Tamaa Meat Packing Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tama Meat Packing Corp. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local P-46. Case 18-CA-5065 June 10, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 7, 1977, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,1 and conclusions 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Tama Meat Packing Corp., Tama, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: The above-captioned matter was heard before me on Novem- ber 16 and 17, 1976, in Marshalltown, Iowa. On July 21, 1976, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local P-46 (herein called the Union), filed a charge against Tama Meat Packing Corp. (herein called Respondent) alleging violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, herein called the Act. A complaint and notice of hearing issued on September 2, 1976, alleging, inter alia, that Respondent violated Section 8(a)(1), (3), and (4) of the Act in refusing to transfer its employee, Richard Thomas, to the position of utility man; in denying Richard Thomas transfer to the position of 230 NLRB No. 24 "backsaw" operator; and thereafter unlawfully suspending and discharging him. Respondent denied the allegations of the complaint and alleges that Thomas was suspended and discharged for cause; that its failure to transfer him to the position of utility man was due to the abolition of that classification; and that its denial of transfer to the position of backsaw operator occurred because Thomas was already discharged. Briefs were duly filed on January 7, 1977, by both General Counsel and Respondent. Upon the entire record, particularly my observation of the witnesses and their demeanor, and after due consideration of the briefs filed herein, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent admits, and I find that Respondent, at all material times, has been and is a corporation organized under and existing by virtue of the laws of the State of Iowa, maintaining a principal place of business in Tama, Iowa, where it has been engaged in the business of nonretail processing and distribution of meat and meat products. During the year ending December 31, 1975, a representative period of Respondent's operations, Respondent processed, sold, and distributed at its Tama, Iowa, facility goods valued in excess of $50,000 of which goods valued in excess of $50,000 were shipped from said facility directly to points located outside the State of Iowa. During the same period, it purchased and had transported to the said Iowa facility goods valued in excess of $50,000 which were transported to said facility directly from points outside the State of Iowa. Respondent admits, and it is found, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I1. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. ii. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Tama Meat Packing Corp., a beef slaughterhouse, commenced operations on or about September 27, 1971, having hired employees as early as May 1971. Richard Thomas, the alleged discriminatee herein, was hired in October 1971. The alleged unfair labor practices occurred at Respondent's plant in Tama, Iowa. On September 30, 1976, the Board issued an Order and Direction of Second Election in Cases 18-CA-4809 and 18-RC-10677, wherein it directed, inter alia, that an election conducted between the parties herein on Decem- ber 5, 1975, on a petition for certification filed by the Charging Party relating to a production and maintenance 116 TAMA MEAT PACKING CORP. unit of Respondent's Tama, Iowa, employees, be set aside and a new election be held.' The Board's decision and order, finding that Respondent violated Section 8(a)(l) of the Act in various respects and forbidding repetition of these violations, issued upon Respondent's failure to file exceptions to the Decision of Administrative Law Judge Josephine H. Klein in the above-consolidated case, which Decision was issued on August 10, 1976, after hearings held May 3 - 5, 1976. The 8(a)(1) violations found included Respondent (I) having announced an unlawful wage increase; (2) impressing employees with the futility of selecting the Union as their statutory representative and the inevitability of a strike and violence in the event of unionization; (3) stating that it would not bargain with the Union; (4) threatening employees with the loss of employ- ment and other benefits in the event of a strike; (5) unlawfully interrogating employees concerning their union sympathies; and (6) unlawfully giving employee Richard L. Thomas two written warnings of disciplinary action on September 12 and December 17, 1975, because of his activities on behalf of the Union.2 It was to these findings and conclusions and the Direction of Second Election that Respondent failed to take exceptions. Included in the affirmative action recommended by the Administrative Law Judge and adopted, pro forma, by the Board was a direction to Respondent to expunge from its records any and all copies of and references to the warning notices given to employee Richard Thomas on September 12 and December 17, 1975. B. Richard L Thomas; Union Activities There is no dispute that Thomas was among Respon- dent's first employees, employed in October 1971, as a "flanker" at $3.50 an hour. He was discharged, allegedly for cause, on July 22, 1976, at which time his pay was $5.75 an hour. It is also undisputed that he was first suspended on July 19, 1976; that his supervisor at all material times was Stanley Sasker; and that his employment record with Respondent carried no adverse comments except for the two unlawfully motivated warnings of late 1975, supra. Thomas' union activity began in May or June 1975 when he requested the Charging Party's president to organize Respondent's plant. On September 29, 1975, the Union sent to Respondent, in care of Respondent's president, Milton L. Whittington (who had become Respondent's president in March 1975), a letter which advised Whitting- ton that the employees of Respondent had created an organizing body and elected a shop steward in an effort to organize Respondent's employees. Among the six members of the organizing committee elected by these employees of Respondent was Richard Thomas. It also appears that, together with a union agent (Fred Curler), and Richard Thomas' brother, Ed Thomas, Richard Thomas was a chief distributor of union membership cards and a chief collector of the executed cards. In this September 1975 election for union committeemen, Richard Thomas received the most I The underlying facts, contained in the Administrative Law Judge's Decision, show that the Charging Party herein also lost a Board-conducted election in the same unit in December 1973. 2 The first warning notice (G.C. Exh. 4) accused Thomas of physically threatening coemployee Kenneth Dahlman, and the second warning notice votes and was named chief steward. Thereafter, until his discharge on July 22, 1976, Richard Thomas wore on the front of his work helmet a red sticker (described as the union "steward" sticker measuring somewhat larger than a silver dollar) and, at the back of his helmet, a yellow sticker showing his membership in the Union. While other committeemen and other employees from time to time wore the red steward sticker and the yellow union membership sticker, the undisputed testimony is that Thomas was the only employee who, after the Board- conducted December 5, 1975, election, which the Union lost, wore both of them. On November 20, 1975, prior to the Board-conducted election, Thomas wrote a letter to all unit employees answering alleged misstatements by Re- spondent. Thomas urged all employees to vote for the Union. The record also shows that, while there had been approximately six union meetings held prior to the December 5, 1975, Board-conducted election, after the election there was only one meeting. That meeting, held at the end of December 1975, was attended by 8 to 10 employees and it related only to a discussion of whether the Union would file unfair labor practice charges against Respondent. It is further undisputed that, at the May 1976 consolidat- ed hearings before Administrative Law Judge Josephine Klein, Thomas was a prominent witness, testifying both in the direct case and in rebuttal. C. The Instant Unfair Labor Practices 1. The failure to transfer Thomas to the job of utility man or utility butcher Paragraph 5(a) of the complaint alleges that, during late June or early July 1976, Respondent unlawfully denied Richard Thomas a transfer to the position of "utility man." Whatever the exact contours of the functions of a "utility man" or "utility butcher," the evidence shows that, among duties of that classification, the utility man fills in for any other employee who is sick, temporarily injured, on vacation, or fatigued and in need of a spell of rest. The utility man requires knowledge of all or almost all of the skills involved in Respondent's production unit and is among those employees most highly paid. At the time of Thomas' discharge on July 22, 1976, and at all material times prior thereto since mid-June 1976, the person fulfilling at least the functions of utility man (Respondent insists that, commencing June 14, 1976, there was no such job title or classification, but rather that on that date the job and title had been materially altered to that of "kill floor leadman," allegedly a much expanded job, with the job of utility man having been abolished) was James Kesl. Thus, Respondent alleges that Kesl was no "utility man" but rather the "kill floor leadman." Prior to Kesl, it is undisputed that the actual job of utility man was held by Jerry Jacobi. According to Respondent, Jacobi was the last person to hold that job. (G.C. Exh. 3) accused Thomas of spreading a false rumor. Both warning notices were found not only to have been untrue, but also to have been issued because of Thomas' union activities, in violation of Sec. 8(aX I) of the Act. 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The last occasion on which the job of utility man was posted for "bidding" was on July 23, 1975 (Resp. Exh. 2). Respondent followed a bid system in advertising among its unit employees for rights to jobs which became available through other employees quitting, being promoted, or discharged. In the bidding system, Respondent posted a notice on its bulletin board for 2 days describing the particular job opening, together with its rate of pay. Permanent employees signed their names to the posted notice if they wanted the open job. The employee with the most seniority who signed the posted notice would then be placed in the job and was also given time to try out the job and break in. A prominent exception to the bid system was that an employee who bid for a job requiring lower qualification than the job in which he was presently working was thereafter frozen out of bidding on a job of higher classification for a 1-year period (Resp. Exh. 6). In any event, Jerry Jacobi was the successful bidder for the "utility butcher" job in his bid on the July 23, 1975, posting. The bid sheet shows, and it is not disputed, that, at that time, employee Mike Hoffer was immediately second in seniority to Jacobi, with Richard Thomas third. About a year later, on or about June 14, 1976, Jerry Jacobi was promoted to the supervisory position of assistant kill floor foreman. The General Counsel alleges, and Richard Thomas testified, that the utility man's job thus became open but was never posted; that the Respondent failed to post the job as open because he would have succeeded to it as the most senior employee; and that the failure to post the job was motivated by Respondent's union animus. In support of this position, Thomas testified that he had several conversations with supervisors regarding the fact that Jacobi's June 14 promotion left the utility man's job open. Thus, some 3 weeks after the promotion, Thomas spoke to Plant Superintendent Donald Derham. Thomas asked Derham when the utility job would be posted for bidding and Derham, showing no anger or impatience, did not answer and walked away. Sometime in late June 1976, Thomas also spoke with his supervisor, Stanley Sasker. While Thomas was discussing the matter of the open utility man job with coemployee Dale Albee, Sasker walked by and Albee asked Sasker when the job would be posted. Sasker answered by saying: "[Jim] Kesl's the leadman." Lastly, on July 2, 1976, Thomas, in the presence of other employees and supervisors, again asked Derham when the job would be posted and Derham answered: "I've just got my job to do." At this point, Thomas turned to Supervisor Earl Rutledge and asked: "What kind of answer is that?" To this, Rutledge merely laughed, shook his head, and walked off. I do not believe that these conversations, with their ambiguous answers and with Sasker directly telling Thomas that Kesl was the "leadman," support the General Counsel's theory that the conversations indicated that the failure to post the job was discriminatorily motivated. I conclude that the conversations demonstrate the supervi- sors' reluctance to discuss the matter with Thomas and that 3 The practice of "gang time" payment is discussed infra. It should be noted that all persons described as supervisors herein were admitted to be "supervisors" within the meaning of the Act. such reluctance does not, of itself, manifest discriminatory motivation. 2. Respondent's defense with regard to the allegation regarding its denial of posting the utility man job On June 9, 1976, Respondent distributed personally to all employees a document (Resp. Exh. 1), with a further copy mailed to their homes, in which, inter alia, it was asserted that Respondent was faced with increased compe- tition, that it was no longer competitive economically with other employers in its business, and had decided to reduce its labor costs. No evidence to the contrary of these contentions was adduced and no unlawful motivation to its promulgation was alleged. Respondent stated therein that, effective June 14, it would not only eliminate from employees' pay a production bonus practice (gang time), but would also eliminate a guaranteed 40-hour week and reduce the guarantee to 36 hours.3 Respondent, at the same time, nevertheless granted a 15-cent-an-hour wage increase effective July 5. In addition, it also published at that time, attached to the same announcement, classifications of its production jobs into seven "skill levels" for all employees, together with wage rates for each such skill level (Resp. Exh. 1). The seven skill levels start with the most elementary level called "base labor" followed by six additional skill levels. The wage rate for each skill level is higher than the previous skill level. The fifth skill level includes the job classification "flanker" which was held at all material times by Richard Thomas. The highest classification, "skill level six" has four jobs included therein: "Back Saw; Maintenance Lead Man; Electrician; and Kill-Lead Man." Respondent's personnel manager and director of indus- trial relations, Robert Bristol, testified that the position of utility man had indeed existed until June 14, 1976, but that effective that date (in accordance with the June 9 statement of Respondent's president in Resp. Exh. I), the job no longer existed. It no longer existed, he testified, because it was not included in the new job classifications which were published by Respondent on June 9, 1976. Rather, he testified, the utility man job was expanded into a different job called "kill-lead man"; that the classification of utility man was dropped; and that James Kesl was appointed kill leadman on June 14, 1976. Bristol testified that, in addition to the duties of utility man, the new "lead man" position not only made the holder an acting supervisor in the absence of a foreman but, among other things, unlike the utility man, required him to keep records of "downtime" on the production floor, attend supervisors' meetings, respond to complaints of the United States Department of Agriculture inspectors where there were such problems on the production floor, and to assign and reassign employees on the production floor as production requirements changed. In addition, Bristol, supported in part by Kesl, testified that Kesl recommended wage increases and promotions, functions never performed by the utility man. While Bristol's testimony thereafter showed that, with 118 TAMA MEAT PACKING CORP. regard to wage increases and promotions, Kesl's recom- mendations would be completely reviewed by the supervi- sor-thus diminishing the power of his recommenda- tions-Kesl testified without contradiction, and other evidence of record showed, that he indeed had the power to transfer production employees from one job to another and exercised that power extensively on the production floor. Evidence adduced by General Counsel failed to show said power in the utility man job prior to June 14, 1976. Bristol testified that on the same day (June 14, 1976) that Jacobi was promoted from utility man to kill floor foreman, the utility man's job, in accordance with the June 9 announcement, was abolished and Kesl was made the new kill floor leadman. Furthermore, Respondent states that there was no posting for the new leadman job because the job itself was not subject to bidding in that it was no longer a unit job but rather a trainee supervisor job. In addition, it was stipulated that, in 55 separate postings for job openings in the entire period June 15, 1976, to November 3, 1976, there was no posting for either utility man or for leadman. Bristol testified that the utility man job was dropped and the leadman position was initiated because Respondent did not want to fill the new leadman job, which incorporated the functions of the old utility man's job, by seniority alone, since the job led directly to a supervisory position. Indeed, the old holder of the utility man job was invariably promoted to supervision. Finally Respondent points to the undisputed fact (Resp. Exh. 3) that after July 1, 1976, the employee with the most seniority was Arden Vestal, the employee with the most next seniority was Dale Albee, and the third in highest seniority was Richard Thomas. The testimony of both Bristol and Sasker show that as early as June 11, 1976, Sasker was told by Superintendent Derham of the change in the utility man's job to that of leadman and decided to tell Kesl of the change. On that same day, Sasker called Kesl into his office and told him that he was the new kill floor leadman and had duties beyond that of utility man. 3. Discussion and conclusion The record shows that employees Arden Vestal and Dale Albee had seniority over Richard Thomas at all times up to and including June 14, 1976. Thus, had the job been posted, assuming that the job remained vital, it would appear that employees Arden Vestal and Dale Albee would have first call on the job rather than Thomas. In short, the evidence shows that (a) the job was never posted and I Moreover, even if Respondent denied Richard Thomas the position of kill floor leadman because of union animus, I would conclude such denial did not violate the Act. For the evidence showed, contrary to Respondent, that Kesl, as kill floor leadman, was not merely a supervisor "trainee" or a "managenal employee," N.L.R.B. v. Bell Aerospace Company, Div. of Textron, Inc., 416 U.S. 267 (1974), who would advance into management, Curtis Industries, Division of Curtis Noll Corporation, 218 NLRB 1447 (1975). Kesl's consistent exercise of the power to transfer employees on the production line from one job to another, in his own judgment, based on the necessities of keeping the production line in operation, makes him a "supervisor" within the meaning of Sec. 2(5) of the Act even though he did not wear a supervisor's hat. Respondent, of course, may select its supervisors, its agents to direct the operation of the production line, without regard to their union activity, seniority, or other criteria. 1 conclude that Respondent, in promoting Kesl to a supervisory position, could lawfully pass therefore Thomas' bid was never rejected; (b) the job as utility man was abolished by exclusion from the new classification published June 9, 1976, and there is no proof that it was abolished for discriminatory reasons; (c) in any event, had the job been posted, Thomas was not the most senior of the employees and, on this record, would not have gotten the job anyway. Then, as counsel for Respondent points out, the problem with Thomas' position-apart from abolition of the job-is that his claim would be hypotheti- cal since he was not the most eligible and, indeed, never signed up. I agree. I conclude, as above noted, that Thomas' conversations with his supervisors were at best inconclusive on the question of discriminatory motivation and at worst showed that Kesl had already been assigned to the job of kill floor leadman. In passing, it must be noted that Thomas testified that, after June 14, he observed Kesl on the job and that Kesl's functions as a lead man were no different from the functions he observed when Jacobi had the job as utility man. Thomas' observations might well be correct. But he in no way contradicted Respondent's witnesses' testimony that the leadman had the additional responsibility of recordkeeping on downtime, the ability to direct the employees in their work, attending supervisor's meetings, and the other indicia of a changed job. Even assuming the existence of widespread animus and unlawful conduct by Respondent, as noted by Administra- tive Law Judge Josephine Klein in her prior Decision involving these parties, and in view of my own decision regarding Respondent's further unlawful activities, I conclude that the General Counsel's burden to prove the unlawful denial of transfer, in June or July 1976, with regard to violation of Section 8(aX3) and (4) to the position of utility man has not been met and I shall therefore recommend that the allegation in paragraph 5(a) of the complaint be dismissed.4 4. The failure to transfer Thomas to the position of "back saw operator" Paragraph 5(b) of the complaint alleges that, in July 1976, Respondent denied Richard Thomas a transfer to the position of backsaw operator in violation of Section 8(aX I), (3), and (4) of the Act. The schedule of rate classifications (Resp. Exh. 1) which Respondent issued on June 9, 1976, shows that the position of back saw operator is in skill level number 6, Respon- dent's highest paid classification. over the more senior Richard Thomas even for discriminatory reasons. In so concluding, I am mindful that, as General Counsel observes, on one hand, no posting of a leadman job occurred after the new June 14, 1976, classifications, and yet, on the other, that the posted pay rate for kill floor leadman (skill level six) is no higher than for unit jobs: backsaw operator and electrician (Resp. Exh. I). Bristol, however, testified without contradic- tion that Kesl was earning more than the posted rate and, in fact, was not paid the posted rate of $5.75 per hour but rather was immediately paid $6.40 per hour. As noted in the text, I conclude that the utility job was abolished and that the kill floor leadman job was established thereafter; that the evidence failed to show an unlawful motive in that arrangement; but that, even if Respondent passed over Thomas for discriminatory reasons, it was privileged to do so. No evidence relating to an unlawful 8(aX4) motivation was adduced so as to show retribution for Thomas' participation in prior Board proceedings. 119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The backsaw operation requires (and it is Respondent's practice) the use of two backsaw operators operating each hour alternately. Until the beginning of July 1976, the two backsaw operators were Roger Fisher and Norman Jacobs. Employee Darrel Davis, who had been informally trained in the operation of the backsaw by his father-in-law (a former employee of Respondent) filled in for both Jacobs and Fisher when either of them was absent because of vacation, illness, or otherwise. On July 1, 1976, Roger Fisher gave notice that he was quitting his employment the next day to take another job. On that same day, July 1, Respondent, according to its practice, posted the job as open for bidding and placed the notice on the bulletin board (Resp. Exh. 3). Almost a dozen employees signed up, including Arden Vestal, Dale Albee, and Richard Thomas. At that time Vestal was most senior, Albee was second, and Thomas third. The fourth employee in seniority who had signed the list was Darrel Davis. The evidence is uncon- tradicted that Vestal was chosen to try out for the job and given a reasonable amount of time to decide whether he wanted it. Thomas testified that he saw Darrel Davis perform the job as early as Friday, July 16, or Monday, July 19, 1976. Davis denied that he worked the backsaw until July 26 and particularly denied working the backsaw in the week beginning July 19. I do not credit Davis.5 Sasker directly contradicted Davis and testified that Davis worked the backsaw until Vestal declined on July 26. Sasker did not offer the job to Thomas because he had no replacement for Thomas. I do not credit Sasker. There is no dispute that Davis commenced the backsaw job on a permanent basis sometime after July 26. The evidence shows that Davis got the job in the following manner. Vestal, the most senior employee who had signed up for the job, actually started the backsaw job, on or about July 5, on a part-time basis, and then was on the backsaw, on and off, as he was released from time to time from his regular job in the "cooler" by his supervisor, Earl Rutledge. The evidence also shows that Vestal executed a document for Respondent on July 26, 1976, in which he declared his desire not to have the backsaw job. Moreover, he testified that I week earlier, on July 19, 1976, he told his supervisor, Rutledge, that he did not want the job as backsaw operator. 6 It was on July 26 that Rutledge called Vestal into his office and told Vestal that if he did not want s I credit Thomas in that he saw Davis doing backsaw work on July 16 and 19. Davis testified that he worked the backsaw for an hour at a time immediately after Vestal got thejob on or about July 5. 6 Vestal's timecards (Resp. Exh. 8) showed he worked on the kill floor on Friday. July 19, 1976, therefore as a hacksaw operator, since hisjob in the cooler was not on the kill floor. I The next most senior employee after Vestal was Dale Albee. Albee was frozen out of competition for the backsaw operator job because he had bid on a lower job in the past year. I Vestal testified that (a) for about I week prior to his written declination of July 26 he did not work the backsaw, and (b) it was about I week before he signed the declination that he told his supervisor, Rutledge, that he did not want the job. Vestal was a witness called by Respondent. Respondent asserts that this testimony is contradicted by the testimony of three other of Respondent's witnesses: Davis, Sasker, and Rutledge. Rutledge testified that he did not know Vestal did not want the job until Vestal signed the written declination on July 26. I reject this testimony. While there may be some room in Vestal's testimony concerning how long before he signed the declination that he told Rutledge of his declination, there is no room for Rutledge's testimony that "suddenly he [Vestal ] didn't want the job." the job he had to fill out a written rejection slip. It was on July 26 that Vestal did so. However, even after that, Vestal worked on the backsaw on July 27 to help out because the Respondent was shorthanded. Discussion and Conclusions Respondent takes the position that Arden Vestal had the first seniority opportunity on the job and, since the job was not formally rejected by Vestal? until July 26, 1976, and since Richard Thomas was already discharged on July 22, 1976, it was clear that Richard Thomas could not be considered for the backsaw job because he was no longer an employee. General Counsel points to the fact that, as soon as Respondent knew that Roger Fisher was quitting, by virtue of the notice thereof he gave on July 1, 1976, it posted the backsaw job for bid. By analogy, according to the General Counsel, Supervisor Rutledge was told as early as July 19, according to the uncontradicted testimony of Vestal, that Vestal did not want the job. General Counsel then states that, had Respondent followed its normal routine, as indicated by the previous posting of July 1, for the same job, when it knew that Roger Fisher did not want the job, it should have posted the job as being open on July 19. Rather than do that, it waited until July 26 to give the job to Davis upon Arden Vestal's formal written declination. In short, the General Counsel argues that Respondent, for discriminatory reasons, did not post the job on July 19 because Thomas would have gotten the job since Albee had been frozen out. Unlike the case of the alleged unlawful transfer to the "utility man" job, above, Respondent offered no explana- tion of why it failed to post the backsaw job when it first learned that Arden Vestal did not want the job on July 19.8 Certainly its immediate posting of the job on July 1, when Roger Fisher first gave notice of his leaving and even before he actually left the job, indicates that Respondent manifested an eagerness to insure that no hiatus would exist in filling the job. This is particularly true on the uncontradicted evidence that Respondent, at all times, was shorthanded on its production floor. An unfilled job on the production line might well mean interference with produc- tion, a situation which Respondent reasonably had found intolerable and which was a prominent reason for action Sasker's lack of recollection regarding these events was demonstrated at the hearing. Moreover, I regard his estimate that Vestal worked on the backsaw for 2-1/2 to 3 weeks as probative of the fact that Vestal's last day on the job as an applicant was July 19 since Vestal started on July 6. Davis is the incumbent in the job and has an obvious interest in the testimony that he was not given the job prior to Thomas' suspension. Thus, while I agree with counsel for Respondent that Davis had a "strong interest in the backsaw job," that interest does not redound in favor of Davis' credibility. Moreover, I find that Sasker, far from corroborating Davis, as Respondent avers, contradicts him, for Sasker, contrary to Davis, testified that Davis was on the backsaw from July 6 to 26. Thomas had testified that Vestal was in the backsaw job only about I week before Davis succeeded him. Thomas said that by Friday, July 16, or Monday, July 19, Davis was already in the job. This supports Sasker and contradicts Davis. In this conflict, I credit Thomas as corroborated by Respondent's witness Vestal, and discredit the mutually inconsistent testimony of Sasker and Davis. 120 TAMA MEAT PACKING CORP. taken with regard to its employees. The backsaw operation is a production line job. While Davis was experienced as a backsaw operator, that would not explain the failure to post the job especially since Sasker did not know and did not seek to discover if Thomas could operate the backsaw. I regard Respondent's failure to post the job on July 19 as more than a suspicious coincidental circumstance. While there is no direct evidence to suggest that the job was not posted on July 19 because Thomas would get the job, the circumstances convince me that this motive guided Respondent's conduct. Thus (1) Respondent's particular animus against Richard Thomas based upon his union activities and its more general union animus have been fully demonstrated before Administrative Law Judge Klein and in the hearing before me; (2) Respondent, in failing to post the open backsaw position, departed from its past practice of doing so, a practice which it had performed for the same position as recently as 18 days before when Roger Fisher gave notice; (3) Richard Thomas, by virtue of his seniority following Vestal and Albee, would have gotten the job. This raises a prima facie case of Respondent unlawfully preventing Thomas from getting the job on July 19 when Vestal told Supervisor Earl Rutledge that he did not want the job. When such a primafacie case is joined with complete failure by Respondent to explain why, being shorthanded,9 it did not at once post the job as open,' 0 the inference should be drawn, it seems to me, that Respon- dent failed to post because Richard Thomas would then be in line for the job. Such conduct, I conclude, was based on discriminatory considerations and violates Section 8(a)(3) and (I) of the Act." No evidence exists on this record that Respondent's motivation related to Thomas' having given testimony at Board proceedings or otherwise participated in Board proceedings as alleged. Therefore I find, that Respondent, in denying to Thomas the opportunity of employment as a backsaw operator, was motivated by animus concerning his union activities and violated Section 8(a)(1) and (3) of the Act. Having found no evidence in this record that the motivation also included Thomas' prior Board testimony or activities at the prior Board proceedings, I shall recommend that the 8(aX4) allegation be dismissed. The suspension of Richard Thomas on Monday, July 19, 1976 On July 19, 1976 (Monday), after the end of the workday, at or about 3 o'clock, Supervisors Sasker and Jacobi (the foreman and assistant foreman on the kill floor) told Richard Thomas to go to Plant Superintendent Derham's office. Thomas said he was in a hurry but they escorted him to the plant superintendent's office. After a few minutes of waiting, in which Thomas asked them to do whatever they were going to do the next day, Sasker, Jacobi, and Thomas entered the office where they found 9 The evidence is uncontradicted that Respondent forced Vestal, on July 27, 1 day after he had rejected the job in writing, to perform the backsaw job. 'o Immediate posting would have been on July 19, 1976. i Respondent failed to argue-perhaps wisely-that it would not in any case have offered the job to Thomas on July 19 because Respondent, after work that day, decided to suspend Thomas. The hurried suspension without giving Thomas the reason therefor is discussed infra. Derham and Robert Bristol, Respondent's director of industrial relations. Thomas said to Derham: "Another one of those deals, huh?" Derham replied: "Yes, I guess so, sit down." Thomas said: "Let's have it." Derham then nodded towards Bristol and Bristol, reading from a sheet of paper, answered: "Rich, we are authorized to inform you, at this time, that you have been placed on indefinite suspension." Thomas then asked for the reasons for his suspension and Bristol responded: "We have not been authorized to give you a reason at this time." There was no further conversation and Thomas left the plant. On the next day, Tuesday, July 20, Bristol sought out 12 Thomas' supervisor, Stanley Sasker, and his leadman, Kesl, regard- ing the incident. They told him of another incident: that Thomas, in the previous week, told employee Roger Boldt to go home because Boldt was ill even though Boldt told Kesl he would remain on the job in spite of the illness.'3 The evidence is also uncontradicted that on or about June 14, 1976, employee Kenneth Dahlman was promoted into the supervisory ranks. Both before and after that date, Dahlman had told Bristol that Richard Thomas called him derogatory names on a consistent basis. Bristol testified that he made a note of the complaint. The discharge of July 22, 1976 Following the July 19 indefinite suspension, Respondent sent the following certified letter, dated July 22, 1976, to Thomas (G.C. Exh. 6): Dear Mr. Thomas: On monday [sic] July 19, 1976 you were indefinitely suspended pending an investigation into your behavior as an employee of Tama Meat Packing Corp. The investigation has now been completed by management. During the past week of July 12-16, 1976 you told a fellow employee not to move the cattle ahead to fill the chain, causing a slow down in production. You also convinced another employee to go home sick after he had indicated to his supervisor he would work out the day. You also have been guilty of disruptive conduct by addressing derogatory remarks to other employees. This behavior cannot be condoned. You are hereby discharged immediately. Signed /s/ Stan Sasker Stan Sasker Kill Floor Supervisor It is undisputed that Thomas was never told by management which fellow employee he told not to move the cattle head on the chain which caused the slowdown in 12 Bristol testified in substance that Respondent was having a great many problems and he wanted to see what other problems Thomas may have caused. 13 Neither Sasker nor Kesl reported the incident to Bristol or to other high supervisory authority. 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production. Thomas specifically denied all testimony relating to his telling an employee not to move cattle ahead, including the testimony of employee Mark Rut- ledge, which was to the contrary. With regard to the assertion concerning Thomas' convincing another employ- ee to go home sick after the employee told the supervisor that he would work out the day, Thomas testified that no supervisor ever identified the employee or requested his version of the matter; but he identified employee Roger Boldt as the employee who went home sick in the week of July 12, 1976, sometime before Thomas was suspended. With regard to the third reason advanced by Respondent for the discharge, addressing derogatory remarks to other employees, Thomas specifically denied making such remarks to employee Kenneth Dahlman. It might be recalled that it was the September 12 warning notice regarding alleged physical threats to Kenneth Dahlman which Administrative Law Judge Klein found to have been unlawfully inspired (G.C. Exh. 4) and which she directed be expunged from Thomas' record. Notwithstanding Thomas' specific denial of calling Dahlman names, I credit Dahlman's contrary testimony to the effect that before and after Dahlman was promoted to a management position on June 14, 1976, Thomas called him "suck ass" and "brown nose." A history of such name-calling was allegedly reduced to memorandum by Bristol but it was never produced at the hearing. According to Respondent's director of industrial relations, Robert Bristol, this name- calling however would not have independently caused the discharge of Thomas but was merely an additional reason supporting the discharge. Name-calling was never the basis of any warning to Thomas. In view of Bristol's testimony, in view of the admitted banter going on in the plant, some of which was not apparently in good nature, and the overall lack of seriousness in which Respondent evidently viewed the matter, I do not regard this name-calling as significant notwithstanding that, in other circumstances, Respondent might be within its rights in freeing itself of an employee who called such names to its employee. In view, however, of the above state of the record, I conclude that neither by itself nor in conjunction with Thomas' other conduct would it have caused Respondent to discharge Thomas. The two principal incidents which, according to Respon- dent, caused the discharge were an incident involving Thomas' telling a fellow employee not to move the cattle ahead on the chain, thereby slowing down production, hereinafter referred to as the Mark Rutledge incident; and his telling another employee (Roger Boldt) to go home sick after the employee allegedly told the employee's supervisor that he would work out the day, hereinafter called the Roger Boldt incident. The Mark Rutledge incident; Friday, July 16, 1976:14 The first of the three reasons advanced by Respondent in its discharge letter (G.C. Exh. 6) is that in the week of July 14 It was this incident, alone, which caused Thomas to be suspended, without reference to any other misconduct. As will be seen, infra, Supervisor Earl Rutledge reported the Mark Rutledge incident to Respondent's director of industrial relations on Saturday, July 18. By further investigation 12-16, 1976, Thomas "told a fellow employee not to move the cattle ahead to fill the chain, causing a slow down in production." The production process in Respondent's Tama, Iowa, plant, as adduced by evidence in this record, shows that cattle are first "killed" and then hoisted on chains by the rear feet. Their throats are cut to allow bleeding. Progres- sive dismemberment follows as the carcasses travel along past employees at two physical levels: employees working on elevated platforms dismembering the raised hindquar- ters; employees on the floor dismember the lower forequar- ters. Ostensibly, the dead bled out (cold) cattle, on chains, then follow an overhead track (feeder line) to an overhead switch which automatically interrupts the flow of carcasses to the employees working further down on the cattle on the "main line." When this automated feeder switch fails (the failure sometimes caused by the weight of too many new carcasses bunched up against the arms of the switch), the carcasses do not approach the waiting employees one at a time at preset intervals as would be the case if the switch were in working order. Until the switch is repaired (freed), the carcasses back up behind the switch. In order to maintain a flow of carcasses to the waiting production employees, the carcasses must therefore be pulled manually past the broken switch and down the production line. All employees on the floor are obliged 15 to pull cattle through manually, otherwise production beyond the switch would be brought to a halt (i.e., there would be a "hole" in the line). Sometimes the cattle, even upon reaching the main line, are not actually dead. These are called "hot" cattle. To work on them even as far down as the main line may involve physical danger to the employees since the "hot" carcass, attacked by cutting devices, reacts by kicking. Injury to the knife-wielding employee may result. Hot cattle as well as cold cattle are pulled through a broken switch, although it is relatively uncommon for hot cattle to be encountered beyond the switching point. On July 16, 1976, the automatic switch broke on three occasions. Employee Mark Rutledge was employed in the blood pit on the main level of the production line. The cow, having been "knocked in the head" and presumed dead, was hoisted on the chains, headed for the blood pit for bleeding out. Mark Rutledge's job, performed on the work floor, i.e., the lower level, was to slit the throat, permit the carcass to bleed off, and also to cut off the ears. The blood pit is immediately under the automatic switch. The next employee position down the line from Rutledge on July 16 was the "Cap bung" position which was occupied up on the platform by employee John Hoffa. Leadman Kesl testified that, on one of the occasions on that day when the switch broke, he noticed that no cattle were going along the main line. He said he then went over to employee Mark Rutledge and asked him why he wasn't pulling the carcasses through manually. Rutledge allegedly said, pointing up to Thomas on the level above him: "Because Rich Thomas told me to not to". On his part, into Thomas' misconduct, Bristol learned of the Boldt incident, supra, on July 20, 1976. is There is no written rule; it is a matter of plant practice. 122 TAMA MEAT PACKING CORP. Rutledge could not remember any such conversations with Kesl and particularly recalled that, when the switch broke on the third occasion, no one asked him to pull cattle through. Kesl then pulled the cattle manually through the switch to fill the production line. Kesl testified that the carcasses he pulled through were "cold." Kesl testified that about 3:30 p.m., after the end of the workday, he told Supervisor Stanley Sasker of what Rutledge told him. Sasker, called by Respondent, failed to testify on this point. Sasker did not mention the matter to Thomas or to higher supervisory authority. Richard Thomas, in rebuttal, denied ever telling Rut- ledge not to move cattle ahead on a production line. And in direct examination and rebuttal, without contradiction, he testified that he did not know what incident formed the basis of the assertion in the discharge letter; that no one from management ever identified the employee or asked for his version of the incident.' The discharge letter is silent on the matter. The director of industrial relations, Bristol, testified that he did not ask Thomas for his version of the incident because: (1) Thomas had already been suspended and was not on the premises; (2) "I just didn't feel like anywheres [sic] asking him about the incident." 17 Similarly, when Bristol learned, from leadman Kesl or Supervisor Stanley Sasker, on Tuesday, July 20, of Thomas telling employee Roger Boldt to go home because of Boldt's illness, he did not question Boldt because he already had leadman Kesl's statement of the event. Mark Rutledge, brother of Supervisor Earl Rutledge, testified that, after the switch broke the second time in the afternoon,'8 he pushed two or three dead cattle past the broken switch when Richard Thomas, up on the ledge said to him: Why push the beef down? We're not getting paid by beef. We're getting paid by the hour. Let the foremans [sic ] do it. It's not going to help you. Rutledge did not answer Thomas. The evidence is undisputed that, prior to President Whittington's announcement of June 9, 1976 (Resp. Exh. 1), production employees were paid "gang time." Whitting- iL Kesl at first placed the Rutledge incident of July 16 as before the incident involving the illness of Roger Boldt, infra Although neither General Counsel nor Respondent introduced Boldt's timecard or other evidence on the point, it appears from all the evidence that the Boldt incident occurred before the Mark Rutledge incident. Kesl thereafter said he was not sure which incident occurred first. IT A full explanation of why Bristol did not ask Richard Thomas for his version of this incident, which was the root cause of the July 19 suspension, appears in Bristol's cross-examination: Q. Did you learn about the incident prior to his suspension? A. Yes I did. Q. And you had Rich Thomas right in your office at the time you suspended him, why didn't you ask him then? A. The investigation was not completed at that point. Q. What I am saying why wasn't he a part of the investigation? A. All right [it was] reasonable to assume that there was offense ton's announcement effective June 14, 1976, eliminated gang time and the 40-hour guaranteed workweek. "Gang time" was a speedup production procedure whereby employees, ordinarily paid at the rate of processing 100 carcasses per hour, had the carcass processing rate, for instance, speeded up to 144 carcasses per hour. Respon- dent paid the employees for approximately 12 hours' work because of such a speedup rather than for 8 hours' work.' 9 It appears, therefore, that the reference in the above statement by Thomas to Rutledge relating to "not getting paid by the beef' refers to the elimination of the "gang time." Mark Rutledge, later that Friday evening, told his brother, Supervisor Earl Rutledge, of the incident and his brother told him not to pay attention to Thomas but to his supervisor. On cross-examination, Mark Rutledge testified that no delay in the production line occurred on the occasion of the second breakdown of the switch because of what Thomas yelled down to him. As above noted, Kesl testified that, when the switch broke down the third time, he "grabbed the cattle and filled in the holes in the line to get caught up." Rutledge could not say that he saw Kesl manually pulling cattle through at any time that day. Contrary to Kesl, Rutledge testified specifically that he could not recall any conversation with Kesl that day in which Kesl asked: "Why don't you push them through?" to which Rutledge would have responded, "Thomas told me not to." On the basis of the above conflicting testimony, I credit Mark Rutledge and discredit Richard Thomas, and find that Thomas did yell down to Rutledge what Rutledge testified to regarding pulling the carcasses through manual- ly. I also discredit Kesl insofar as his testimony conflicts with Rutledge's recollection: that Rutledge could not recall any conversation with Kesl in which Kesl asked him why he had not pulled the cattle through. I am particularly mindful that Sasker's testimony did not corroborate Kesl's assertions that Kesl told Sasker of the incident. Rather, I conclude that Kesl pulled the cattle through upon seeing the cattle were not being pulled through. Thus, I conclude that Rutledge was not asked by, and did not tell, Kesl the version which Kesl alluded to. serious enough here to warrant a discharge, but we didn't know that for a fact at that point. So, until the investigation was concluded we weren't going to tip our hat as to just which way we were going to pursue this thing. It could have been such a thing that it turns out completely groundless and he would have been reinstated and no problems. It therefore appears that Bristol did not question Thomas when Thomas was in his office in the act of being suspended because investigation had not been completed. And Bristol didn't question him after the investigation was completed because Thomas was "not on the premises". Thus, Thomas could not be questioned at all on that logic, a "Catch-22" rationale. Actually, as Bristol testified, he "just didn't feel like" asking Thomas about the incident, because, as Bristol later said, it might "tip our hand." To put it mildly, this is the language not of investigation, but of predisposition. is Rutledge testified that the switch also broke in the morning and that another employee pulled the carcasses past the switch on that occasion. 19 Counsel for Respondent argued, and unsuccessfully sought from Thomas on cross-examination the admission, that the elimination of "gang time" and the 40-hour guaranteed workweek so angered Thomas that he caused the instant charges to be filed by the Union. There is no evidence linking Thomas' loss of earnings to the filing of the charge herein. I reject Respondent's argument. 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In rejecting Thomas' denial and crediting Mark Rut- ledge's testimony, I have noted that Rutledge, although the younger brother to Supervisor Earl Rutledge, hardly knew Thomas. The undisputed testimony shows that there was no "bad blood" between Thomas and Mark Rutledge and Thomas could think of no reason why Rutledge would invent such a story involving Thomas. On the record before me, therefore, there is evidence that there was a potential hole in the production line which resulted from a broken switch. I also find that Thomas told Rutledge not to manually pull the cattle through the switch. Whether Rutledge did not thereafter, on the third breakdown, pull carcasses through because of Thomas' admonition or because no one told him to do so (as he testified) or because he returned to his own job (as he testified) is not controlling. The record is not clear whether any loss of production would have been substantial because of what Thomas said to Rutledge, but I conclude that, contrary to the allegation in Respondent's discharge letter, Kesl's pulling the cattle through manually prevented any actual loss of production attributable to any statement or action of Richard Thomas. In any case, I do not regard as material any discrepancies between the assertion in Respondent's letter that a slowdown was in fact caused by Thomas and a finding that there was either no such slowdown or that it was de minimis. For I conclude that Thomas' statement to Mark Rutledge had a tendency to interfere with production and thus was a most serious matter under any interpretation, and notwithstanding any union animus which Respondent may have directed toward Thomas. I conclude that Respondent need not accept conduct from an employee which merely tends to interfere with the production line regardless of whether it has that actual effect. Thus I see no material difference, for the purposes of reasonably invok- ing the strictest discipline, between an act of Richard Thomas which actually interfered with production and one, like the present, which may merely have tended to interfere with such production. Rebuttal testimony of Richard Thomas and Roger Boldt; disparity of treatment In rebuttal, however, Richard Thomas and Roger Boldt testified that employees John Hoffa and Roger Boldt, on a day during the week of July 12-16, 1976, yelled down from their work stations for two supervisors, Jacobi and Kesl, not to pull the cattle through so fast. Kesl could not remember if it occurred around the same time as Thomas' yelling down to Rutledge. Neither Boldt nor Hoffa suffered discipline for such statements. Leadman Kesl testified that John Hoffa had yelled at him for "bringing hot cattle" through the broken switch in such large numbers that the carcasses were being brought to positions out of the working reach of Hoffa and Boldt. He recalled Hoffa saying that, if Kesl was going to bring the cattle through into those positions, he could come up on the balcony and do the work himself. The evidence 20 Hoffa did not testify. Boldt said Hoffa yelled to Kesl who was pulling through the hot cattle too far, that Kesl "should come up there and help him." Boldt yelled the same things to Supervisor Jacobi. Under such conditions, the employees could not keep up with the volume of work. adduced on this point shows that so many carcasses were being brought through into the area where Hoffa and Boldt were dismembering the cattle that the carcasses were not in their proper position and Boldt and Hoffa had to reach far over the ledge in order to work on them. Counsel for Respondent would distinguish between the Hoffa-Boldt incidents on one hand and the Thomas incident on the other, on the ground that Hoffa and Boldt did not tell anybody not to pull through the cattle, but merely that if they were going to pull through so many hot cattle, the employees (Boldt and Hoffa) could not keep up production. As I understand the statements, of Hoffa and Boldt, they were admonishing Respondent's supervisors because they were continuing to bring through cattle at such a high rate and because hot cattle were dangerous to work on.20 Supervisor Jerry Jacobi testified that Boldt had called down to him because carcasses were going by so fast that they could not be worked on. Jacobi testified that he did not remonstrate against Boldt for his statement because it did not appear to him that Boldt was angry in making the statement. There is no evidence that Thomas was angry or even that the question of Thomas' emotional state in admonishing Mark Rutledge was deemed material. I do not see an essential difference between Thomas telling Mark Rutledge not to pull through the cattle past the broken switch on a manual basis and Boldt and Hoffa, on the other hand, telling Jacobi and Kesl not to pull so many cattle past. In both cases, there was a statement whereby employees were manifesting an intent to others to slow down production and in neither case was there an actual slowdown. The fact of the matter is, however, as Kesl admitted, that he never reported the Hoffa-Boldt incidents to Sasker, as he allegedly reported the Thomas incident,2 ' or to Robert Bristol after Bristol heard about the Mark Rutledge incident from Earl Rutledge. He told Bristol only about Richard Thomas, but not about Hoffa and Boldt, because Bristol was seeking evidence regarding Thomas' conduct. It is clear, therefore, that, in the two incidents relating to Boldt in which Richard Thomas was involved, James Kesl, at least according to his own testimony and the testimony of Sasker and Bristol, allegedly failed to inform his superiors and Respondent that other employees had done more or less the same thing as Thomas. As will be seen hereafter, in the incident involving the illness of Roger Boldt, Kesl failed to tell his superiors (allegedly because he had not heard) that employee Steve Halverson and other employees, as well as Richard Thomas, had counseled Roger Boldt to go home because of Boldt's sickness; and in the case of Thomas calling down to Rutledge, Kesl (and Jacobi) failed to tell Bristol, who was corroborating the Mark Rutledge incident which he had heard from Earl Rutledge, that employees Boldt and Hoffa had called down similar things to that which Thomas yelled down to Mark Rutledge. 21 As above noted, I have not credited Kesl's testimony that he told Sasker of the Thomas-Rutledge incident. Had he actually done so, and Sasker failed to act, Sasker's conduct would indicate how unimportant Thomas' statement to Mark Rutledge was in Sasker's eyes. 124 TAMA MEAT PACKING CORP. The Roger Boldt sickness incident; disparate treatment Boldt works as a "rumper" about 5 to 10 feet from Thomas' work station on the elevated balcony above the work floor. During the week of July 12-16, but before Thomas yelled to Mark Rutledge concerning pulling carcasses through the broken switch manually, supra, about 8:30 a.m. before the first workbreak, Boldt told Thomas and other employees he did not feel well. Boldt asked leadman Kesl for a replacement because of illness but Kesl said he had no one to fill in for him. Boldt testified he then told Kesl that he would "stick it out as best I could." Kesl testified that Boldt told him he "would try to stick the day." Kesl testified that Boldt appeared sick and asked to be replaced. Kesl told him that he could not replace him because the only replacement available would be Kesl himself and then there wouldn't be "anybody to watch the floor." At various times thereafter, until 10:30 a.m. when Boldt left to go home, Boldt became ill at his workplace. Thomas and other employees tried to help fill in for Boldt but were not successful. Thus Thomas and Boldt testified that Kesl, on two occasions, relieved Boldt at his job at the upper level. Sometime in midmorning, the overhead chain which carries carcasses past Boldt and Thomas stopped. The evidence shows that employee Steve Halverson stopped the chain and pushed the buzzer, thereby sum- moning leadman James Kesl. Thomas then saw Boldt sitting on the guardrail with his head in his hands, his face white. This was the first occasion on which Kesl relieved Boldt. Thereafter Halverson pushed the button again to stop the chain and Kesl came up for the second time to take Boldt's place. Thomas testified without contradiction that Boldt could not keep up with the job and that the carcasses were going by without being "rumped out." On a third occasion, with Boldt being sick, Halverson buzzed for Kesl again but Kesl did not come up. Boldt walked away and said nothing. Thomas, in all three episodes, said nothing to Boldt except, according to Thomas, on the second occasion, in Kesl's presence: "If I felt that bad I would go home." Thomas, corroborated by Boldt, testified that employee Steve Halverson and other employees told Boldt the same thing at the same time in front of Kesl. Kesl denied hearing any other employee say anything to Boldt regarding Boldt's "illness." Kesl testified that he heard Thomas tell Boldt, "Go on home, Roger. They got all kinds of help breaking down the door to work here." Boldt testified that, after he became repeatedly ill before II a.m., he told Kesl that he could not stick it out any longer and that Thomas told him: "If I were feeling that bad, I'd go home. They surely can find someone to replace you." Boldt said that Kesl was present and said nothing. Boldt also testified, without contradiction, that he told Kesl he was going home even before Thomas suggested that Boldt go home. Kesl reported the incident to Foreman Sasker and said he did not think Boldt would have gone had Thomas not suggested it. In spite of Boldt's corroboration of Thomas' version, my observation of Thomas, Kesl, and Boldt (a clearly friendly 22 Again, Sasker also failed to advise higher management or take other action when Kesl allegedly told him of the Mark Rutledge incident on the previous Friday, July 16. witness to Thomas) leads me to conclude that Kesl's latter idiomatic version was correct. Kesl admitted never having asked Boldt why he left that day. Boldt did not return to work for 2 days and was under a doctor's care. Kesl knew of no investigation by other supervisors into Boldt's illness. Kesl told his supervisor, Stanley Sasker, of this incident, but the record fails to disclose that Sasker took any affirmative action on the basis of this information.22 Sasker, however, did tell Bristol of the incident on the following Monday or Tuesday, prior to the time that Thomas was discharged during the time that Bristol was investigating Thomas' misconduct in the Mark Rutledge incident, supra. It is unnecessary to resolve the credibility question as to whether, as Thomas and Boldt testified, Thomas said to Boldt that: "If I felt as bad as you, I would go home," or whether, as Kesl testified, that Thomas said that Boldt should go home and that there were "employees breaking down the door to come in." Both versions amount to the same thing. I conclude that Thomas did tell Boldt that he should go home because he looked too ill to continue to work. On the question of whether Boldt told Kesl that he was going home even before Thomas made the remark to Boldt in Kesl's presence, and even though the testimony was not contradicted by Kesl, I severely doubt whether Boldt made this statement to Kesl. In short, I do not credit the uncontradicted testimony of Boldt that he told Kesl that he intended to go home even before Thomas made the remark. On the other hand, I credit Boldt and Thomas and discredit Kesl in finding that Halverson told Boldt essentially the same thing that Thomas did, and, moreover, said it to Boldt at the same time as Thomas told Boldt to go home, in Kesl's presence. I conclude that Kesl heard Halverson make the same or similar remarks to Boldt as Thomas' remarks in the same conversation. Discussion and Conclusions The evidence shows that Respondent, on the basis of proven unfair labor practices, has a history of union animus directed against the Charging Party in general and against Thomas in particular commencing in 1975. I have already found, above, that Respondent acted unlawfully, in violation of Section 8(aX3) and (1) of the Act, in failing to offer Thomas the opportunity to bid on the backsaw operator job. In the present instance, regarding his suspension and discharge, Respondent asserts that it discharged Thomas for cause for engaging in misconduct in the above three incidents: the Mark Rutledge incident, the Roger Boldt incident, and the Kenneth Dahlman incident. (I) With regard to the Kenneth Dahlman incident, I have already taken into account the remark of Respondent's director of industrial relations that that incident would not, of itself, have been a cause to discharge and was merely an aggravating circumstance. In view of Respondent's own evaluation of the lack of seriousness of the name-calling against Dahlman, longstanding and widespread name- calling throughout the plant as admitted by Kesl, the 125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD existence of the memorandum on the name-calling without action taken thereon, I see no reason to give it any greater probative weight than the Respondent itself has given it. I conclude that Thomas' remarks to Dahlman and other employees did not constitute so serious a breach of discipline as would lead Respondent to discharge Thomas even in conjunction with other breaches of discipline. Furthermore, the interposing of such a reason in the discharge of the chief union steward, already the subject of Respondent's unlawful attention, seems to me to also cast doubt on other apparently more formidable reasons. (2) The Board may not substitute mere suspicion or surmise for credible evidence. Ashland Oil Company of California, 201 NLRB 524 (1973), N.LR.B. v. Garver Tool and Die Manufacturing, Inc., 493 F.2d 263 (C.A. 8, 1974). It may be assumed for purposes of this Decision, and I do assume, that Richard Thomas' suggestion or admonition which I find, under all the circumstances and in spite of his denial, to have been made to Mark Rutledge, that Rutledge should not move the cattle through manually, was substantial enough to be a cause to discharge; or, in the alternative, was not so insubstantial as to not warrant an inference that another reason was the true cause for the discharge. Big Three Industries, Inc., 192 NLRB 370, 375 (1971). Indeed, the Board has repeatedly held that, if an employee provides an employer with sufficient cause for discharge by engaging in conduct for which he would have been terminated in any event, the Board cannot find the discharge unlawful by merely showing that the employee engaged in union activity. Klate Holt Company, 161 NLRB 1606 (1966); Golden Nugget, Inc., 215 NLRB 50 (1974). The mere fact that the employee is or was participating in union activities does not insulate him from discharge. N.L R.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (C.A. 9, 1970). In short, an employer has the right to discharge an employee for any reason, whether it is just or not, and whether it is reasonable or not, as long as the discharge is not, in part, in retaliation for union activities or support. The question of proper discipline of an employee is a matter left to the discretion of the employer. An employer's stated or avowed oppostion to a labor union is not sufficient evidence to sustain a finding that its employee was discharged because of discrimination against the Union. The Board is limited to determining whether there was a discriminative motive behind an employee's discharge and not whether the Board agrees with an employer's reasons or even finds them reasonable. See The Consolidated Diesel Electric Co., Division of Condee Corp., 469 F.2d 1016, 1024 (C.A. 4, 1972); N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505-506 (C.A. 6, 1967), cert. denied 389 U.S. 843. While the employer must be permitted to discharge the inefficient, the irresponsible, the disobedient, and the immoral, Martel Mills Corporation v. N.LR.B., 114 F.2d 624 (C.A. 4, 1940), an employer may not discharge an employee where the real motivating purpose is to do that which Section 8(a)(3) forbids, Lawson-United Feldspar & Mineral Co., 189 NLRB 350, 357 (1971). The determination of the employer's actual motivation where, as here, a union leader has broken a shop rule and has been discharged, is a "delicate task," American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311 (1965). There is no disagreement with Respondent's contention that, because Richard Thomas was the chief umon steward, the Board and the courts had not given him a "license" to violate company rules or to be immune from discharge. To the contrary, the position of shop steward does not immunize the holder of that position from discharge even in the presence of outbursts of union animus by the employer. See San-Tul Hotel Company and Simon Zunai- non, doing business as Fairmont Mayo Hotel, 198 NLRB 462 (1972). If a discharge is motivated by antiunion design, such discharge is violative of the Act even though the employee had performed misdeeds which would warrant his dismis- sal. Frosty Morn Meats, Inc. v. N.LR.B., 296 F.2d 617, 620 (C.A. 5, 1961). Direct evidence of discriminatory motiva- tion is not necessary to support a finding of discrimination since such intent may be inferred to the record as a whole. Heath International, Inc., 196 NLRB 318 (1972); Florida Steel Corporation, 224 NLRB 587 (1976). Even a finding that Richard Thomas was not properly discharged for cause would not, in itself, establish that the discharge was violative of Section 8(aX3) of the Act as alleged in the complaint. The real motivation must be found on the basis of inferences. Big Three Industries, Inc., 201 NLRB 700 (1973), citing N.LRB. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8, 1965). Illegal motive has been held supported by a combination of factors such as coincidence in union activity and discharge, disparity of treatment, general bias and hostility toward the Union, variance from the employer's normal routine, and implausible explana- tion by the employer for its actions. W. T. Grant Company, d/b/a Grant City, 210 NLRB 622 (1974). Applying the above principles to the case at hand, the evidence of record, including my observation of the witnesses, shows: (a) Richard Thomas, as counsel for Respondent points out, was a cocky individual and perhaps sometimes exuberant in his dealings with Respon- dent's supervisors. Counsel for Respondent states that Thomas was "arrogant." I did not see that in my observation of Thomas. (b) Thomas testified extensively at the prior Board hearing before Administrative Law Judge Klein as late as May 1976 and was a prominent supporter of the Union who did not hide his union sympathies. I was particularly impressed with the fact that, even after the election in which the Union was defeated on December 5, 1975, Thomas wore prominent union identification on his helmet unlike other union stewards and supporters who apparently no longer sought to remain prominently identified with the Union. (c) There is nothing in this record which indicates any manifestation of Respondent's displeasure with Thomas' work record or conduct over the 5 years of his employment prior to the two unlawful warnings which appear in his records commencing Septem- ber 12, 1975, which warnings were found to have been unlawfully motivated and were directed by Administrative Law Judge Klein to be expunged from his record. (d) In balancing the underlying evidence upon which inferences regarding Respondent's motivation of discharge are based, Carbide Tools, Incorporated, 205 NLRB 318, 328 (1973), there must be taken into account Respondent's unfair labor practices against and general hostility towards the 126 TAMA MEAT PACKING CORP. Union and particular hostility toward Richard Thomas based upon his union activities. While such evidence by no means is dispositive, as counsel for Respondent emphasizes in his brief, I would be naive to ignore such evidence. And I am not required to be naive, Shattuck Denn Mining Corporation (Iron King Branch) v. N.LRB., 362 F.2d 466 (C.A. 9, 1966). (e) Regardless of the exact language used, I have concluded that Thomas did tell Roger Boldt that he looked so ill that he should go home. I have also concluded, contrary to the testimony of Kesl, that employees Halverson and other employees said the same thing to Boldt in front of Kesl at the same time and received no discipline whatsoever from Respondent be- cause of such suggestions, much less discharge as was the case with Thomas. I view Respondent's treatment of Thomas, in this regard, as disparate.2 3 (f) The most significant reason advanced by Respondent for the dis- charge of Thomas, and indeed the misconduct which alone was the basis for Thomas' suspension on July 19 (Monday) was that his statement to Mark Rutledge caused a slowdown in production. While there was no actual slowdown in production, Rutledge having already pulled through the carcasses on a manual basis after the breakdown of the switch, the remark, contrary to Thomas' denial, tended to dissuade Rutledge from again performing the manual pullthrough of the carcasses. What we are dealing here with, therefore, is not that Thomas' remarks caused an immediate breakdown in production, but that they tended to cause an interference with an employee's future conduct. It was Kesl's shouldering of that burden which thereafter prevented an actual loss of production. I regard Thomas' remark to have been a serious matter indeed, and I would perhaps find that statement, by an employee of Thomas' persuasiveness, sufficient cause to conclude that the discharge, although eminently suspicious, was caused by Thomas stepping over the line and attempting to interfere with production, especially at a time when, according to the evidence at hand, Respondent was fearful of its economic position. This genuine fear of competitive position was demonstrated by Respondent's notice to all employees (Resp. Exh. I, dated June 9, 1976) in which it eliminated the commission based on production (gang time) and also lowered the guarantee of hourly work from 40 to 36 hours. Thus, I conclude that Respondent's concern, particularly in the summer of 1976, was for production and elimination of excess costs. The record, however, does not close on this point. For the circumstanc- es of this case, including the testimony of Robert Bristol, Roger Boldt, and Respondent Supervisor Jerry Jacobi, shed extensive light on Respondent's response which Thomas' admonition to Rutledge brought about; and which causes me to conclude that such response (Thomas' suspension and discharge) was derived from pretextual unlawful motives. There is no doubt in my mind, on the basis of Board decision, as above noted, that Respondent's reaction to an employee's interference with production may be swift and unconditional without its being unlawful, notwithstanding that the employee was an active union member and the 23 It is only arguable which is more disparate: Kesl having heard Halverson and not reporting him to Sasker as he reported Thomas; or object of unlawful conduct on a prior occasion. Thus, interference with or deficiencies in production, or the harassment of other employees relating to production, is itself reason for discharge which cannot be undermined by concomitant and open engagement in union activity. Sweetheart Plastics, Inc., Div. of Maryland Cup Corp., 209 NLRB 776 (1974). Here, the evidence is that employees Boldt and Hoffa called down to Supervisor Jacobi and leadman Kesl not to pull through "hot" cattle so quickly because the employees were not able to keep up with the production line. The awkward position of the cattle, pulled through so far and so fast by these two supervisors, required Hoffa and Boldt to lean out from the ledge to do their cutting work. Jacobi testified that had he and Kesl listened to Boldt and Hoffa and had not pulled the cattle through, there would have been a "hole in the line," and an interruption in production. Neither Kesl or Jacobi reported to higher supervision the statements by Boldt and Hoffa. The admonitions of Boldt and Hoffa, like that of Thomas, would have caused an interference in production. I regard the apparent failure by Kesl and Jacobi to report Boldt's and Hoffa's admonition to be disparate compared to reporting Thomas' statement to both Boldt (regarding his sickness) and to Rutledge, (regarding production) to Supervisor Sasker. This disparity in treatment, I find significant. Thomas was discharged. Boldt and Hoffa were apparently not reported. As Jacobi testified, he did not remonstrate against Boldt because Boldt did not seem "mad" when he spoke to Jacobi. This had no bearing on the question of whether Boldt's and Hoffa's conduct would interfere with production. (g) Of even greater significance, I find two aspects of Respondent's conduct demonstrating the pretextual nature of its disciplining Thomas, hiding its union animus as the motive for the discharge: (1) I1 find Respondent's failure to investigate both the Roger Boldt illness matter and the Mark Rutledge report of the Thomas admonition, beyond speaking to their own supervisors, peculiarly unsatisfactory and (2) I regard Supervisor Sasker's failure to act or react significantly, after being informed of both the Roger Boldt sickness incident and the Mark Rutledge production incident (1 have specifically discredited Kesl's contrary testimony on this point, however), to be inconsistent with its view that the misconduct was substantial enough to form the basis of suspension and later discharge. The record herein shows that Stanley Sasker is Richard Thomas' supervisor. The record also shows that Sasker was one of the two supervisors who warned Richard Thomas, in writing, of prior misconduct with regard to "threaten- ing" Kenneth Dahlman on a physical basis. It was this threat, along with another one, that was ordered expunged from Thomas' work record. With regard to (1), above, Respondent's alleged good- faith belief that it was Thomas' suggestion to Boldt to go home that caused him to leave because of illness I find unconvincing in view of the fact that there was no investigation. This is totally apart from the fact that Kesl never reported-as Boldt credibly testified-that it was not Respondent, having heard of the incident, failing to discipline Halverson as it disciplined Thomas. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas alone who made the suggestion that Boldt go home but other employees including Halverson. With regard to the Rutledge incident, while it is true that Respondent spoke not only to supervisors, but also spoke with Mark Rutledge, I find that the lack of a further investigation, including obtaining Thomas' version of the facts, indicates that Respondent, having heard of Thomas engaging in conduct which would specifically give rise to a basis for getting rid of him, seized upon the matters as reported to it with an unshakable tenacity from which they would not be deflected. Had the investigation widened, Respondent would have had to take into account Boldt's statements, whether true or not true, that Boldt (I) would have gone home because of illness regardless of anything Thomas said; (2) denied that Thomas told him that he should go home and let the foreman do his job, and that applicants for employment were breaking down the doors to work for Respondent; (3) was told by employee Steve Halverson to go home in the same conversation that Richard Thomas told him to go home; and that both statements were made in Kesl's presence at the same time. As I have said, above, it is clear to me that Boldt was a witness friendly to Thomas. On the other hand, Boldt, still employed by Respondent, was giving testimony directly contrary to Respondent's interests and facing Respon- dent's supervisors in the hearing room. See Georgia Rug Mill, 131 NLRB 1304 (1961). There is no suggestion in this record that Halverson was ever the subject of discipline for saying substantially the same thing to Boldt that Thomas said. I conclude that the decision in Firestone Textile Compa- ny, a Division of Firestone Tire & Rubber Company, 203 NLRB 89, 95 (1973), is particularly applicable here: The Board has consistently held that an employer's failure to conduct a full and fair investigation of an employee's alleged misconduct is evidence of discrimi- natory intent, especially when viewed in the light of the employer's union hostility. Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059; Shell Oil Company v. N.L.R.B., 128 F.2d 206, 207 (C.A. 5, 1942); J. W. Mortell Company, 168 NLRB 435, 452, enfd. with modifications 440 F.2d 455, 458 (C.A. 7, 1971). With regard to (2), above, it will be recalled that the Thomas admonition to the sick Roger Boldt occurred prior to the Mark Rutledge incident and thus occurred sometime prior to July 16, 1976. The Mark Rutledge incident, the admonition not to pull the carcasses through manually past the broken switch, occurred in the midafternoon of July 16, 1976. Leadman Kesl testified that he told Sasker of the Boldt incident at the time of the occurrence and that he told Sasker of the Mark Rutledge incident after work on that day: 24 Although Sasker was called as a witness by Respondent, there is no testimony by Sasker or any other Respondent witness to show that Sasker told Bristol or any other of Respondent's supervisors of either of these incidents at any time after they happened, much less immediately upon their occurrences. Earl Rutledge heard of the incident regarding his brother on Friday night, July 16, and reported it to Bristol on the next morning. Bristol investigated the Mark Rutledge incident the next working day. In view of the Boldt admonition and the Mark Rutledge incident forming the basis for the discharge, and particularly the Mark Rutledge incident forming the basis for the July 19 suspension, I find it particularly noteworthy that Sasker did not take action against Thomas or even tell Bristol of either of the incidents. Sasker, apparently no friend of Thomas, was one of the signers of the written warnings against it, thought so little of the both of these incidents that he never reported either of them to Bristol. This is not altogether different from Sasker's conduct upon first learning of the alleged threat by Thomas to inflict physical harm on employee Kenneth Dahlman which Administrative Law Judge Klein discussed in her decision. She found that Sasker thought so little of the threat in that case that he made no comment. Here, in the face of both of these alleged important elements of misconduct, Sasker took no action. Indeed, when Kesl told Sasker of the Mark Rutledge incident regarding the admonition which would interfere with production, Kesl could not even recall Sasker's response. (h) Lastly, I am particularly mindful of Director of Industrial Relations Bristol's testimony regard- ing why he did not tell Thomas, at the time of the suspension on July 19, when Thomas was in Bristol's office, of the reasons why Thomas was being suspended. Bristol's testimony that he did not want to reveal the nature of the reason of the suspension because it might involve Respon- dent "tipping" his hand and that Bristol "just didn't want to talk to Thomas," indicates to me a position of such an adversary nature that it no longer could be regarded as investigatory but was merely eliminating any opportunity for Thomas to extricate himself from an apparently difficult situation. As I said before, it was a matter more of predisposition to corner Thomas rather than to investigate the facts of alleged misconduct. In this regard I also note that Bristol testified that he did not believe that a mere warning would suffice with regard to Thomas' misconduct in the Mark Rutledge matter because he had already warned Thomas twice and such warnings did not improve Thomas' conduct. The two warnings that he admitted he had in mind were the two illegal warnings which were issued based upon Thomas' union activities. Such testimony by Bristol bolsters my conclusion that the reasons for suspension and discharge were pretextual and that Respondent's actual motivation was based upon union animus. In the instant case, therefore, I have found that Respondent has engaged in disparate conduct in its punishment of Thomas with regard to both the Mark Rutledge and Roger Boldt matters; failed to investigate the alleged misconduct in a reasonably fair and open matter; and in light of the aforementioned union animus and unlawful conduct by the Respondent, I draw the inference, from the entire record, that there is a preponderance of evidence of an unlawful discriminatory basis in the suspension and discharge of Thomas. I therefore conclude that the suspension and discharge of Thomas on July 19 24 Again, I have not credited Kesl on this point. 128 TAMA MEAT PACKING CORP. and 22, respectively, violated Section 8(a)(1) and (3) of the Act. I have found no evidence that Respondent's desire to discharge Thomas was based in any way on his having testified in prior Board proceedings or because he other- wise cooperated with the Board. I shall therefore recom- mend that the complaint be dismissed insofar as it alleges that any of Respondent's conduct toward Thomas violated Section 8(a)(1) and (4) of the National Labor Relations Act, as amended. In sum, the fact that Respondent, as counsel for Respondent argued, did not also discharge other known union advocates who continued to remain on Respondent's payroll does not negative any discriminatory unfair labor practice directed against Thomas. The Great Atlantic & Pacific Tea Company, Inc., 210 NLRB 593 (1974). In any event, however, the fact that other union advocates remain in Respondent's employ can be distinguished from the case involving Richard Thomas, for Thomas, the chief steward, as the record abundantly shows, was not merely a union advocate, but a union sore thumb. CONCLUSIONS OF LAW 1. By failing and refusing to transfer or offer the opportunity to transfer to the position of backsaw operator to Richard Thomas, during July 1976; by suspending Richard Thomas on July 19, 1976; and by discharging Richard Thomas on July 22, 1976, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 2. The General Counsel failed to prove, as alleged, by a preponderance of the evidence that during late June or early July 1976, Respondent denied employee Richard Thomas a transfer to the position of utility man in violation of Section 8(aX)(1), (3), and (4) of the Act, or that Thomas was discharged in violation of Section 8(aX4) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act and have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has committed various unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act, in the manner customary in such cases. Having found that Respondent improperly suspended and discharged Richard L. Thomas, I shall recommend that he be offered reinstatement with backpay at 6-percent 25 Employee Arden Vestal enjoyed a 3-week period (July 6-26) to decide if he wanted the backsaw job. 26 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, interest per annum in conformity with the rules announced in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent unlawfully failed to offer to Richard L. Thomas the position of backsaw operator, I shall recommend that Respondent be ordered to offer him both said position and his old position in its offer of reinstatement, and that any employee employed in either position be replaced if necessary. As is customary in Respondent's plant, Thomas shall have a reasonable period of time, but not less than 3 consecutive weeks, to decide whether to accept the job of backsaw operator.2 5 Since there is no assurance that Thomas would have refused the backsaw operator job, backpay will be computed on the basis of what Thomas would have received absent Respondent's discrimination against him, i.e., on the basis of the backsaw operator rate of pay, commencing July 19, 1976, when employee Vestal refused to continue in the job. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 26 The Respondent, Tama Meat Packing Corp., Tama, Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organization by failing or refusing to offer to its employees transfers to other employment positions or suspending or discharging any of its employees or otherwise discriminating against them because of their membership in, sympathies for, or activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local P- 46, herein called the Union, or any other labor organiza- tion. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Richard L. Thomas immediate and full reinstatement to his former job and to the position of backsaw operator or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the unlawful discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." 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. 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (c) Post at their offices copies of the attached notice marked "Appendix." 2 7 Copies of said notice, on forms provided by the Regional Director for Region I, after being duly signed by Respondent's representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that any alleged unfair labor ,practice not specifically found herein shall be dismissed. 27 In the event 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in a labor organization by failing or refusing to offer to our employees transfers to other employment positions, or suspending or discharging any of our employees, or otherwise discriminating against them because of their membership in, sympathies for, or activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local P-46, herein called the Union, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL offer to Richard L. Thomas reinstatement to his former position and to the position of backsaw operator or, if those positions no longer exist, to substantially equivalent positions, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him, together with interest at the rate of 6 percent per annum. TAMA MEAT PACKING CORP. 130