Northern States Beef, Inc.

NORTHERN STATES BEEF, INC. Northern States Beef, Inc. and District Union No. 271 of Amalgamated Meat Cutters- and Butcher Work- men of North America, AFL-CIO and Arthur L: Morgan Union, Party in Interest Northern States Beef, Inc. and District Union No. 271 of Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO. Cases. 17-CA- 6715 and 17-RC-7731 October 13, 1976 DECISION, ORDER, AND DIRECTION By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 30, 1976, Administrative Law Judge Thomas E. Bracken issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has, delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' 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, Northern States Beef, Inc., Omaha, Nebraska, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order. DIRECTION It is hereby directed that the Regional Director for Region 17 shall, pursuant to the Board's Rules and Regulations, within 10 days of this direction, open and count the ballots cast by Mike Rogers, Forrest Hastings, Ervin Haynes,- James Kraus, and Ramon de Anda and thereafter cause to be served on the parties a revised tally of ballots including therein a count of the above ballots. Thereafter, in the event the results indicate that Petitioner has received a ma- jority of the votes cast, the Regional Director shall 365 certify the Amalgamated Meat Cutters Union as the exclusive bargaining representative. IT IS FURTHER DIRECTED that, in the event the results indicate that Petitioner has not obtained a majority, the Regional Director shall set the election aside and shall direct a second election. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 In the absence of exceptions , Chairman- Murphy adopts pro forma the recommendation of the Administrative Law Judge that the challenge to the ballot of James Kraus be overruled DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge: These cases were heard in Omaha, Nebraska, on December 15, 16, and 17, 1975.' The complaint in Case 17-CA-6715 was issued by the Acting Regional Director for Region 17 of the National Labor Relations Board (herein the Board) on October 28, based on a charge filed by District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (herein the Union), on Au- gust 17 and amended on October 9. The complaint alleges that Northern States Beef, Inc. (herein Respondent), termi- nated three employees in violation of Section 8(a)(1) and (3) of the Act. The complaint further alleges unlawful 8(a)(1) conduct by threatening employees with closure of the plant, interrogating employees, threatening loss of wag- es, threatening by pointing out the futility of supporting the Union, and promising increases in wages. In addition, the complaint alleged other 8(a)(1) violations, and 8(a)(2) vio- lations by the rendering of unlawful aid to the Arthur L. Morgan Union (herein Morgan. Union). In its answer, Re- spondent denied the commission of any unfair labor prac- tices.' On April 21, the Union filed a representation petition (Case 17-RC-7731). Pursuant to a Decision and Direction of Election, an election was held on August 8, in a unit comprised of all production and maintenance employees including breakers, boners, trimmers, packers, palletizers, maintenance, janitorial, and truckdrivers/loaders, exclud- ing all office clerical employees, professional employees, guards and supervisors as defined in the Act, all sales per- 1 Alf dates are in 1975 unless otherwise stated 2 At the opening of the hearing, General Counsel amended par 6 of the complaint by deleting from the introductory clause thereof "and continuing to date," and by deleting "May 23" from par 6(a) Respondent, thereupon, amended its answer to par. 6, admitting that its supervisor/and or agent, Jim Sherron, on April 15, 16, and 18 had rendered unlawful aid to the Morgan Union by circulating authorization cards on behalf of Morgan, and admitting that its, supervisor/and or agent Adolph Raska on April 17 had posted a notice that the employees of Respondent were represented by the Morgan Union. 226 NLRB No. 64 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonnel and all other employees. Of the 29 valid votes counted 14 were for and 15 were against the Union. No ballots were cast for the intervenor, Morgan Union. Six ballots were challenged and were sufficient in number to affect the results of the election. Three of the six challenged ballots were those cast by the alleged discriminatees, named in the complaint. On November 3, the Regional Director issued an order directing a hearing on the objec- tions to the election and challenged ballots, and"consoli- dated the matter with the instant case. Except as noted, infra, the objections and the complaint allegations were substantially identical. Upon the entire record, including my careful observa- tion of the demeanor of the witnesses, and due consider- ation of the briefs filed on behalf of the General Counsel, Respondent, and the Union, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, a corporation, is engaged in the break- ing and boning of carcass beef for wholesale sales from its plant in Omaha, Nebraska, where it annually purchases goods and services valued in excess of $50,000 directly from sources located outside the State, and it annually sells products valued in excess of $50,000 directly to customers located outside the State. The complaint alleges, the an- swer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the Respondent admits, and I find that the Union and the Morgan Union are labor orga- nizations within the meaning of Section 2(5) of the Act.3 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction On April 15, Respondent commenced the operation of a meat packing plant featuring the breaking and boning of beef carcasses. Adolph Raska, the president and general manager, had designed and supervised the construction of the plant. Prior to its opening, Raska hired Marvin Hanson as plant superintendent, and Jim Sherron as the boning department supervisor. Hanson had been associated with Raska for over 11 years in the meat packing industry, and Sherron had 30 years' experience in the industry. In March and April, applications for employment were accepted, and Raska and Sherron selected between 125 and 150 individu- als for interviews; out of this group, 25 to 30 employees were hired as the original work force. ' 'Richard Jennum, district representative of the Union, 3 Respondent's answer originally pleaded lack of knowledge as to the status of the Morgan Union, but at the hearing Respondent admitted that the Morgan Union was a labor organization within the meaning of Sec 2(5) of the Act. had watched the construction of Respondent's plant, and initiated an organizational campaign by, having three of his members, Mike Rogers, Forrest Hastings, and Ervin Haynes, file applications for employment with Respon- dent. On April 15, the date of the plant opening, Rogers commenced passing out union authorization cards given to him by Jennum. Jennum also gave authorization cards to Hastings and Haynes, who passed them out to employees, and returned the signed cards to him. B. The Arthur L. Morgan Union On the day of the plant opening, Sherron began circulat- ing authorization cards to Respondent's employees on be- half of the Morgan Union, and thereafter distributed them on April 16 and 18. On April 17, Raska posted a notice on Respondent's bulletin board that the employees of Respon- dent were represented by the Morgan Union. These facts are not in dispute as they were admitted by Respondent at the opening of the hearing, as were the legal conclusions contained in paragraph 6 of the complaint, that Respon- dent by those acts rendered unlawful aid, assistance, and support to the Morgan Union. Accordingly, I find that Respondent contributed unlaw- ful assistance and support to the Morgan Union by Sher- ron's circulating of Morgan Union authorization cards, and by Raska posting a notice that the employees of Re- spondent were represented by the Morgan Union, and that this conduct reasonably tends to coerce employees in the exercise of their free choice in selecting a bargaining repre- sentative, in violation of Section 8(a)(1) and (2) of the Act. Vernitron Electrical Components, Inc., 221 NLRB 464 (1975); LeBoe Tire and Rubber Company, d/b/a Mission Tire & Rubber Company, 208 NLRB 84 (1974). C. Credibility This record is replete with credibility conflicts of the who-said-what-to-whom variety. In most instances I have indicated my resolution of them in the sections which fol- low the review of the particular incident. However, Fore- man Sherron is involved in so many incidents that the problem of his credibility is pivotal in this case. Thus, a more extensive discussion of my reasons for discrediting him is in order at this point. Sherron was a garrulous, unresponsive, rambling, eva- sive witness, whose testimony was replete with contradic- tions and fabrications. On direct examination he denied that he had passed out Morgan Union cards to employees of Respondent, admitting only that he passed out cards, the origin of 'which he did not know. When pressed on cross-examination, he answered as follows: Q. (Mr. Weinberg) And you say you did not know if they were Arthur L. Morgan cards? A. They could have been baseball cards. It was just no concern to me. [Emphasis supplied.] Q. So your testimony is that you did not pass any ° The Morgan Union was named as a party of interest in the complaint, but no appearance was entered at the hearing on its behalf It did appear on the ballot on election day, August 8, but received no votes NORTHERN STATES BEEF, INC. 367 cards that you knew to be Arthur L. Morgan cards out, is that right? A- That I exactly knew that those were-I read them and hand them someplace? Not really, no. I didn't care. When reminded by counsel for the Charging Party that Respondent's counsel had admitted on the record that Sherron had circulated Morgan Union authorization cards in April, Sherron admitted that he knew that, but still in- sisted that he had not read the cards. When asked why he would pass out such cards, he responded "I go down the street here. Somebody hands me some cards and says pass some of these out, will you." Sherron's demeanor on the stand was that of a self-as- sured schemer, who was willing to give lip service to the Section 7 rights of the employees, but who would carry out every wish of his employer to suppress those rights. I have discredited him whenever his testimony is in conflict with that of another witness, except for the following two inci- dents. Jimmy Barry, a witness for the General Counsel, com- menced working on the breaking table of Respondent on opening day, April 15. He testified both on direct and cross-examination that, on the morning of April 17, he had the following conversation with Sherron: "I asked Mt. Sherron, where was Mike Rogers, and he stated to me that he might be fired because there was a smart guy that they had to let go and a few others, to make it look good." Sherron admitted that he had had a conversation with Bar- ry at his table, and that when Barry had asked him where Mike Rogers was, Sherron replied, "I don't know where he is at," and that was the extent of the conversation. On cross-examination, Barry admitted that he had a clear view of the breaking table, which was about 15 feet from his station, yet he did not see' Rogers after April 17. Since Rogers worked all of April 21 and part of April 22 at the breaking table, Barry would necessarily have seen him, yet he denied doing so. It is possible that Barry has his dates mixed up, and that he questioned' Sherron as to Rogers' whereabouts after Rogers' last day of work, April 22. How- ever, Barry was so firm in insisting that the conversation occurred on April 17, that I' am unable to credit his testi- mony on this incident.5 Ronald Jones testified on behalf of General Counsel. Jones, a parolee on a work-release program, and a nephew of Sherron, rode with him to and from work after being hired in May. Jones testified that on May 27, going home after work, Sherron was telling the passengers "how they had let some of the union leaders go because of their union activities" and "'they were going to let more go if I could kind of mingle around and find out some of their leaders." On cross-examination Jones testified that in the rides to and from work, from the time of his hiring until the day of the election, each and every day all Sherron ever talked about was the Union. Sherron admitted that there was some talk about the Union, but also testified that they 5 Rogers also testified as to overhearing part of this conversation on April 17 as he walked up behind Barry and Sherron This was the only time in testifying that Rogers was uncertain and ill at ease , and I do not credit his account of this incident talked about women, and "about anything that guys driv- ing home would be talking about." Jones did not impress me as being a reliable witness. It is inconceivable that in 2-1/2 months of a twice-a-day car- pool, that no other subject' was ever discussed except unions. Jones had been laid off in September and terminat- ed in November because of a back problem, and Respon- dent had refused to rehire him thereafter, despite his fre- quent requests. I do not credit his testimony. D. The Discharge of Rogers 1. Background and General Counsel's case On March 10, Mike Rogers filed an application for em- ployment with Respondent as a boner, setting forth in the former employer's section that he had 2-1/2 years' experi- ence as a boner at a packing plant in the same area. In the reference section, he listed as one of his three personal ref- erences Richard Jennum, "Business Rep for Amalgamated Meat Cutters." On Tuesday, April 15, the day the plant opened, Rogers started as a boner on the boning table, removing meat from ribs. At noon, he commenced passing out authoriza- tion cards for the Union in the plant lunchroom to any employee who would take one. For the next few days he continued to pass out authorization cards in the lunchroom and after work, on the parking lot. Rogers testified that on Wednesday or Thursday, April 16 or 17, he went into the lunchroom with another employ- ee and sat down, when Raska came in and asked him what he was doing counting timecards. Rogers told him that he was not counting them, but trying to find his card, so as to mark it for easy identification when punching out. Rogers quoted Raska as saying, "Buddy, you better stick to your work on company time and do your organizing on your own time." 6 On the morning of April 17, Rogers saw on the company bulletin board a notice signed by President Raska that the Morgan Union would be the employees' representative for wages, hours, and working conditions. On the way back to his work station, Rogers questioned his foreman, Sherron, about the contents of this notice, and was told by Sherron that he had no choice as to choosing a representative. Fi- nally, Rogers testified that the - conversation ended with Sherron telling him that "Mr. Raska had closed the plant at St. Paul, Minnesota, on account of Amalgamated Meat Cutters Union and if worse come to worse he would close this one." Approximately 1 hour later, Superintendent Hanson came to Rogers and asked Rogers if he had any experience lugging (unloading quarters of beef from trucks to the cool- er). Rogers told him he did not, but Hanson said he was shorthanded, and asked Rogers if he would try, and Rogers agreed. That afternoon, or the afternoon of the next day, while working in the cooler, Rogers slipped and fell, injur- ing his leg, and was taken to the Company's clinic by Re- spondent's office manager, Don Cohoy, for medical treat- s Raska agreed that Rogers' testimony about this incident was correct, but placed the event on the first or second day of the plant's operation. April 15 or 16 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meat. On Monday, April 21, Rogers returned to work, told Hanson his knee was bothering him, and Hanson then as- signed him to the breaking table. At the breaking table, Rogers was assigned the job of "dropping shanks," de- scribed by Foreman Sherron as cutting the front leg from the halved quarter of beef. This work required Rogers to be on his feet and involved some movement of his body, al- though not as much as when unloading trailers. He contin- ued working at the breaking, table on Tuesday, but found the work too much for his injured leg, and in the afternoon Hanson allowed him to go home. Nothing was said to him by anyone as to his status as an employee. This was the last day worked by Rogers in this period. In the following week I Rogers went to the plant to in- form Raska that he would be off the remainder of the week, and would be ready to return to work the following week. Raska informed him that he was no longer needed, that he was terminated. Rogers testified that he did not recall Sherron or Hanson warning him about his boning, but that he did recall on the first day that Raska had brought one of his rib bones back to him, and told him to break the back chime bones. 2. Respondent's defense Shortly after Rogers submitted his application for em- ployment, Raska had a personal interview with him, and decided to hire him as a boner because of his experience. Raska had noticed on the application the name of the busi- ness representative of the Union as a reference. However, from the first day of work, Rogers failed to perform his work properly. Sherron testified that on the first day he took some meat back to Rogers and threw it on his table and said, "What's the matter," to which Rogers replied, "I don't know," and Sherron told him to "Look at your meat. You know what's the matter." Sherron testified that he told Hanson the next day that he did not think Rogers would make it. Hanson testified that he observed Rogers boning and did not think he was performing ade- quately. On the second or third day of operation, Hanson found himself short of help on the loading dock; it was at that time that he asked Rogers to unload trucks. Raska summed up Rogers' work performance by testifying that his performance as a rib boner was poor, and that his per- formance in unloading trucks and on the breaking table was "inadequate." At the time of discharge Raska in- formed Rogers that "It is not because of your union activi- ty for which we are terminating you. It is because we are cutting the gang of people that are not working out." Ras- ka stated that this group consisted of seven, eight, or nine individuals. These other terminated employees were not identified, nor were any business records offered to sup- port this testimony. 3. Conclusions It is my opinion and I find that Rogers was discharged for engaging in union activity, and that the grounds ad- 7 On May 1, according to Raska vanced for his termination are a pretext to mask the true reason. In arriving at this ultimate finding, I have relied on the entire record and the following subsidiary facts, which I hereby find as facts, (a) Rogers was the original in-plant organizer, and the most prominent in the movement to organize Respondent's employees. This of course does not shield him from being discharged for cause, as stated in Respondent's brief. But dismissing an outstanding. proponent of a union often tends to discourage other employees from becoming inter- ested in a union. N.L.R.B. v. Longhorn Transfer Service, Inc. 346 F.2d 1003, 1006 (C.A. 5, 1965). (b) Respondent was aware of Rogers' union activity from the first or second date of his employment when Ras- ka saw him checking timecards in the lunchroom and told him to do his organizing on his own time. Raska himself admitted that he knew Rogers was a union organizer "Through observation and hearsay and hunch." (c) Respondent entertained union animus. President Raska's admitted posting of a notice on the company bul- letin board on April 17 that the Morgan Union represented the employees of Respondent was an expression of anti- Amalgamated Union hostility in an open and notorious manner. There is not a scintilla of evidence, nor did Re- spondent claim, that at the time of the posting of the notice any employees had designated the Morgan Union to be their collective-bargaining representative. A basic purpose of the Act is to allow employees to select their bargaining representative free of employer influence. When Raska put up that notice he was flouting the law and putting his em- ployees on notice of his complete hostility towards the Amalgamated Union. Sherron's threat to Rogers that Re- spondent would close the plant down if the Union got in was also a clear expression of antiunion hostility. This threat and others will be reviewed in detail hereinafter. Respondent contends in his brief that "The very fact that Mike Rogers was hired demonstrates a lack of anti- union animus on the part of the Employer." If we accept this argument, arguendo, it would only prove that Respon- dent had no union animus at the time of hiring Rogers. Raska's conduct after the opening of the plant clearly sets forth his union hostility. Patently, union hostility in itself is inadequate to prove that Rogers was discriminatorily dis- charged (N.L.R.B. v. Harry F. Berggren & Sons, Inc. 406 F.2d 239, 246 (C.A. 8, 1969), cert. denied 396 U.S. 823), but it is a factor which may be appraised in determining the true reasons prompting or inducing a discharge. (d) Respondent's stated reasons for discharge do not stand scrutiny. Rogers was of impressive physical stature, his application form listing his height at 6 feet 4, inches, his weight at 240 pounds, and his age at 29. He had had 2-1/2 years' experience as a boner at an adjacent area meat pack- ing plant. After a review of these credentials and a personal interview, he had been hired by Raska. Rogers also impressed me with his straightforward testi- mony, sincerity, and-prompt to-the-point responses both on direct and cross-examination, and I credit his testimony generally. He was doubtful about some dates, but so was Raska, Sherron, and Superintendent Hanson. Respondent produced no records to verify dates, and neither Raska nor Hanson knew whether Rogers worked on the boning table NORTHERN STATES BEEF, INC. 1-1/2 or 2-1/2 days, before being transferred to the un- loading of quarters of beef from trucks to the cooler. In either version, he was given a very short period of time to judge his ability as a boner. The company officials empha- sized throughout the hearing that all employees were hired under a 30-working-day probationary period. Certainly, the 30-day period must have some relationship to the aver- age amount of time that it requires for Respondent to make a reasonable judgment on the capabilities of its em- ployees. Their claim that, after 1-1/2 or 2-1/2 days' obser- vation of Rogers, he could not make it clashes with their 30-day probationary period, and would make it a nullity. Rogers was actually placed on the loading dock by Han- son as Hanson was short of help to unload meat trucks. If Hanson had not been short of unloading help, the infer- ence is clear that Rogers would not have been taken from the boning table. It is not in dispute that Rogers slipped and injured his leg on the first or second day he worked unloading quarters of beef,' and that this injury required that he be taken to the Company's clinic. Respondent in its brief contends that Rogers performed poorly on the cooler loading dock. The only basis for this allegation was testi- mony of Rogers that, after he and one other employee had unloaded two loads of cattle, something was said by an unidentified party "that we were too slow." Rogers' de- fense was that there were only two of them unloading the beef. There is nothing in the record to show the number of employees that constitutes a regular crew of unloaders. I do not find that the evidence supports the allegation that Rogers performed poorly on the cooler loading dock. (e) When Rogers returned to work on Monday, April 21, he told Hanson that "his knee was bothering him," so Hanson put him on the rolling table. Hanson admitted re- luctantly that Rogers got his permission to leave, when he left before the conclusion of his second day on the rolling table, and that Rogers' leg was bothering him. When Raska next saw Rogers over a week later, Rogers was walking with a cane, and was still unable to come in and work. It cannot be contended that Rogers had a reasonable trial period on the rolling table. At Raska's discharge interview with Rogers he told Rog- ers that they were cutting seven, eight, or nine other indi- viduals, who were also not working out. These other termi- nated employees were not mdentified, nor were any business records offered to support this testimony. One would expect that to bolster such a contention Respondent would have offered its business records in evidence. How- ever, without explanation, Respondent did not do this. Its failure to do so leaves me to believe that its records would not have home out its claim in this respect.9 (f) Finally, it is not essential, in order to find Rogers' discharge to be discriminatory, that it resulted solely from his union activity. It is sufficient to find such discrimina- tion, notwithstanding that a valid cause may have existed for his termination, if al substantial or motivating ground for his discharge was his union activity. N,L.R.B. v. Whitin 8 The date of injury, April 17, a Thursday, was agreed to by all 9 "A litigant's unexplained failure to offer material evidence warrants the inference that, if headduced the evidence, it could not support his posi- tion " Bechtel Corporation, 141 NLRB 844, 852 (1963). 369 Machine Works, 204 F.2d 883, 885 (C.A. 1, 1953); N.L.R.B. v. Lexington Chair Company, 361 F.283, 295 (C.A. 4, 1966). I find that a substantial or motivating reason resulting in his dismissal was his union activity, and the said "union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance. Whitin Ma- chine Works, supra at 885. E. The Discharge of Hastings 1. Background and General Counsel's case Prior to coming to work for Respondent, Hastings had had 9 years' experience as a boner at various packing plants. When he started to work as a boner at Respondent, he knew his foreman, Jim Sherron, from working with him at the Mid-Continent plant in Omaha. On his second day of employment, April 16, Hastings commenced passing out union authorization cards to other employees at lunchtime and after work. One day, while passing out cards in the lunchroom, he saw Sherron stand- ing about 3 to 5 feet away from him, but Sherron did not say anything. On April 18 while in the lunchroom with other employ- ees, Sherron walked up to Hastings and asked him if he wanted to sign a union card. When Hastings asked if it was an Amalgamated Union card Sherron told him no, it was an Arthur L. Morgan card. Upon telling Sherron he would not sign unless it was an Amalgamated Union card, Hast- ings testified as follows: "he went on to say that Mr. Raska had a plant in Minneapolis, St Paul and he closed it on account of Amalgamated Meat Cutters Union. And, if Amalgamated tried to come into Northern States Beef that he would close it also." Hastings lived in Bartlett, Iowa, a distance of about 30- 35 miles from the plant, with an average driving time of 45 minutes. On May 9, Hastings was driving on Interstate 29 so as to report to work at 6:30 a.m. when his car broke down. He tried to fix his car but was unsuccessful. He hitched a ride back home, and borrowed a friend's car. He then drove to the plant, arriving between 8:30 and 9 a.m.10 He went in and talked to a man'he described as the person- nel manager, but whose actual title was office manager, Don Cohoy. Hastings informed him about his car breaking down: And, I asked him if it would be O.K. if I picked up my check and go home and try to get my car fixed to where I could have it for Monday at work. And, he said O.K. So, I went into the lunch room, and Jim Sherron was in the lunch room-plant supervisor, and I told him what had happened. And, I told him I was going to go home and fix my car. He said O.K., so I went home and proceeded to fix my car. On the following Monday, Hastings reported for work at the regular time and was told by Raska that he was no longer needed. 10 Hastings admitted that he was aware of a company rule stating that anyone who was late and failed to call in was subject to immediate dis- charge However, he stated he wanted to get to the plant and notify them, and also get his check so that he could have his car repaired 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Hastings, on April 21 and 22, Sherron on one day, and Superintendent Hanson on the next day, had each told him that Raska has said "if he had ten men like me, he would lay off the rest of the men." Hastings had not missed any work prior to May 9, and had never been late. 2. Respondent's defense Respondent in its brief states: "The sole reason for Hast- ings' termination was his failure to report for work on May 9, 1975 and, more importantly, his refusal to work when requested when he finally did appear on that date." Don Cohoy, office manager of Respondent, was in his office that morning when Hastings came in and Cohoy described what happened as follows: "Forrest wanted his paycheck and said something about not working that day and I think I asked him why he wasn't going to work. He said he had to go get his car fixed. I said, well, you better talk to somebody. I said talk to Jim Sherron." Cohoy did not think that Hastings was dressed as packers dress for work, and estimated the time to be about 11 a.m. Hastings did go out in the plant where he met Sherron; Sherron described what happened as follows: I went to my locker to get a knife out and I was on my way back to the boning room and Forrest came through the door. I said, "O.K., man I'm glad to see you. Get your apron on. Let's go. I need you." So he said "No, baby, I can't do that." I said, "Why?" He said "I broke down out here on the interstate. I need to get my car." I said, "O.K., man you can get that tonight or something." He said, "No, I've got to get my car off the interstate so I can have it pulled in you know, the garages aren't open tomorrow. I've got to get that car fixed so I can have something to drive back and forth to work in next work." 3. Conclusions Upon the entire record and the facts recited in this sub- section, it is my conclusion, and I find, that Hastings was discharged for engaging in the union activity of passing out authorization cards, and that the reason given by Respon- dent, failure to report for work and refusal to work when requested, is a pretext to disguise the real reason. (a) With Rogers he was the leading proponent of the Union at Respondent's packing plant, and devoted time during his lunch breaks and after work for the Union's cause among Respondent's employees. (b) Respondent had actual knowledge of his activity on behalf of the Union. Hastings' testimony that Sherron was standing about 3 to 5 feet away, while he passed out union cards in the lunchroom, was uncontradicted and I credit it. Hastings testified in a direct, conscientious manner, with- out evasion, on both direct and cross-examination, and I credit his testimony. (c) As found elsewhere herein, Respondent entertained union hostility. (d) Respondent's reason for discharge does not with- stand examination. When Hastings came into Cohoy's of- fice on the morning of May 9, he had every right to assume that he was talking to an official of, the Company. Cohoy and his clerical assistant were the total office force of Re- spondent. In fact Cohoy had hired that assistant, thus exer- cising one of the foremost powers of a supervisor, as set forth in Section 2(11) of the Act. Cohoy admitted that some production employees had reported to him when they were late for work, and that some production employees had come in to get paychecks and have questions answered by him. Both Hastings and Cohoy agree that, in the office con- versation, Hastings informed Cohoy that (1) he wanted his paycheck, and (2) he wanted to go home, and get his car fixed. When Cohoy gave him his paycheck, Hastings as- sumed that his request of Cohoy was granted in both re- spects. Cohoy was a man with years of experience in office management, and all he had to do to deny Hastings' re- quests was to hold Hastings' paycheck until the end of the day. This he did not do. Cohoy was an unimpressive witness who appeared to be tailoring his answers to fit the cause of Respondent. He testified that Hastings was dressed neatly when he came into his office, and not like a packer usually dressed. Sher- ron saw nothing unusual in Hastings' dress, as Sherron tes- tified that when he saw Hastings he told him to put his apron on. When Sherron stated his version of his conversation with Hastings, he did not in any way indicate that he ordered Hastings to stay that day. Respondent's counsel then tried to pin him down by asking if he asked Hastings "specifical- ly to stay that Friday." Sherron equivocated and said: "Any time I have to go on somebody's job to stay there for five hours and they walk through the door, you better be- lieve I'm going to try to get them on their job." However, the record is clear that Sherron never warned Hastings that he would be subject to discipline or discharge if he did not stay and work the rest of the day. Hastings had been given his paycheck to go home and have his car repaired, and he left the plant to carry out this object, with- out any ultimatum from Sherron as to the consequences of his act. The pretextual nature of Hastings' discharge is further emphasized by Raska's various statements in regard to Hastings' ability as a boner. On August 8 Raska gave an affidavit to Board Agent Murphy, in which he stated that Hastings was terminated in part because his work was un- satisfactory." At the hearing on direct examination when asked if Sherron's work was satisfactory he replied "Yes, there is no argument there." On cross-examination when asked if he had ever told Hanson or Sherron that if he had 10 employees like Hastings he could let the rest of the work force go, he replied "It might be an exaggeration, but ba- sically the man was a good worker." Thus when Raska made his affidavit he thought it neces- sary to shore up the reason for the discharge of Hastings, by adding the reason of poor work performance, when he himself knew Hastings was a good worker, if not his best worker. i Raska testified that the affidavit he gave was not necessarily correct, as it was given in a hurry after the election However, he did admit that he signed this statement and took an oath that the- contents were true and correct. NORTHERN STATES BEEF, INC. Superintendent Hanson testified that Hastings was a good boner. He also admitted that one of Respondent's biggest problems was that they could not get enough bon- ers within the first 30 days of the plant opening to get production to capacity. When faced with this incongruity, Hanson replied defensively that he did not terminate Hast- ings. (e) Notwithstanding that lawful cause may have existed to discharge Hastings, such discharge will be found to be discriminatory, if the motivating or substantial reason was his union N.L.R.B. v. Murray-Ohio Manufacturing Compa- ny 358 F.2d 948, 950 (C.A. 6, 1966). This consequence flows from the rule that such union activity need not be the sole cause for terminating him. I find that the motivating or substantial reason for dismissing Hastings was his union activity even though it may not have been the sole reason. F. The Discharge of Haynes 1. Background and General Counsel's case Haynes testified that he started to work on April 21 as a chuck boner. Previously, he had had 7 or 8 years' experi- ence as a boner, working for various area meat packing plants, including Mid-America Meats and Mid-Continent Meats. Haynes had worked with Sherron at these two plants. On his first day of work, Haynes passed out union au- thorization cards in the lunchroom, and continued to do so until the date of termination. He did not observe any su- pervisor watching him as he passed out cards. Also, on his first day, Sherron approached him at his working station on the production line, gave him a Morgan Union card, and asked him to sign it, saying that he was a steward for the Morgan Union. Haynes refused to sign the card, whereupon Sherron told him that "there will be no Amal- gamated Union in here. That Mr. Raska would close the plant." Sherron denied that he asked Haynes to sign a Morgan card, or that he said Raska would close the plant, I do not credit Sherron as previously set forth. Haynes was a sincere, uneducated witness who impressed me that he was striving to tell the truth as he remembered it, and I credit his testimony. Haynes admitted that he was warned about the quality of his work one time by Raska, when a dirty bone t went down the chute, and Raska brought it back to him and said "buddy, you either get this or get out." Haynes also admit- ted in the second week he worked at Respondent, Sherron had been pressing him on production, and asked him if he had any unemployment forms at home. Haynes testified that he knew what Sherron was, talking about: "He was going to put me out the door unless I tightened up." At quitting time on May 2, Haynes was told by Raska that his services were no longer needed, and when he asked for the reason for his discharge, he was told by Raska that he didn't need any reason. 12 Defined by Raska as meaning a man is not getting the meat off the bone 371 2. Respondent's defense All three supervisors of the Respondent criticized Haynes' work as a boner, both as to the quality and the quantity. Sherron testified that he warned Haynes about his production almost daily and that, although he spent a lot of time trying to teach him proper boning techniques, Haynes failed to improve. Superintendent Hanson testified that he personally warned Haynes five or six times about dirty bones. Raska testified that he put Haynes working as a chuck boner, because that is what he claimed to have experience in. However, from his observation of Haynes his bones were dirty. 3. Conclusions On the entire record in this case and the subsidiary facts found below in this subsection, I find that Haynes was discharged for engaging in the prounion activity of passing out union authorization cards, and that the reason stated in Respondent's brief "for failing to meet production" is a pretext to disguise the real reason. (a) Haynes was not the most active union promoter, but he was one of the team of three men that Union Represen- tative Jennum requested to seek jobs in the plants so as to organize the employees, and he had been on the in-plant organizing team. (b) While there in no direct evidence that Respondent was aware of Haynes passing out union authorization cards in the lunchroom, I find upon the record as a whole that Respondent did have such knowledge. Although Sher- ron testified that he never saw Haynes pass out cards, he also testified that in the cafeteria where he ate, "It seemed like everybody was handing out some kind of a card." It is reasonable to infer and I draw the inference that Haynes was one of those people that he described as everybody, and that the cards he was handing out were union cards. Additionally, I attribute such knowledge to the Respon- dent under the small plant rule, which I find operative in this case. Angwell Curtain Company, Inc v. N.L.R B., 192 F.2d 889 (C.A. 7, 1951). Respondent only had 30 to 35 employees working in a new plant designed by the presi- dent. Raska, Hanson, and Sherron constituted a very tight- ly knit corps of supervisors, who moved about the plant, constantly observing the employees and in the normal course of events, Respondent must have noticed Haynes' activity. Kim, Sales, Ltd., 223 NLRB 1212 (1976); Ballard Motors, Inc, 179 NLRB 300, 307 (1969). (c) Respondent entertained union hostility as previously set forth. (d) Respondent's stated reason for discharge does not withstand scrutiny. Sherron had worked with Haynes at both Mid-American Meats and at Mid-Continent Meats prior to their working together at Respondent's plant. Sher- ron admitted that he requested Raska to hire Haynes, but tried to soften the effect of this admission by stating it was because "some of the other guys that had worked there at Mid-American Meats that were working for us" had asked him to give Haynes a chance. When Sherron had worked with Haynes at Mid-American and Mid-Continent Meats 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he undoubtedly knew whether Haynes was a competent boner or not. From my observation of Sherron, he was not the type of man to do anybody a favor, and his actions in asking Raska to hire Haynes speaks out loudly and clearly, that he considered Haynes a competent boner. Sherron, as a new foreman for a new employer, was not going to jeop- ardize his job and recommend that the boss hire an incom- petent boner. Haynes was not the incompetent boner that he was made out to be by Respondent's witnesses. When Hanson was asked flatly by Respondent's counsel, "What was his [Haynes] performance like while you were watching him," the superintendent replied, "It was good while you were watching him." It is true that Hanson then added that "The minute you turned your back-he'd throw a dirty bone." For Haynes' work to be rated good while being watched, means that Haynes was a knowledgeable, compe- tent boner. Clearly an inexperienced and incompetent em- ployee who did not know how to bone could not put on a good performance dust because he was being watched. He either knew how to bone, or he did not know how to bone, watched or unwatched, and Hanson's words characterized him as a good boner. Raska testified that some other employees were termi- nated on the same day as Haynes, just as he testified that some other employees were terminated on the day Rogers was discharged. The other two supervisors also testified, in generalizations, that they had terminated a number of em- ployees because of their unsatisfactory job performance. However, not one single business record was placed in evi- dence by Respondent to support such testimony. While Raska was testifying about Haynes' discharge he stated that he has a list of employees who had been terminated or who quit, during the month of May. When Respondent's counsel sought to introduce this list of employees as Respondent's Exhibit 1, General Counsel objected, and I reserved my ruling until Respondent submitted the sup- porting records for examination. Although Respondent agreed to supply these documents, this was not done, and, later in the hearing, Respondent's Exhibit 1 was with- drawn. Its failure to do so raised the inference that the business records of Respondent would not support what was set forth in Respondent's Exhibit 1, described by Ras- ka as a list of other employees laid off with Haynes. Calip Dairies, Inc. and Cosmopolitan Ice Cream Co., Inc., 204 NLRB 257, 263 (1973). Or, as the Supreme Court expressed this principle in Interstate Circuit v. United States, 306 U.S. 208, 220, "The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse." Based on the available evidence in this case, the only employees terminated by Respondent in its first 3 weeks of operation were the three union in- plant organizers. Again we have the matter of Respondent's stated policy of having a 30-working day probationary period. Although Sherron thought that Haynes started on April 16, and Haynes thought he started on April 21, in either event his working period was far less than the Respondent's proba- tionary period. (e) And, of course, as more fully set forth in section III, D, 3, f, supra, it is no defense that both lawful and unlawful considerations entered into the decision to terminate Haynes. Since I find that a substantial or motivating rea- son for discharging him was his union activity, such dis- charge may not be justified on the ground that legal cause also played a part in the decision to dismiss him. G. Rules of Law Applicable to All of the Union Discharges I recognize and have adhered to the rule that an employ- er may terminate an employee for any reason good, bad, or indifferent, without running afoul of the Act, provided he is not motivated by unlawful considerations. Also, I recog- nize and have adhered to the rule that I may not question the severity of discipline imposed by Respondent, as the penalty imposed for infractions of working requirements may not be reviewed by me. The principle that the burden of proof to establish the allegations of the complaint re- mains with the General Counsel has been recognized by me. In accordance with these rules, I have found each dis- charge to be discriminatory and a violation of Section 8(a)(3) and (1) of the Act. H. Interference, Restraint, and Coercion 1. Threats to close the plant Five different witnesses testified that Foreman Sherron advised employees, in effect, that if the Amalgamated Meat Cutters Union became the collective-bargaining' rep- resentative of Respondent's employees, Raska (the found- er, president, and general manager), would close the plant. Thus, Rogers testified that, on April 17, Sherron stated to him that "Mr. Raska had closed the plant at St. Paul, Min- nesota, on account of Amalgamated Meat Cutters Union and if worse come to worse he would close this one." Ac- cording to Hastings, on April 18, Sherron told him "that Mr. Raska had a plant in Minneapolis, St. Paul and he closed it on account of Amalgamated Meat Cutters Union. And, if Amalgamated tried to come into Northern States Beef, that he would close it also." In a similar vein, Haynes testified that, on April 21, Sherron told him "there will be no Amalgamated Union in here. That Mr. Raska would close the plant." Sherron denied that he told anyone that the plant would close if the "Mest Cutters" got in. He did admit, however, that he was asked numerous times if the plant would close should the Meat Cutters come in. When asked what he said in response to this question, this compulsive talker incredi- bly replied, "I do not know." I have credited Rogers', Hastings', and Haynes' testimo- ny in these three incidents, and I do not credit Sherron's denials. In the two instances of threats to Hastings and Haynes, he had first attempted to get them to sign Morgan Union cards. When he found himself rebuffed, he then followed up with the threats of plant closure. The threat he made to Rogers was preceded by Sherron's warning to him that he had no choice in choosing a representative, that the Morgan Union was the employees' representative. Respon- dent admitted on the record that Sherron circulated Mor- gan Union cards on April 15, 16, and 18. In this general period of time, he also -talked to Rogers, Hastings, and NORTHERN STATES BEEF, INC. Haynes and, as garrulous as he is and as loyal as he is to Respondent, the inference is clear that, when turned down by these three union loyalists, he countered with the threat of plant closing, in violation of Section 8(a)(1) of the Act. Leroy Nelson: Nelson, a boner, testified that on or about June 26, about 7 a.m., he was in the lunchroom waiting to find out whether he was going to work or not, when Sher- ron came up to him. Nelson asked him if he was going to work, and Sherron told him "that Amalgamated and Mor- gan Union were having an election." Nelson then testified: "He told me if the Union got in that this plant would shut down." Sherron denied any such threat. Nelson was a very timid unimpressive witness, who was not sure about any concrete fact, except the words he attri- buted to Sherron. Nelson first testified that he was hired on June 26, then June 27. Later he stated he was hired on a Monday or a Tuesday. Neither the Monday or Tuesday preceding or succeeding either of these dates was June 26 or 27. Nor did he remember his last day worked. When asked what was unique about June 26 that he would remember that date he testified "O.K., for the sim- ple fact that it was the week before they were going to be laid off." Actually the layoff due to the plant being closed down was from July 14 to 20. Nelson also testified that he saw the notice of election posted 2 weeks before the elec- tion. Raska's testimony was uncontroverted that he posted the notice 3 days before the election. Under the circum- stances, I find Nelson an unreliable witness and do not credit his testimony as to threats of plant shut down, and shall recommend that this portion of the complaint based on this testimony be dismissed. Maxine Calloway: Calloway went to work for Respon- dent on May 5 as a beef trimmer. In mid-July, while at home due to the plant being closed down for the week of July 14, she received a telephone call from Sherron. Sher- ron informed her that she would receive a 25-cent-per-hour raise when she returned to work, with no reason given for the increase. He also asked her if she liked working, at the plant, and she replied yes, and when he asked if she thought the Company had been good to her she also re- plied yes. He then went on to say "that if Amalgamated Meat Cutters Union got in the Plant Mr. Raska would close the doors." Sherron remembered that he had called Calloway about the wage increase, but denied that he made any threat about the plant being closed if the Union got in. I credit Calloway's testimony that Sherron did say the plant would be closed if the Union got in. I found Callo- way to be a completely frank, forthright, and truthful wit- ness. She also testified, against, Respondent while still in its employ, further supporting her credibility. 2. Interrogations Jim Barry: Barry testified that on April 17, during his conversation with Sherron about Mike Rogers, "He asked me, had I signed a union card." Barry did not give him an answer. Since I have previously discredited Barry's testi- mony, I shall recommend that this portion of the complaint be dismissed. Maxine Calloway: On the afternoon of August 7, the day 373 before the election, Calloway testified that Sherron ap- proached her on the production line and asked her if she had gone to the union meeting the day before, to which she replied yes. He also wanted to know how many Mexicans were there and she told him quite a few, but that Ramon de Anda, who worked beside her was not. She continued to testify as follows: Then he asked me how many off the line, off my line was there and I looked around and I told him I could not remember how many. Then he asked me how many off the other line and I told him I could not remember how many off of that line. Then that is when I told him I was not going to answer any more questions, if he wanted to know he should have gone to the meeting. Sherron admitted talking to Calloway on August 7, but denied asking her who went to the union meeting. Accord- ing to Sherron, on August 7 he told Calloway that Respon- dent was having a party that night at Johnny's Cafe. Then on the morning of August 8, she arrived later for work and proceeded to tell him that she had a hangover from the night before. That, as people came out of Respondent's party, "the union was grabbing them and taking them back in the other room up there and buying us drinks up there."" Sherron stated that he was "shocked," that he "had not heard of any such thing as a union doing this." He-then admitted that he "tried to get around to what she was talk- ing about, who was back there." Calloway was a credible witness and I have credited her account. Sherron's admission that he tried to find out who was there points squarely to his interrogating Calloway about the union meeting. I find that, by Sherron's ques- tioning of Calloway as to whether she attended the union meeting, and to what employees attended the meeting, caused the Respondent to violate Section 8(a)(1) of the Act. It is well settled that interrogation that seeks to place an employee in the position of acting as an informer re- garding the union activity of her fellow employees is coer- cive. Abex Corporatton-Engineered Products Division 162 NLRB 328 (1966). 3. The wage increase The complaint alleges that Respondent, through Sher- ron, while the Union's election petition was pending, did promise employees an increase in wages to cause them to abandon support for the Union. Evidence was presented as to one employee, Maxine Calloway. There is no doubt that Sherron telephoned Calloway at home and informed her that she was going to receive a 25-cent-per-hour wage increase. Her testimony is uncontra- dicted that, in the same phone call, Sherron asked her if she liked working in the plant, and if she thought that this company had been good to her, and I credit it. Sherron testified that he made the call on the Saturday of the week in which the plant was closed, when he, Raska, and Hanson were reviewing the wages of the employees. Sherron stated that her work previously had not been up to par, but that she had improved and had earned the raise. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He admitted that it was not "normal" to call employees about their wage increases, but contended that "the way she had been on me about this raise, I figured I am going to let her know so she will get some sleep that "she had gotten her raise finally." Raska testified that, on the Sunday prior to the opening of the plant, April 13, he had met with the employees and informed them that eventually all employees would be paid on an incentive system but, until that time arrived, most of the employees were starting at a lower rate of pay than the top job rate, "and as their proficiency increased they would eventually reach this upper bracket." This testimony was uncontradicted and I -credit it. Each Saturday the three supervisors got together, reviewed the work force, and made a judgment whether an employee was progressing or not. This was the second 25-cent-an-hour raise that Callo- way had received, the first coming early in June. It is well established that the validity of a wage increase during the pending of a.representation petition turns upon whether it is granted "for the purpose of inducing employ- ees to vote against the union." 13 Under "settled-Board pol- icy, a grant or promise of benefits during the critical pre- election period will be considered, unlawful unless the employer comes forward with an explanation, other than the pending election, for the timing" of such action.14 Had the three supervisors that Saturday morning dust agreed that Calloway had earned an increase, marked her pay records accordingly, and let it be handled in the stan- dard procedure of their payroll department, I would be inclined to accept Respondent's explanation of the increase and find no'violation. However, Respondent placed a far different emphasis on this increase. When Sherron called Calloway at her home on a Saturday to advise her of the increase, he admittedly was not handling the increase in the "normal" wage way. His excuse that he called her so that she would get some sleep does not ring true. Under the regular course of events, she would have returned to work on the following Monday, and could then have routinely learned of, the increase. Respondent's motive in giving the increase to Calloway is clearly indicated by Sherron's intermixing talk about how good the Company had been to her, his threat on what would happen to the plant if the Union got in, and then showing the Company's largess in giving her a raise. The message to her was clear just 3 weeks before the election, that the Company gives benefits and the Company can withhold benefits. I find that the granting of the increase was to influence her vote against the Union in the election, and was a violation of Section 8(a)(1) of the Act. Rupp Industries,,Inc., 217 NLRB 385 (1975). IV. THE CHALLENGES AND THE OBJECTIONS TO THE ELECTION Three challenged ballots were referred to me, and I now turn to them. 13 Tonkawa Refining Co., 175 NLRB 619, (1969), citing N L.R B v Ex- change Parts Company, 375 U S 405 (1964) 14 The Singer Company, 199 NLRB 1195 (1972) A The Challenged Ballot of James Kraus The Union challenged the ballot of James Kraus." The Board notice of election provided that the time for the elec- tion would be from 2 to 2:30' p.m. in the lunchroom of the Company. The Board agent who conducted the election did not testify. - Jennum, the district representative of the Union, testi- fied that he was present at the preelection conference at the plant, and that he synchronized his watch with that of the Board agent conducting the election. Neither the union ob- server nor the company observer who were present with the Board agent remembered seeing Jennum and the agent synchronize their watches. Jennum gave no testimony as to the time the election commenced, but he did -leave the premises prior to its commencement, returning'at 2:33 p.m. When he arrived at the plant, he learned from the company counsel that they were waiting for one more individual to vote. He testified 'that Kraus Voted about 5 or 6 minutes after the time the polls were supposed to be closed, based on the time shown on the clock in the plant, and his watch. He 'did not know if the ballot box was sealed when Kraus went in to vote. Jim Barry, the union observer, testified that the ballot box was' not sealed when Kraus came in to vote. 'The Company's observer, James Cullinane, testified that it was about 8 minutes after 2 p.m. when people started coming in to vote. This was uncontradicted. Cullinane fur- ther testified that Kraus appeared to cast his ballot at "just maybe a minute after 2:30 p.m.," and at that time the bal- lot box had not been sealed, nor had the Board agent made any statement that the polling period was closed. The record is silent as to what time the polls were for- mally opened by the Board agent. It is uncontradicted that the first voters came into the voting area at 2:08 p.m., and 34 ballots were cast by approximately 2:30 p.m. Whether one adopts Cullinane's version that Kraus arrived I minute after 2:30 p.m.,' or Jennum's version that he arrived, 5 or 6 minutes after the prescribed time, there is no doubt that he did appear to cast his ballot after the time period set forth in the election notice. Kraus did not testify, nor was any reason offered to ex- plain why he did not cast his ballot during the scheduled period. The Board's standards for determining eligibility of late voters to vote, as set forth in Groendyke Transport, Inc., and Ann Myers Bell, d/b'/a/ Bell Transport Company, 204 NLRB 96 (1973), consist of (1) the reason the employee was late; (2) how late the employee'was; (3) how long the voting period was; and (4) whether the ballot box was opened or the tally commenced at the arrival of the em- ployee. Applying these tests to the instant case, no reason was offered for the failure of Kraus to vote within the voting period. He was a minimum of 1 minute to a maximum of 6 minutes late, with the truth probably being in the-middle of that timespan. The voting period was 30 minutes, which apparently was adequate, as there is no evidence that any employees were in line to vote when the time period was completed. The ballot box had not been touched by the Board agent, and remained open for additional ballots. NORTHERN STATES BEEF, INC. Nor had the agent announced that the polling period was closed. Obviously, the tally of ballots had not commenced. - Relying on the Board's recent decision in Howard John- son-Company, 221 NLRB 542 (1975), I am going to recom- mend that the challenge to Kraus' ballot be overruled. While whatever reason caused Kraus to be late is un- known, this circumstance is outweighed by other factors. When he arrived, only several minutes past the scheduled time, the ballot box was still ready to receive -ballots, and no announcement had been made by the Board agent that the polling period had ended. Since the polls had not been closed, Kraus was entitled to cast his ballot.-I recommend that Kraus' ballot be opened and counted. B. The Challenged Ballot of Leroy Nelson C. The Challenged Ballot of Ramon de Anda 375 The Company challenged the ballot of de Anda. De Anda was in the employ of Respondent as a boner on the eligibility cutoff date, June 28, as was stipulated to by the parties. Following the shutdown of the plant from July 14 through 20, de Anda returned to work on July 22, and worked the balance of that week. De Anda was employed as a boner by Respondent on August 8. All information about de Anda's work history was supplied by Raska while reviewing the timecards of de Anda. Since de Anda was an employee of Respondent during the payroll period ending June 28, and was an employee on August 8, the date of the election, he was an eligible voter; and I shall recommend that his ballot shall be opened and counted. is D. The Objections to the Election The Company challenged the ballot of Nelson. Nelson went to work for Respondent as a boner during the week of June 26 and was an employee on the-election eligibility date of June 28. He was not a regularly scheduled employ- ee, but did work part time during the pay periods ending July 5 and 12. The plant was closed down between July 14 and 20 and, upon its reopening, Raska testified that Nelson came back as a full-time employee on July 21, and worked as a-full-time employee until Friday, August 1. On the last day he worked, Nelson testified that Plant Superintendent Hanson told him at the end of the day, "that he had no need for my services next week." In his prehearing affida- vit, when asked if he was told by Hanson that he was fired, he replied, "He said I was no longer needed in the services of the Company. So you can call that fired." Hanson testified that on Friday afternoon he terminated Nelson as follows: "I saw him in the hallway and I told him I was terminating him as of today. I said, you are all done, you are terminated, do you want to turn your equip- ment in so you will not be charged with it?" On the follow- ing Saturday morning, Nelson came to the empty plant and Hanson testified as follows: "I went up and talked to him, and he said `I don't quite understand this, I am termi- nated?' I said yes, you are terminated, you are fired, I said. I said termination, it sounds a little better you know." The test for eligibility of a nondiscriminatorily laid-off employee to vote in an election is determined by whether or not the employee possesses a reasonable expectancy of reemployment within a reasonable time in the future. N.L.R.B. v. Jesse Jones Sausage Company, 309 F.2d 664 (C.A. 4, 1962). However, I find that Nelson was not a laid- off employee, but was a terminated employee. Not only did Hanson testify to this effect, but Nelson admitted in his prehearing affidavit that he understood Hanson's words to mean he was fired. Nelson's employment relationship with Respondent was terminated when Hanson communicated this fact to him on August 1. Westchester Plastics of Ohio, Inc., 401 F.2d 903 (C.A. 6, 1968). Assuming, arguendo, that Nelson was a laid-off employee, there is not a scintilla of evidence that Nelson had a reasonable expectancy of em- ployment in the near future. I recommend that the chal- lenge to Nelson's ballot be sustained. All eight objections to the election held on August 8 in Case 17-RC-7731 have been referred to me for hearing. The first objection maintains that, prior to the election, officers, agents, and representatives of the employer threat- ened to close the plant if this petition was successful. My findings that Respondent committed 8(a)(1) violations by Sherron's threat in mid-July that this plant would close down if the Union got in encompasses this objection. I recommend that Objection 1 be sustained. Objections 2 and 7 concern the campaigning directly by Sherron, and indirectly by Raska, on behalf of the Morgan Union, and the handing out of the Morgan Union authori- zation cards by Sherron. Since these activities took place on April 15, 16, 17, and 18, as admitted to by Respondent, they occurred prior to the filing of the petition by the Union on April 21. Hence, these events cannot be consid- ered in determining if there has been a substantial interfer- ence to the conduct of the election warranting that the election be set aside, and I recommend that they be dis- missed. Objection 3 asserts that Resondent's representatives met individually with employees offering promises of benefits, including wage increases and fringe benefits, if the employ- ees voted against the petitioning Union. I find this objec- tion without merit, as no evidence was presented to sustain this contention. This objection was not embraced in the complaint. I recommend that this objection be overruled. Objection 4 asserts that the discharge of Nelson, Rogers, Hastings,and Haynes was because of their activities on behalf of the Petitioner in the organizational campaign.16 My findings that Respondent committed 8(a)(3) and (1) violations by discharging Rogers, Hastings, and Haynes encompasses this objection, and I recommend that this fourth objection be sustained. Objection 5 sets forth that Respondent passed out litera- 15 Respondent raised no objection to the counting of de Anda's ballot in its brief. 16 Petitioner/Charging Party alleged in its original complaint that Nelson was one of the discriminatorily discharged employees . In its amended com- plaint Nelson's name was removed as a discriminatee , leaving Rogers. Hastings, and Haynes as the named discrim natees in the complaint 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture which was intended to intimidate and frighten the em- ployees. Petitioner/Charging Party produced a one-page printed handbill (Pet, Exh. 3) that contained various quot- ed excerpts about bargaining, strikes, union fines, and union rules. The collective message of the handbill was that unions could cause employees a lot of trouble. Godek, a unit employee and a witness for Respondent, testified that he had received a copy, but did not remember when or where he received it. I do not find that this lone handbill distributed by Re- spondent exceeds the permissible limits of electioneering propaganda, or that the employees were incapable of eval- uating the literature as electioneering propaganda. Morris- town Foam and Fibre Corp., 211 NLRB 52 (1974). Objection 5 also contends that Respondent showed a film that was intended to intimidate and frighten the em- ployees. On the morning of August 7, shortly after 8:30 a.m., Respondent's employees were told by Superintendent Hanson and Sherron to attend a meeting in the lunchroom. At the meeting, counsel for Respondent showed approxi- mately 15 to'25 slides and discussed the slides as they were shown. Hanson and Sherron were also present. Barry, the only witness called to testify in support of the Union's objection to the slide presentation, testified, that the slides and commentary he could remember dealt with various plants that had been closed because of the Amalga- mated Meat Cutters Union, and that the employees were told that the same'thing "could" happen here. Godek, a driver-loader, testified that two or three of the slides dealt with the closing of plants and strikes at plants. Cullinane, a boner, testified that five or six of the slides dealt with clos- ing of plants and strikes at plants. He was`vague about the contents of the other slides, but did remember that one was on the constitution. Hanson, the last witness called by Re- spondent on the slides, testified that there were some slides on union bylaws, union constitutions, and one showed a "blank ballot." I credit the testimony of the witnesses of Respondent, and find that slides other than plant closings were shown and commented on at the August 7 meeting. I do not doubt that the total impact of the presentation was antiun- ion, and that this message was received by the employees. However, the employees were able to sort out this propa- ganda, and believe or disbelieve those portions they cared to. I cannot find that the slides and their commentary inti- midated or frightened the employees, so as to create an atmosphere of fear which might reasonably be expected to make a free choice of representatives impossible. I recom- mend that it be dismissed. ITT Telecommunications, Divi- sion of International Telephone & Telegraph Corporation, 172 NLRB 1785 (1968); Dyersburg Cotton Products, Inc, 168 NLRB 1116 (1968). Objection 6 contends that Respondent on the night be- fore the election had a cocktail party and free dinner for its employees, and at the dinner offered promises of benefits to the employees for voting against the Union. The record does set forth that, on the evening of August 7, Respondent had a party for its employees at Johnny's Cafe. Sherron's testimony that if the employees wanted to come they could, but that they did not have to attend, was uncontradicted. The record is extremely sparse as to what was said or done at this party, and there is no testimony that would allow me to find that,promises of benefits were made to the employ- ees. As to the holding of the cocktail party and dinner, the Board has long held that such conduct, per se, is a legiti- mate campaign medium during an election ; campaign. Ohmite Manufacturing Company, 111 NLRB 888 (1955). I recommend that it be dismissed. Objection 8 contends that, immediately preceding this election, Respondent threatened reprisals against employ- ees for voting for the Petitioner in the election and prom- ised benefits to employees for voting against the Petitioner. Ronald Jones testified that Hanson and Sherron,"told me that they would change me in my job," if he would vote against the Union. Jones, who was hired on May 19, did not approximate the date of such conversation, and was generally, vague and indefinite. As previously set forth, I do not find Jones to be a credible witness, and I do not credit his testimony. The second half of Objection 8 avers that, immediately prior to the election, the employer increased wages of employees and offered additional fringe benefits for the purpose of influencing employees to vote against the • Union. Credible evidence was received pertaining to the granting of a 25-cent-per-hour increase to Calloway, that was announced over the telephone to-her by Sherron in mid-July. Sherron's activity in so doing caused Respon- dent to violate Section 8(a)(1). I recommend that the Ob- jection 8 be sustained. I find that Respondent's conduct in threatening to close the plant as found in Objection 1, in granting a wage in- crease as found in Objection 8, and particularly the gravity of its offense in discharging Rogers, Hastings, and Haynes, because of their activities in the union organizational cam- paign, as set forth in Objection 4, is conduct which inter- feres with employee free choice, and is ground for setting aside the election. Accordingly, I recommend that the Regional Director be directed to open and count the ballots of Rogers, Hastings, Haynes, Kraus, and de Anda, and to prepare a revised tally of ballots. In the event that the results according to the revised tally indicate that a majority has not voted for the Petitioner, I further recommend that the Regional Director be directed to set aside the election and hold a new elec- tion. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Northern States Beef, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Union No. 271 of Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, and Arthur L. Morgan Union are each labor organizations within the meaning of Section 2(5) of the Act. 3. By aiding, assisting, and supporting the Arthur L. Morgan Union, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By discharging Mike Rogers on May 1, Forrest Hast- ings on May 12, and Ervin Haynes on May 2, because of NORTHERN STATES BEEF, INC their support of the Union, Respondent has violated Sec- tion 8(a)(3) and (1) of the Act. 5. By threatening to close the plant if the Union won the election, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the'Act. 6. By interrogating employee Calloway regarding her activities and the activities of other employees concerning the Union, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 7. By promising a wage increase to employee Calloway if she voted against the Union, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 8. By engaging in certain of the aforesaid unfair labor practices, Respondent has interfered with the representa- tion election held on August 8, 1975. 9. The allegation of the complaint that Respondent vio- lated Section 8(a)(1) of the Act by threatening employees with unspecified reprisals if they failed to support the Mor- gan Union, by threatening employees with loss of wages, and by threatening employees by pointing out the futility of their supporting the Union, has not been sustained. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged three employees, I find it necessary to order the Respon- dent to offer them full reinstatement, with backpay com- puted on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of a proper offer of reinstatement. 17 Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 18 The Respondent, Northern States Beef, Inc., Omaha, Nebraska, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting District Union No. 271 of Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other union. (b) Threatening employees with plant closure in the event that a union is selected as bargaining representative. (c) Coercively interrogating any employee about union support or union activities. (d) Promising or granting wage increases as an induce- ment to employees to reject District Union No. 271 of 377 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organiza- tion, in a representation election or in a union campaign. (e) Giving unlawful assistance or support to the Arthur L. Morgan Union, or any other labor organization, by rec- ognizing it as an exclusive bargaining agent at a time when it does not represent a validly designated majority of Respondent's employees in an appropriate unit. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (1) Offer Mike Rogers, Forrest Hastings, and Ervin Haynes immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of this Deci- sion entitled "Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its plant in Omaha, Nebraska, copies of the attached notice marked "Appendix." 19 Copies of this no- tice, on forms provided by the Regional Director for Re- gion 17, after being duly signed by Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT is ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. 17 Rogers, Hastings and Haynes were reinstated by Respondent to their former jobs on November 24 for the reason stated by President Raska, "Because if the back pay was allowed to accumulate over a great period of time before this case was resolved it would be a very substantial burden on the Company." At the hearing, Charging Party sought to litigate the ques- tion of whether Rogers, Hastings, and Haynes had been properly reinstated to their former positions, but the objections thereto by General Counsel and Respondent were sustained. This matter can now be properly handled at the compliance stage 18 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 the recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 19 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found , after a hearing, that we violated Federal law during the campaign which preceded the representation election held in August 1975, we hereby notify you that: WE WILL OFFER full reinstatement to Mike Rogers, Forrest Hastings , and Ervin Haynes, with backpay plus 6-percent interest. WE WILL NOT discharge any of you for supporting District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, or any other union. WE WILL NOT threaten to close down the plant in the event that our employees select a union as their lawful bargaining representative. WE WILL NOT coercively question you about union support or union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed employees in the National Labor Rela- tions Act, which are as follows: To engage in self-organization To form, join, or help a union To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT assist, aid, or support the Arthur L. Morgan Union, or any other labor organization. All our employees are free, if they choose, to join Dis- trict Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization NORTHERN STATES BEEF, INC.