Monfort of Colorado, Inc.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monfort of Colorado, Inc. and United Food and Commercial Workers International Union, AFL-CIO Industrial, Technical and Professional Employees Division, National Maritime Union of America, AFL-CIO and United Food and Commercial Workers International Union, AFL-CIO. Cases 17-CA-9064 and 17-CB-2126 June 17, 1981 DECISION AND ORDER On July 11, 1980, Administrative Law Judge Mi- chael D. Stevenson issued the attached Decision in this proceeding. Thereafter, Respondents filed ex- ceptions and supporting briefs, the General Counsel and Charging Party filed answering briefs,' the Charging Party filed cross-exceptions and a sup- porting brief, and Respondent Industrial, Technical and Professional Employees Division, National Maritime Union of America, AFL-CIO, filed a brief in opposition to cross-exceptions. 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, and conclusions of the Administrative Law Judge for the reasons set forth below, 2 to modify his remedy,3 and to adopt his recommended Order. We agree with the Administrative Law Judge that Respondent Monfort of Colorado, Inc., herein- after the Employer, violated Section 8(a)(1) and (2) of the Act by giving unlawful assistance and sup- port to Respondent Industrial, Technical and Pro- fessional Employees Division, National Maritime Union of America, AFL-CIO, hereinafter NMU, and by recognizing NMU and entering into a con- tract with it on June 14, 1979, 4 at a time when NMU did not represent an uncoerced majority of the Employer's employees. 5 Consequently, every- We hereby deny the General Counsel's motion to strike those exhib- its attached to the brief filed by Respondent Monfort of Colorado, Inc.. which pertain to a contract involving MBPXL, Inc. 2 Because we agree that the evidence produced at the hearing is sub- stantial and proves the charges alleged in the complaints, we do not reach the Administrative Law Judge's determination to draw no adverse inference from the Respondents' failure to produce subpenaed witnesses. and his decision to rely on secondary evidence only to corroborate pri- mary evidence. 3 The Administrative Law Judge erroneously recommended that inter- est on moneys to be reimbursed to employees by the Respondents be computed at the rate of 6 percent per annum. Rather, interest on all such sums shall be paid in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Iis Plumbing & IIeating Co., 138 NLRB 716 (1962). Member Jenkins would compute the interest due in accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980(I). 4 All dates hereinafter refer to 1979, unless otherwise indicated. ' Since the overwhelming evidence of unlawful Employer assistance of NMU is sufficient to taint its June 14 recognition of the Union, we need not reach the question of whether that recognition also was unlawful be- cause the Employer failed to remain neutral as to the competing claims of NMU and a rival Union, United Food and Commercial Workers Inter- national Union, AFL-CIO, hereinafter UFCW. Accordingly. we find it 256 NLRB No. 98 thing flowing from that contract, including the checkoff of NMU dues from employees' paychecks and the August 20 agreement covering the produc- tion and maintenance employees, likewise constitut- ed unlawful assistance and support to Respondent Union. We also agree with the finding of the Adminis- trative Law Judge that NMU violated Section 8(b)(1)(A) of the Act by accepting such unlawful assistance and recognition from the Employer. In finding that the June 14 recognition and con- tract were unlawful, the Administrative Law Judge did not always clearly distinguish between pre- and post-June 14 events, but rather tended to intertwine them. Thus, in the interests of clarity, we will sum- marize the Respondents' conduct (described in more detail in the Administrative Law Judge's De- cision) occurring before the June 14 contract on which we rely in making our findings herein. This case involves the Employer's meat packing and processing plant in Grand Island, Nebraska. Prior to the Employer's commencement of produc- tion at the plant on August 20, the facility was op- erated by another meat packer, Swift and Compa- ny. For the 13 years preceding Swift's termination of operations on June 15, its production and main- tenance employees were represented by the Amal- gamated Meat Cutters and Butcher Workmen of North America. 6 This same Union also represents employees at the Employer's main plant in Gree- ley, Colorado, located about 450 miles from the plant involved herein. The Employer purchased the facility from Swift in early 1979, and in February began to build an addition to the plant. In this connection, the Em- ployer hired construction workers, with the under- standing that these workers would receive prefer- ential consideration as production and maintenance employees when the Employer started its meat processing operations that summer. In early June, two representatives of NMU-- Ray Zaporowski and Tom Blessie-began to solicit signed authorization cards from employees at the facility during working hours. Zaporowski and Blessie were aided in their solicitation by John and Steve Hiatt, who were employees of the Employer. In their organizational activities, all four had virtu- ally unlimited access to the plant and to the Em- ployer's construction employees at all hours of the unnecessary to address herein the issue raised by the doctrine enunciated in Midwe.st Pping & Supply Co.. Inc.. 63 NLRB 106) (1945). ' The lame of the Union prior to its merger with the Retail Clerks International Union to form the UFCW MONFORT OF COLORADO, INC. 613 day for the purpose of obtaining signed authoriza- tion cards. 7 These organizing activities were carried out on the Employer's premises during working time with the approval of, and frequently in the presence of, supervisors of the Employer. One example of how far the Employer was willing to go in assisting the Union occurred on June 14, when all the Employ- er's managers and supervisors left the plant togeth- er for an extended lunch of approximately 2 to 3 hours, thereby providing the NMU organizers with an opportunity to solicit cards unhindered. The purpose of this mass exodus was made clear by a foreman who told an employee just before this lunch that all the foremen and supervisors were going to leave so that NMU could have the "run of the plant," and employees could talk freely with the NMU representatives. In the circumstances of this case, the extraordi- nary and unfettered access to the Employer's facili- ty given to persons soliciting cards for NMU, cou- pled with the direct pressure of employees being solicited while supervisors watched approvingly, constituted unlawful assistance by the Employer to NMU. Such conduct by the Employer delivered the clear message to employees that the Employer wanted them to choose NMU as their bargaining representative. In addition to the unlawful assistance given by the Employer to NMU in its solicitation of cards, certain statements and misrepresentations made by NMU organizers to employees also had the effect of coercing them into designating NMU as their representative and of tainting the Union's majority, if it ever existed. For example, NMU organizers obtained some cards on the misrepresentation that a collective- bargaining agreement already had been signed. On other occasions while soliciting cards, NMU orga- nizers told employees that the contract was being typed up at that moment, thus leading them to be- lieve that signing a card was a mere-albeit neces- sary-formality because NMU already was their bargaining agent. Further, prior to the June 14 recognition, NMU representatives advised some employees that if they signed a card they would be guaranteed a job in production once the construction phase was com- pleted, and that, if they did not sign a card, no promise could be made about future employment. In the context of this case, these latter inducements differed greatly from the usual permissible asser- tions that employees would attain more job secu- 7 For example, the Administrative Law Judge found that the Hiatts were permitted to take longer lunch hours and leave work earlier than other employees, and that the Hiatts told a fellow employee that they were getting paid 100 per week to get signatures for NMU. rity as a result of union representation. As men- tioned above, the employees being solicited by NMU prior to June 14 were hired for construction work of limited duration, with only the promise of preferential consideration for future employment, and therefore references to their continued employ- ment in a production or maintenance job necessar- ily took on much significance. Thus, unlike the normal situation, where an orga- nizing union lacks the ability to carry out threats of possible job loss, here the NMU threats carried considerable weight inasmuch as they were direct- ed toward individuals who were not yet perma- nently employed, and who were well aware of the Employer's support for NMU. While the exact number of cards affected is unknown, the Adminis- trative Law Judge found, and we agree, that these NMU statements, as well as the Employer's unlaw- ful assistance, tainted the cards to such an extent so as to negate any possibility that a majority of the cards were uncoerced. On the same day-June 14-that the Employer granted recognition to NMU (purportedly on the basis of the tainted cards), the parties negotiated, agreed on, and executed a collective-bargaining agreement, which contained, inter alia, a dues- checkoff provision.8 In light of the unlawful assist- ance and coercion previously referred to, the par- ties' hasty movement from demand for recognition to signing of a contract is further evidence that they felt compelled to act quickly, regardless of whether the NMU actually represented an un- coerced majority, in order to avoid any claim for recognition and bargaining by a rival union, par- ticularly the UFCW, the Union which represented the Swift employees and the Employer's employees at its Greeley plant. In our view, the combination of unlimited access to the Employer's facility provided to NMU, the direct pressure on employees of being solicited by NMU while supervisors watched with approval, the misleading and threatening statements made to employees by NMU organizers, and the rapid and unverified grant of recognition by the Employer reasonably tended to coerce employees in the exer- cise of their free choice in selecting a bargaining representative and tainted the Union's majority showing. The situation here is very similar to that presented in Vernitron Electrical Components, Inc., Beau Products Division, 221 NLRB 464 (1975), 8 The collective-bargaining agreement is undated and the signatories to it refused to comply with subpenas directing them to appear at the hear- ing in this proceeding. We find that it was executed on June 14, since it purports to be effective from June 14, 1979, through June 14, 1982, and the Respondents' conduct subsequent to June 14-particularly the start of checkoff-gives rise to the inference that the agreement was executed on that date MONFORT OF COLORADO. INC. 613 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where the Board found a less flagrant combination of factors to invalidate an employer's recognition of, and execution of a contract with, a union.9 We conclude, therefore, that the June 14 collec- tive-bargaining contractso was the product of a co- erced majority and unlawful Employer assistance and recognition of NMU. As noted above, every- thing resulting from that contract, including the checkoff of NMU dues and the August 20 agree- ment concerning the production and maintenance employees, also was invalid. Accordingly, we find that the Employer has violated Section 8(a)(1) and (2) of the Act, and NMU has violated Section 8(b)(l)(A) of the Act, and Respondents must cease giving effect to the aforesaid collective-bargaining agreement. 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 Respondent Monfort of Colora- do, Inc., Grand Island, Nebraska, its officers, agents, successors, and assigns, and Respondent In- dustrial, Technical and Professional Employees Di- vision, National Maritime Union of America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recom- mended Order, except the attached notice is substi- tuted for that of the Administrative Law Judge. 9 See, also, Tuschak/Jacobson, Inc. r/a Franklin Convalescent Center, 223 NLRB 1298 (1976); Howard Creations, Inc., 212 NLRB 179 (1974); Yankee Department Stores, Inc., a Subsidiary of Hartfield-Zodys Inc., d/b/a Zodys, Elkhart, Indiana, 211 NLRB 306 (1974); Allied Supermar- kets. Inc.-Allied Discount Foods Division, 169 NLRB 927 (1968). 'O NMU's organizing efforts continued on through the summer until production began on August 20. On that date, the parties signed a "Memorandum of Understanding" which purported to expand the June 14 construction employees contract to include the production and mainte- nance employees recently hired by the Employer. Because we find the June 14 contract to be unlawful, we find that any attempt to expand that contract to cover other employees was invalid. Consequently, we need not determine whether the August 20 document constituted a proper ac- cretion clause. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give unlawful assistance and support to National Maritime Union during a union-organizing campaign, such as unequal access to plant premises and such as supervisor coercion of employees. WE WILL NOT assist or contribute support to the National Maritime Union by recognizing or contracting with such labor organization as the bargaining representative of our employees at the plant at Grand Island, Nebraska, unless and until it has been certified as such repre- sentative by the National Labor Relations Board. WE WILL NOT give effect, at the plant at Grand Island, Nebraska, to our contract with the National Maritime Union, or to any renew- al, extension, modification or supplement thereof, but we are not authorized or required to withdraw or eliminate any wage rates or other benefits, terms, and conditions of em- ployment which we have given to our em- ployees under said contract. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them in Section 7 of the Act. WE WILL withdraw and withhold all recog- nition from the National Maritime Union as the collective-bargaining representative of our employees at the plant at Grand Island, Ne- braska, until such time as National Maritime Union shall have been certified by the Board as the collective-bargaining representative of the employees in question. WE WILL jointly and severally with the Na- tional Maritime Union, reimburse all our em- ployees, former and present, employed at the plant at Grand Island, Nebraska, for dues and moneys unlawfully exacted from them under our contract with that union, with interest. MONFORT OF COLORADO, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT receive unlawful assistance and support from Monfort of Colorado, Inc., during a union organizing campaign, such as unequal access to plant premises and such as supervisor coercion of employees. WE WILL NOT give effect, at the plant at Grand Island, Nebraska, to our contract with Monfort of Colorado, Inc., or to any renewal, extension, modification, or supplement thereof. WE WILL NOT act as collective-bargaining representative of the employees at the plant at Grand Island, Nebraska, unless and until we MONFORT OF COLORADO, INC. 615 have been certified by the Board as such rep- resentative. WE WILL NOT threaten employees employed at the plant at Grand Island, Nebraska, that they will lose their jobs if they do not join the National Maritime Union. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights guaranteed them in Section 7 of the Act. WE WILL jointly and severally with Monfort of Colorado, Inc., reimburse all of the employ- ees, former and present, employed at the plant at Grand Island, Nebraska, for dues and other moneys unlawfully exacted from them under our contract with Monfort of Colorado, Inc., with interest. INDUSTRIAL, TECHNICAL AND PRO- FESSIONAL EMPLOYEES DIVISION, NATIONAL MARITIME UNION OF AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge: This case was heard before me at Grand Island, Nebras- ka, on January 8, 9, and 10, 1980,1 pursuant to a com- plaint issued by the Regional Director for Region 17 of the National Labor Relations Board on August 30, and which is based upon a charge filed by the International representative of United Food and Commercial Workers (herein called UFCW) on July 16. Amended charges were filed on August 27, and an amendment to the com- plaint was filed on October 19. At hearing, the complaint was amended further at the close of the General Coun- sel's case. The complaint alleges that Respondents, Mon- fort of Colorado, Inc. (herein called Monfort), and In- dustrial, Technical and Professional Employees Division, National Maritime Union of America, AFL-CIO (herein called NMU), have engaged in certain violations of Sec- tion 8(a)(l), (2), and (3) and Section 8(b)(1)(A) and (b)(2) of the National Labor Relations Act, as amended (herein called the Act). Issues 1. Whether Respondents Monfort and NMU violated Sections 8(a)(l) and (2) and 8(b)(1)(A) of the Act, re- spectively: (a) By Monfort providing and NMU accepting unlaw- ful assistance and support during a union organizing campaign while at the same time discriminating against UFCW, a competing union. (b) By Monfort providing and NMU accepting recog- nition on or about June 14 and by both Respondents bar- gaining and signing a collective-bargaining agreement, when NMU did not represent a majority of Monfort em- ] All dates herein refer to 1979 unless otherwise indicated ployees or, alternatively, when NMU did not represent an uncoerced majority of Monfort employees, or when Monfort did not employ a representative segment of its ultimate employee complement. (c) By Monfort providing and NMU accepting an ex- panded recognition on or about August 20, pursuant to an invalid accretion clause purporting to accrete a pro- duction and maintenance unit into a construction unit. (d) By Monfort maintaining an invalid dues-checkoff provision and NMU accepting the benefits of said provi- sion. 2. Whether Respondent Monfort violated Section 8(a)(1) of the Act when one of its supervisors made a co- ercive statement to an employee relative to the futility of supporting UFCW. 3. Whether Respondent NMU violated Section 8(b)(1)(A) of the Act when one of its agents threatened a Monfort employee with loss of employment if she failed to support NMU; and 4. Whether the General Counsel may rely upon ad- verse inferences and secondary evidence in this case, and if so, to what extent. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Charging Party, and Respondents Monfort and NMU.2 Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE EMPLOYER'S BUSINESS Respondent admits that the Employer is a corporation engaged in the meat slaughtering and processing business and having a place of business located in Grand Island, Nebraska. It further admits that during the past year, in the course and conduct of its business, the Employer has purchased and received goods and services valued in excess of $50,000 from sources outside the State of Ne- braska. Accordingly, it admits, and I find, that the Em- ployer is engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(2), (6), and (7). II. THE LABOR ORGANIZATION INVOLVED Respondent Union, Industrial, Technical and Profes- sional Employees Division, National Maritime Union of America, AFL-CIO (herein NMU) admits, and I find, that it is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2 Respondent Monfort has appended to its brief an exhibit never of- fered nor admitted at the hearing. This is clearly improper N.LR.B. v. Big Bear Supermarkets, 103 LRRM 3120, 88 LC F11,998, fn I (9th Cir. 1980) I will strike the document from the record and give it no consider- ation in deciding this case. MONFORT OF COLORADO. INC 615 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Preliminary events Prior to the hearing, the General Counsel had subpen- aed three adverse witnesses, Gene Meakins, vice presi- dent of industrial relations for Monfort, and Ray Zapor- owski and Tom Blessie, two union organizers for NMU. In addition, both the General Counsel and the Charging Party had subpenaed certain documents from Respond- ent. After technical objections to the subpenas were overruled, Monfort persisted in its refusal to produce Meakins and the documents in question, substituting fifth amendment grounds for the previously asserted technical objections. Ultimately Monfort produced no witnesses at all; its few exhibits will be discussed below. Like Mon- fort, NMU persisted in its refusal to produce its organiz- ers on fifth amendment grounds. Also like Monfort, NMU produced no witnesses. As to documents, NMU did turn over some of what the General Counsel had subpenaed. Counsel for NMU asserted that it turned over all the documents which NMU had. However, the General Counsel refused to accept these assertions from counsel, claiming that it needed to examine Zaporowski and Blessie for the purpose of exploring the reasons for the missing documents. As a preliminary matter, I reiterate my holding at the hearing that the General Counsel's and the Charging Party's subpenas were valid. I also hold that the General Counsel had every right to reject the unsworn declara- tion of NMU's counsel that he had produced all relevant documents in NMU's possession. In fact, counsel ad- mitted that he had no personal knowledge of the docu- ments and was merely repeating what he had been told by Zaporowski and Blessie.3 After Respondents refused to comply with the sub- penas as I had directed them to do, the General Counsel and the Charging Party elected to proceed to hearing without seeking a district court order enforcing the sub- penas. At the close of the General Counsel's case, the Charging Party requested 2 weeks' time after the conclu- sion of the hearing to decide whether to seek subpena enforcement. This request was denied. Respondents also elected to proceed to hearing without requesting a spe- cial appeal to the Board of my order holding the sub- penas to be valid. I quote from the record: Mr. Sykes: . . . Would you give us leave to take this matter to the Board under Section 11(1) of the Act and pursuant of [sic] the authority of National Labor Relations Board in DuVal Jewelry Company, which is a decision of the United States Supreme Court. JUDGE STEVENSON: I may do that. I'd like to hear what the other parties have to say; . . . The matter was not raised again during the hearing. In the "Analysis and Conclusions" section of this Decision, I will return to the issues raised by these preliminary 3 Of course, statements of counsel at hearings are not evidence. Cf. Skyline Corporation v. N.L.R.B, 613 F.2d 1328 (5th Cir. 1980). matters including but not limited to the question of proper use of adverse inferences and secondary evidence found in this case. I turn now to the facts of the case which I find to be for the most part undisputed. 2. History and background For several years, Swift and Co. owned and operated a meatpacking and processing plant in Grand Island, Ne- braska. In early 1979, Swift employees received notice that Swift was closing down its plant, effective in July. For approximately 13 years, Swift production and main- tenance employees (hereinafter P & M), were represent- ed by the Amalgamated Meat Cutters & Butcher Work- ers of America, a predecessor union to UFCW. The con- tract expired with the demise of Swift and Co. Monfort was a competitor of Swift and sometime in late 1978 or early 1979, Monfort purchased the Swift premises. Beginning in February, or possibly before, Monfort began to construct an addition to the Swift plant, and for this purpose hired a number of employees as construction workers, with the understanding that, when production began in the summer, these construc- tion employees would receive preferential consideration as production and maintenance employees. Many Swift employees, including foremen and supervisors, ultimately went to work for Monfort, but there is no issue as to successorship. The nearest Monfort plant to Grand Island was locat- ed at Greeley, Colorado, a distance of about 450 miles. The Monfort employees at Greeley were represented by the UFCW and, since approximately November 1, up through the time of the hearing, were engaged in a bitter strike. At Grand Island, the UFCW and a competing union, the NMU, were attempting to organize Monfort employees. 3. The organizing campaign Apparently sometime on or about June 14, Meakins, on behalf of Monfort, and Zaporowski on behalf of NMU, purported to enter into a collective-bargaining agreement subsequent to Monfort having recognized NMU as the sole bargaining agent of Monfort's construc- tion employees. While the "contract" is undated, it pur- ports to be effective from June 14 through June 14, 1982. (G.C. Exh. 2.) Production began at the Monfort plant on or about August 20. On that date, a handwritten memo- randum of understanding was executed by Meakins for Monfort, and Blessie for NMU, which purported to expand the earlier "collective-bargaining agreement" to include "all regular, full-time hourly production and maintenance employees" at Monfort's Grand Island plant. There is no evidence that any Monfort employees met to discuss the "contract," or voted to ratify the "con- tract." Copies of the "contract" were not distributed to employees, although when its existence and contents were mentioned by various NMU organizers, several em- ployees requested a copy. None was ever provided. I turn next to the organizational efforts of the two unions which differed sharply in method. - --- ---- ---- - MONFORT OF COLORADO, INC. 617 Former Swift employee and UFCW chief steward at Swift for 5-1/2 years, Robert Petr, testified that in mid- May he began distributing union authorization cards to Swift employees. In early June, he began distributing the cards to Monfort employees. Although Petr and other Swift employees had been scheduled to work through July 2, they were terminated on June 15 for lack of work. All employees were paid for the final 2 weeks of June, but were not required to report. Organizing meet- ings for UFCW were held after work, most often at a local bar, at a local Holiday Inn, and occasionally at pri- vate homes. I find that the first of these meetings with Monfort employees was held on June 13 and was fol- lowed by several others.4 The routine was generally the same. Frank Jackson, a UFCW organizer, came to Grand Island on May 21, and attended the first meeting of Swift employees, numbering 65 to 70, at the Grand Island Labor Temple. Employees were usually asked to sign in on sheets provided for that purpose. Jackson and others explained the benefits of their union. When the meetings were held at the local bar, drinks were served at Jackson's expense. All attendees were asked to sign UFCW authorization cards and some did. When Jackson attempted to distribute flyers in the parking lot at the Monfort plant, he was not welcomed. On July 23, he was requested by company officials to handbill off company premises, or the police would be called. In addition to the large parking area off the street, Monfort maintained a guard shack which screened all persons seeking to enter the company plant from the parking area. No nonemployees were admitted unless on proper business. At the time of the dispute with compa- ny officials, Jackson was in the parking area. At another time in July, Jackson was threatened by an unknown person in a pickup truck if he continued to handbill for UFCW at Monfort. In early July, Jackson had delivered a letter personally to the Monfort plant asking for jobs for the former Swift employees who had been represented by UFCW. In order to deliver the letter, Jackson was admitted by the guard and delivered the letter to the Monfort construc- tion superintendent. As a result of his organizing efforts, Jackson collected approximately 125 cards prior to August 20. On Septem- ber 12, Jackson filed a petition for election with the NLRB office in Kansas City, but no election was ever held. Jackson's experiences at Monfort should be com- pared to NMU organizers who, to say the least, had somewhat more success in penetrating Monfort's plant. 4 Respondents contend that the first meeting was held on June 14, sub- sequent to Monfort's recognition of NMU and execution of the collec- tive-bargaining agreement. They also argue that this meeting was the first evidence of the UFCW organizing drive. The -day difference in dates does not seem material to me for two reasons. First, I will find that Mon- fort had knowledge of the UFCW organizing drive prior to June 14 from the evidence of record other than the June 13 meeting: eg., Jackson's presence in town since May 21, his meeting with Swift employees on the same date, and Petr's solicitation of signatures on authorization cards from both Swift and Monfort employees. Second, due to Respondent's failure to produce the signatories to the agreement, it was not possible for the General Counsel to prove that said agreement was indeed executed on June 14. It was undated I am not at all convinced, in the context of this case, that it was executed on that date It may well have occurred subsequent to June 14 The evidence shows that NMU had four primary or- ganizers at Monfort, Zaporowski, Blessie, and two broth- ers named Hiatt. The latter two were apparently on the Monfort payroll and performed some work for Monfort. A witness named Rae Melgoza, a current Monfort em- ployee, testified that the Hiatts told her they were get- ting paid $100 per week to get signatures for NMU. The Hiatts, as well as Zaporowski and Blessie, had virtual un- limited access to the plant and to Monfort employees for the purpose of getting authorization cards signed. The Hiatts were able to take longer lunch hours and leave earlier than the other Monfort employees. All four were permitted by Monfort management to engage employees in the plant during worktime in conversation relative to NMU. On or about June 14, all Monfort managers and supervisors went to a local Ramada Inn for an extended lunch. According to the testimony of former Monfort employee Harold Lawrence, this was for the purpose of giving the NMU organizers even more extra time to visit employees and get cards signed. 5 Lawrence had been told this by his foreman. In addition to the unlimited access to the plant at all hours of the workday, NMU organizers had the benefit of certain statements made by company management and by the NMU organizers themselves which substantially assisted the NMU campaign. In late July or August, all members of the Monfort construction crew were invited to the local Ramada Inn for dinner. While there, they were addressed by Ken Monfort, the owner of Respond- ent Monfort of Colorado, Inc. Among other statements, Monfort told his employees that there was a binding contract with NMU which the employees should be sat- isfied with and let the plant get into operation and make some money. As to the UFCW, Monfort stated that their high wage demands were putting him in a position where he could not be competitive. Mark Peterson, a current Monfort employee, described similar remarks made to him in late August by Howard Braden, a plant superintendent. Braden told Peterson that Braden would not hold it against Peterson for supporting UFCW. Then Braden gave Peterson "a little advice," telling him that everywhere UFCW was, plants were closing because they were paying employees too much. As the construction phase drew to conclusion, many employees were called in to individual meetings with su- pervisors for the ostensible purpose of asking which pro- duction job they preferred to have when production began. Often the subject of unions arose and, when it did, Monfort supervisors frequently told employees that the Company had recognized the NMU and there was a binding contract for the next 3 years, or that the NMU would be representing employees when production began, or words to that effect. When discussing the UFCW, Monfort supervisors were more negative in their remarks. For example, in early August a Monfort fore- " Another striking example of the freedom accorded to NMU organiz- ers was provided by current Monfort employee Michael Hawley In testi- mony that was ever disputed, Hawley described how he and several other Monfort employees were working on a roof putting on trim when the two Hiatt brothers came up on the roof and began explaining the benefits of NMU membership and asking employees to sign NMU author- ization cards MONFORT OF COLORADO, INC. 617 v f 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man called a meeting of all construction employees working on the kill floor. The foreman said he was re- quired to be neutral on union disputes, but he had dis- tributed some questions for employees to ask UFCW or- ganizer Jackson, and a list of plants that Jackson was al- legedly involved with. Jackson was also discussed in an unfavorable way. Then employees were advised to disre- gard any UFCW picket line which might appear at Mon- fort or the Company would find someone who would disregard it. On another instance in late October or early November, a Monfort supervisor called a meeting of about 150 to 200 employees employed in the Monfort beef fabrication division. The supervisor told employees to disregard all flyers and rumors around the plant relat- ing to UFCW and Jackson, that employees should cross any UFCW picket lines which might appear and to report for work, that anyone who did not cross the picket lines might be fired, and that Jackson has been as- sociated with violence. Finally, the record is replete with statements made by NMU organizers to Monfort employees who were being asked to sign union authorization cards. These statements included claims that the NMU would get certain raises and bonuses of a definite nature once all the cards were signed,6 that the signer would be guaranteed a job in Monfort's production once construction was over, that the terms of the contract had already been agreed to, that the contract was being typed up at that moment, and similar types of representations. NMU never held any meetings with employees nor did any employee vote on the contract. It was stipulated that the NMU had 52 signed cards bearing dates prior to June 14. 7 B. Analysis and Conclusions 1. Unlawful assistance and support Fourteen witnesses testified at the hearing and all but two of them were present or former Monfort employees. In virtual unanimity, they described how the four NMU organizers had almost complete freedom in Monfort's Grand Island plant to discuss their union with employees and to gather signatures of employees on authorization cards. These activities frequently occurred during work- time. On one occasion, supervisors and managers vacated Monfort premises for an extended lunch period so that NMU organizers had even greater opportunities to engage in union activities. It is not an unfair labor prac- tice by itself for an employer to permit a union to use its premises to conduct organizational business, but the granting of such access or privilege can be a factor in the finding of an unfair labor practice under Section 8(a)(2) of the Act in connection with other evidence showing employer support. s Some of the "other evi- 6 In fact, the collective-bargaining agreement contained all or most of the provisions promised to employees by NMU organizers as they were soliciting signatures on authorization cards. I Several of the employees testified that they had signed cards for both the NMU and the UFCW at about the same time. s N.L.R.B. v. Magic Slacks. Inc., 314 F.2d 844 (7th Cir. 1963): Book- land Inc., 221 NLRB 35 (1975). dence" present here includes speeches and statements of support for NMU made by Ken Monfort, Respondent's owner, and other Monfort supervisors and managers to Monfort employees. Of particular importance in judging the significance of NMU privileges and access is whether the Employer dis- plays contrasting treatment of competing unions.9 As de- scribed in "The Facts," not only did company officials impugn UFCW, they also made inflammatory statements about the UFCW's chief organizer, Jackson, thereby fur- ther undermining the UFCW. Neither Jackson nor any other UFCW official was permitted access to company premises to engage in union organizing. In fact, on one occasion, Jackson was not even permitted to distribute UFCW handbills to employees on nonworktime in the company parking lot. Based on the above analysis, more specifically detailed in "The Facts" portion of this opinion, I find that Re- spondent Monfort violated Section 8(a)(2) of the Act by completely and unmistakenly abandoning its neutral role in the campaign between UFCW and NMU. The case of Vernitron Electrical Components, Inc., 221 NLRB 464 (1975), enfd. 548 F.2d 24 (Ist Cir. 1977), also supports this finding. I agree with the General Counsel that the facts and circumstances of Vernitron are much less fla- grant than found in the instant case. The Board noted in its decision that while there were no employer threats or promises and other labor organization involved-all of which are present here in aggravation of the circum- stances-nevertheless, the direct and indirect employer pressures, coupled with the instantaneous and unverified grant of recognition to the Union, reasonably tend to coerce employees in the exercise of their free choice in selecting a bargaining representative. 0 Monfort argues in its brief that in permitting greater access to the facility to NMU than to UFCW it was merely complying with article 25 of the collective-bar- gaining agreement" which was valid and, in any event, Monfort was not aware of any conduct by NMU agents inconsistent with its right of access to the facility. This argument has several flaws. First of all, I will hold the contract is void for reasons stated below. Next, even if it was valid, some of the unequal access occurred prior to its effective date and was in large measure responsible for the agreement to begin with. Finally, the NMU orga- nizers were not on the premises to inspect working con- ditions nor to carry out the terms of the agreement. They were there to get cards signed and in so doing they interfered with operations contrary to the terms of arti- 9 48 Am. Jur. 2d, Labor and Labor Relations, secs 887, 903: N.L.R.B. v. Mark J Gerry, Inc., 355 F 2d 727 (9th Cir. 1966), cert. denied 385 U.S. 820. 'o See also Tuschak/Jackson, Inc., /a Franklin Convalescent Center, 223 NLRB 1298 (1976); Wemyss v. N.L.R.B., 212 F2d 465 (9th Cir. 1954). " Art. 25 reads as follows: Union Visitation Union representatives shall have the right to visit the work place, to inspect working conditions, and to generally carry out the terms of this agreement, providing they report to a designated company representative upon entering the premises and so long as such visits do not interfere with operations . . A MONFORT OF COLORADO, INC. 619 cle 25. In addition, the testimony at the hearing showed several examples of NMU worktime solicitation occur- ring in the presence of and, on one occasion, with the express permission of Monfort supervisors. Therefore, this defense must be rejected. 2. Monfort's recognition of NMU (construction unit) On the facts of this case, I find that Monfort recog- nized NMU at a time when UFCW was a substantial competing union and the employees' choice between them was in doubt. Alternatively, I find that if majority support for the NMU did exist, it was the result of un- lawful coercion. Each of these findings will be discussed in turn. It was stipulated that NMU had 52 signed cards bear- ing dates prior to June 14. The number of employees in the bargaining unit was between 75 and 100. Most of the signed cards bore dates of June 13 and June 14; most or all of the cards were obtained by the NMU organizers operating on Monfort time and at Monfort premises. The General Counsel argues that "The Respondent Employer recognized and signed a contract with the Respondent Union on or about June 14." As stated in footnote 4 of this Decision, I make no such finding. Assuming, without deciding, that such was the case, I do find that Monfort had knowledge of the UFCW organizing campaign. Jackson arrived in town on May 21 and immediately or- ganized a meeting of Swift employees at a local union hall. Then on June 13 several Monfort construction people attended a UFCW meeting at a local bar. Even discounting these two meetings, I find knowledge by Monfort of the UFCW organizing effort. This union had represented the Swift employees for many years. The Swift foremen obviously were aware of this. Many of the Swift foremen were hired by Monfort and their knowledge of the UFCW organizing activity is imputed to Monfort. This is so even if some of the supervisors did not begin work at Monfort until a time subsequent to June 14, the assumed date of recognition. I so hold be- cause the evidence in this case convinces me that as Swift was in the process of winding up its business, the Swift supervisors had Monfort interests in mind. For ex- ample, the continued effort to segregate the Swift UFCW people from the Monfort construction crew, in the context of this case, reflects the supervisors' interest in obstructing the UFCW organizing drive. 2 A final im- portant factor showing Monfort knowledge of the UFCW campaign prior to June 14 is the fact that UFCW represented Monfort employees at Greeley. Thus I cannot believe that Monfort was unaware of the fact that UFCW was attempting to represent its Grand Island em- ployees. :2 Respondents argue that the reason for this was due to safety consid- erations. I cannot discount this as a factor. However, in light of the fact that UFCW had historically represented the Swift employees and that ;ill or most of the Monfort construction employees were soon to be produc- tion and maintenance employees, it was clear to me that Monfort did not want the Swift UFCW employees tainting the construction employees This was the primary reason for keeping the two groups of employees apart In light of Monfort's knowledge of the UFCW orga- nizing drive, I find the case of Midwest Piping & Supply Co., 63 NLRB 1060 (1945), directly applicable to the in- stant case. Thus, an employer violates Section 8(a)(l) and (2) of the Act when it recognizes and bargains with a fa- vored union at a time when another union is asserting a claim of substantial employee support. A later case, Playskool, Inc., 195 NLRB 560 (1972), enforcement denied 477 F.2d 66 (7th Cir. 1973), is also applicable here. It held that a question of representation is raised, under the Midwest Piping doctrine whenever the claim of the rival union is not "clearly unsupportable and lacking in substance," and such a union need not even have made a formal request for recognition. Playskool is par- ticularly helpful here because the contract between Mon- fort and NMU was never publicized, distributed, nor of- ficially announced to employees. Accordingly, there is no way to tell for sure when it was executed. According- ly, UFCW could not have been expected to file its peti- tion nor to step up its organizing drive. I find that the UFCW's claim was not clearly unsupportable and lack- ing in substance. The fact that UFCW represented Mon- fort employees at Greeley, represented Swift employees for many years at Grand Island, and had a show of inter- est of Monfort employees at a bar on June 13 are exam- ples of evidentiary support for the claim of substance of UFCW. The finding above as well as my alternative finding below is supported by the hasty recognition of NMU and the quick execution of the collective-bargaining agreement assumedly both occurring on June 14, but possibly later. Of the 52 NMU cards signed before June 14, 37 were obtained on June 13 and 7 on June 14. The Board has held that such quick actions may be evidence of an unfair labor practice where a competing union is present. 1 3 Turning next to my alternative holding I begin with a pronouncement from the case of .L.R.B. v. .4ir Master Corp., 339 F.2d 553 (3d Cir. 1964): To recognize one of two competing unions, while the employees' choice between them is demonstra- bly in doubt, is an unfair labor practice under what the courts have accepted as the normal and proper application of the Midwest Piping doctrine .... And in principle the same result follows when ma- jority support for the recognized union exists, but has been achieved by coercion or some other unfair labor practice .... I find that NMU did not represent an uncoerced major- ity of Monfort unit employees. In this regard, it is unnec- essary to repeat in detail the evidence supporting this finding. The record shows the coercive employer sup- port for NMU as described in "The Facts." In addition, NMU made clearly coercive representations to certain employees: (1) That they could be guaranteed jobs in the plant once production began; 3 .Norrwh Plastic Corp., 127 NLRB 150 (1960) MONFORT OF COLORADO. INC. 619 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) That they could be guaranteed certain wage increases and bonuses; (3) That if they did not join, no promises could be made about future employment; And certain apparent misrepresentations were made: (a) That the contract had already been signed; (b) That the purpose of the card was only to show interest in union representation, not in repre- sentation by NMU necessarily.' 4 Thus, in summary, I find that such majority support as existed was coerced and cannot be relied upon. More- over, based upon the evidence of record and Respond- ents' failure to controvert the evidence herein with credi- ble evidence, I find that the degree of taint extended beyond the 14 who testified. I accept the Charging Party's suggestion that the elements of illegal assistance and coercion described by the various witnesses tainted NMU's entire majority, if it ever existed.' 3. Monfort's recognition of NMU (production and maintenance unit) Unlike the original collective-bargaining agreement, the "Memorandum of Understanding" which purported to transform the construction employees into a produc- tion and maintenance unit is dated "August 20, 1979." I find that the document was executed on that date. Since I have found the collective-bargaining agreement unlaw- ful, I find this document is similarly violative of the Act for the same reasons. However, further discussion is ap- propriate. First, I again look to the Charging Party's brief and adopt in toto her statement that certain clauses in the original contract were always intended to cover a pro- duction and maintenace unit: a. The contract extends for a three-year term, long after the end of the limited construction and the commencement of production [G.C. Exh. 2, art. 34]; b. The contract's provisions for periodic wage in- creases and other benefits extend far into the future, '4 NMU contends in its brief that "The NLRB has held that there can be no violation of Section 8(b)(2) if the bargaining agreement does not contain a union security clause." Two cases are cited for this proposition: Mason City Dressed Beef Inc., 231 NLRB 735 (1977). affd. 590 F.2d 688 (8th Cir. 1978), which contains a scheme similar to that in the present case condemned both by the Board and the court. I cannot find in the case a discussion of the alleged defense and it is not clear why the case was cited. The case fully supports the General Counsel's theory The second case, Anaconda Co., 225 NLRB 953 (1976), does not stand for the alleged defense. Moreover, the case is factually distinguishable--eg., the Administrative Law Judge found "not one scintilla of evidence indicating restraint, favoritism, coercion, or interference on the part of Respond- ent." All of these factors are present here. Therefore, NMU's defense is completely without merit. 15 Clement Brothers, Inc., 165 NLRB 698 (1967). enfd. 407 F.2d 1027 (5th Cir 1969); Hartz lounrain Corp., 228 NLRB 492, 528 (1977) See also .. L.R.B. v. James Thompson & Co.. Inc., 208 F.2d 743, 746 748 (2d Cir. 1953), where the court concluded that the Union's majority was tainted because 7 cards out of 40 were proven to be invalid. The court added, "It is not necessary to prove that the unfair labor practice reached enough employees to change the majority into a minority." again long after construction ended [G.C. Exh. 2, art. 24]; c. The bonus provision of Article 28 does not become operative until June, 1980 [G.C. Exh. 2, art. 28]; d. A pension program with Company contribu- tions is supposed to become effective January 1, 1980, long after construction ceased and production began [G.C. Exh. 2, art. 30]; e. Except for the recognition clause, nothing in the contract is limited to or in any way pertains to construction workers. There are no job classifica- tions, no different wage rates depending upon degree of skill, and the only wage rate is termed "the laborer's rate" [G.C. Exh. 2]; f. The six paid holidays span the entire year and additional limitations on holiday eligibility com- mence on October 1, 1979 [G.C. Exh. 2, art. 19]; g. Finally and most importantly, Article 32, the expansion clause, sets forth the contractual under- pinnings for transforming an alleged construction unit contract to a production and maintenance unit contract [G.C. Exh. 2, art. 32]. On August 20, Monfort employed approximately 300- 350 employees of whom about 75 were still in construc- tion. 6 As stated earlier, Jackson had obtained about 125 signed cards before August 20. Counsel for NMU repre- sented that NMU organizers had obtained additional signed cards after June 14 but that said cards had been mailed to NMU headquarters in San Francisco, were re- ceived there, and then lost. No duplicates were available. Zaporowski, the person who allegedly mailed the cards, refused to testify on fifth amendment grounds. The number of additional cards, the dates signed, and the names of the signers, do not appear of record. Thus, the failure of Respondent to produce the cards, particularly as they were subpenaed by the General Counsel, or ade- quately explain their absence-statements of counsel are not evidence-raises an adverse inference that if such evidence were produced it would not be favorable to NMU's case.'7 Thus, of the 225 to 275 employees em- ployed in production and maintenance, less the 125 cards obtained by Jackson, plus the adverse inference, I find that NMU lacked majority status at the time of its recog- nition on August 20. Accordingly, the recognition was unlawful. 8 I also hold on a related issue that the accretion of the production and maintenance unit into the construction unit was similarly unlawful.' 9 In N.L.R.B. v. Food Em- 16 At the time of hearing, there were still about 20 employees doing construction work i International U'nion (4 W) v N L R B., 459 F.2d 1329, 1336 (D.C Cir 1972). ' N.L.R.B. Local 1199, Drug and Hospital U:'nion, 532 F 2d 877 (2d Cir. 1976), cert. denied 429 U.S 920 (1'76. 1i Art 32 of the collective-bargaining agreement reads as follows: Article 32-ACCRETION/NEW JOBS/NEW OPERATIONS Section 1. In the event that the Company shall commence oper- ations at the location covered by this Agreement, outside the scope Continued MONFORT OF COLORADO, INC. 621 ployers Council, Inc., 399 F.2d 501, 502-503 (9th Cir. 1968), the court adopted a statement of the accretion issue taken from the Board's brief in the case: An "accretion" is, by definition, merely the addition of new employees to an already existing group. When the new employees are added and comingled with existing employees so as to lose their separate identity, their inclusion in an existing unit follows as a matter of course. Questions arise only when the new group remains identifiable, for example, as when they constitute a separate department or store or plant. In these situations . . .. the Board will ex- amine the entire picture before permitting the new employees to be swallowed up by the bargaining representative of the employer's other employees without expressing their wishes in the matter. When such inclusion is permitted, on the basis of criteria developed by the Board and approved by the courts ... . the new group is an 'accretion' to the old group. On August 20, about 75 Monfort employees continued in construction and about 225 to 275 were in production and maintenance. The two groups clearly lack the com- munity of interest or similarity of skills which are re- quired for proper accretion. Moreover, the P and M em- ployees never had an opportunity to select their own representative; that is, 52 out of 75-100 construction em- ployees as of June 14 determined a union preference for the 225 to 275 (P and M) employees. Putting aside the fact that I have found the 52 were coerced to begin with, the result here is plainly absurd, particularly where the evidence shows that 600-650 employees were expect- ed to be hired eventually. Scottex Corporation, 200 NLRB 446 (1972).2 0 Finally, when the construction of the Mon- fort plant was completed, most of the construction work- ers were either terminated or transferred to P and M. To find a valid accretion here would have the effect of ac- creting a large production unit into a construction unit which was soon to be effectively nonexistent .2 of this Agreement as set forth in the recognition clause, then the Company agrees that it must first offer such jobs to all the employ- ees covered by this Agreement in order of seniority before it hires any new employees to perform such jobs. Section 2. In the event that operations are commenced as reflected in Section 1 above at the location covered by this Agreement and employees covered by this collective bargaining agreement exercise the rights allowed in Section I to will such jobs and as a result of such procedure employees covered by this Agreement constitute a majority of any unit appropriate for the purposes of collectise har- gaining, then the Company agrees that it must recognize the Union as the sole and exclusive bargaining agent for such appriopriate unit and apply this contract in its entirety to such unit 20 See also Renaissance Center Partnership. 239 NLRB 1247 (1979) I i will decline to discuss in detail the General Counsel's premature recognition argument, on the grounds that I have, in effect. accepted the argument generally in this opinion and it is cumulative to other issues raised and decided. However, as stated in Maron Citrv Dressed Beef upra. 231 NLRB at 749, "At the time recognition was granted, a representative complement of employees had not been retained. To grant recognition to a labor organization under such circumstances is another form of legal assistance by an employer." Chr Cnmunai(atlions. Inc. and Suiri Co. Inc., 170 NLRB 159 (1968) I would apply the above fully to the nstant case. 4. The dues-checkoff provision The General Counsel contends that notwithstanding the fact that the collective-bargaining contract did not contain a union-security provision, Respondents violated the Act by checking off dues and initiation fees pursuant to a contract entered into in violation of Section 8(a)(2) of the Act. Monfort argues that the dues checkoff was proper where there is a valid collective-bargaining agree- ment in effect. I have found, above, that the agreement in the case was not valid. Monfort also argues that there is no evidence that employees were coerced into execut- ing a dues-authorization checkoff. This argument misses the point. Because NMU did not represent an uncoerced majority of employees at the time of recognition, the ef- fectuation of the contract, including the dues-checkoff provision contained therein, violated the Act. While this finding is cumulative, it is important for purposes of "The Remedy." Both the General Counsel and the Charging Party argue that a dues-reimbursement remedy is proper here. The cases cited in support of this position deal with union-security agreements which are not present in the instant case. I will, however, recommend a dues-reim- bursement remedy here as I accept the Charging Party's theory that, in the context of this case, dues checkoff constitutes a form of illegal assistance. American Beef- packers, 176 NLRB 338 (1969); Hunter Outdoor Products, 176 NLRB 449, 457 (1969). Monfort argues "that a dues reimbursement remedy is not proper in a right-to-work state .... " No authority is given for such a sweeping statement and I reject it.22 First, the cases do not limit the remedy to situations where there is a union-security agreement. Second, article 5 of the collective-bargaining agreement specifically commits Monfort to enter into a union shop/agency shop agreement with the union at such future time as state law may permit.2 3 Third, there is substantial evidence of coercion in this case-not to execute a checkoff-but to support and join NMU. This is sufficient, along with my other findings in this case, to render the remedy appropriate. In support of the violations found above relating to the NMU organizing campaign, I also cite the very recent case of P.C. Foods, Inc., d/b/a Price Crusher Food Ware- house, 249 NLRB 433 (1980), which bears a striking re- semblance to the instant case. There, in an opinion af- firmed by the Board, the Administrative Law Judge found violations of the Act relating to recognition of the union when the company lacked a representative seg- ment of its ultimate complement, and when the union did not represent an uncoerced majority of employees, and improper employer assistance to the union in obtaining signatures on authorization cards while denying equal as- sistance to a competing union. " Pl'i (ai .Sy,,te rit. . I.R B 629 i 2 35. fn () C Cir 198O) z:' loth Responldernts are thus comnlllled to al security agreement de- pending upon a cntllngency over shich they have no control Thus. Cxel l ' scCllrit agreemen t ere esscclltlal to the remedy I propose, this ,ontingenc \a ,ld manke the remed appropriate MONFORT OF COLORADO, INC. 621 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The independent 8(a)(l) and 8(b)(1)(A) violations The General Counsel alleges two final matters as vio- lative of the above-stated provisions. I will sustain the first and recommend dismissal of the second. First, I find that NMU agent Blessie said to employee Trejo about 2 weeks before production started that "if you sign this card [union] authorization card I can guarantee you your job when the plant starts." As to Trejo's question of what would happen if she did not sign, he added he could not guarantee anything. A companion of Trejo signed the card immediately, but another companion of Trejo and Trejo, herself, did not. Union requests for em- ployee support accompanied by threats of loss of em- ployment violate Section 8(b)(l)(A) of the Act. 24 In finding this violation, I note that no evidence was pre- sented to dispute the charge. I also note the context of Blessie's remarks wherein he and the other NMU orga- nizers had unlimited access to Monfort's plant. All indi- cations were that Blessie had the power to affect an em- ployee's job. That Trejo did not sign the card is immate- rial to the violation. Second, it is charged that in mid-July employee Bartak was wearing a UFCW sticker on his hat when he was asked by a secretary to go to a conference room to meet with leadman Terry Hampton. This was for the purpose of learning which construction employees would stay on in production and maintenance. Hampton asked if Bartak was wearing an Amalgamated sticker on his hat and what was he doing with it. Then Hampton said: We don't want nothing to do with that around here because Amalgamated closes plants. Maritime is the union that's in now and that's how it is. Hampton concluded by saying he would deny making the remarks if asked about them later. The first issue is whether Hampton is a statutory su- pervisor. I find that there is no showing that Hampton was. Leadmen are not normally considered to be super- visors.25 However, the Board has never considered titles as determinative of supervisory status. 26 Section 2(11) of the Act describes the duties of the supervisors in the dis- junctive. There is no showing that Hampton had any au- thority "to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other em- ployees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action." The General Counsel argues that because an- other employee named Forrester was described by Bartak as a leadman and because other evidence showed Forrester to be a supervisor, it follows that all persons referred to as leadmen by Bartak must be supervisors. The faulty logic here is readily apparent. In addition, the mere fact that Hampton was interviewing Bartak to see whether he would stay on in P and M is not determina- tive of supervisory status. The solicitation of Bartak's preference for a future job was purely the gathering of 24 N.L.R.B. v. Kalof Pulp & Paper Corp., 290 F2d 447 9th Cir. 19o1); Sav-On-Drugs, Inc., 227 NLRB 1638, 1644 (1977). 25 N.L.R.B. v. Security Guard Service. Inc., 384 F.2d 143. 146 148 (5th Cir. 1967); Dravo Corp., 248 NLRB 620 (1980). :2 Golden West Broadcasters, 215 NLRB 760, 761 (1974) information and adds nothing to the claim of Hampton's supervisory status. Because I hold that Hampton has not been proven to be a statutory supervisor, it is not neces- sary to decide whether Hampton's remarks violate the Act. I will recommend that this charge be dismissed. 6. Miscellaneous issues raised by this case The evidence produced at the hearing is substantial and proves the primary charges alleged in the complaint. Nevertheless, certain additional issues remain. Some of these are capable of resolution and some are not. None of them are necessary for a fair resolution of the charges in the case. a. The failure to produce witnesses and documents As described above, Monfort refused to produce Mea- kins and NMU refused to produce Zaporowski and Bles- sie, both Respondents asserting fifth amendment grounds. All seem to agree that as a general proposition, Federal Administrative agencies, or their officers, are without power or expertise to adjudicate constitutional claims. 27 Thus, at the hearing level, the Respondents were direct- ed to comply with the subpenas. Now the General Coun- sel and Charging Party contend that an adverse inference is appropriate from Respondent's failure to honor the subpoenaes. As to the witnesses, General Counsel asserts that they should have appeared and asserted the privi- lege on a question-by-question basis. However, all parties stipulated that this procedure was unnecessary as the witnesses would refuse to answer any substantive ques- tions on the basis of the privilege. 28 Next, the Charging Party cites the Gyrodyne series of cases and the enforcement proceedings. International Union (UAW) v. N.L.R.B.. supra. Mistakenly, she states in her brief that "One possible argument not discussed in the Gyrodyne series is the impact of a Fifth Amendment claim on the adverse inference rule." However, footnote 45 of Judge Wright's opinion, 459 F.2d 1329 at 1339, reads as follows: Of course, the adverse inference rule is inapplicable in situations where a party has a constitutional right to suppress the evidence in question. If a party con- tends, for example, that the evidence would incrimi- nate him . . . the Government may not burden the exercise of Constitutional rights by attaching an ad- verse inference to the failure to produce the evi- dence .... In Baxter v. Palmigiano, 425 U.S. 308, 318 (1975), an- other case cited by the Charging Party, the Court ex- plained the prevailing rule that . . the Fifth Amendment does not forbid adverse inferences against parties to civil actions where they refuse to testify in response to probative evidence of- fered against them. [Emphasis supplied.] 27 Cf. Spiegel v. C., 541 F 2d 287 294 (7th Cir 1976) 2 But see atlional Life Insurance (Co v artford Accident & Indemni- tv C, 615 F:2d 595 (3d Cir 198) MONFORT OF COLORADO, INC. 623 Thus, I draw no adverse inference from the failure of the Respondents to honor the subpenas on constitutional grounds. However, in analyzing the evidence, I have given these failures no more value than was warranted by the facts surrounding the case. This, said the Court in Baxter, is entirely permissible. (425 U.S. at 318.) Accord- ingly, I have noted where various incriminating evidence supplied by the General Counsel's witnesses has not been denied or disputed and have treated it accordingly. 2 9 b. The secondary evidence issue This issue is much less vexing than the last. I fully accept the case of Bannon Mills, 146 NLRB 611 (1964), and believe the General Counsel is entitled to use sec- ondary evidence in proving its case, with no burden at- taching to Respondents' assertion of the fifth amendment. This leads then to certain exhibits of the General Coun- sel admitted at hearing on a provisional basis subject to final admissibility only after the issue was briefed with the case. I herewith admit General Counsel's Exhibits 38, 39, and 40 as permanent exhibits.30 In considering these documents, I rely upon them only to corroborate pri- mary evidence offered by the General Counsel and not to establish any essential element of the violations of the Act heretofore discussed. In this regard, I adopt the ar- gument of the Charging Party: 3 ' a. Company owner Ken Monfort's statements as quoted in the National Provisioner,3 2 August 4, 1979, to the effect that meat packers could no longer afford to pay the master agreement wage rates such as at Swift and at the Company's Greeley plant and, in order to survive, needed a tough com- petitive labor strategy. b. Monfort officials' statements that 600-650 em- ployees will be needed for production as reported in the Grande Island Daily Independent on July 31, 1979 [G.C. Exh. 39]. c. The history of the NMU, as reported in a newspaper article [G.C. Exh. 40]. d. The Company's knowledge of the UFCW campaign and antiunion animus, as evidenced in three leaflets [G.C. Exhs. 43, 44, and 45, subpenaed documents]. e. The origin of the meat packing division of NMU-the merger with UIPAW-as set forth in the article appearing in the NMU's journal, The Professional [G.C. Exh. 46.] 29 In light of this ruling and, more importantly, my lack of authority to adjudicate a constitutional claim, I obviously make no ruling on whether Respondents properly asserted the fifth amendment claims Simi- larly, I issue no order as requested by Charging Party that certain unpro- duced documents should now be produced; the forum is wrong, and the issue is moot. 30 Dallas County v. Commercial Union Assurance Co., 28(6 F.2d 38 (51h Cir. 1961); 1 will also admit Monfort's Exh. 9 on a permanent basis and will give it such consideration as it deserves 3 The Charging Party asks that my rulings on G C Exh 41-refusing to admit document-and with respect to certain portions of the subpoenu duces ecum-motion to strike granted-be reconsidered I herewith refuse on the grounds stated during the hearing and because the issue is moot. aZ The National Provisioner is a trade journal for the meat packing in. dustry. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with their operations de- scribed in section , above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent Monfort of Colorado, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Respondent Industrial, Technical and Professional Employees Division, National Maritime Union of Amer- ica, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent Monfort and Respondent National Maritime Union have violated Section 8(a)(l) and (2) and (b)(l)(A) of the Act respectively as follows: (a) Monfort for giving and National Maritime Union for receiving unlawful assistance and support in a union organizing campaign, such as unequal access to plant premises and such as supervisor coercion of employees, to the prejudice of UFCW, a competing union. (b) Monfort for giving and National Maritime Union for accepting recognition at a time when both Respond- ents knew that UFCW was a substantial competing union and that the employees' choice was in doubt. (c) Alternatively, Monfort for giving and National Maritime Union for accepting recognition when both Re- spondents knew that National Maritime Union did not represent an uncoerced majority of employees. (d) Monfort for giving and National Maritime Union for accepting recognition prematurely when a repre- sentative complement of employees had not been re- tained, and, when the accretion clause in the collective- bargaining agreement was not valid. (e) Monfort for maintaining a dues-checkoff provision pursuant to an invalid collective-bargaining agreement and NMU for receiving the benefits thereof. 4. Respondent National Maritime Union has violated Section 8(b)(1)(A) of the Act when its agent, Blessie, co- erced an employee into support for the Union by threat- ening her with loss of employment. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as specifically found herein, Respondents en- gaged in no other unlawful conduct. 7. An adverse inference may not be based upon Re- spondent's failure to produce witnesses or documents in response to valid subpenas when said refusal is based upon fifth amendment grounds. 8. Secondary evidence is admissible even when Re- spondent's failure to produce witnesses or documents is based upon fifth amendment grounds where said evi- dence is merely corroborative of primary evidence ad- mitted at the hearing. MONFORT OF COLORADO INC. 623 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondents engaged in certain unfair labor practices I will recommend that they be or- dered to cease and desist therefrom and to take other ac- tions designed to effectuate the purposes and policies of the Act. Respondent Employer will be required to with- draw and withhold recognition from Respondent Nation- al Maritime Union and to cease giving effect to the col- lective-bargaining agreement which these parties had heretofore executed and to the subsequent memorandum of understanding dated August 20, 1979, and to any other renewal, modification, or extension of said agree- ment, until such time as Respondent National Maritime Union shall have been certified by the Board as the ex- clusive representative of the employees in question. I shall further recommend that Respondent Union cease and desist from acting as the collective-bargaining repre- sentative of Monfort's Grand Island employees. Howev- er, nothing in this Order shall authorize or require the withdrawal or elimination of any wage increase, or other benefits, terms, or conditions of employment which may have been established pursuant to the performance of that agreement. I further recommend that both Respond- ents jointly and severally reimburse all present and former employees for all initiation fees, dues, or other moneys exacted from them by or on behalf of Respond- ent National Maritime Union pursuant to the dues check- off provisions of the aforementioned collective-bargain- ing contract, together with interest thereon at 6 percent per annum. 3 3 Upon the foregoing findings of fact, conclusions of law, and upon the basis of the entire record herein con- sidered as a whole, I make the following recommended: ORDER 34 A. Respondent Monfort of Colorado, Inc., Grand Island, Nebraska, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Giving unlawful assistance and support to National Maritime Union such as unequal access to plant premises and such as supervisor coercion of employees, during a union-organizing campaign. (b) Assisting or contributing support to National Mari- time Union, by recognizing or bargaining with such labor organization as the exclusive representative of its Grand Island, Nebraska, plant employees-unless and until National Maritime Union is certified by the Board as the collective-bargaining representative of said em- ployees pursuant to Section 9(c) of the Act. (c) Maintaining or giving any force or effect at Grand Island, Nebraska, to the collective-bargaining agreement effective June 14, 1979, between Respondent Employer and Respondent Union, and to the subsequent memoran- 3S See Isis Plumbing & lHeating Co., 138 NLRB 716 (1962), for ration- ale on interest payments. 34 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. dum of understanding dated August 20, 1979, or to any other renewal, extension, or modification thereof; pro- vided, however, that nothing in this Order shall author- ize the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employment which may have been established pursuant to the per- formance of said contract. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act.3 5 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Withdraw and withhold all recognition from Na- tional Maritime Union as the collective-bargaining repre- sentative of its employees unless and until said labor or- ganization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees at its plant at Grand Island, Nebraska. (b) Jointly and severally reimburse all former and pres- ent employees employed at its plant at Grand Island, Ne- braska, for all initiation fees, assessments, and other moneys, if any, paid by or withheld from them in the manner provided in "The Remedy" section of this Deci- sion. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant at Grand Island, Nebraska, copies of the attached notice marked "Appendix A."36 Copies of said notice, on forms provided by the Regional Direc- tor for Region 17, after being duly signed by a repre- sentative of Respondent Employer, shall be posted by Respondent Employer immediately upon receipt thereof and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (e) Upon being furnished the same by the Regional Di- rector, post the notice marked "Appendix B" in the same manner as "Appendix A." (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent Industrial, Technical and Professional Employees Division, National Maritime Union of Amer- ica, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Receiving unlawful assistance and support from Monfort of Colorado, Inc., such as unequal access to '5 Hickmott Foods. Inc., 242 NLRB 1357 (1979). a6 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 " MONFORT OF COLORADO, INC. 625 plant premises and such as supervisor coercion of em- ployees. (b) Maintaining or giving any force or effect at the Grand Island, Nebraska, plant to the collective-bargain- ing agreement effective June 14, 1979, between Respond- ent Employer and Respondent Union, and to the subse- quent memorandum of understanding dated August 20, 1979, or to any other renewal, extension, or modification thereof; provided, however, that nothing in this Order shall authorize the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employment which may have been established pursuant to the performance of said contract. (c) Acting as exclusive bargaining representative of the employees at Monfort of Colorado, Inc., Grand Island, Nebraska, for the purposes of collective bargaining, unless and until said labor organization shall have been certified by the Board as the collective-bargaining repre- sentative of said employees. (d) Threatening employees of Monfort of Colorado, Inc., Grand Island, Nebraska, with loss of employment if they do not become members of Respondent Union. (e) In any other manner restraining or coercing em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Jointly and severally with Monfort of Colorado, Inc., reimburse all former and present employees at its plant at Grand Island, Nebraska, for all initiation fees, as- sessments, and other moneys, if any, paid by or withheld from them in the manner provided in "The Remedy" section of this Decision. (b) Post in its offices and meeting halls copies of the attached notice marked "Appendix B." 37 "Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent Union's official representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent Union and its agents to insure that such notices are not altered, defaced, or covered by any other materi- al. (c) Forward to the said Regional Director signed copies of Appendix B for posting by Monfort of Colora- do, Inc., at its plant at Grand Island, Nebraska, for 60 consecutive days in places where notices to employees are customarily posted. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 37 See fn 36, upra MONFORT OF COLORADO NC. 625