the effective date of the second and third year wage increases. Foster stated that Respondent wanted the contract to be effective on the day it was signed and the wage increases in the second and third years to be effective on the anniversary date of the contract, the date of execution. Foster agreed that the initial wage increase would be effective November 15, 1978. Herrera proposed making the second and third year wage increases also effective in November. Foster rejected this proposal. Foster at this point stated he thought the parties ought to start "with a clean slate." Herrera expressed his agree- ment with this sentiment. Foster stated that Respondent, before signing a contract, wanted to settle all pending grievances under the old contract. Herrera objected be- cause he stated that this would drag out the signing of the contract indefinitely. Commissioner Horn stated that if the parties reached an agreement on all of the terms of a contract that he would not let its execution be post- poned indefinitely and that he, Horn, would arrange for Salinas and Rendon to meet in the immediate future to resolve the grievances. Herrera agreed to settle all of the pending grievances under the old contract prior to the execution of the contract and proposed that all such grievances which Salinas and Rendon were not able to resolve be submitted to an arbitrator who would rule on them from the bench. Herrera stated, "As soon as the ar- bitrator ruled on the last unresolved grievance, then the only thing left after that is the mechanical action of actu- ally signing the contract." 37 Foster indicated this was agreeable. Foster then stated that he wanted to discuss the deci- sion of Administrative Law Judge von Rohr which he stated ought to be settled. Herrera agreed with Foster's sentiments and, as Rendon testified, Herrera told Foster: "He was willing to discuss the von Rohr Decision." Foster asked how much backpay the Union thought was involved. Herrera stated he had no idea. Foster asked whether the Union could furnish the Company with a "ball park" figure. Herrera asked Rendon if he could do this by the time of his grievance meeting with Salinas. Herrera warned Foster, however, that since Administra- tive Law Judge von Rohr had issued his decision that the Board's Regional Director took the position that Re- spondent, in such a situation, must pay 100 percent of the backpay liability. Herrera stated he would do all he could to see if the Company could pay its liability in in- stallments. Herrera also pointed out that in order to com- pute the backpay involved that there were certain figures which the Company would have to provide. Foster indi- cated he would get this information. Foster also indicated that Respondent wanted the Union to withdraw its lawsuit against Respondent. Her- rera stated the Union would withdraw it as soon as the contract was signed. 3" Based upon Herrera's testimony. Salinas did not specifically deny Herrera made this remark. However, on cross-examination. Salinas testi- fied he did not recall anyone making this statement. I have credited Her- rera's testimony in view of the general nature of Salinas' denial and be- cause Herrera impressed me as a credible witness when he gave this par- ticular testimony. Foster also indicated that Respondent expected the Union to withdraw its charge in Case 23-CA-7214 which was still on appeal. Herrera stated that as soon as the contract was signed that this charge would become academic. The meeting ended with Herrera stating that it would not take more than I month to resolve all of the pending grievances and, in view of this, asked whether Respon- dent would agree to make the wage increase for the second and third years of the contract effective January 1. Foster rejected this proposal and asked if they could get together at a later date to determine if they could "iron out" the effective date of the contract and the second and third wage increases. Herrera agreed. h. The events postdating the December 12 meeting On December 13 and 14 Herrera and Foster discussed the two contractual items which were in dispute; the ef- fective date of the contract and the effective date for the pay raises to be granted in the second and third years of the contract. Foster refused to yield on these matters, so, on December 14, Herrera notified Foster that the Union reluctantly agreed to Respondent's proposal that the con- tract be effective from the date of its execution and that the second and third year pay raises would become ef- fective on the anniversary date of the signing of the con- tract. Herrera told Foster that he did not want the reso- lution of the pending grievances to drag on indefinitely and, in connection with this, stated that since the parties had reached an agreement upon the terms of a collec- tive-bargaining agreement that the first meeting, referred to in Respondent's November 22 statement of accord, was no longer necessary and that the parties now only needed to meet to resolve the pending grievances. Con- tinuing, Herrera stated that if at this meeting the parties failed to resolve all of the grievances that the ones re- maining would be submitted to an arbitrator who would rule on them from the bench and that as soon as the arbi- trator ruled on the last grievance the only thing left for the parties would be to sign the contract. Foster replied, "Fine, I'll draft it and send it to you for your revision." Foster also stated that he would contact Commissioner Horn to set up the meeting between Rendon and Sali- nas.3as On December 19 Foster wrote Herrera as follows: Pursuant to the parties' agreement I am enclosing a draft of the proposed collective bargaining agree- ment .... In addition, I have enclosed a Memo- randum of Accord. As the parties agreed, compli- ance with all portions of the Accord as a prerequi- site to the contract becoming valid or of any effect. Accordingly, in order for the terms of the new agreement to be effective. . . the enclosed Accord must be executed by the parties and the terms there- of completed in a manner satisfactory to all con- cerned. 38 It is undispusted that Horn arranged for Salinas and Rendon to meet on December 27, but that this meeting was canceled by Salinas. 14 LAREDO PACKING COMPANY Enclosed in this letter were two separate doouments: a collective-bargaining agreement and a "Memorandum of Understanding and Joint Statement of Accord," herein called Respondent's December 19 statement of accord, which in pertinent part states that the parties' collective- bargaining agreement "will not, in whole or in part, become effective until other matters presently pending are resolved" as follows: (I) All unresolved grievances presently pending, whether arbitrators selected or not, that arose out of questions of interpretation of the parties' 1977 collective bargaining agreement will be discussed and, where possible, settled between Rendon, Sali- nas, and Horn at a meeting in Laredo on Decem- ber 27, 1978. Grievances which are unable to be resolved will thereafter be indexed by written document signed by both Company and Union representatives at the conclusion of this meeting. The parties will hereupon request a list of seven (7) arbitrators from Federal Mediation and Conci- liation Services for expedited arbitration. In the request, the parties shall specifically state the arbi- trator will be required to rule on the questions as previously indexed and will be required to do so "from the bench" with the further understanding that no written decision or determination will be entered or published by said arbitrator. This expe- dited arbitration, the choosing of the arbitrator and the expenses therein will be handled in the customary manner and paid for on an equal basis by both parties. Any grievances not indexed at this meeting of December 27, 1978, will forever be waived. In this regard, the Union will, prior to the meeting of December 27, submit a list of pending grievances to the Company outlining the identity of the grievant, the subject matter, and the remedy sought. (2) At this meeting of December 27, the parties will discuss each alleged discriminatee as contained in Administrative Law Judge Von Rohr's Decision dated September 12, 1978. Alleged discriminatees not desiring re-employment will either personally or through agent Rendon execute such written documents evidencing their refusal of an offer of reinstatement. It is expressly understood that the purpose of this meeting is to attempt to reach agreement in order that backpay liability, if any, on the part of Laredo Packing Company will in all practical matters be reduced and "tolled" to the extent possible. (3) The cause of action brought by the Union in Cause No. L-78-43 will be withdrawn with preju- dice by the Union upon the Company representa- tives signing and executing the collective bargain- ing agreement negotiated and finalized at the meeting of December 12, 1978. (4) The appeal taken by the union from the dismissal by the NLRB of the Charge in Case No. 23-CA- 7214 will in all things be withdrawn, with preju- dice. (5) The pending Complaint and Notice of Hearing issued by the NLRB on the basis of a charge filed by the union in Case No. 23-CA-7063 will be withdrawn by written request, with the substance of the outstanding Complaint being submitted to the arbitrator selected to determine and hear the grievances that remain unsettled and that arose under the parties' interpretation of the 1977 col- lective bargaining agreement. WHEREFORE, upon the occurrence of the events as previously described, the parties will in their re- spective capacities execute and effectuate the writ- ten collective bargaining agreement which was ne- gotiated and agreed to by Messrs. Rendon and Sali- nas at their meeting of December 12, 1978. Upon the receipt of Respondent's December 19 state- ment of accord, Herrera phoned Foster and informed him that the only portion of the accord which accurately reflected the parties' agreement was that part which re- ferred to the disposition of the pending grievances. On the subject of the settlement of the von Rohr decision Herrera reminded Foster that earlier in connection with Respondent's November 22 statement of accord Herrera had objected strenuously when Foster included identical language. However, Herrera advised Foster that the Union "was willing to discuss settlement of the Von Rohr decision which would include compromise on the back pay and the reinstatement of employees." (See G.C. Exh. 38 at p. 5.) Also, Herrera pointed out that the Union's charge in Case 23-CA-7063 had not even been mentioned at the December 12 meeting but that the Union was willing to discuss settlement of that case. (See G.C. Exh. 38 at p. 5.) On the subject of the withdrawal of the Union's lawsuit Herrera stated that he had no problem with withdrawing the lawsuit after the contract was signed and had said this to Foster all along but had never agreed to make the withdrawal of the lawsuit a condition precedent to the signing of the agreement as set forth in the accord. Foster ended this conversation by informing Herrera that if Herrera felt that Respondent's December 19 statement of accord did not reflect the par- ties' agreement that Herrera should prepare a statement of accord which he felt reflected the parties' agreement. On December 21 Herrera phoned Foster and listed II items contained in the collective-bargaining agreement drafted by Foster and transmitted to Herrera on Decem- ber 19 which Herrera stated did not reflect the parties' agreement. All but two of these items were inadvertent typographical errors or inadvertent inclusions or exclu- sions. The two items which Foster intentionally includ- ed, which were disputed by Herrera, were rules 33 through 40 and the rules for truckdrivers. Also on December 21, Herrera drafted a statement of accord, herein called the Union's December 21 statement of accord, which he transmitted to Foster. The Union's December 21 statement of accord states that the parties would execute and effectuate the written contract that they had negotiated upon the occurrence of several events one of which was the disposition of the pending 15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievances. 3 9 The other enumerated events upon which a contract was conditioned are as follows: At the meeting of December 27th, 1978, where the parties will engage in an attempt to settle out- standing grievances or questions arising out of the interpretation of the 1977 collective bargaining agreement the parties will discuss completely each discriminatee as contained in Administrative Law Judge von Rohr's decision dated September 12, 1978. The Company will make every effort to settle the von Rohr decision and pay back pay wages to any discriminatees contained in said decision and to re-employ any discriminatee desiring re-instatement. Additionally, the Company and the Union will attempt to settle the unfair labor practice complaint in Cause No. 23-CA-7063 now pending and sched- uled for trial on January 17, 1979. The Company will offer re-instatement to any discriminatee con- tained in said complaint and paying back liability owing to said discriminatees. The cause of action brought by the Union in Cause No. L-78-43 will be withdrawn with preju- dice by the Union upon the Company representa- tives signing and executing the collective bargaining agreement which has now been finalized. Wherefore, upon the occurrence of the events as previously described, the parties will in their re- spective capacities will execute and effectuate the written collective bargaining agreement which has heen negotiated and agreed upon by Messrs. Rendon and Salinas. In the transmittal letter accompanying the Union's De- cember 21 statement of accord Herrera advised Foster that he had "revised" Respondent's December 19 state- ment of accord and asked Foster to "review" the Union's statement of accord "and see if we can reach an agreement and have it executed." On December 22 Foster wrote Herrera acknowledging receipt of the Union's December 21 statement of accord. Foster stated that the terms contained therein were unac- ceptable to Respondent and asked that the Union execute Respondent's December 19 statement of accord. On the subject of the terms contained in the collective-bargain- ing agreement Foster indicated to Herrera that the changes requested by Herrera on December 19 were un- objectionable except for two items, namely, rules 33 through 40 and the truckdrivers rules. Foster expressed the view that the Union's objection to the inclusion of these rules in the collective-bargaining agreement would make agreement impossible. On January 2, 1979, Foster wrote Herrera expressing Respondent's desire to meet with the Union in an at- tempt to settle their differences, but advised Herrera that because the parties in their recent negotiations had failed to reach agreement that "certain areas of negotiations in- cluding but not limited to wages, seniority, and arbitra- 39 The procedure set out in the Union's statement of accord for resolv- ing these grievances was in all significant respects identical to the one proposed by Respondent in its accord. tion will be subject to re-evaluation." On the subject of wages Foster explained: [T]he Company agreed to retroactivity of certain wage increases the first year of an agreement. It should be understood by all that the agreement was part of a package that was presented to you in my letter to you of December 21. When this offer was rejected by [the Union] it rejected the entire pack- age the Company proposed. Accordingly, in future negotiations wages and/or their retroactivity will, of course be reevaluated by Company negotiators On January 3, 1979, Herrera, by letter, acknowledged Foster's January 2 letter and, after giving his version of the contract negotiations, stated in essence that the par- ties had reached agreement on 11 of the terms of a col- lective-bargaining agreement and that the Company's unfair labor practices-the cancellation of the December 27 meeting scheduled to resolve the pending griev- ances-was precluding the execution of this agreement. Herrera also stated that representatives of the Union wanted to meet with Salinas in order to resolve the pending grievances and to otherwise resolve those which could not be resolved in such a meeting in conformance with the parties' agreement, but would not agree to re- negotiate the terms of the collective-bargaining agree- ment which had previously been reached. On January 3, 1979, Herrera, by letter, reiterated his request to Foster that Respondent meet with the Union for purposes of resolving the pending grievances and to arbitrate those which remained unsettled. On January 8, 1979, Foster, in answer to Herrera's January 4 letter, wrote stating that the parties as a condi- tion precedent to the existence of a collective-bargaining agreement had agreed that all possible matters currently in dispute between the parties would be resolved and that when the Union had refused to sign Respondent's December 19 statement of accord which embodied this understanding that Foster at that time had informed Her- rera that Respondent's contract proposals in the areas of wages, arbitration, and seniority would be reexamined in the light of the Union's refusal to execute the statement of accord. Foster informed Herrera that Respondent was willing to meet with the Union for the purpose of at- tempting to resolve their differences and to reach agree- ment on the terms of a contract. By letter dated February 1, 1979, Herrera wrote Foster, among other things, as follows: Inasmuch as all of the terms and conditions of the collective bargaining agreement have been agreed to and since the execution of the same will occur upon the settlement of arbitration of pending griev- ances, the Union does not agree to reopen or to re- negotiate any of the terms of the current collective bargaining agreement .... Foster replied by letter dated February 2 which stated in pertinent part that "the parties have not agreed upon the terms and conditions of a collective bargaining agree- 16 LAREDO PACKING COMPANY ment" and expressed a willingness to meet with the Union to negotiate the terms of a collective-bargaining agreement. On February 13, 1979, Herrera wrote Foster asking that representatives of Respondent meet with representa- tives of the Union to settle the parties' unresolved con- tract grievances and then submit the unresolved ones to expedite arbitration. Foster replied by letter dated Febru- ary 19 in which, among other things, he stated that he differed with Herrera over the status of the parties' ne- gotiations. Foster took the position that "on three prior occasions [the Union] has refused to sign the Memoran- dum of Accord thereby making the reaching of the terms of a collective bargaining agreement an impossibil- ity," and pointed out that at all times the Union knew that Respondent was "insisting on reaching agreement on all unresolved matters before entering into the terms of new collective bargaining agreement [and had] continual- ly refused to meet this demand." Foster expressed a will- ingness to sit down with the Union and discuss the terms and conditions of a new bargaining agreement. By letter dated February 21 Herrera answered Foster's February 19 letter. Herrera stated in essence that the Union had never agreed to include the von Rohr deci- sion as a part of the memorandum of accord and by in- sisting on making the von Rohr decision a part of the accord Respondent was engaging in bad-faith bargaining. In reply Foster by letter dated February 21 expressed his amazement to Herrera over Herrera's assertion that Re- spondent had unilaterally made the von Rohr decision a part of the statement of accord. Foster stated that the von Rohr decision and its impact on the Company had been the subject of discussion between the parties since September 1978 and was specifically included in Salinas' October 31 letter to Rendon. On March 2, 1979, Foster wrote Herrera stating, among other things, that Respondent's representatives were prepared to meet with the Union's representative "in regard to negotiating the terms of a collective bar- gaining agreement," but advised Herrera that "the com- pany has consistently maintained the position which was agreed to by the parties at an earlier date in these negoti- ations, that a Memorandum of Accord is a part and parcel of an over-all agreement concerning terms and conditions of employment." The letter ended with the declaration: "Company negotiators are prepared to meet with you and Union representatives for the purpose of exerting every reasonable effort to reach an agreement · ..which settles the outstanding disputes, and, hopefully creates industrial peace and establishes the terms and conditions of employment for the bargaining unit em- ployees." (Emphasis supplied.) On May 24, 1979, Rendon, by phone and then by mail- gram, contacted Salinas for the purpose of settling "all [the parties'] outstanding labor disputes" and informed Salinas "the Union is still interested in settling all out- standing labor disputes and improving Labor relationship between us" and asked for a meeting with the Compa- ny's representatives. On May 25, 1979, Foster, by letter, answered Ren- don's May 24 communication as follows: Representatives of Laredo Packing Company are somewhat surprised at your apparent commitment as evidenced by the contents of the mailgram indi- cating your union's willingness to meet with Mr. Salinas in an attempt to settle all outstanding labor disputes. We are assuming that by this you intend to include discussions over the terms of a collective bargaining agreement, the federal court case in L- 78-43, the Von Rohr decision and its impact, the Charge in No. 23-CA-7214, the approximately 25 outstanding grievances, and the pending complaint in Cases 23-CA-7418 and 23-CA-7603. As you know, it has been the position of the Company that you and Mr. Salinas agreed to "clean the slate" over all disputes, reach agreement on the terms of contract that were satisfactory to the Salinas family and the members of your labor organization, then implement the process of settling the disputes, thereafter effectuating the terms of the contract for the benefit of all concerned employees. From the tone of your mailgram, it appears to us that you are now willing to approach our problem in that manner. If this is the case, please contact Mr. Sali- nas directly in this regard. In order that there not be any misunderstanding and to clarify our position, please be assured that if you do not wish to discuss "all" outstanding labor disputes as I have previously identified but wish merely to negotiate in behalf of the union over the terms and conditions of a collective bargaining agreement, be assured that Laredo Packing Compa- ny representatives are ready, willing and able to ac- complish that result. On June 7, 1979, by letter, Rendon answered Foster's May 25 letter as follows: As you know the Union has always been ready to settle any and all labor disputes that the parties have. It behooves both parties to settle. First, please be advised that before any meaning- ful setlement discussions can occur, the parties will have to execute the terms and conditions of the col- lective bargaining agreement heretofore agreed to. For purposes of settlement discussions only and without waiving the Union's position in Case No. 23-CA-7418, the Union may be willing to change its position as to the retroactivity of the wages only contained in the collective bargaining agreement which the Union contends is operative. If the par- ties can officially execute the agreement, then we can go a long way towards resolving all of the other outstanding labor disputes-i.e. (1) the federal law suit, (2) the Von Rohr decision, (3) outstanding grievances, and (4) the outstanding complaints. On June 5, by letter, Foster answered Rendon's June 7 letter as follows: It has been the Company's position that all disputes would be settled and resolved in toto with the terms of a collective bargaining agreement being fi- 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nalized thereafter .... Salinas asked that I extend you his offer to meet for the purpose of, at your option, negotiating the terms of a collective bar- gaining agreement or negotiating the terms of the settlement of all outstanding labor disputes, there- after finalizing the terms of a collective bargaining agreement .... If you decide to meet with Salinas under the terms I have outlined, we would appreci- ate your suggesting three or four alternate dates . . for this purpose. On June 22, 1979, in reply to Foster's June 15 letter, Herrera wrote Foster that: [T]he only terms of settlement in which the Union is interested in are those outlined in the Union's letter of June 7, 1979. There is no incentive for the Union to renegotiate a collective bargaining agree- ment, which the Union maintains has heretofore been agreed to. Unless your client takes a different posture than the one outlined in your letter of June 15, I presume that the cases will proceed to litiga- tion.40 On June 26, 1979, in answer to Herrera's June 22 letter, Foster wrote a letter which in essence reaffirmed that the Company's position remained as stated in Fos- ter's June 15 letter. 2. Conclusions a. The alleged refusal to execute an agreed-upon contract The complaint in Case 23-CA-7418 alleges in essence that since on or about December 12, 1978, Respondent, in violation of Section 8(a)(5) and (1) of the Act, has re- fused the Union's request to execute a contract contain- ing all of the provisions upon which both Respondent and the Union have agreed in collective-bargaining nego- tiations. In support of this allegation the General Counsel con- tends that, on December 14 when Attorney Herrera for the Union and Attorney Foster for the Respondent reached agreement on the effective date of the collec- tive-bargaining agreement and the effective dates for the pay raises to be granted during the second and third years of the agreement, the parties had reached agree- ment on all of the terms of a collective-bargaining agree- ment, the signing of which was conditioned upon the parties' settling all of the pending contractual grievances pursuant to the agreed-upon procedures. Respondent takes the position that a complete agreement was not reached by the parties because there was no meeting of the minds over several of the conditions precedent to the signing of the agreement, which conditions Respondent urges were an integral part of Respondent's bargaining proposals. The record supports Respondent's conten- tion.4 ' 40 The charge in the instant case was filed by the Union on February 27, 1979, and a complaint issued May 11, 1979. 41 In view of the determination I have not considered Respondent's further argument that the parties had not reached full and complete agreement on all of the terms of a collective-bargaining agreement be- As described in detail supra, at the December 12 nego- tiation meeting Respondent conditioned its offer of a contract, including a 5-percent wage increase the first year of the contract, upon a settlement of Respondent's backpay liability in the von Rohr decision and the Union's withdrawal of its unfair labor practice charge in Case 23-CA-7214 and its lawsuit. No agreement was reached about these three conditions either on December 12 or on December 14. And, as described in detail supra, the parties have never reached agreement about these conditions which are, as found infra, undisputedly non- mandatory subjects of bargaining. The question presented herein is whether the Union could effectively conclude negotiations on December 14 by agreeing to those demands of Respondent which con- stitute mandatory subjects of bargaining, even though there was no agreement on Respondent's demands en- compassing the nonmandatory bargaining subjects. Under the circumstances of this case, I am persuaded that Respondent was not obligated to abide by so much of the contract which related to the agreed-upon manda- tory subjects. The record, as described in detail supra, re- veals that the nonmandatory subjects of bargaining ad- vanced by Respondent as a condition for executing a col- lective-bargaining agreement were part of one collective- bargaining package and were an essential quid pro quo for Respondent's contract proposal. It is for this reason that I find that during the time material herein Respon- dent and the Union had not reached agreement on all of the terms of a collective-bargaining agreement and for this reason I shall recommend that this allegation be dis- missed. See Nordstrom, Inc., 229 NLRB 601 (1977); John Nickels & Leonard Whitney, d/b/a Big John Food King, 171 NLRB 1491 (1968); North Carolina Furniture, Inc., 121 NLRB 41 (1958). b. The alleged conditioning of an agreement upon the acceptance of nonmandatory bargaining subjects The complaint alleges in substance that since Decem- ber 12, 1978, Respondent has conditioned the signing of a collective-bargaining agreement upon the Union's ac- ceptance of certain nonmandatory bargaining subjects thereby violating Section 8(a)(5) and () of the Act. In this regard, as described in detail supra, Respondent at all times material herein as a condition precedent to the signing and effectuation of a collective-bargaining agree- ment demanded that the Union agree to a settlement of Respondent's backpay liability in the von Rohr decision and withdraw its lawsuit and unfair labor practice charge (Case 23-CA-7214) against Respondent involving the suspension of the Company's slaughtering operation. And on December 9 Respondent, in its statement of accord, added a fourth condition, the Union's withdraw- al of its unfair labor practice charge against Respondent in Case 23-CA-7063. Respondent's demand that the Union agree, as a condi- tion to the signing of a collectivc-bargaining agreement, to a settlement of Respondent's backpay liability in the cause there was no meeting of the minds over the inclusion of the truck- drivers rules and rules 33 through 40 in appendix A of the agreement. 18 LAREDO PACKING COMPANY von Rohr decision and the withdrawal of the Union's lawsuit and unfair labor practice charges, involved vol- untary (nonmandatory) subjects of bargaining.4 2 Howev- er, the mere proposing of these demands is not per se il- legal. Cf. Kent Engineering, Inc., 180 NLRB 86, 89 (1969). Respondent was entitled to initially propose such conditions, but could not legally insist upon their accep- tance "in the face of a clear and express refusal by the Union to bargain about the [nonmandatory subjects]." Union Carbide Corporation, Mining and Metals Division, 165 NLRB 254, 255 (1967), enfd. sub nom. Oil. Chemical and Atomic Workers International Union, Local 3-89, AFL-CIO v. N.L.R.B., 405 F.2d 1111 (D.C. Cir. 1968). Here I have serious doubts whether the Union initially insisted upon excluding the disputed nonmandatory sub- jects from the bargaining table. During the December 12 negotiation meeting the Union's attorney expressed a willingness "to discuss the von Rohr decision" and, in response to Respondent's demand that the Union with- daw its lawsuit and unfair labor practice charge prior to the execution of the contract, the Union's attorney coun- tered with a proposal that the withdrawal of the lawsuit and charge be a condition subsequent rather than a con- dition precedent to the signing of a contract. Thereafter, upon receipt of Respondent's December 19 statement of accord, although taking the position that the accord did not accurately reflect the parties' agreement, the Union's attorney took the position, which he expressed to Re- spondent, that he was willing to discuss a settlement of the von Rohr decision as well as the charge in Case 23- CA-7063 and proposed that the withdrawal of the Union's lawsuit be treated as a condition subsequent rather than as a condition precedent to the signing of a collective-bargaining agreement. Likewise, the Union's December 21 statement of accord did not clearly and un- equivocally place Respondent on notice that the Union desired to exclude the disputed nonmandatory bargaining subjects from the negotiations, rather it was a counter- proposal involving these matters. In any event, while I have serious doubts that the Union during December 1978 clearly placed Respondent on notice that it wanted to exclude the disputed nonmandatory bargaining sub- jects from the bargaining table, I am persuaded that the Union, through its attorney from January 1979 through March 1979, expressly and unequivocally indicated to Respondent that the Union no longer wanted to discuss the disputed nonmandatory subjects contained in Re- spondent's December 19 statement of accord, but wanted to limit discussion to the terms of the collective-bargain- ing agreement and the parties' agreement to resolve the pending contract grievances prior to signing said agree- ment. Nonetheless, as described in detail supra, in the face of the Union's clear and unequivocal refusal to bar- gain about the disputed nonmandatory bargaining sub- jects, Respondent, until May 25, 1979, continued to 42 The decision to maintain a lawsuit or an unfair labor practice charge and the settlement of such proceedings is not a mandatory subject of bar- gaining. E.g., Royal Typewriter Company v. N.L.R.B., 533 F.2d 1030, 1037 (8th Cir. 1976); N.LR.B. v. Local 964, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Contractors d Suppliers Assn. , 447 F.2d 643, 646 (2d Cir. 1971); Kit Manufacturing Company. Inc., 142 NLRB 957, 971 (1963), enfd. 335 F.2d 166 (9th Cir. 1964); Peerless Food Products, Inc., 231 NLRB 530 (1977). demand that the Union execute the December 19 state- ment of accord which contained the disputed nonmanda- tory bargaining subjects. It is for this reason that I find that by at least March 1980 Respondent was insisting to the point of impasse that as a condition for Respondent's accepting a collective-bargaining agreement that the Union agree to a settlement of Respondent's backpay li- ability in the von Rohr decision and to the withdrawal of its lawsuit and unfair labor practice charges. Since these subjects are nonmandatory subjects of bargaining I find that by engaging in this conduct Respondent violated Section 8(a)(5) and (1) of the Act. 4 3 II. REMEDY Having found that Respondent has engaged in the unfair labor practices found above, I shall recommend that it cease and desist therefrom, that it reimburse em- ployee Encarnacion Gutierrez for the loss of earnings suffered as a result of his unlawful suspension with inter- est as provided in Florida Steel Corporation, 231 NLRB 651 (1977),44 and that, if it has not already done so, it expunge the unlawful reprimand from the employment records of employee Homero Moncivais. I reject the Charging Party's request for the costs in- curred in litigating this proceeding inasmuch as all of Re- spondent's defenses to its illegal conduct found herein were not patently frivolous. See Standard Homes, Inc., 249 NLRB 1085 (1980). Likewise, I am not persuaded, as requested by the Charging Party, that the extraordinary remedy of ordering Respondent to mail and read the notice to employees herein is warranted in this case. However, in view of Respondent's proclivity to violate the Act (see Laredo Packing Company, supra, I shall rec- ommend a broad injunction against further violations of the Act by Respondent. CONCLUSIONS OF LAW 1. Respondent is an employer 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. All production, maintenance and truckdriving em- ployees, but excluding all office clerical employees, sales- men, guards, watchmen and supervisors as defined in the Act, employed by Respondent at its Laredo, Texas, fa- cility, constitute a unit appropriate for purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has been and is now the exclusive collective-bargaining representative of all the employees in the aforesaid bargaining unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By threatening an employee with discharge or other reprisals to discourage the employee from prosecuting a grievance which had been filed pursuant to the contrac- 43 The fact that Respondent on May 25, 1979, after the complaint in this case had issued, notified the Union that it was willing to drop the disputed nonmandatory bargaining subjects from the negotiations did not excuse Respondent's prior illegal insistence. 44 See, generally, Artn Plumbing & Hearing Co.. 138 NLRB 716 (1962). 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tual grievance procedure, Respondent has violated Sec- tion 8(a)(1) of the Act. 6. By promising an employee improved benefits of em- ployment in order to persuade him to assist Respondent in replacing the Union and/or its secretary-treasurer with another bargaining representative, Respondent has violated Section 8(a)(1) of the Act. 7. By reprimanding an employee for engaging in pro- tected concerted activity associated with his position of union steward, Respondent has violated Section 8(a)(1) of the Act. 8. By suspending an employee for 5 days without pay because of his union activity, Respondent has violated Section 8(a)(1) and (3) of the Act. 9. By insisting to impasse upon the withdrawal of a lawsuit and the withdrawal and/or settlement of pending unfair labor practice charge cases as a condition for a new collective-bargaining agreement, Respondent violat- ed Section 8(a)(5) and (1) of the Act. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 11. Respondent has not otherwise violated the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 5 The Respondent, Laredo Packing Company, Laredo, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Food and Commercial Workers International Union, AFL- CIO, Local No. 171, in the following described appropri- ate unit, by insisting to impasse upon the settlement or withdrawal of a lawsuit or an unfair labor practice charge as a condition for a collective-bargaining agree- ment. All production, maintenance and truckdriving em- ployees, but excluding all office clerical employees, salesmen, guards, watchmen and supervisors as de- fined in the Act. (b) Suspending employees, or in any other manner dis- criminating against them because they engage in union activity or support the Union. (c) Threatening employees with discharge or other re- prisals to discourage them from prosecuting grievances filed with the Union. (d) Promising employees improved benefits of employ- ment in order to persuade them to replace the Union or its agents with someone else. 46 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections hereto shall be deemed waived for all purposes. (e) Reprimanding employees for engaging in protected concerted activity associated with their position as union steward. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union, as the exclusive representative of 11 em- ployees in the appropriate bargaining unit, and embody any understanding reached in a signed contract. (b) Reimburse employee Encarnacion Gutierrez for any loss of earnings he may have suffered as the result of his 5-day suspension, together with interest as proscribed in the section of this Decision entitled "Remedy." (c) Rescind its reprimand issued to Homero Moncivais on or about January 9, 1978, and expunge from its re- cords all memorandums of or reference thereto. (d) Expunge from its records all memorandums of or references to the 5-day suspension issued to Encarnacion Gutierrez. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facility in Laredo, Texas, copies of the attached notice marked "Appendix." 4 6 Copies of said notice, which are to be printed in English and Spanish, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon re- ceipt thereof and be maintained by Respondent for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in Case 23-CA-7214 be dismissed in its entirety and that the part of the complaint in Case 23-CA-7418 be dismissed which alleges violations of the Act not specifically found. "6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 20 LAREDO PACKING COMPANY APPENDIX 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 with United Food and Commercial Workers Internation- al Union, AFL-CIO, Local No. 171, by insisting to impasse upon the settlement or withdrawal of a lawsuit or unfair labor practice charge as a condi- tion for a collective-bargaining agreement. The ap- propriate bargaining unit is: All of our production, maintenance and truck- driving employees, but excluding all office cleri- cal employees, salesmen, guards, watchmen and supervisors as defined in the Act. WE WILL NOT suspend our employees or in any other manner discriminate against them because they engage in union activity or support the Union. WE WILL NOT threaten employees with discharge or other reprisals to discourage them from prosecut- ing grievances filed with the Union. WE WILL NOT promise employees improved benefits of employment in order to persuade them to replace the Union or its agents with someone else. WE WILL NOT reprimand employees for engaging in protected concerted activity associated with their position as a union steward. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WILL, upon request, bargain collectively with the above-named Union, as the exclusive representa- tive of all the employees in the appropriate unit, and embody any understanding in a signed contract. WE WILL reimburse employee Encarnacion Gu- tierrez for any loss of earnings he may have suf- fered as a result of his 5-day suspension, together with interest. WE WILL expunge the reprimand we issued on or about January 9, 1978, to employee Homero Monci- vais from his employment record. WE WILL expunge the 5-day suspension we issued to Encarnacion Gutierrez from his employ- ment record. LAREDO PACKING COMPANY 21