United Beef Co., Inc.

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Beef Co., Inc. and Frank E. Boire and Fi- dalgiso Cefalo . Cases 1-CA-21831 and 1-CA- 21853 9 December 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 5 August 1985 Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision and a brief in answer to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, and conclusions and to adopt the recommended Order. 1985 pursuant to charges filed on 17 and 23 February 1984 and a complaint issued on 27 December 1984 and amended on 8, 23, and 24 April 1985. The case presents the question of whether Respondent United Beef Co., Inc. violated Section 8(a)(1) of the National Labor Rela- tions Act (the Act) by telling Fidalgiso Cefalo, through Supervisor Norman Lind, that Respondent had decided not to rehire employees who were strong union men or who had testified at an arbitration hearing, and by telling Frank Boire, through Supervisor Stephen Schwartz, that the reason Boire was not rehired was the Company President Paul Miller was mad at him for having testified at an arbitration hearing. The case presents the further question of whether Respondent violated Section 8(a)(1) and (3) of the Act by refusing to rehire Cefalo from about 15 September 1983 to 9 April 1985, and by refus- ing to rehire Boire from about 15 September 1983 to De- cember 1984, because of their protected concerted activi- ties and protected activities on behalf of the United Food & Commercial Workers Union, Local No. 592, AFL- CIO (the Union). On the entire record, including the demeanor of the witnesses who testified before me, and after due consid- eration of the briefs filed by Respondent and the General Counsel, I make the following ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Beef Co., Inc., Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. Peter Gallaudet, Esq., for the General Counsel. Michael Bearse, Esq, of Boston, Massachusetts, for the Respondent. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. These consolidated cases, Cases 1-CA-21831 and 1-CA- 21853,1 were heard before me on 8-10 and 23-24 April i United Beef Co, Inc., and Frank Klotzbeecher, an Individual, Case 1- CA-21826, was initially consolidated with these cases for hearing pur- poses. On 8 April 1985, after the hearing opened, I granted the unop- posed motion of the General Counsel for leave to amend the complaint so as to delete the allegation of unlawful discrimination against Klotz- beecher, the General Counsel stated that he had made this motion be- cause Klotzbeecher had reached a non-Board agreement with Respond- ent, affording him a right to reinstatement plus some backpay, and had requested that his charge be withdrawn On 16 April 1985, the Regional Director approved Klotzbeecher's withdrawal request . On 22 April 1985, the Regional Director issued an order purporting to sever Case 1-CA- FINDINGS OF FACT I. JURISDICTION Respondent is a corporation which maintains an office and place of business in Boston, Massachusetts, where Respondent processes livestock carcasses into commer- cial cuts of meat. Respondent annually sells and ships from that facility products, goods, and materials valued in excess of $50,000 directly to points outside Massachu- setts. I find that, as Respondent admits, Respondent is an employer engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its oper- ations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Ownership and Managerial Hierarchy As of July 1983, Respondent had issued a total of 100 shares of stock. As of that date, 41 shares were held by Company President Paul Miller; 39 shares were held by Treasurer Benjamin Miller (Paul's brother); and 5 shares each were held by Vice President Joel Miller (Paul's son), Edwina Chyet (Paul's daughter), Stuart Miller (Benjamin's son), and Rohan Schwartz (Benjamin's 21826 from the instant cases "pursuant to Section 102.33(a)(4) of the Board's Rules and Regulations," and purporting to dismiss "the com- plaint in Case No 1-CA-21826 " The Regional Director's power to sever the case after the hearing opened appears questionable See Sec 102.33(c)(d) of the Rules and Regulations Moreover, after I granted the motion for leave to amend the complaint, I doubt whether any complaint was pending in Case 1-CA-21826. However, because I granted the motion for leave to amend and the Regional Director thereafter ap- proved Klotzbeecher's request for leave to withdraw his charge, the ef- fectiveness of the purported severance and dismissal is immaterial. 277 NLRB No. 107 UNITED BEEF CO. 1015 daughter). So far as the record shows, Paul, Benjamin, and Joel Miller are the only shareholders who actively participate in the ' management of the business.2 Their su- pervisory status is conceded. During most of the period relevant here, Stephen Schwartz (Rohna Schwartz hus- band) was on Respondent's payroll. His supervisory status during this period is also conceded . The alleged supervisory status of James Sullivan was put in issue by the pleadings and 'was litigated at some length . As I see no relevance to this issue, it will not be resolved herein. Respondent's operations are conducted in two separate buildings which are next door to each other but are sepa- rated by at least 30 feet of land. The addresses of these buildings are 14 Foodmart Road and 18 Foodmart Road; the buildings are referred to herein and in the record as Building 14 and Building 18, respectively . Production operations are conducted in both buildings . Building 14 processes meat predominantly for commercial purposes; Building 18 processes meat (much of it from Building 14) predominantly for the United States Government. At all times relevant here, the corporate offices have been lo- cated in Building 18 . The Millers worked out of these of- fices. Benjamin Miller was in charge of all production at both plants, and spent the bulk of his time on the pro- duction floors of both buildings. Schwartz, who reported directly to Benjamin Goldfarb and James Snyder, both admittedly supervisors in Building 14, reported directly to Schwartz. Norman Rotman and Norman Lind, both of whom were admittedly supervisors and reported di- rectly to Joel Miller, supervised production and shipping in Building 18. John Connors, admittedly a supervisor with respect to the freezer , also worked in Building 18. Joel Miller, who reported to Benjamin Miller, spent about 10 percent of his 14-hour day on the production floor. Company President Paul Miller was in charge of sales, purchases, credits, and office operations, and spent most of his time in Respondent's offices. B. The Work Stoppage and the Arbitration Proceeding Respondent has for a number of years recognized the Union as the bargaining representative of Respondent's hourly paid employees. A bargaining agreement which covered such employees on a multiemployer basis was effective by its terms between 21 September 1980 and 30 August 1983. About 15 July 1983, Respondent sent a letter to the Union withdrawing from the multiemployer group and indicating Respondent's desire to negotiate in- dividually. So far as the record shows, the Union never thereafter requested Respondent to bargain for a new contract with respect to Respondent's employees. On 13 July 1983, Respondent discharged Building 14 Chief Steward Roberto Rodriguez, allegedly for spitting at Supervisor Schwartz. A work stoppage that same day among Respondent's employees, in connection with his discharge, led to the discharge of the participants and others, consisting of almost the entire nonsupervisory work force of 110 employees on 13 and 19 July 1983. Pursuant to a grievance filed by the Union, an arbitration hearing on the discharges (other than the discharge of 2 Benjamin Miller retired in August 1984 during the course of the events herein Rodriguez) was held on various dates between 28 July and 22 August 1983. The employee witnesses who testi- fied for the Union consisted of Cefalo, Boire, Klotz- beecher, Richard Bryant, Ed Cormier, and Charles John- son,3 all of whom were among those for whom the Union sought relief. At the arbitration proceeding , the Union contended, inter alia, that the 13 July work stoppage was caused by a lockout or mass discharge effected by Respondent and that Respondent had agreed on 15 July to a settlement calling for the recall of the employees who had stopped working on 13 July. Respondent contended , inter alia, that the 13 July work stoppage constituted a strike in breach of the contract , that no settlement had been reached on 15 July, and (apparently) that the discharges on 19 July were proper because these dischargees had joined the strike. In an award issued on 13 September 1983 the arbitrator substantially upheld Respondent's po- sition, including Respondent's contention that Cefalo and Boire were lawfully discharged. However, the arbitrator found that, after being discharged on 13 July, Cormier and another employee, Zafiris, had been reinstated and had not been discharged thereafter .4 I n May 1984 the Board's Regional Office decided to defer to the arbitra- tor's award, and dismissed the Union's charge alleging that the discharges upheld by the arbitrator violated Sec- tion 8(a)(5) and ( 1) because Respondent had allegedly reneged on the alleged settlement agreement.5 During the work stoppage , production operations in Building 14 were completely shut down. However, Re- spondent continued to purchase new boxed beef from its usual sources . This beef was processed in Building 18 by Respondent's salaried personnel (most or all of them su- pervisors), and was mostly sold to the United States Government.6 Company Attorney Herbert L. Turney testified that throughout this period Respondent had been quite anxious to resume full-scale operations.' 3 This finding is based on the arbitrator's decision and on a composite of the testimony of Cefalo, Boire, and Union Business Agent Joseph M. Carroll The arbitrator's decision refers at one point to a union witness named "Grant," and strongly implies that he was an employee Nobody named Grant is named on a list, received into evidence, of Respondent's entire work force before the work stoppage; nor is there any other evi- dence that such a person ever existed . I am inclined to think that "Grant" was a misprint for "Bryant"; any such error would have been immaterial to the arbitrator's conclusions. 4 A separate proceeding as to Rodriguez ' discharge was still pending when July 1985 briefs were filed with me. 5 The arbitrator's opinion was received into evidence to show that an arbitration hearing had taken place, that certain people testified at that hearing, and that an award was issued that resolved the dispute Because the brief of Respondent's counsel does not address the contention that the opinion should be received to establish the truth of the contents, that contention will not be disposed of in this decision. 6 My findings in these two sentences are based on the testimony of Sullivan and Paul Miller and on credible parts of Joel Miller 's testimony, For demeanor reasons, I do not credit Joel Miller's initial testimony oth- erwise 7 However, Joel Miller testified without contradiction or corroboration that Respondent made some effort to sell its buildings. Cf supra at in 6 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Date of the Management Meeting About Whom to Recall,- the Collective-Bargaining Agreement 1. The date of the management meeting Benjamin Miller testified that he was at the plant when he heard about the arbitrator's award (issued on Tues- day, 13 September 1983), and that "there was scuttlebutt at the beginning" about the award "and then our at- tornys told us." Company Attorney Turney credibly tes- tified that he received a copy of the award in the morn- ing mail on Wednesday, 14 September, or Thursday, 15 September 1983, and telephoned Respondent about it later that same day. Sullivan, who worked in the ship- ping department throughout the work stoppage, credibly testified without contradiction that on a Tuesday or Wednesday morning, and the day before Sullivan saw the award document lying on the counter in an office, Benjamin Miller approached him and said, "I think we just had 110 men fired." Thereafter, management con- ducted a meeting to discuss which employees were to be rehired. I accept Sullivan's testimony that this meeting occurred during the afternoon of the day after Benjamin Miller made the foregoing remark; such testimony shows that the meeting occurred no earlier than the afternoon of Wednesday, 14 September, and no later than the after- noon of Friday, 16 September. As discussed infra, section II,G, a conversation between Schwartz and employee Boire, which must have occurred after the management meeting, took place on the morning of Friday, 16 Sep- tember. Accordingly, I find that the management meet- ing was held in the afternoon of 14 or 15 September.8 The evidence that the meeting occurred on a later date, and what happened there, are discussed infra. 2. The bargaining agreement Meanwhile, Company Attorney Turney arranged on 14 or 15 September for a meeting on 16 September to advise Benjamin, Paul, and Joel Miller about Respond- ent's options under the labor laws with respect to re- sumption of operations. As of 16 September, Respond- ent's active work force consisted of only about seven employees. Turney told the Millers that Respondent was not bound by a union contract; that Respondent could at this time hire whomever it chose; that so long as Re- spondent did not discriminate it could hire old employ- ees back or hire new employees; and that the work force might then choose to file a decertification petition with the NLRB or to do something to change Respondent's union status. He went on to tell them that because there were at that time no or practically no new employees an argument could be made that Respondent's legal status had not changed, and that Respondent could choose to get in touch with the Union and try to reach an early agreement . One of the Millers asked whether, if this hap- pened, it would still be possible for the employees to obtain a decertification. Turney said no, if a contract had been agreed to. Paul Miller immediately told Turney to contact the Union and get a contract right away. The Millers said that they wanted to start "easing into" full operations right away. Later that same day, Turney arranged with Union Business Representative Carroll for a negotiating session on 21 September in Turney's office. At 9 a.m. that morn- ing, Turney conferred privately with Benjamin, Paul, and Joel Miller to plan negotiating strategy. Then, about 11 a.m., Turney and the three Millers began negotiations with the Union about a bargaining agreement. During these negotiations, Union Business Agent Carroll and the president of the Local both asked management to rehire the former employees. Management replied that it would determine whom to rehire, and that any rehired employ- ees would come back as new employees.9 At 4 or 5 p.m. that day, and without taking a lunchbreak, the parties reached a complete oral agreement. At this time, Benja- min, Joel, and Paul Miller, all three of whom were present throughout negotiations, were still in Turney's office. Turney then arranged for the typing up of, a memorandum of agreement, whose preparation took less than an hour and which was executed at some time be- tween 5:30 and 6 p.m. by a union representative and by Paul Miller for Respondent. Paul Miller, and (perhaps) one of the other Millers, remained in Turney's office until the agreement was signed. Thereafter, by letter to Carroll dated 23 September 1983, Company Counsel Turney stated, in part: This will confirm agreements reached in connec- tion with the collective bargaining agreement .. . . All former employees of the Company whose discharges were upheld by the Arbitrator . . . who may be rehired on or after September 21, 1983, are considered new employees without credit for previ- ous service with the Company. The letter concluded with the typewritten notation "Assented and agreed to," followed by a blank for Car- roll's signature. Carroll did sign the blank on a date not shown by the record. 3. Respondent's discredited evidence regarding the date of the management meeting The three Millers, Schwartz, and Lind all testified that the management meeting about rehiring was held after Paul Miller executed the memorandum bargaining agree- ment on 21 September 1983. Joel and Paul Miller both testified for Respondent on 23 April 1985 that the management meeting took place in Building 18 on 21 September 1983 after the conclusion of negotiations (as previously noted), agreement was reached in the office of Respondent's attorney between 4 and 5 p.m., and a memorandum of agreement was signed there by Paul Miller between 5:30 and 6 p.m.. However, when Joel and Paul Miller were called by the General Counsel as adverse witnesses on 8 April and 9 April 9 This finding is based on Carroll's testimony In view of the undis- puted evidence (infra, sec. II,I) about whom Respondent in fact hired, a Lind testified that this meeting was held on a Wednesday, Schwartz and for demeanor reasons, I do not credit Paul Miller's testimony that he testified that it was held on a Thursday In 1983, 14 September fell on a promised to rehire all the old employees before going for any "outside Wednesday and 15 September fell on a Thursday. help." UNITED BEEF CO. 1985, respectively, they could not recall whether the management meeting took place in the morning or the afternoon and did not testify that the meeting took place in the evening; nor could Paul Miller recall whether the management meeting occurred on the same day as the negotiations or on the following day., Schwartz and Benjamin Miller testified that this meet- ing occurred no earlier than the day after the contract was agreed to-that is, no earlier than Thursday, 22 Sep- tember; and Schwartz testified that the meeting occurred in the afternoon. However, the evidence shows that about eight rehired employees returned to work at normal starting time (6 or 7 a.m.) on 22 September; indeed, rehired employees Sophos returned to work at normal starting time on 20 September. It is unlikely that that many employees resumed work before management, decided whom to rehire. Lind testified, in effect, that the meeting began aboast 5 or 5:30 p.m. on 21 September, and that he reached home that evening, a drive of 35 to 60 minutes from the plant, about 6:45 p.m. However, the testimony of Lind and Joel Miller establishes that when the meeting began Paul Miller was in the plant, which (according to him) he did not reach until about 6:30 p.m. on,21 September. More- over, Paul Miller testified for the General Counsel that the management meeting did not begin until after ,he had made some telephone calls from his office phone. Joel Miller initially testified that the persons who at- tended the management meeting knew that they should attend because, a few minutes before it began, he tele- phoned them about the meeting from his office, which is in Building 18, and Paul Miller telephoned them at an hour and from a location which Joel Miller did not specify. However, Paul Miller denied that any such calls were made, and testified that immediately after reaching the plant about 6:30 p.m. on 21 September he went to the Building 18 office and started to make telephone calls to order fresh beef. After initially testifying about arrang- ing for the meeting on Respondent's own telephone, Joel Miller testified that between 4 and 5 p.m. on 21 Septem- ber he called the plant from his attorney's office and told whoever answered the phone (whose identity Joel Miller did not recall) that he wanted certain named persons, which persons were just about all the salaried personnel involved in production operations, to attend a meeting. He went on to testify that upon leaving counsel's office "we" took a cab back to the plant, and that "virtually the minute we walked into the office everyone was there" and the meeting began; he was not asked whom he meant by the word "we." In view of the foregoing evidence, I reject the testimo- ny that the management meeting did not take place until after the 21 September contract was agreed to. D. Frank E. Boire's Work History, Union Activity, and Arbitration Testimony Frank E. Boire first started to work for Respondent about 1955 as a floorman (also referred to the record as "general help"). Apparently, he continued to work there until 1963. He was convicted in 1963 of armed robbery and in 1965 of attempted murder. He was imprisoned be- tween 1963 and 1969. When he was released from prison, 1017 he applied to Respondent for a job. He was rehired by Benjamin and Paul Miller; Benjamin, at least, knew about Boire's prison record. About 1970, he resigned from Respondent's employ and moved to Florida. Paul Miller rehired him on 13 July 1976. His job title was "boxman" between his 1976 rehire and about June 1980, when it was changed to "quality control person" (see infra, sec. II,G). While working for Respondent, Boire never received a written warning or any kind of disci- pline (see infra, fn. 15). In late 1981, a number of the Building 14 employees complained to Union Business Agent Carroll that they were not being properly represented by the incumbent Building 14 chief shop steward, Charles O'Brien, and the incumbent assistant shop steward, James Hoffman. In consequence, Carroll arranged for a November 1981 steward's election, at which Boire was elected to serve as Building 14 chief shop steward and Rodriguez was elected to serve as Building 14 assistant shop steward.io Over a 2-week period after being advised of Boire's posi- tion, Benjamin Miller asked Boire to tell the employees to stop being late, to tell them that they would be fired if they did not show up, to chastise them for failing to call in, and to see to it that the employees threw their gloves in the barrel. When Boire reported these incidents to Union Business Agent Carroll, he told Boire that he did not have to comply with such requests. Boire told Benja- min Miller that such functions belonged to management rather than to the steward. About 2 weeks after Boire became shop steward, and on an occasion when he and Benjamin Miller were on the shop floor, Miller asked Boire to tell one of the em- ployees, who had been late 2 or 3 days in a row, that he would be fired if he was late the next day. Boire said that issuing such a warning was not his job as shop stew- ard, and that Benjamin Miller would have to issue the warning., Miller started to yell and scream, to bang on a table, and to wave a cane, which he was carrying for other than medical reasons." Boire yelled at Benjamin Miller that he should stop yelling, and that disciplining the men was management's job and not Boire's. Eventu- ally, Boire said that he was going to have Carroll come down, because he himself could not reason with Miller. Boire then left and called the union hall. Pending Car- roll's arrival 5 or 10 minutes later, Miller walked around the building a'number of times. Then, the three men met in the hallway. Miller waved his cane, screamed that he was the "boss," and said that Boire would do what Miller told him to do or Miller would fire him. Boire yelled back at Miller, but the record fails to show that Boire yelled. The thought occurred to Boire that he might be hit by Miller's cane. Boire told Miller that if he did not shut up and listen to Boire, he was going to punch Benjamin Miller in the mouth. Then, Carroll 10 My findings in these three sentences are based on a composite of credible parts of the testimony of Carroll, O'Brien, and Boire I believe Carroll was mistaken in testifying that Building 18 was involved, and that O'Brien was mistaken in testifying that he served as Building 14 chief shop steward until late 1982. 11 He had started to carry the cane because of a leg injury. After his leg healed, he continued to carry the cane because he had found out that it helped him to turn switches which were otherwise out of his reach. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stepped between the two and said that he would straight- en the matter out. Boire, whose hands were shaking, said that Benjamin Miller had upset Boire so much that he was going to punch out and go home.12 Boire is an alcoholic who, at this time, had been sober for about 6-1/2 months. After Benjamin Miller left the scene of the argument, Boire told Carroll that Boire wanted to see his alcoholism counselor. Then, Boire clocked out and went to see his alcoholism counselor at a local hospital. The counselor expressed the opinion that it was hard enough for Boire to stay sober, and that taking on the additional pressures of a shop steward's job was too much for him. The counselor also suggested that Boire apologize to Benjamin Miller. The next day, Boire resigned as steward. Also, after reporting to work, Boire apologized to Miller for Boire's actions the previous day. Boire said that he worked too closely with Schwartz and Benjamin Miller for Boire to have the job as steward, that it was too much of a headache when he was trying to stay sober, and that he had resigned his steward's job. Boire and Miller then shook hands. Boire is 6 feet 3 inches tall and, at the time the forego- ing incident occurred, was about 42 years old. At the time of the 1985 hearing, he was a robust man who weighed 220 or 225 pounds. Benjamin Miller, who is abut 5 feet 6 inches tall, at the time of this incident was about 62 years old and weighed about 188 pounds. Miller testified that during this November 1981 incident Boire threatened to kill him if he treated Boire as Respondent had treated the rest of the shop stewards in the past, and that Benjamin Miller was scared by Boire's threat. I do not believe Miller's version of Boire's threat, and believe that Miller's testimony substantially exaggerated his reac- tion to what Boire said. By Benjamin Miller's own testi- mony, he never mentioned this December 1981 incident to anyone else in management-including his brother, his son-in-law (Boire's immediate supervisor), and his nephew-until after late in September 1983.13 Nor is there any evidence that Benjamin Miller attempted, at any time before the July 1983 work stoppage, to bring about Boire's termination, although butcher knives and equipment were always in Boire's work area and Benja- min Miller knew him to be an experienced butcher. Indeed, Schwartz testified, although Benjamin Miller denied same, that Benjamin Miller agreed in January 1984 to let Boire return to work.14 I accept Boire's pre- 12 My findings as to the Boire-Miller encounters are based on Boire's testimony and on credible parts of Carroll's testimony. Because Carroll displayed a poor memory of these events, I believe he was mistaken in testifying that the incident occurred in connection with the processing of a grievance Because Miller testified that he could not remember why Boire became angry on this occasion, and for demeanor reasons, I accept Boire's testimony about the events that led up to these encounters, and reject Miller's testimony that he had only one conversation with Boise and that it occurred when Carroll notified Miller that Boire was the new shop steward. I do not accept Miller's testimony that Boire threatened to kill him for demeanor reasons and other reasons summarized infra is Whether he told them at that time about the incident is discussed infra. 14 Boire was not offered a job at this time Schwartz testified that he resigned his own employment before getting around to conveying an offer of employment to Boire. viously described version of what he told Benjamin Miller. At the time the work stoppage began on 13 July 1983, Boire was on vacation. He returned to the plant on Monday, 18 July 1983. Noticing that the employee park- ing lot was almost empty, he and employee Andrian Brandos (who, inferentially, had also been absent from work on 13-15 July) went to see Benjamin Miller. Miller told them that there had been a dispute the week before, that it had nothing to do with Boire or Brandos, and that if they did not go to work that morning they were fired for refusing to work. After leaving Miller's office, Boire and Brandos encountered employees Cefalo (the assistant shop steward) and Cormier. Cefalo said that the dispute had been settled the previous Friday, 15 July; that Boire and Brandos were to go to work; and that the rest of the men were going to be called back by seniority. Boire and Brandos went to work that day. When Boire reported to work the following morning, 19 July, he saw about 50 or 60 employees congregated outside the parking lot with Business Agent Carroll. Boire was told that Respondent had reneged on the 15 July "deal," that an unfair labor practice charge was being filed against Respondent, and that he was not to go to work. Boire then put on a picket sign and joined the picket line. Respondent discharged him by telegram dated 19 July. Between 19 July 1983 and the mid-September 1983 date when Boire learned of the 13 September arbitration award, he showed up at Respondent's premises on every day but about three, and stayed there 5 to 6 hours a day, inferentially as part of the picket line. He was one of 15 or 20 employees present on these occasions. Boire testi- fied on 1 day of the 5-day arbitration hearing between 28 July and 22 August. Boire testified at that hearing that when he arrived at work on 18 July there was no police detail to indicate that there were any problems; the arbi- trator found that the absence of the police detail that morning tended to support the Union's contention (which the arbitrator ultimately rejected )'that a settle- ment had been reached on 15 July. Boire also testified at the arbitration hearing that he had gone to work on 18 July because Cefalo had told him that a settlement had been reached on 15 July, and that Boire had refused to work on 19 July and thereafter because otherwise he would have been ostracized by the other employees. The arbitrator rejected the Union's argument that "it was un- conscionable to expect [the seven returning vacationers] to work when the others had been deprived of employ- ment and left with no agreed-upon program to rectify that situation." - E. Fidalgiso Cefalo's Work History, Union Activity, and Arbitration Testimony Fidalgiso (Gino) Cefalo started to work for Respond- ent in May 1978 as a meatcutter . His usual job was to bone chucks in Building 14. Joel Miller testified that Cefalo was a good meatcutter . He was one of about 30 employees who were stationed near a conveyor belt onto which unboned meat carcasses were placed. When a meatcutter had finished boning a carcass, he was expect- UNITED BEEF CO. 1019 ed to put the boned carcass back onto the conveyor belt, remove from the conveyor belt the next uboned carcass to reach his work station, and proceed to bone that car- cass. Cefalo credibly testified without contradiction that at any given time the conveyor belt carries only one kind of chuck. Accordingly, and for demeanor reasons, I discredit Benjamin Miller's testimony that because Cefalo preferred boning certain cuts of meat he sometimes took for boning a carcass which was not the first one to reach him after he had put a boned carcass back onto the con- veyor belt; and I accept Cefalo's denial. On occasion, a carcass will approach the far end of the meatcutter's workbench without having been boned. When this occurs, production efficiency calls for removal of the carcass from the conveyor belt so that the carcass will not leave the bench area before being boned. Joel Miller testified that on several occasions Cefalo mooted, by ar- guing about, Joel Miller's instructions to remove such an unboned carcass. However, Joel Miller testified that, during the 12-month period preceding Cefalo's July 1983 discharge, Joel Miller (who did not have frequent occa- sion to observe Cefalo) never reported this conduct to Cefalo's immediate supervisor, Goldfarb, and never asked Goldfarb whether Cefalo similarly reacted to Goldfarb's instructions. Accordingly, and for demeanor reasons, I credit Cefalo's testimony that when Joel Miller issued instructions to remove such an unboned carcass he issued such instructions to employees generally rather than (as he testified) to Cefalo individually, and reject Miller's testimony that Cefalo argued about instructions to this effect issued to him personally. It is undisputed that during Cefalo's more than 5 years of employment with Respondent he was never given a written warning and was never suspended.15 Laying to one side Benjamin Miller's testimony that he reproved Cefalo for his alleged selectivity as to meat cuts, and Joel Miller's testimony that he reproved Cefalo for fail- ing to remove unboned carcasses from the conveyor belt, Cefalo's testimony that he never received an oral warn- ing, is undenied. In view of my failure to credit Benjamin Miller's and Joel Miller's testimony about these incidents, I find that Cefalo never received an oral warning of any sort. Benjamin Goldfarb, who was Cefalo's immediate su- pervisor at the time of his discharge, testified that during the September 1983 management conference he said that Cefalo had a tendency to do a lot of talking while he was working and disrupted his and others' work with constant conversation. There is no other evidence re- 15 Since at least 1981, Respondent has had a progressive disciplinary system which begins with warnings and culminates in suspension and dis- charge Joel and Paul Miller both testified that Respondent was lax in administering this system before Cefalo's July 1983 discharge, although Joel identified this laxness as neglecting to put later warnings into writing after administering earlier, oral warnings, whereas Paul identified this lax- ness as neglecting to put all warnings into writing Union Business Agent Carroll credibly testified in April 1985 that since 1979, Respondent had annually sent him an average of 12 to 15 written notices of employee dis- cipline, The record contains about nine copies of such notices sent out by Respondent between February 1981 and June 1983; three of these merely confirmed oral warnings. A February 1981 notice of final warning to one employee was unsuccessfully challenged by the Union before an arbitra- tor garding this matter. In view of the credited testimony that Cefalo received no warnings, and for demeanor rea- sons, I do not accept Goldfarb's testimony in this re- spect About four nights a week, Respondent's employees were required to work 2 hours' overtime unless they had a legitimate excuse. An employee was required to advise his immediate supervisor, before 7 a.m., if that employee was unable to work overtime on that particular day. On about half the occasions when Cefalo was supposed to work overtime, he gave management, notice that he was not going to work overtime. During the first 7 months of 1983, Cefalo worked fewer overtime hours (60) than any other Building 14 cutter except Mazzone (20), who was terminated on 16 April 1983;16 the next lowest was H. Blackington (103), who was never rehired. During this same period of about 6-1/2 months, one employee (Fer- nando Nuzzolo) worked almost 246 hours of overtime; he refused job offers from Respondent in November 1984 and January 1985 (see infra sec. II,I). Between Jan- uary and July 1983, the Building 14 meatcutters (exclud- ing Cefalo but including Mazzone) worked an average of about 167 overtime hours. During this same period, Building 18 meatcutters (some but not all of whom could do Building 14 work) worked between about 77 and about 210 overtime hours respectively, with an average of about 112 overtime hours. During the year before Ce- falo's July 1983 discharge, nobody ever told him that he was not working enough mandatory overtime. On one morning in 1983 before the beginning of the workday, after unsuccessfully trying to find Supervisor Schwartz, Cefalo advised Benjamin Miller that Cefalo had to go home immediately after the end of the regular workday. Miller said, "[T]hat is okay." The next day, Schwartz took Cefalo's timecard from the rack and suspended him for going home the previous everting without telling Schwartz. Cefalo said that he had told Benjamin Miller. Schwartz said that he did not care. At this point, Benja- min Miller came into the area. In response to Cefalo's questions, Benjamin Miller said that Cefalo had told him the previous day about going home early, and told Schwartz to give Cefalo his timecard back. On an undisclosed date before 1982, Cefalo was elect- ed as the chief shop steward in Building 14. Thereafter, he was elected as Building 14's assistant shop steward in the fall of 1982, and served in that capacity until his July 1983 discharge. During this period, the Building 14 chief shop steward was Rodriguez, who was usually at work every day. When serving as Building 14 assistant shop steward, Cefalo acted as shop steward for Building 14 when Rodriguez was not on the job. Thus, about No- vember 1982, Schwartz discharged Rodriguez on the ground that he had taken a coffeebreak before going to the hospital for treatment of an on-the-job injury. After vainly complaining to Schwartz about the discharge, Cefalo telephoned business agent Carroll. Carroll, Cefalo, and Rodriguez then discussed the matter with Schwartz and Benjamin Miller; the record indicates that 16 Mazzone was a supervisor at the time of the April 1985 hearing before me 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cefalo participated in the discussion partly because he was the assistant steward and partly because he had seen the accident which led to Rodriguez' injury. Rodriguez' grievance was resolved with his reinstatement. A couple of days later, Joel Miller, who is Jewish, sus- pended' Rodriguez for 3 days on the ground that he had allegedly made anti-Semitic remarks. The matter was dis- cussed at a meeting attended by Cefalo, Carroll, Rodri- guez, and Joel Miller. At Cefalo's request, Supervisor Goldfarb was called to the meeting. Goldfarb, who is Jewish, stated that Rodriguez had said that all Jews were "animals." Cefalo said that management frequently called the employees "a bunch of animals." Miller or Goldfarb said to Cefalo, who was born in Italy and speaks English with a marked accent, that management did not call him a "guinea" or a "spick." Carroll remarked that apparent- ly it was all right for the employees to call all the super- visors a bunch of animals. Miller said that it was all right to say that. Respondent refused to cancel Rodriguez' 3- day suspension and the Union said that it would process the matter through subsequent steps in the grievance procedure. 117 The record indicates that Cefalo attended this conference because he knew what had happened at the plant that day. When describing this conference to fellow employees, Cefalo said that Joel Miller had said it was all right to call the supervisors a bunch of animals as long as the employees did not specify Jews, Italians, or "guinea," or "spick." Upon overhearing Cefalo's re- marks, Goldfarb looked angry. Cefalo served as steward while Rodriguez was out of the country for about a month and a half. During this period, Cefalo arranged for a meeting between himself, Carroll (the Union's main representative), and Joel and Paul Miller to discuss the employees' anger at the instal- lation of television cameras in the work area. Joel Miller said that the cameras were there to monitor supervisory work only. Cefalo said that the cameras made the em- ployees nervous and more likely to cut themselves. Joel Miller said that individual employees could not be identi- fied on the cameras. A few weeks later, at management's invitation, Cefalo, Building 18 Steward Charles Johnson, and Carroll inspected the television screen visible to management. Then, Cefalo said that individual employ- ees could indeed be identified on the screen. Joel Miller said that the cameras were there to stay, and the employ- ees could strike if they did not like the cameras. They remained and Cefalo reported to the other employees about the matter. Also, while Rodriguez was still out of the country, Cefalo successfully processed the grievance of an employee who was discharged for refusing Schwartz' orders to back up a truck after Schwartz had made fun of him. Union Business Representative Carroll testified that Cefalo did a very good job as shop steward. In his ca- pacity as assistant steward, he accompanied Carroll when they went to Respondent's office on 13 July 1983 and were told by Paul and Joel Miller that all the employees had been discharged. Also in Cefalo's capacity as assist- ant steward, he and Carroll met with Paul and Benjamin 11 The record fails to show the ultimate disposition of this grievance Miller during a 15 July discussion about settling the work stoppage. Cefalo attended the entire 5-day arbitration hearing, and testified for the Union on 2 of those days. His testi- mony included testimony with respect to the meetings with management on 133 and 15 July. As previously noted, a major issue in that proceeding was whether the work stoppage which followed Schwartz' discharge of Rodriguez resulted from a refusal by the employees to work or from action by Respondent in discharging them. As to this issue, the arbitrator's award stated in part: Company witness and dischargee Boxman David Thomas testified that he was nearly at the' door when he heard the argument and that ' he turned around when Schwartz told Rodriguez that he was fired. Company witness and dischargee General Help Harvey Gilman [see, infra, fn. 38] testified that he was at the scale and heard Foreman Ben Gold- farb tell the crew it was nine o'clock; that the men began to leave; that Schwartz yelled it was not yet time; that Rodriguez said they had so been notified; that the two yelled at each other; and that Schwartz fired Rodriguez with the statement: "You are all through here. Get out of the shop. You are all through." Union witness and dischargee Richard Bryant said that despite others standing in front of him, he saw, and heard the controversy from a distance of about 15' and that Schwartz yelled, "You are fired. You are all fired." Dischargee and Boner (Grade A) Franklin [Klotzbeecher] testified for the Union, that he was about 20' away, saw Schwartz push Rodriguez' shoulder, point a finger on him and say, "You are fired" and that Schwartz pointed his finger at others as well as to him and, executing an arc, stated, "You are fired" and that by both pointing and look- ing at him that it included him (Klotzbeecher) in that group. Gino Cefalo said he was hanging up his coat for the start of the break and observed Schwartz from about 10' to 12' and heard him say it was not yet time. Assured by his Foreman that he had called for the break, the Assistant Steward continued to within 2' to 3' from Schwartz and heard him say, "You are fired, you are fired, you are fired." He said he heard Ben Miller state, "You are fired" and told him to reach Joseph Carroll. He went outside and called the Union office for Carroll to hasten to the plant. The attempt to ' immunize all who were fired on July 13, 1983 on the theory that, once discharged, these employees were incapable of striking, fails. That theory cannot apply to Building 18 employees because they were in another building. At most, it could concern only those in Building 14. When Schwartz testified that it was Rodriguez he had fired and Ben Miller stated that it was only Rodri- guez he had told to leave because he was fired, they added that they had discharged no one else. .. . UNITED BEEF CO. 1021 While testimony of Union witness Klotzbeecher, Grant [see supra, fn. 3] and Gina Cefalo as well as Company witness Gilman, taken in a narrow sense, would seem to hold that "all" were fired, it is a mis- interpretation . If "all" were discharged it produced an anomalous result. The employees followed their normal course and headed for their break. Not one questioned Miller, Schwartz or Goldfarb for the reason he was discharged . Gilman went up-stairs, had his coffee and sandwhich, and then descended to the loading dock for the remainder of his break. A 19-year employee, Thomas took his coffee in the rear of the building with others from the cooler. These men followed their usual pattern and did nothing about a matter as serious as their alleged discharge. In direct examination, Gino Cefalo said that when the firing took place he first thought it was Rodriguez but later that it might have meant him, as well, and only after Ben Miller told him to call Joseph Carroll did he leave word at the Union office that he believed the whole group was fired. 'Within moments the Assistant Steward's under- standing of the events had escalated . Yet, he did not question any supervisor as to any reason , which si- lence contrasted with his statement that he asked Goldfarb if, in fact, he had released the men for break. Only Rodriguez, who had argued with Schwartz before his discharge, continued to argue. The Assistant Shop Si eward did not. Neither did anyone else . This silence emphasizes that only Ro- driguez was discharged. As previously noted, another major issue in the arbi- tration proceeding was whether Respondent had reached a settlement with the Union on 'the morning of 15 July. At the arbitration proceeding, Cefalo testified about what happened at the Union's 15 July conference with the Millers, at which, according to the Union (but con- trary to Respondent), a settlement was reached . The ar- bitrator's decision indicates that Benjamin and Paul Miller testified for Respondent about this matter. The ar- bitrator found that whether a settlement had been reached was a question of credibility, that the Union had the burden of showing that a settlement had been reached, that the testimony of company witnesses and the testimony of union witnesses were opposite , and that this "is not surprising in the light of general misunder- standing and confusion." In finding that no settlement had been reached, the arbitrator based is analysis on what happened at the plant after the alleged settlement. According to the arbitrator's decision, Cefalo testified that the employees had departed from the yard shortly after the alleged settlement had been reached ; the arbi- trator stated thet Cefalo's testimony in this respect was some evidence, although "weak," that Respondent had reason to believe that the dispute had been settled. F. The Meeting Where Management Decided Whom to Recall As previously found, on 14 or 15 September manage- ment held a meeting at which certain rehiring decisions were reached. i s Management also devoted about half of this meeting to discussing other problems, including maintenance of equipment and prospects for being able to sell Respondent's product. The meeting lasted about 2-1/2 hours. i 9 The meeting was attended by the three Millers, Schwartz, Lind, Goldfarb, Rotman, Connors, James Snyder, and Sullivan ; all of them but Sullivan were admittedly supprvisors . 20 Joel Miller brought with him a list which he had previously made up to find out the 110 employees prestrike hourly wages. The group went through the list of employees one by one. Joel Miller read out each name, whereupon those who had been connected with that employee stated whether he should be hired back or not hired back.2 i During this discussion, management decided that about four employ- ees (not claimed to have included Boire, Cefalo, or Charles Johnson) would never be rehired because of al- cohol or drug abuse. As to certain decisions made during this meeting, much of the evidence is confused and conflicting . Credi- ble parts of the Millers' testimony show that manage- ment decided that Respondent needed a certain number of employees (the testimony varied between 25 and 40) to "crank up" operations, and that management agreed on the names of an equivalent number of employees (who did not include Boire or Cefalo) to be asked to return to fill these positions. The employees in this group are hereafter referred to as the "preferred list." The Mil- lers and Schwartz testified that laying to one side Charles Johnson (see infra) and the four employees thought guilty of alcohol or drug abuse, management did not reach a decision during this meeting that any particu- lar employees would never be rehired. However, the Millers were unreliable witnesses as to other matters. Sullivan, a generally reliable witness, testified that during this meeting management decided that 25 or 30 percent (that is, between 27 and 33) of the discharged employees would never be rehired. In view of Sullivan's testimony 18 The three Millers, Lind, Schwartz, and Sullivan all testified that during this meeting management decided to reline some employees and not to rehire others. I do not accept Goldfarb's wholly uncorroborated testimony that no decisions were reached at this meeting as to whom Re- spondent would rehire 19 This finding is based on Sullivan's testimony Benjamin Miller testi- fied that the meeting lasted "a couple of hours anyway ." Joel Miller, Schwartz, and Lind gave estimates ranging from 40 minutes (Lind) to 2 hours "at the outside" (Schwartz) In view of the credible testimony (infra) that the participants went through 110 employees one by one to decide whom to rehire , and also spent half the meeting in a discussion of other topics, Sullivan's estimate impresses me as the most reasonable one. As discussed infra, Sullivan impressed me as generally the most reliable of the witnesses who testified about this meeting 20 For demeanor reasons, and in view of the evidence summarized supra, sec. II,C,3, I credit Sullivan 's testimony, corroborated by Schwartz and Goldfarb, that Paul Miller was present during 90 percent of the meeting, the rest of his time being devoted to receiving telephone calls; and reject the testimony of Paul Miller and Linid, to some extent cor- roborated by Benjamin Miller, that Paul Miller's telephone activity caused him to be absent an appreciable part of the time zi My findings in these two sentences are based on credible parts of the testimony of Sullivan, Schwartz, Goldfarb (cf. supra, fn 18), and Benjamin Miller. Joel Miller's testimony varied as to whether these events occurred . For demeanor reasons , I do not credit Lind's testimony that only half the employees were discussed or Paul Miller 's response, "Not to my knowledge," when he was asked whether each dischargee was evaluated during this meeting 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the evidence discussed infra as to the employees whom Respondent eventually hired and how they were hired, I infer that during the meeting management decid- ed at least tentatively not to rehire the group whom Sul- livan testimonially described as ineligible but that Re- spondent eventually became willing to consider many (if indeed not most) of them for rehire. From certain parts of the testimony of Joel and Paul Miller and Schwartz, I infer that in reaching the decision about whom to in- clude in this initially ineligible group and whom to offer jobs at once, and laying Boire and Cefalo to one side, among the factors which management took into account were skill level, or overall attitude, cooperation in the sense of willingness to do the job, and willingness to work overtime. The probative evidence discussed infra, section II,H, establishes that during this meeting the Millers stated that Respondent would not rehire employees who had testified for the Union during the arbitration proceeding or who were strong union men. Sullivan credibly testi- fied that during this meeting management used as to em- ployees who had been on the picket line words like "mil- itant" ,and "he was outside every day." He testified that his memory as to this matter was "a little hazy" and that the only individual there referred to whose name Sulli- van was able to remember was "young Wentzell," the brother of Sam Wentzell. Carroll's testimony and Re- spondent's records show that this brother was John Wentzell, that he was on the picket line most of the time, and that he was never rehired. The complaint does not allege that Respondent took unlawful action with respect to John Wentzell. Schwartz credibly testified, without giving a reason, that during the meeting management de- cided not to rehire meatcutter Charles Johnson, who had been the Building 18 steward and had testified for the Union at the arbitration hearing. Johnson thereafter filled out an application which Joel Miller admittedly ignored-. Carroll asked Joel Miller to rehire Charles Johnson, and Joel Miller admittedly said that he "just couldn't do it."22 The complaint does not allege that Respondent violated the Act with respect to Charles Johnson. As previously noted, Boire had testified for the Union at the arbitration hearing. When his name came up, Schwartz "very strongly" recommended that Boire should be called back; Schwartz testified, "I have worked with [Boire] for a long time and I know what he can do there . .. I needed him in that [quality control] position . . . he does a good job there and I can depend on him." Schwartz went on to testify that Boire's work habits were good "for the most part"; that he had good ability; that "in general" he was willing to work over- time; and that he was cooperative. Joel Miller said that Boire should be rehired because "I had known him a long time, I liked him very much, I thought his work was very good, and I thought he had a lot of positive 22 In view of Joel Miller's testimony in this respect, and for demeanor reasons, I do not accept his testimony, contrary to Schwartz' testimony, that at his meeting Charles Johnson's rehire was not ruled out "In a weak moment," Joel Miller had rehired Charles Johnson after he had quit and then asked to be rehired with a "real hard luck story " Joel Miller testified that Charles Johnson had high absenteeism, talked a lot, and was not productive qualities." A few of the others present likewise recom- mended that he be rehired. Among those present who wanted to rehire Boire was Benjamin Miller. The only person present who disagreed was Paul Miller, who slammed his fist on the table and screamed out no.23 There is no credible direct evidence regarding the dis- cussion about Cefalo who (as previously noted) had been a steward and an assistant steward and had testified for the Union at the arbitration hearing. Benjamin Miller tes- tified that he described Cefalo's alleged selectivity with respect to the cuts of meat he chose to bone. I do not credit Benjamin Miller's testimony in this respect because no other witness so testified, because I have previously found that such incidents did not occur, and for demean- or reasons. Joel Miller testified that he participated in the discussion and decided not to recall Cefalo immediately, but Joel Miller did not in terms testify about what he said. Joel Miller's testimony does imply that he described the alleged incidents where Cefalo failed to comply with Joel Miller's instructions to pull unboned, carcasses off the conveyor belt. No other witness testified that these incidents were alluded to. Accordingly, and in view of my finding (supra, sec. II,E) that such incidents did not occur, I conclude that they were not referred to at the meeting. Goldfarb testified that during the meeting he said that Cefalo disrupted his and others' work with con- stant conversation. I do not credit Goldfarb's testimony in this respect because no other witness testified that Goldfarb referred to the matter, because Cefalo was never reproved for this alleged conduct, and for demean- or reasons. Although Goldfarb admittedly did not state during the meeting that Cefalo was reluctant to work overtime, Goldfarb testified that such reluctance was a factor in his judgment that Cefalo should not be rehired immediately. However, Joel Miller testified that it was he who decided not to recall Cefalo immediately, and that Joel Miller's only reason was the alleged incidents regarding failure to pull unboned carcasses off the con- veyor belt. The witnesses who testified about this meeting were the three Millers, Schwartz, Goldfarb, and Lind (all of whom testified for Respondent) and Sullivan (who testi- fied for the General Counsel). As shown supra, Respond- ent's witnesses gave mutually conflicting testimony about 23 My findings in the last two sentences are based on Sullivan's testi- mony, which I credit for reasons discussed infra. When testifying for the General Counsel as an adverse witness on 9 April 1985, Paul Miller testi- fied that he could not recall whether it was at that meeting that he heard that Boire had threatened Benjamin Miller. When testifying for Respond- ent on 23 April 1985, Paul Miller denied that he was present during the part of the meeting when Boire's name came up for consideration (of supra, fn 20 ). Schwartz, Benjamin Miller, and Joel Miller testified that the only objection to Boire's rehire was voiced by Benjamin Miller. Joel Miller testified, but Benjamin Miller and Schwartz denied, that Benjamin explained why he did not want Boire rehired."Joel testified that Benjamin gave as the reason that Boire "tried to kill him," conduct not testimonial- ly attributed to Boire by Benjamin or anyone else. Joel Miller and Schwartz testified that no decision was made at that meeting that Boire was not eligible for rehire; Benjamin Miller testified that an understand- ing was reached that anybody (including Boire and Cefalo, but not em- ployees excluded for alcohol and drug abuse) was subject to be rehired. At the outset of the hearing, Respondent's counsel stated, "I don't think the evidence will show that the Company considered [Boire] to be unem- ployable for its purposes " UNITED BEEF CO. 1023 the meeting, and were unreliable witnesses as to other matters. Moreover, the Millers (Schwartz' relatives by marriage) and Schwartz' wife have a pecuniary interest in this proceeding; and, at the time of the hearing, Schwartz, Goldfarb, and Lind were in Respondent's employ as supervisors. In view of the foregoing, and for demeanor reasons, I credit Sullivan's testimony where in conflict with theirs even though Respondent discharged Sullivan in July 1983, after `6 years of employment with Respondent, because Joel Miller accused him of theft of a company product. In this connection, I note that Sulli- van was never prosecuted for the alleged theft, that Re- spondent represented to the unemployment compensation authorities that he had been terminated for "lack of work, permanent," and that Respondent did not oppose his claim for unemployment compensation. G. Alleged Independent Violation of Section 8(a)(1) Through Supervisor Schwartz; Boire's Rehire Between 10 and 11 a.m. on Friday, 16 September, em- ployee Frank Boire and his wife, Mary Boire, came down to the area of Respondent's plants in order to col- lect his weekly work stoppage benefits from Carroll. After parking their car, the Boires went over to a group of participants in the work stoppage. Boire asked where Carroll was. Boire was advised that Carroll had already left the area, and was further advised that the employees had lost in the arbitration proceeding. At Frank Boire's suggestion, the Boire's went over to a canteen truck and bought some coffee. While Frank Boire was chatting with a couple of participants in the work stoppage, Mary Boire noticed a man who was standing 10 yards away between the canteen truck and one of Respondent's buildings. This man, who was Schwartz and whom she had never met before, was waiving at and calling her husband. When she drew ]Boire's attention to Schwartz, Boire walked over to Schwartz with her and introduced the two. Then, Schwartz said that Respondent was not going to call Boire back, that Schwartz had tried to get Respondent to call Boire back, but that whether he would be called back was up to Paul Miller, who was "mad" because Boire had testified at the arbitration pro- ceeding. Boire asked whether he could use Schwartz as a reference with respect to a job which Boire had applied for. Schwartz said yes, and also suggested another place where Boire might be able to get a job. My findings as to the substance of Schwartz' remarks are based on a composite of credible parts of the testimo- ny of Schwartz and the Boires. Schwartz' testimony dif- fers from that of the Boires principally as to Schwartz' explanation (if any) for management's decision not to recall Boire and as to the date of his conversation with the Boires. Although Schwartz denied with escalating certainty that he attributed the decision to Paul Miller's resentment of Boire's action in testifying at the arbitra- tion proceeding, Schwartz did not testify to giving Boire any reason for Respondent's decision (which Schwartz admittedly relayed to Boire) that he would not be re- called, and testified to an inability to recall whether Boire asked for a reason (as he almost certainly would have done if Schwartz had failed to volunteer one). Moreover, the Boire's testimony that Schwartz attributed the decision to Paul Miller is corroborated by Sullivan's credible testimony that at the management meeting Paul Miller expressed opposition to Boire's recall. Sullivan's credible testimony that the management meeting could have occurred on 14 or 15 September (see supra, sec. II,C,1) vitiates Respondent's claim that the Boire's testi- mony is unworthy of belief because they attached to the conversation a date (16 September) before the manage- ment meeting occurred. In finding that Schwartz attrib- uted Respondent's decision to Paul Miller's resentment of Frank Boire's action in testifying before the arbitrator, I am aware that Mary Boire testified that Schwartz so stated, whereas Frank Boire testified that Schwartz nodded after Boire so stated. Moreover, the record con- tains no explanation for why Boire allegedly already sus- pected that Paul Miller (rather than other members of management) resented the fact that Boise had testified at the arbitration hearing. Furthermore, Charging Party Boire and his wife were highly interested witnesess (al- though Schwartz, too, was an interested witness who was testifying on behalf of his employer, his wife, his father-in-law, his brother-in-law, and an uncle and two cousins by marriage). Nevertheless, and after considering the witnesses' demeanor, I credit Mary Boire's version of the conversation.24 Boire knew as early as 15 or 16 September 1983 that Respondent was going back into production and was re- hiring, and that some of the participants in the work stoppage had been rehired on 15 September after ap- proaching Respondent and without being called by it. He signed his charge herein on 11 February 1984; this charge, received by Respondent on 21 February, alleged that Respondent had unlawfully "failed or refused to recall" him since about 26 September 1983, Also, begin- ning on an undisclosed date preceding 21 November 1983, a claim for unemployment compensation as of at least 13 August 1983 was prosecuted on behalf of Boire and other participants in the work stoppage.25 This charge and unemployment compensation claim aside, Boire did not apply to Respondent for a job until 15 De- cember 1984, or ask the Union to make a specific rein- statement request on his behalf. Nor did Respondent offer him a job during this period. On Saturday, 15 De- cember 1984, Boire applied to Joel Miller for a job. Miller hired him on a salaried basis to fill the supervisory position vacated by Schwartz. Boire reported to work on 24 Schwartz testified that on a weekday about a week before Christmas 1983 Boire came down to the plant, and Schwartz told him that Schwartz was still trying to induce Benjamin Miller to let Boire come back to work. Schwartz worked between 5.30 a m. and 7 p in at Re- spondent's plant, which is located in Boston, Massachusetts Boire credi- bly testified that during the entire month of December and until Christ- mas Eve (when his employer let the employees off), he was working 5 days and 42 hours a week, with a shift beginning at 6 or 7 a m, in Lynn, Massachusetts, about 10 miles from Boston Benjamin Miller testified that after he told Schwartz why Benjamin Miller allegedly did not want to rehire Boire, Schwartz never again asked for Boire's rehire I accept Bone's denial of the December 1983 visit testified to by Schwartz. 25 The February 1984 decision issued by the Board of Review of the Commonwealth of Massachusetts Division of Employment Security, partly reversing a total disqualification determination by the Regional Di- rector, found such employees eligible for unemployment compensation after 20 September 1983. At the time of the April 1985 hearing before me, the Employer's appeal of that decision was pending 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monday, 17 December; worked for 1 day; and then quit.26 The General Counsel does not ask for an instate- ment order as to Boire, and seeks backpay through 15 December 1984 only. About 28 November 1983, Boire started to work at a job which he still held at the time of the April 1985 hearing before me . Boire credibly testified that between his 15 September 1983 conversation with Schwartz and his 15 December 1984 application to Re- spondent for work, nothing had happened to change his opinion as to Paul Miller's feelings about having Boire come back to work. This testimony, the fact that by 15 December (a Saturday) he already had a full-time job elsewhere, and his testimony about why he worked for Respondent for only 1 day persuaded me that he applied for and accepted the job only to show the Board investi- gator that management was not sincere in its assertions to him that Boire was dangerous . Paul Miller testified that Boire had been free to return to work since shortly after the September 1983 startup. As previously noted, at the time of Boire's July 1983 discharge his job title was "quality control person"; he had been performing the duties attached to that job title for about 7 years. Boire's duties, performed in Building 14, were to see to it that prime cuts were separated from choice cuts (in order to enable Respondent thus to label products in accordance with regulations of the United States Department of Agriculture) and that the product had been trimmed according to the Millers' quality standards. Paul Miller testified that Respondent 's quality control progam is an important program which is unique to meatpacking houses in the area . Building 14 Supervi- sor Schwartz testified that to carry out the quality con- trol program Respondent "really [has] to have someone" to act as quality control inspector, and that Boire's job was an important job in the plant "because we produce a quality product and we want somebody down there to make sure that the stuff coming off the line before it is [packaged] is trimmed properly and . . . is just the right package to be going out to . . . the customers." Schwartz further testified that someone to perform "quality control" was needed to start up operations in September 1983, and that Schwartz "needed [Boire] there in that position." Moreover, it is undisputed that the only member of management who opposed Boire's immediate hire did so on grounds unrelated to need for his quality control services. Accordingly, I do not accept Paul Miller's testimony that Respondent did not need anyone working in quality control until 2 to 4 months after Building 14 resumed operations. The record shows that after resuming Building 14 operations , Respondent apportioned quality-control work among supervisors and bargaining unit employees . Moreveor, the record shows that Boire was capable of performing the work of boxmen and general helpers. H. Alleged Independent Violation of Section 8(a)(1) Through Supervisor Lind Supervisor Lind, a co-plant manager of Building 18 since 1981, worked in the same building (Building 14) as employee Cefalo for about 2 years, between 1979 and 26 Schwartz returned to that job in early March 1985 1980. Also, during a short period of time which ended in 1982, Lind was Cefalo's immediate supervisor . Thereaf- ter, Cefalo frequently saw Lind during lunch and coffee breaks; they did not, however, have lunch or coffee to- gether. Cefalo was on the sidewalk in front of Respond- ent's premises 8 to 10 hours a day on most of the days during which the work stoppage continued . During this period, Cefalo and Lind conversed "many times." Several days after learning about the 13 September 1983 arbitration award , 27 Cefalo found himself standing near Lind while they were in the middle of a group of people who were in the course of buying coffee from a coffee truck located across the street from Respondent's plants. Cefalo asked Lind what was going on. Lind said that all of the supervisors had had a meeting in Building 18; that Joel Miller had a list of all of the men; that he called the name of each; and that those present voted on whether to take that person back. Lind went on to say that "the Millers" had said at that meeting that anyone who had testified at the arbitration proceeding or was a strong union man would not be called back . Thereafter, at later chance meeting near the coffee truck, Lind and Cefalo talked about other matters. My findings as to the Lind -Cefalo conversation are based on Cefalo's testimony . 211 Such testimony is indi- rectly corroborated by testimony from Respondent's other witnesses and by other and partly undisputed evi- dence. Thus, the credible testimony of Respondent's other witnesses shows that the three Millers and all of Respondent's supervisors (including Lind) attended a meeting in Building 18 during which Joel Miller pro- duced a list of all the employees and it was decided never to recall certain employees and to recall others im- mediately. Company witness Schwartz testified that at this meeting Respondent decided (for reasons Schwartz did not give) not to rehire Building 18 Steward Charles Johnson, who had testified for the Union at the arbitra- tion hearing. Sullivan credibly testified that during that meeting Respondent decided never to rehire 27 to 33 employees (rather than the 5 or fewer testified to by Re- spondent's witnesses), and that management used as to employees who had been on the picket line words like "militant" and "he was out every day." He further iden- tified one employee so discussed who (other evidence shows) was on the picket line most of the time and was never rehired. It is undisputed that Respondent did not rehire union arbitration witness Boire until December 1984, and never hired any of the other arbitration wit- nesses for the Union or either of the union stewards.29 27 Frank Boire's testimony shows that at least some of the participants in the work stoppage had learned about the award by the morning of 16 September. 28 It should be noted that pages 370-371 of the transcript of his testi- mony were corrected by a letter to me from the reporting service dated 25 June 1985 . Counsel received courtesy copies of this letter, and were also advised, in a letter from me dated 2 July 1985, that they would be deemed to have assented to such corrections unless I was otherwise ad- vised by 8 July 1985 , the due date for briefs No comments have been received from counsel. 29 O'Brien, whom Respondent did rehire, had been replaced as stew- ard in late 1981 because his fellow employees thought he was not proper- ly representing them UNITED BEEF CO. Moreover, as previously found, Supervisor Schwartz (also present at the meeting) told Boire that he would not be rehired because he had testified for the Union at the arbitration proceeding. It is true that Cefalo was a highly interested witness. Moreover, be did not recall whether he ever described this incident to employees Boire or Klotzbeecher, both of whom also testified at the arbitration hearing and also filed February 1984 charges attacking Respondent's fail- ure to rehire them (see supra, fn. 1), or to Union Repre- sentative Carroll; and Cefalo never related this incident to the attorney who represented the Union in the arbitra- tion case. Furthermore, Cefalo did not refer to this inci- dent in his first prehearing affidavit, which he gave during a 28 November 1983 interview when he told the Board investigator that Cefalo wanted his job back; and he testified that he volunteered an account of this inci- dent to another Board investigator in March 1984 be- cause Cefalo knew it was connected in some way with his chances of getting his job back. 30 Also,'Cefalo's testi- mony varied as to the date of this conversation. Thus, he initially testified that it occurred about a week after he learned of the award and a week or a week and a half after it came down (on 13 September). However, he thereafter testified that the 115 September 1983 date he gave in his March 1984 affidavit was "approximately" correct, then that the conversation was "on the 15th"; then that it was "about the 15th"; and, finally, that it could have been up to a week later.3 i On the other hand, Lind was testifying on behalf of an employer who had been employing him in a supervisory capacity for about 6 years. Further, his testimony about the manage- ment meeting is demonstrably false as to its date and length (see supra sec. II,C,3). After taking into account the foregoing considerations and the witnesses' demean- or, I accept Cefalo's testimony about this conversation, and reject Lind's testimony that it never occurred.32 Further, because Respondent's answer admits Lind to have been its supervisor and agent at all material times, I accept Cefalo's credible testimony about Lind's remarks as probative evidence about what happened at the meet- ing. See Mahlandt v. Wild Canid Survival & Research Center, 588 F.2d 626 (8th Cir. 1978); US. v. Roe, 670 F.2d 956, 965 (11th Cir. 1982); Bohemia, Inc., 266 NLRB 761, 763-764 (1983); Fed.R. Evid. 801(d)(2)(D). Because Cefalo was an assistant steward, Carroll let him know on an undisclosed date that the contract had been "'settled" on 21 September 1983. Cefalo never asked Carroll to make a specific reinstatement request on Cefa- lo's behalf. Cefalo found out on an undisclosed date that Respondent was accepting applications from and rehiring 30 Cefalo explained the November 1983 omission on the ground that "we were concentrating on 13 July [19831 " 31 As found supra in sec. 11,C,1, the management meeting which Lind allegedly described to Cefalo occurred on 14 September or (at the latest) 15 September. 32 In contending that I should discredit Cefalo, Respondent asserts that the arbitrator "discredited" portions of Cefalo's testimony. Cf. Adams De- livery Service, 237 NLRB 1411, 1418 (1978), enfd 623 F.2d 96 (9th Cir. 19$0) As the General Counsel's brief points out, the arbitrator did not find that Cefalo failed accurately to recount the facts. Rather, the arbitra- tor found that "in a narrow sense" Cefalo's testimony was true, but that he had misinterpreted the events he testified about Cf. infra, fn 38 1025 some discharged employees whom Respondent had got in touch with. He never asked any of Respondent's su- pervisors whether Respondent would rehire employees whom Respondent had not got in touch with. As previ- ously noted, beginning on an undisclosed date prior to 21 November 1983, an unemployment compensation claim was prosecuted on behalf of employees who may have included Cefalo. He testimonially ascribed to his conver- sation with Lind his failure to apply to Respondent for a job. Paul Miller testified that after he allegedly asked Car- roll for butchers (see infra, sec. II,I) Cefalo was free to come back to work. Joel Miller testified that Cefalo was a good meatcutter, and that, if he had applied for work as of January 1984 and perhaps even as of October 1983, the chances were "very high" that he would have been hired: "There were very few people that we ever refused to hire that came back to us." Cefalo signed his charge on 14 February 1984. This charge, which was admittedly served on Respondent on 23 February 1984, alleged that Respondent had unlawfully refused and failed to recall Cefalo or to offer him employment since about late Sep- tember 1983 "and continuing to this date." Joel Miller testified that the Board investigator had thereafter asked him to give reasons why Cefalo was allegedly not a good enough employee to rehire during the "crankup" period, and that it never crossed Joel Miller's mind to tell the Board investigator that Respondent was now willing to rehire Cefalo. Between Cefalo's July 1983 dis- charge and the April 1985 hearing, Respondent never of- fered Cefalo a job. Paul Miller testified that Cefalo was not offered a job because the owner of one of Respond- ent's competitors had told Miller, during, one of their fre- quent lunches, that Cefalo had a very good job at Berto- lino's (another meatpacking house in the area) and would never come back to Respondent's employ. Cefalo credi- bly testified that he worked part time at Bertolino's be- tween some date in the summertime and some time in October, that Bertolino's paid him a total of $150 for such work, and that during his part-time employment at Bertolino's he also showed up at Respondent's premises. Paul Miller testified on 9 April 1985 that Cefalo was free to come back to work immediately. In consequence of off-the-record discussions, the General Counsel stated that he was not -asking for an instatement order as to Cefalo, and was not asking for backpay as to Cefalo after 8 April 1985, the first day of the hearing before me. The General Counsel's posthearing brief states that Cefalo re- cently obtained a job elsewhere and he would rather keep it than return to Respondent's employ. I. Respondent's Postcontract Ifiring As previously noted, Cefalo and Boire had both worked as meatcutters in Building 14-Cefalo as a boner and Boire as a quality control person. Joel Miller testi- fied that all boners in Respondent's employ at the time of the work stoppage were capable of performing the duties of boxman. Boire had at one time worked as a boxman and, indeed, had been hired as such by Respondent in 1986; the record fails to show whether lie was capable of performing any other aspect (such as boning) of a butch- 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er's job. He was also capable of performing "general help" work. Some Building 18 meatcutters are capable of performing the meatcutting work in Building 14, and some are not. The record fails to show whether Cefalo and Boire were able to perform Building 18 work. Following the management meeting about rehiring, which meeting was held (I have found) on 14 or 15 Sep- tember, Respondent's office attempted to telephone or telegraph employees on the preferred list, but reached only a few of them. Then, about a week after the man- agement meeting, some members of management were each given a list of people to try to get in touch with.33 Of the 25. to 40 employees on the preferred list, Schwartz' list included about 12. He credibly testified that "probably maybe" three or four agreed to come back. There is no other direct evidence as to the ratio of acceptances; Joel Miller testified that he did not remem- ber. Joel Miller testified that for many years (he mentioned the 1940s, 1954, 1955, and 1967) Respondent had been experiencing a problem getting enough qualified meat- cutters. The Millers testified that in expanding to full- scale operations in 1983-1984 Respondent underwent dif- ficulty in obtaining enough qualified employees; Paul and Benjamin Miller attributed this problem partly to the fact that the September 1983 bargaining agreement called for a cut in wages. Joel Miller testified that from time to time Respondent limited its hiring to the preferred list until the end of October 1983; indeed, he tendered the unlikely testimony that Respondent began postcontract operations with fewer employees than it needed because some (he could not remember how many) of the pre- ferred-list employees were unavailable for rehire. Paul Miller testified that Respondent hired only former em- ployees of Respondent. However, this testimony by Paul and Joel Miller is refuted by Respondent's employment records. Thus, of the approximately 66 employees who began to work between 22 September (the day after the execution of the memorandum bargaining agreement) and 28 October 1983,34 about 27 had never worked for Respondent before, so far as the record shows. Of these 27, about 9 were meatcutters, 7 of them assigned to Building 14. Moreover, this hiring practice began shortly after the 21 September execution of the bargaining agree- ment. Thus, of the approximately 27 employees who began to work during the week beginning Monday, 26 September, and ending Friday, 30 September, incluidng about 15 meatcutters (11 of them assigned to Building 14), about 8, including about 3 meatcutters of whom 1 was assigned to Building 14), had never worked for Re- spondent before, so far as the record shows. Moreover, in explaining why Respondent rehired one of these Building 14 meatcutters (boxman Willie March) on 26 as My findings in these two sentences are based mostly on Schwartz' testimony. Because Schwartz credibly testified that he received a list of "random names" that the office was unable to reach, I infer that most (if indeed not all) of the other lists were similarly "random." To the extent inconsistent with Schwartz' testimony, I do not accept Joel Miller's testi- mony that management divided among themselves the names on the pre- ferred list on the basis of whom each of them thought he could get in touch with 34 For reasons explained infra, this total does not include Cormier or Zafirm, both of whom were employed before the work stoppage September 1983 even though in March 1982 he had re- ceived a verbal warning for excessive tardiness and a 1- week suspension for excessive absenteeism and tardiness, Joel Miller testified, "[P]icking the best of a worst situa- tion . . . when [March was] at work, [he] did [his] job well . . . it's either having nobody in that situation and you had to fill the job or going to somebody with char- acteristics you weren't particularly thrilled with but you felt you could deal with." Accordingly, and in view of Paul Miller's testimony that Respondent was willing to take back all former employees except for the three or four alcohol and drug abusers, I find that by 26 Septem- ber 1983 (when A. Brown, a meatcutter who had never previously worked for Respondent, began to work in Building 14) Respondent was hiring former employees without regard to the preferred list. Credible parts of the Miller's testimony indicate that Respondent solicited "quite a few" former employees to return to work and rehired the few who said they would, but that most of the jobs were filled by employ- ees who came in and applied. About December 1983 or January 1984, Paul Miller and Norman Lind asked Union Business Agent Carroll if he knew of any meatcutters who wanted jobs, without specifying whether or not former employees were acceptable and without naming any employee not to send over. Carroll sent over two "general help" employees who had never before worked for Respondent. They were not hired. The only former employee whom Carroll ever sent to Respondent was meatcutter Charles Johnson, who was not rehired. About January 1984, Respondent began to advertise for em- ployees. At the time of the April 1985 hearing, Respond- ent was advertising for butchers. Joel Miller described Respondent's need for production employees about No- vember or December 1983 as presenting a "pretty des- perate situation." In November 1984, dischargee Fernando Nuzzolo, who had been a Building 14 boner before the work stop- page, received a message from his wife that Paul Miller had telephoned and wanted to talk with him. Nuzzolo thereupon went to see Paul Miller, who asked him to return to work. Nuzzolo replied that he could not come back right away because of illness in the family. Thereaf- ter, on several occasions before January 1985, Nuzzolo had discussions with the Millers about the possibility of Nuzzolo's return, but the Millers told him that they did not want to pay him the rate he had received before the work stoppage. In January 1985, Nuzzolo went to see Paul Miller, who said that Nuzzolo was a good man and asked him to return to work. Nuzzolo refused on the ground that the offered pay was too low. In late July 1984, Respondent rehired discharged boxman Frank Chirco as a Building 14 meatcutter. Chirco had previously applied for work on several occa- sions, but had been rejected on the ground that he was "awfully slow." Joel Miller testified that Respondent eventually rehired him because "it came to the point that we needed meat cutters so bad it was making the best of several miserable decisions . . . and hiring a bad butcher at this point or one we didn't feel was truly great was better than having no butcher at all." In January 1985, UNITED BEEF CO. Respondent rehired dischargee Louis Ortega initially as a part-time and a month or so later as a full-time Building 14 meatcutter. He had previously applied for work on several occasions, but had been rejected on the ground that he talked a lot and was very argumentative. Imme- diately before rehiring him, Joel Miller was advised that Ortega had threatened someone in supervision. The day after executing the memorandum bargaining agreement, Respondent offered a job to dischargee Charles O'Brien, a forklift operator who in February 1981 had received a written warning for tardiness after repeated verbal warnings, O'Brien turned the job down on the ground that the pay was too low. In March 1985 he requested a job and was rehired as a forklift operator in the Building 14 box storage room. Joel Miller testified that after Building 14 operations were resumed Respond- ent was not very successful in finding capable employees to do that work. On 3 October 1983 Respondent rehired general helper Lazaro Garcia, who in July 1982 had re- ceived "verbal" warnings for excessive absenteeism. In late January 1984, Respondent rehired, as a forklift oper- ator, an employee who (for reasons which will appear) is referred to herein as John Doe.35 On various occasions before 1 June 1983, Doe had received verbal warnings, a written warning, and a suspension for continued tardi- ness; the suspension notice had stated that he would be terminated if he continued to be tardy. Moreover, there- after Doe had gone into personal bankruptcy, had joined Gamblers Anonymous, and had advised Respondent that "the mob" was out to get him because he welched on a bet." Joel Miller testified that Respondent rehired Doe because: We were then placed in a situation we've been placed in many times, making the best of a worst situation. We were suffering because of a lack of somebody with that skill. People that we had hired just didn't seem to be fitting into the situation. And it appeared that a bad known quantity at this point was better than an unknown bad quantity. We just hadn't been able to find anybody to do that job. We knew when he was there he was good. But we had the problem of tardiness and absenteeism before. We were hoping because he needed a job so bad this time that he would show up for work. The dischargees rehired by Respondent included meat- cutter Theoples Good, rehired on 4 October 1983, who was present on the picket line most of the time. On vari- ous dates between 22 September 1983 and at least 19 Jan- uary 1985, Respondent rehired at least 12 other discharg- ees (8 of them meatcutters) who significantly participated in the picketing 38 As of the April 1985 hearing before me, Respondent had rehired about 50 of the about 110 employees who had been discharged for participation in the work stoppage. Paul Miller testified that 98 or 99 percent of the meatcutters then in Respondent's employ had been in Respondent's employ before the work stop- page. 3s His name appears on p. 611, L 19 of the transcript. 16 These included meatcutter Ortega (see supra) and general helper Gilman (see infra, fn 38) 1027 So far as the record shows, Charles Johnson, who had been the Building 18 steward, was the only dischargee who asked Respondent for a job and was never re- hired.37 As previously noted, he was one of the Union's witnesses at the arbitration proceeding. The others were Cefalo, Boire, Bryant, Klotzbeecher, and Cormier. Shortly after the contract was signed, Union Business Agent Carroll asked management to rehire Charles John- son, who had been a meatcutter. Carroll was advised that Respondent was not' going to rehire Johnson. Re- spondent never offered a job to Bryant. There is no evi- dence that Respondent ever offered a job to Klotz- beecher (although see supra, fn. 1). Corimer and Zafiris (who did not testify at the arbitration proceeding) worked on 16 September 1983, and were on Respond- ent's payroll as of 22 September 1983. The 13 September arbitrator's award found that they had been discharged on 13 July 1983 and reinstated on 18 July 1983. The arbi- trator further found that because they had not been dis- charged thereafter they remained employees. J. Analysis and Conclusions An employee who acts as a union steward or who tes- tifies on a union's behalf at an arbitration hearing is en- gaged in union and concerted activity protected by Sec- tion 7 of the Act. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 702-705 (1983); Oil Workers Local 4-23 (Gulf Oil), 274 NLRB 475 (1985); Teamsters Local 788 (San Juan Islands Cannery), 190 NLRB 24, 26-27 (1971); Ebasco Services, 181 NLRB 768, 769-.770 (1970); South- western Bell Telephone Co., 260 NLRB 237, 240 (1982), enfd. 667 F.2d 470 (5th Cir. 1982). Accordingly, an em- ployer violates Section 8(a)(1) and (3) of the Act by re- fusing to rehire applicants for employment because they have engaged in such conduct. Furthermore, even where (as here) the alleged discriminatees failed to ask the em- ployer for a job, the employer's failure to hire them vio- lates Section 8(a)(1) and (3) where he has made known to prospective employees that he will refuse to hire them because of their protected union activity. Love's Barbeque Restaurant No. 62, 245 NLRB 78, 81-82 fn. 10 (1979), modified 640 F.2d 1094 (9th Cir. 1981); Sherwood Truck- ing Co., 270 NLRB 445 (1984). The credited testimony in the instant case provides direct evidence that Respondent told Cefalo and Boire that applying for a job would be futile and that Respond- ent's motivation for this decision was their having testi- fied for the Union at the arbitration hearing and Cefalo's activity as an aggressive union steward.38 The conclu- 37 Indeed, so far as the record shows, dischargees Chirco, Ortega, and Doe were the only such employees whose applications were not accepted immediately 38 Respondent makes no contention that the limitations in the effect which the arbitrator gave to Cefalo's arbitration testimony (supra, fn. 32) deprived him of statutory protection in giving such testimony. See Glover Bottled Gas Corp, 275 NLRB 658 (1985). I note that employee Harvey Gilman, a company witness at the arbitration hearing to whose testimony the arbitrator attached about the same weight as Cefalo's resumed work on 23 September 1983 I further note that Respondent unlawfully refused to hire Boire because of his arbitration testimony, which the arbitrator unreservedly accepted. 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lion that this was the reason for Respondent's refusal to rehire Boire and Cefalo gains support from other record evidence. Thus, Respondent never did rehire any of the employees who testified for the Union at the arbitration proceedings. The only dischargee (so far as the record shows) whose application for employment was never ac- cepted had testified for the Union at the arbitration pro- ceeding and was the only incumbent steward except Cefalo who, had been discharged for participation in the work stoppage. Although Joel Miller admitted that Building 14 meatcutter Cefalo was a good meatcutter, meatcutter March (who in March 1982 had been sus- pended for 1 week for excessive absenteeism and tardi- ness, and whose "characteristics" Joel Miller "wasn't particularly thrilled with") returned to work in Building 14 on Monday, 26 September 1983, just 4 days after that building resumed operations. 39 In July 1984 Respondent rehired meatcutter Chirco, who was "awfully slow" and whom Joel Miller described as "a bad butcher or one we did not feel was truly great." In January 1985 , Respond- ent rehired meatcutter Ortega, although he had threat- ened a supervisor, talked a lot, and was very argumenta- tive. Also, on the day after the execution of the bargain. ing agreement, Respondent offered a job to forklift oper- ator O'Brien, who in February 1981 had received a writ- ten warning for tardiness after repeated verbal warnings; on_ 3 October 1983, Respondent rehired general helper Garcia, who in July 1982 had received "verbal" warn- ings for unsatisfactory attendance; and in January 1984, Respondent offered a job to forklift operator Doe, who had received verbal warnings, a written warning, and a supsension for continued tardiness, and who had gone into personal bankruptcy, had joined Gamblers Anony- mous, and had advised Respondent that "the mob" was "out to get him because he welched on a bet." However, although Paul Miller testified that Respondent needed to hire additional experienced employees at all times after executing the 21 September 1983 bargaining agreement, and Joel Miller described Respondent's need for produc- tion employees about November or December 1983 as presenting a "pretty desperate" situation, Respondent did not offer a job to Cefalo (a good meatcutter) even after he filed his February 1984 charge alleging that Respond- ent had unlawfully failed to offer Cefalo a job "continu- ing to this date." Moreover, an analysis limited to Respondent's own evidence as to why it did not rehire Boire casts serious doubts on the truthfulness of that explanation. Boire's December 1981 threat to Benjamin Miller had been made 21 months earlier, the two men had been working to- gether (in an area containing butcher knives) at all times thereafter until the July 1983 work stoppage, it is undis- puted that Benjamin Miller never told anyone else about the incident until the September 1983 management con- ference, and ,Benjamin Miller and Schwartz testified that Benjamin Miller did not refer to the incident at that meeting and did not tell Schwartz (Benjamin Miller's son-in-law and Boire's immediate supervisor) about it until some time thereafter . Furthermore, although Joel Miller testified that at that meeting Benjamin Miller said 39 The record fails to show whether March applied for work that Boire had tried to kill him, Benjamin Miller did not testify to any such conduct by Boire. Also, Benjamin Miller, testified that after he told Schwartz the reasons why Benjamin Miller did not want to rehire Boire Schwartz never again brought up the subject of Boire's rehire, and that up until Benjamin Miller's August 1984 resignation he did not want Boire to be rehired; whereas Schwartz testified that he "hounded " Benjamin Miller almost daily about rehiring Boire until the end of Janu- ary 1984 when Benjamin Miller agreed to let Schwartz call him back. The foregoing evidence persuades me that Respond- ent's failure to rehire Cefalo and , Boire was motivated solely by the fact that they had testified for the Union at the arbitration hearing and by Cefalo's grievance activity as a union steward. In any event, Respondent has plainly failed to meet its burden of showing that it would have failed to hire them even if they had not engaged in such activities.40 As to Boire, the credible evidence shows that Benjamin Miller, who in December 1-981 Boire had threatened to punch in the mouth if Benjamin Miller did not shut up and listen to Boire, stated at the September 1983 management conference that Boire should be re- hired. Indeed, Respondent's own evidence shows that Benjamin Miller did not even tell other members of man- agement (including his brother, his nephew, and his son- in-law) about Boire's alleged December 1981 death threat until September 1983 at the earliest , and that Boire was rehired in a supervisory position in December 1984.41 I note, moreover, that Respondent rehired Ortega as a meatcutter even though he had threatened a supervisor. As to Cefalo, the record shows that he was by Respondent's admission a good meatcutter, that he did not in fact engage in the only activity (refusing to remove unboned carcasses from the line ) which accord- ing to Joel Miller was the only reason Cefalo was not recalled immediately, that he was not in fact ' selective about what cuts to bone, that his alleged excessive talk- ativeness was-not the subject of any reproof to him or any discussion at the management meeting about whom to recall, that he had, never been reproved for failure to work overtime, and that 5 days after the execution of the memorandum bargaining agreement , Respondent rehired a meatcutter who had been suspended for excessive ab- senteeism and tardiness. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(1) and (3) of the Act by refusing to rehire employees Boire and Cefalo because they testified for the Union at the arbitration hearing and by refusing to rehire Cefalo for- the additional reason that he had been an active union steward. 40 See NLRB v Transportation Management Corp., 462 U.S. 393 (1983); NLRB v Horizon Air Services, 761 F 2d 22 (1st Cir 1985). 41 I need not and do` not determine whether, in the underlying labor relations context, Boire's threat to punch Miller in the mouth was so fla- grant that Respondent could rely thereon as a legally sufficient defense to its refusal to rehire him. Cf Southwestern Bell, 260 NLRB at 240, Wo- metco Coca-Cola Bottling Co, 255 NLRB 431, 446-447 (1981 ). I note that Schwartz' September 1983 explanation to Boire for Respondent 's decision not to take him back did not refer to any aspect of his December 1981 steward activity. UNITED BEEF CO Finally, I find that Respondent violated Section 8(a)(1) of the Act by telling Boire that he would not be rehired because he had testified for the Union at the arbitration hearing and by telling Cefalo that Respondent would not rehire employees who had testified at the arbitration hearing or who were strong union men . Hutchens Truck- ing Co., 268 NLRB 509, 512 (1984), enfd. 749 F.2d 32 (4th Cir. 1984). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act by telling employee Boire that he would not be rehired because he had testified for the Union in an arbitration proceeding, and by telling employee Cefalo that Re- spondent would not rehire employees who had testified for the Union in the arbitration proceeding or who were strong union men. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by refusing to rehire Boire and Cefalo. 5. The unfair labor practices specified in Conclusions of Law 3 and 4 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be required to cease and desist therefrom and from like or related conduct. The General Counsel does not seek an instatement order with respect to Boire, or Cefalo; seeks backpay with respect to Boire until 15 December 1984 only, the date on which Respondent rehired him as a supervisor;42 and seeks backpay with respect to Cefalo until 8 April 1985 only, the first day of the hearing. Rehired Building 14 meatcutters began to work for Respondent on 22 Sep- tember 1983; Supervisor Schwartz (seconded, in effect, by Joel and Benjamin Miller) stated at the management meeting on 14 or 15 September 1983 that Boire should be rehired immediately; Joel Miller cited conduct which Cefalo did not really engage in as the only reason he was not on the preferred list; and, in any event, by 26 Sep- tember 1983 Respondent was hiring any available quali•• fled meatcutter. Accordingly„ backpay as to Cefalo and Boire will begin to run on 22 September 1983. Respond- ent will be required to make Boire whole for any loss of earnings between 22 September 1983 and 15 December 1984, and to make Cefalo whole for any loss of earnings between 22 September 1983 and 8 April 1985, which they may have suffered by reason of the discrimination against them, in the manner prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977).4 }2 I need not and do not determine whether such action would render an instatement order inappropriate if requested. 13 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 1029 In addition, Respondent will be required to post appro- priate notices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed44 ORDER The Respondent, United Beef Co., Inc., Boston, Mas- sachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that Respondent will not rehire employees who testified on behalf of United Food & Commercial Workers Union, Local No. 592, AFL-CIO, or any other labor organization, at an arbitration hearing, or who are strong union men. (b) Refusing to rehire any employee, or otherwise dis- criminating with respect to the hire or tenure of employ- ment or any term or condition of employment of any employee, to discourage membership in Local 592 or any other labor organization. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Frank Boire and Fidalgiso Cefalo whole for any loss of pay they may have suffered by reason of the discrimination against them in conformity with the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Boston, Massachusetts facility copies of the attached notice marked "Appendix."45 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 44 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 45 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions , the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended , and has or- dered us to post this notice. WE WILL NOT tell you that we will not rehire employ- ees because they have testified on behalf of United Food & Commercial Workers Union, Local No. 592, AFL- CIO, or any, other union, at an arbitration hearing; or be- cause they are strong union men. WE WILL NOT refuse to hire ' any employee, or other- wise discriminate with respect to the hire or tenure of employment or any term or condition of employment of any employee, to discourage membership in Local No. 592 or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the Act. WE WILL make Frank Boise and Fidalgiso (Gino) Cefalo whole, with interest , for any loss of pay they may have suffered by reason of the discrimination against them. Boire and Cefalo do not wish to return to our employ. UNITED BEEF CO., INC.