F & R Meat Co., Inc.

F & R MEAT CO. F & R Meat Co., Inc. and United Food and Com- mercial Workers, Local No. 7. Cases 27-CA- 9651 and 27-CA-9902 September 26, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On April 6, 1988, Administrative Law Judge Earldean V .S. Robbins issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in response 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. The Respondent filed a motion to reopen the record to introduce evidence of employee turnover occurring subsequent to the hearing. In its motion, the Respondent asserts that of the 11 employees in the unit at the time of the commission of the unfair labor practices only 3 employees remain. We deny the motion to reopen the record because such evi- dence is irrelevant under existing Board law con- cerning factors governing the issuance of Gissel bargaining orders. Highland Plastics, 256 NLRB 146, 147 (1981). Further, even if, contrary to Board law, we were to consider employee turnover and passage of time, the particular evidence proffered here would not require a different result . See Sec- tion 102.48(d) of the Board's Rules and Regula- tions. Even assuming the truth of the facts presented in the Respondent's motion, the unlawful conduct continues to exert a chilling effect on employee choice. One of the three employees currently in the unit is discriminatee Melendez, whom the Respond- ent unlawfully terminated. Further, although the Respondent claims that discriminatee Griego re- ceived a valid offer of reinstatement , it has not pre- sented any evidence to support that assertion. In light of the small size of the unit, the presence of these discriminatees creates the potential that the effects of the unfair labor practices linger, thereby I The judge, in her conclusions of law , found that the Union represent- ed a majority of the employees on April 6, 1986 , and that since April 7, 1986, the Respondent violated Sec . 8(a)(5) for refusing to recognize and bargain with the Union However , the Union first achieved a card major- ity on April 8 Accordingly, we find that the Respondent unlawfully failed to recognize and bargain with the Union beginning on April 8, 1986 759 precluding holding a fair election. See Koons Ford of Annapolis, 282 NLRB 506 (1986), enfd. 833 F.2d 310 (4th Cir. 1988). Moreover, the motion fails to allege changes in ownership, management, or su- pervision at the Respondent's plant. The continued presence of the perpetrators of the unlawful acts could still exert a coercive effect over the unit em- ployees. Finally, there is no evidence that the changes in the composition of the unit are not a direct result of the unlawful conduct. See Bridgeway Oldsmobile, 281 NLRB 1246 (1986). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, F & R Meat Co., Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Michael W. Breeskin, Esq., for the General Counsel. Robert G. Good, Esq., of Englewood, Colorado, for the Respondent. Ernest L. Duran Jr. Esq., of Wheat Ridge, Colorado, for the Charging Party. DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This case was heard before me in Denver, Colo- rado, on October 6, 7, and 8, 1987. The charge in Case 27-CA-9651 was filed by United Food & Commercial Workers, Local No. 7 (the Union), and served on F & R Meat Co., Inc. (Respondent), on April 25, 1986. The complaint, which issued on June 11, 1986, alleges that Respondent has violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). An amendment to complaint, which issued on November 5, 1986, alleges that Respondent has violated Section 8(a)(1), (3), and (5) of the Act. An amended charge in Case 27-CA-9651 was filed by the Union on November 12, 1986, and served on Respondent on November 12 and December 18, 1986. The charge in Case 27-CA-9902 was filed by the Union on November 18, 1986, and served on Re- spondent on November 19 and December 18, 1986. An amended consolidated complaint issued on December 18, 1986, an amendment to consolidated complaint issued on September 21, 1987, and a second amendment to consoli- dated complaint issued on September 29, 1987. As amended, the amended consolidated complaint alleges that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. The principal issues herein are: (1) Whether Respondent unlawfully threatened to close its facility and threatened employees with dis- charge and other reprisals if they supported the Union. 296 NLRB No. 95 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (2) Whether Respondent promised and/or granted cer- tain benefits to employees to induce them to abandon their support of the Union. (3) Whether Respondent imposed more onerous work- ing conditions on employees because of their support for the Union. (4) Whether Respondent reduced the work hours of Danny Apodaca because of his union or other protected concerted activities. (5) Whether Respondent laid off, and refused to recall, Thomas Griego because of his union or other protected concerted activities. (6) Whether Respondent terminated Dennis Melendez because of his union or other protected concerted activi- ties. (7) Whether the Union attained majority status in the unit appropriate herein. (8) Whether Respondent's conduct warrants the issu- ance of a bargaining order. On the entire record herein, including my observation of the demeanor of the witnesses, and after due consider- ation of the posthearing briefs filed by the parties, I issue the following FINDINGS OF FACT I. JURISDICTION At all times material herein Respondent, a corporation with an office and place of business in Denver, Colorado (the facility), has been engaged in the processing of meat products. In the course and conduct of the business oper- ations, Respondent annually purchases and receives goods, materials, and services valued in excess of $50,000, directly from points and places outside the State of Colorado. The complaint alleges, Respondent admits, and I find that Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. If. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Operations Respondent is engaged in the wholesale selling of meat. It purchases beef quarters from various suppliers which are delivered to its facility by truck , unloaded by a subcontractor, and placed in a holding cooler. Fore- man Ernest Wright, an admitted supervisor, then breaks the quarters in half to produce rounds and loins from the hindquarter, and chucks and wings from the front quar- ter. The semiquarters are hooked on rails and rolled to the boning tables where Garland (Burt) Gibson, who worked for Respondent in 1986 as a laborer," loads the I At the time of the hearing herein, Garland was a working foreman. semiquarters onto four 40-feet long boning tables. Two boners are stationed at a table, and after boning the semi- quarters, they throw the meat into a container, called a "combo bin," which holds about 2000 pounds. When the combo bin is full, it is moved to a floor scale . After this meat is weighed and covered, it is loaded onto trucks for shipment to Respondent 's customers. Boneless beef pieces are placed in a stainless steel tub which holds about 1000 pounds. Some of this meat is ground and formed into ground beef patties. When Gibson is not loading the boning tables, he runs the grinder and the patty machine. Two other employees, Nina McCready and Marsha Yacovetta, package ground beef into 10-pound bags and boneless beef into 70-pound boxes. Gibson and truckdriver Gerald Brunetti also help with the bagging and boxing. All production employees, including the truckdriver, are under Wright's supervi- sion. Wright reports to Respondent's vice president, Richard (Rick) Elliott, the son of Respondent's sole stockholder, Frank Elliott. Frank Elliott is also the father of Yacovetta and of Sharon Weingart, the office clerical employee. B. Changes in Terms and Conditions of Employment Made Prior to the Union Activity and the Alleged Response of Employees Thereto It is undisputed that on Friday, March 28, Wright in- formed Respondent's employees that effective April 1, 1986,2 Respondent would cease paying health insurance premiums for dependents of employees and that any em- ployee desiring coverage for family members could ar- range to have payment for the additional premium de- ducted from their paychecks.3 Richard Elliott (Elliott) testified that, in response to this announcement, on Monday afternoon, March 31, the boners began a slowdown which continued that entire week. According to him, during that week, he spent a majority of his day on the boning floor and production slowed to about one-half the normal output.4 During this week, he heard some of the boners expressing their dis- pleasure, particularly Tom Griego, who kept saying, "I can't tolerate this, I ain't going to tolerate this and we can't do this." Elliott further testified that although all of the boners except leadman Glen Williams were slowing down Clark, Griego, and Sada were more obvious than the others because more beef was piling up in front of them on the tables. Wright corroborates Elliott in this regard . According to Wright, shortly after the reduction in insurance bene- fits was announced, he observed decreased production on the part of all the boners with the exception of Wil- liams, the most noticeable being Griego and Clark. They failed to respond to his requests to pick up production, and after the reduction in wages was announced, he ob- 8 All dates herein will be in 1986 unles otherwise indicated a A written notice to this effect is dated March 27. * Elliott testified that Respondent and most packers expect beef boners to bone one beef per hour; but during the week of March 31 that ended Friday, April 4, the average production in Respondent 's facility was half a beef an hour. There is other testimony that Respondent requires boners to bone one-and-a -quarter beef per hour F & R MEAT CO. served Sada and sometimes Apodaca working even slower than they had the previous week . Other employ- ees did not slow down any further after they were noti- fied of the wage reduction. Wright denies that he or anyone threatened them. Ac- cording to him, Elliott spent a lot of time in the boning room during the period of the slowdown and on occa- sion yelled at Wright in the presence of employees. Once or twice he yelled at Wright, in the presence of employ- ees, that the employees had to get production up. On an- other occasion, in the presence of employees , he yelled if they could not get the production up Wright could fire them. He also said , until he was making money, he would have to take the coffee out of the lunchroom; that Wright should keep the employees on the floor working, with fewer breaks; that employees could not converse at the worktable unless they increased their production; and that Wright should remove the radio. Wright thinks Elliott said something about earphones, but he does not recall exactly what it was. He admits El- liott may have said something about a plant shutdown during this week, but he is not sure . Nor is he sure whether, during this week, Elliott said, "Who in the fuck do they think they are messing with? They better not fuck with me." He thinks he did , but he is uncertain. El- liott did say during this week, "He would not stand for this god damn shit." Apodaca, Clark, Griego, and Sada all testified they did not engage in a slowdown and did not observe other em- ployees doing so. Griego denies stating, "I can't tolerate this." Griego also denies that any of the boners made re- marks in an attempt to aggravate Elliott . According to him, he had no reason to be upset about the reduction in health benefits because his wife had full health insurance coverage through her job. Further , during a conversa- tion in February with Elliott regarding Respondent's fi- nancial problems, he offered to let Respondent drop his health insurance coverage. Clark also testified that the reduction in health insurance coverage did not affect him because he has no family requiring insurance coverage. However, employee Dennis Melendez testified his pro- duction did slow down after he learned of the reduction in wages and he observed other boners slowing down and taking more restroom breaks . He further testified that during the period of the slowdown he saw beef ribs piled high in front of Clark and Griego. Norman testified the production of some of the employees slowed down after the announcement of the reduction in insurance benefits. According to him, they were especially slow about 2 days after they were told about the reduction in insurance benefits and continued until they decided to contact the Union. Similarly, Gibson testified he also ob- served the slowdown. According to him, he knows when production slows because he has to load the boning tables less often. Based on the corroboration from Norman and Gibson, I find that some of the boners did slow down their pro- duction somewhat during the week following the de- crease in health benefits . However, I do not credit Elliott that production was decreased by one-half . Such a signif- icant decrease could have been easily verified by Re- spondent's records. Yet, no such records were intro- 761 duced. Furthermore, if half of the beef from that week had not been boned, then, contrary to Respondent's con- tentions, Respondent would have had sufficient beef to support production for at least the first 2 or 3 days of the week of April 7 even if they received no additional de- liveries. Similarly, in view of my credibility findings below and since neither Clark nor Griego was personally impacted by the reduction in health benefits , I do not credit Elliott and Wright that Clark and Griego were the most flagrant participants in the slowdown. It is also undisputed that on April 4 Respondent an- nounced a $1-an-hour reduction in pay for the boners. Employee Thomas Griego testified that on April 4, be- tween 11 :30 and noon in the lunchroom, Elliott told him and employees Gibson, Dennis Melendez, and Jose Sada that all of the boners would receive a $ 1-an-hour cut in wages and if they did not like it they could find work elsewhere.5 Later that day, according to Griego, Wright told him Wright would also have to take a $ 1-an-hour cut in wages. Wright testified that on Friday, April 4, he met with the employees and asked if they would take a $1-an-hour rollback. He said Respondent was losing money and if they did not do something Respondent could not survive much longer. Griego asked what the alternative was. Wright said the Company was losing money and if they did not make money they would have to shut the plant down. 6 Griego further testified that at the end of the shift he spoke with Sada, Melendez, and employee Marion Clark in the parking lot. They decided that in view of their 30- hour workweek they could not afford to work for a re- duced wage rate of $8 .50 an hour. So around 2 p.m., they returned to the plant and talked to Wright. Accord- ing to Griego, he told Wright he could not work for $8.50 an hour with only 30 hours a week. After Wright made a telephone call, he told them they would be paid $9.50 an hour for the following week and then Respond- ent would close the plant . According to Clark, at this point, he said, "Well, if they are going to shut it down, we may as well go to the unemployment office." He later testified that it was after he mentioned something about going to the unemployment office that Wright made the telephone call, returned , and said they would pay $9.50 an hour for the following week and then the plant would be closed. Marion Clark testified, without contradiction, that on the evening of Saturday, April 5, Richard Elliott tele- phoned him and said he did not know what Wright had told the employees the previous day but, if they did not want to work for $8.50 an hour on Monday morning, there would probably be someone there to take their place. S Melendez corroborates this testimony 6 According to Wright , he was not instructed by Richard Elliott to make this latter statement. 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. The Union Activity and Elliott's Statements in Response Thereto On Sunday, April 6, Clark discussed with the other employees the possibility of obtaining union representa- tion. He then contacted Al Gollas, packing house direc- tor for the Union, and later that day Gollas met with several employees at Clark's home . Present were Clark, Ken Norman, Sada, Griego, and Danny Apodaca. During the course of this meeting , all five of the employ- ees present signed a petition which states: "We the em- ployees of F & R Meat Co. choose UFCW Local 7 to be our representatives [sic] for the purpose of collective bar- gaining." They also agreed to be identified to Respond- ent as union organizers. At some point during this meet- ing, there was some discussion of returning to work the following week, and Gollas advised them to do so. According to the undenied testimony of Clark, which I credit, on Sunday evening he telephoned Wright, told him he had spoken to the other boners and they had all agreed to return to work on Monday morning for $8.50 an hour. Wright said, "Okay, I'll see you then." Clark further testified that when he reported to work on Monday morning, April 7, he approached Elliott and asked if Elliott wanted him to go to work. Elliott re- plied, "Yes, if you want to go in there and go to work for $8.50 an hour." Clark said, "Okay." Elliott said, "Well, go to work." Griego testified that on April 7, prior to the beginning of the shift, Elliott spoke to each of the boners individually. When he spoke to Griego, he asked if Griego would work for $8.50 an hour. Griego said yes. Elliott said good. Gollas testified that shortly after noon on Monday, April 7, he and Union Representatives Ron Bush and Stanislow Kania went to Respondent's facility and asked to speak to the person in charge . They were told Fore- man Ernie Wright was there. Shortly thereafter, Wright came out and introduced himself. According to Gollas, he told Wright the Union represented a majority of the employees,' and wanted to bargain for a contract. He further stated that a neutral party could be selected to check the cards or check the petition. He then gave Wright his business card, a representation petition filed with the Board that day, and a "known organizer" letter identifying the five employees as organizers. Wright said he would give the information to the owners but made no reply either to the request to bargain or the offer for a card check. Wright testified that Gollas introduced himself as president of the Union , handed him a letter, and asked him to give it to management. Wright said he would. According to him, he does not recall Gollas saying any- thing else. Gollas said nothing about either a majority or negotiating a contract. Bush and Kania testified in cor- roboration of Gollas' account of what was said during this conversation. Both of them testified they thought the letter Gollas handed Wright was one demanding recogni- tion and bargaining. Kania testified that in the normal course of his duties he is involved in organizing and it is 7 According to Gollas, prior to this, he had spoken to Richard Berre- lez, who indicated he was unable to attend the meeting but would sign a union authorization card. standard procedure, when the Union requests recogni- tion, to give the employer a letter claiming majority status and requesting recognition . According to him, it would be very unusual not to use such a letter. I credit Gollas as to what was said . In this regard, I note that the April 7 representation petition which was handed to Wright states a request for recognition was made on April 7. I also note that Gollas was accompa- nied by two other union representatives , a complement more likely in the anticipation of a need for witnesses to a request for recognition than merely to deliver a known organizer letter. I also note that both Bush and Kania corroborated Gollas in this regard. Further, I do not credit Wright that Gollas introduced himself as president of the Union. Wright put the envelope from the Union on Elliott's desk, and so informed Elliott by telephone. Shortly thereafter, Elliott returned to the plant and read the doc- uments left by the Union. Griego testified that at about 12:45 p.m. a red-faced Elliott burst through the door, holding a piece of paper in his hand , and screamed, "There's no way I am letting the fucking union in this plant."e He then went into the beef-holding cooler, so Griego could not hear what was said . Norman testified that Elliott yelled he would "shut the fucking door before he would let a union in"; and told Wright if they could not keep up to fire them and that he would take away the radio and coffeepot. Norman also testified that on April 8 he heard Elliott say he did not want to let a union in and he would close the doors before he would let a union in. Clark testified that at about 12:45 p .m., Elliott came into the cooler, yelled at Wright that they had told him not to say anything to the employees, that he never did talk to them. He further said he was not "going to stand this god damn shit" and he wanted "no more talking on the table, no more radio playing, and no more coffee."9 Clark also testified that on April 8 he heard Elliott tell Wright and employee Burt Gibson that he was not going to allow any union in the plant; he would shut it down before he would let them come in. Apodaca testified that at about 12:30 p.m. in the cooler that day he heard Elliott, in a loud voice, tell Wright he did not want anyone to wear earphones anymore, he did not want anyone talking, and if they did not keep up, he would fire them. Elliott said, "Who in the fuck do they think they are messing with, they'd better not be fucking with me." He also said he was not going to have the union in there at all. 10 Melendez testified he heard Elliott say, "The guys are trying to get a union in." He further said he did not want a union in there. According to Melendez, he could not hear anything else because of the noise." 8 When questioned as to why his prehearing affidavit does not contain this statement, Griego testified that at the time he gave the statement he was only asked what Elliott said when he went into the cooler 9 In Clark's prehearing affidavit he stated Elliott yelled. "I won't stand for this god damn shit"; and said other things that Clark could not hear. 10 Apodaca's prehearing affidavit is in essential agreement with his tes- timony i i Since the boning tables are approximately 40 feet long , some of the employees are stationed closer to the cooler than others Melendez testi- fied that the cooler is 3 or 4 feet to the left of him. F & R MEAT CO. Sada testified he heard Elliott yelling, "Ernie, they told me not to tell them a fucking thing . Ernie, I don't tell them a fucking thing." He further testified that El- liott said other things which he cannot remember word for word. When instructed to relate what was said as nearly as he could recall, Sada testified that Elliott said they were not going to have coffee anymore, there would be no more headphones, no more breaks, and no more radios played during company time. Elliott also said, "Who the hell do they think they are fucking with." They do not know who they are messing with.' 2 Wright admits that a red-faced Elliott came into the boning room with the letter from the Union in his hand and said something about a "god damn fucking union," he would close the place down, and "they think they want a fucking union in here, I'll shut it down." Accord- ing to Wright, he doubts that employees on the boning table could hear this latter statement but admits they may have. Elliott testified he became angry when he received the union letter, went into the boning room, and started yell- ing for Wright. When Wright came over, Elliott said, "These god damn guys want a fucking union in this plant." Wright said, "Rick, you better slow down" and sent Elliott out the door to his office. He admits that, before he left, he told Wright if there was a union coming in they would not be able to operate and that he said it loud enough for everyone to hear. He further admits saying there would not be any union in the plant. However, he denies saying he would close the doors of the plant before he would let the Union come in . He also denies saying anything else about the Union or making threats. Elliott denies making certain statements on April 7. According to him, he did not say that if the employees could not keep up, Wright should fire them, or that he would not "stand for this god damn shit ." According to him, he made those statements on April 4. He testified that he said there would be no more headphones or radios on April 3 or 4, not on April 7. He further denies saying on April 7, "Who in the fuck do they think they are messing with. They better not fuck with me." Ac- cording to him, he said that to Ernie Wright on April 3 and told him the slowdown had to stop. He admits he made these statements loud enough for employees to hear. He further testified that he removed the coffeepot on April 4. Norman and Sada testified that prior to April 8 free coffee was available to employees; however, when they were recalled after their April 7 layoff the coffeepot was gone and the radio owned by Elliott had been removed. Melendez testified the coffeepot was removed the week ending April 4; and that during the slowdown, before the advent of the Union, Elliott ceased providing free 12 Sada's preheanng affidavit states, "Ernie , they told me not to tell them fucking thing, and Ernie , I don't even tell them a fucking thing' He said other things, but I didn't hear exactly what he said " Sada testified that the other statements are not in his affidavit because he thought exact quotes were required He admits that he did not hear exactly some things, but he did hear the substance I found Sada to be an honest, reli- able witness who was endeavoring to tell the truth , and I credit him in this regard. 763 coffee, said they could not listen to the radio, and they were going to the bathroom too often . He denies that during the period of the slowdown either Wright or El- liott threatened to close the plant. The basic dispute as to what Elliott said on April 7 is whether statements were made on that date regarding firing employees, headphones, radios, not "stand [ing] for this god damn shit" and "they better not fuck with me." Elliott admits he made all of those statements but con- tends they were made during the week of March 31, not on April 7. I credit Melendez as to statements made by Elliott only to the extent his testimony is consistent with his prehearing affidavit or corroborated by other evi- dence. In this regard , I note that his account of the timing of certain statements by Elliott is inconsistent with his prehearing affidavit given within less than 2 weeks after the events ; and the inherent incredibility of his contention that certain statements regarding the Union were made before the advent of the Union. I credit the other employee witnesses as to both the timing and the substance of these statements . Because of the position of their work stations, all of them did not hear everything said . However, every statement is cor- roborated by at least one other witness . Further, Wright admits that Elliott said he would close the plant before he would let the Union in. Elliott denies saying he would close the plant but admits he said Respondent would not be able to operate if a union came in and also said there would not be any union in the plant . Assuming, ar- guendo, that he did use these words, an employee would reasonably understand him to mean that Respondent's operations would close down if a union came in. Fur- ther, I found that Elliott was inclined to a more colorful turn of phrase than that in his version. In the circumstances, I find that the mutually corrobo- rative testimony of Griego, Norman, Apodaca, Clark, and Sada is the most reliable . I further find that a com- posite of their testimony more accurately reflects what occurred. I also credit Norman and Clark that on April 8 Elliott said he would close the plant before he would let a union in. I further credit Norman and Sada that the coffeepot had not been removed prior to their April 7 layoff, but was gone when they returned to work on April 8 and 14, respectively. D. Wright's Statement with Regard to Norman's Wage Increase Employee Ken Norman, a boner, testified that on April 4 toward the end of the shift he heard Elliott ask Wright if Norman was "involved with them other guys." 13 Wright said no. Later that day, Wright told Norman he had gotten him a $1-an-hour wage increase from $7.50 to $8.50 an hour. On April 7 Norman asked Wright if he was getting $8.50 an hour . Wright said Norman would not get the raise because of the labor dispute . 14 Norman said either 13 Norman understood him to be referring to the boners' reaction to the reduction in insurance benefits. 14 Wright admits making this statement. 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he got paid what the other boners were paid, or he would quit. Wright then talked to Elliott and Elliott said Norman should be paid $8.50 an hour until things changed. E. The April 7 and 8 Layoffs Griego, Clark, Norman, and Sada testified, without contradiction, that on April 7 Wright laid them off before the end of the shift, allegedly for lack of work. However, according to Clark, there was meat in the cooler; and Norman testified there was enough work for the entire day. According to Griego, as he was leaving Respondent's facility on April 7, he heard Richard El- liott tell Frank Elliott that a boner named Ken was in town looking for work and they should hire him. Frank Elliott said that would be a good idea. Griego and Sada testified Wright told them to call him to find out if there would be work on April 9. On the morning of April 8, according to Clark, Wright telephoned him to report to work that day, which he did. On that same day, accord- ing to Norman, Wright called him to return to work.15 Sada was recalled on April 14. However, Griego was never recalled. Frank and Richard Elliott testified they canceled their meat orders because they thought the boners had walked off the job. Therefore, on April 7, there was very little work. Sharon Weingart, Gibson, and Wright testified that on April 4 all of the boners except Williams and Norman took their tools's when they left the plant." According to them, this is unusual as only Marion Clark takes his tools home at night. Apodaca testified he took his tools home to sharpen them but left his boots.' 8 Griego, Norman, Clark, and Sada testified that only Clark left with his tools. Weingart further testified that on Friday evening, April 4, she spoke to Griego at the bowling alley. She asked how the meeting at work went that day. Griego said Wright had told the boners they would have to take a $1-an-hour cut in wages; that they were quite upset over it and had decided to walk. Weingart said, "Now Tom you know this is temporary. Frank and I had a meeting with the officers at the bank. They told us we had to make some cuts. We either make cuts here now or we would eventually have to close the business down because we would not show any profits. We could not meet the expenses we had." Griego replied, "Well, I'm walking." Later that evening, Weingart repeated this conversation to Frank Elliott. Griego admits he had a 15 Although Norman testified as to incidents which occurred at work that day, he also gave testimony regarding his inability to return to work because of a nonwork-related injury he had sustained which could possi- bly be interpreted as having occurred that week However, upon a con- sideration of the entire record, I conclude that Norman 's inability to work because of an injury occurred in May, not April. Respondent's pay- roll records indicate that he worked 39 hours during the week ending April 11, 29 hours during the week ending April 18, and 23 hours during the week ending April 25 He last appeared on Respondent's payroll the week ending May 2 16 Only Weingart testified that Norman did not leave with his tools. 17 Melendez initially testified in agreement, but on cross -examination testified that he saw only Sada and Clark leave with tools and that this could have been on April 7. 16 Apodaca used the boots when he did cleaning after the other boners left work. conversation with Weingart at the bowling alley regard- ing the pay cut during which Weingart explained the reasons for, and the temporary nature of, the pay cut. However, he denies saying anything regarding leaving Respondent's employ. Elliott testified that, at about 2:15 or 2:30 that after- noon, Wright called him and said they had a problem; that everyone was going to quit and had taken their tools and left the plant. Elliott returned to the plant and asked Wright what he thought was going on. Wright said he was sure the boners had all quit. He said they had told him they were leaving, they could not work with the re- duced wages. Elliott then called Frank Elliott and told him "all the guys had walked off the job" and they should do something about the beef coming in. Frank El- liott told him to make some phone calls and try to cancel the beef orders. According to Elliott, he did attempt to cancel the beef orders, and he was sure he canceled one load. However, he had difficulty obtaining cancellation for the other loads, so he turned that task over to Frank Elliott. Frank Elliott testified that beef is generally ordered on Wednesday and Thursday for delivery the following week. After he was told the boners had walked off the job, he contacted Respondent's suppliers and was able to cancel all but one of the orders.' 9 According to him, he made some calls on Friday, but most of the calls to sup- pliers were made on Monday. That evening, he went to the bowling alley and asked Weingart to find out from Griego the status of the boners and what their feelings were. She told him Griego had told her they were going to walk, that they were not going to return to work. Frank Elliott also testified that they were surprised when the boners reported to work on Monday morning. Richard Elliott testified that on Monday morning he told the boners he was surprised they were there and asked if they were agreeing to work for the $8.50 an hour. They all replied yes and went to work. Frank Elliott testified that Respondent bones three to four full loads of beef a week. A normal load has from 43 to 50 carcasses, weighs 40,000 to 45,000 pounds, and costs approximately $40,000. Each boner is capable of boning one-and-a-quar- ter to one-and-a-half carcasses an hour, and five boners would bone approximately seven head of cattle an hour.20 Deliveries were scheduled for Monday, Wednes- day, and Thursday, April 7, 9, and 10; and since all but one of these deliveries were canceled, layoffs became necessary. Respondent's records show that a full load of beef was received on April 7; another on April 9; and one on April 14. According to Frank Elliott, when the boners showed up for work on Monday, April 7, it was unan- ticipated and consequently they had very little work for anyone to do. Further, they were still afraid to place orders, because they did not know what the situation might be. Therefore, they mainly tried to bone the meat already on hand. Respondent has no written confirma- 19 Frank Elliott testified that he canceled three orders for the week of April 7 20 According to Griego, Respondent requires that the boners bone one-and-a-quarter head an hour F & R MEAT CO. tion or notation of the cancellations or of the conversa- tions with suppliers. Griego testified that on April 7 he saw meat being unloaded from a truck when he arrived at work. He further testified that at the end of the day the meat cooler was full. F. The Alleged Offer of a Wage Increase to Melendez and Alleged Unlawful Statements Made by Elliott to Melendez Melendez testified that on April 8 Elliott asked him to stay and help him clean the coolers because he needed to get the meat out of the coolers. Melendez said he could not do so because he had been injured and was going to the doctor. Elliott said if Melendez would help him out he would pay him $9.50 an hour. Melendez further testi- fied that Elliott said, "I don't know why Tom [Griego] would go to the Union. I've got him working here, and he can't do the quota as it is, and I'm just doing him a favor. I don't know why Tom would go to the Union." According to Melendez' prehearing affidavit, as he was leaving the plant on April 8 Elliott again confronted him and said anyone backing the Union would not work for him. Elliott further said Griego would no longer work for him, and he would hire a whole new crew if necessary. At the hearing, Melendez testified he was not denying that those statements were made but was testify- ing they were not made at that time. He does remember Elliott telling Griego he was going to let him go and he was not going to work there again but, according to him, that was the previous week when raises were re- duced. a 1 Elliott admits that on April 8 he offered Melendez an additional dollar an hour if he would stay and finish boning what was in the cooler. According to him, he did so because it was all overtime, and Melendez would have to do both boner's work and laborer's work. That is, he would have to load the table, replace the beef in the cooler when he finished boning, and clean up after he finished. However, Melendez did not agree to stay. G. The Removal of Apodaca's Cleanup Work Apodaca testified, without contradiction, that prior to the advent of the Union he worked 2-1/2 hours a week cleaning up after production was over at $8.50 an hour. He further testified, again without contradiction, that this work was taken away from him on Tuesday, April 15. 21 The General Counsel argues that Melendez' testimony that these statements were made prior to the union activity is tantamount to a refus- al to acknowledge the truth of the statement in his affidavit, and there- fore that statement is admissible as substantive evidence I agree that in the circumstances , herein, Melendez' testimony as to the timing of these statements by Elliott is a refusal to acknowledge the truth of the state- ment in his prehearing affidavit; and that portion of his affidavit is re- ceived into evidence as substantive evidence . Alvin J Bart & Co, 236 NLRB 242, 243 (1978), enfd. denied on other grounds 598 F.2d 1267 (2d Cir. 1979); U S Y. Thompson, 708 F.2d 1294 (8th Cir. 1983) It is immate- rial that the affidavit was given to the Union. See Michigan Products, 236 NLRB 1143, 1145-1146 (1978). 765 H. The Promise to Restore Wages and Health Benefits to Their Pre-March 28 Level and the Subsequent Restoration of Health Insurance Benefits Frank Elliott admits that on or about July 16 he told employees if Respondent's financial condition continued to improve they would return the boners' wages to $9.50 an hour, would restore health insurance benefits for de- pendents to employees, and might pay employees a bonus. He also admitted that, on that date, health insur- ance benefits for employees were restored to the pre- March 28 level. Apodaca, Clark, and Brown testified in essential corroboration of this testimony. Apodaca and Brown testified they received the restored benefits about a month later. 1. The Refusal to Recall Griego Griego worked for Respondent as a beef boner from July 1984 until he was laid off on April 7. At the time of his layoff, Wright instructed him to call on April 8, 9, and 10 to find out if there was work available. Griego did call on those days and also on Monday, April 14. Each time he was told there was no work available for him. On April 14, Wright also told him that Wright would call him when he was needed for work. Thereaf- ter, on April 18, Griego and Melendez were the only employees to testify at the representation hearing. Griego has not been recalled to work even though two new employees were hired as boners. Ed Brown was hired in April for 2 days and then, beginning in May, he worked full time until February or March 1987. Ron Allen was hired in December. On April 21, Griego was informed by letter that he was laid off effective April 21 because of lack of work. The letter which was signed by Frank Elliott also thanked Griego for his "high quality performance of work." Wright and Elliott admit that after the layoff Elliott told Wright the last employee to be recalled should be Griego. Wright testified that following the layoff Rick Elliott instructed him as to the order in which boners should be recalled to work. Elliott said Griego was to be the last one recalled and gave as a reason, "friction." He further said Griego was the slowest boner they had. El- liott testified he instructed Wright that if anyone was re- called from that layoff to make sure Griego was the last one. According to him, the reason for these instructions was because, during the week of the slowdown, Griego was "the worst and the leader of the whole darn thing that started the slowdown that week because of the dis- crepancy about his benefits." According to Wright, at a conference attended by him, Elliott, and Weingart, it was agreed to recall Griego. Thereafter, he tried to reach Griego at least three times, and perhaps four, by telephoning his home on April 18, May 21, and one or two other times on dates he can only recall as being after April 18. Howev- er, no one ever answered the telephone so he quit trying. He reported his lack of success to both Elliott and Wein- gart. Frank Elliott testified he gave instructions for Griego to be recalled and thereafter it was reported to him that unsuccessful attempts were made to reach Griego on April 18 and May 21. Further, according to 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him, he personally tried twice in April and May, unsuc- cessfully, to reach Griego by telephone . He also testified that, at some point, he received a request from the sher- iffs department in Orange County, California, for a ref- erence on Griego.22 Griego testified that he has lived at the same address since November 1983 and has had the same telephone number since September 1979. He further testified that prior to the advent of the Union Griego and Elliott had become friendly on a personal basis ; they attended sever- al football games together, he and his wife had been in- vited in 1985 to a Christmas party at Elliott's home, as was Gibson, Melendez, and Wright. Also, according to Griego, he, Elliott, and Williams went to a bar together approximately twice a week, and Griego bowled with Weingart and Yacovetta on a weekly basis from Septem- ber 1985 until June. Yet, neither Weingart nor Yacovetta ever told him Respondent was attempting to recall him. J. Melendez' Termination Melendez was never told directly that he was termi- nated. However, at the April 18 representation hearing, Elliott testified he had hired Brown as a permanent em- ployee to replace Melendez and that Melendez' termina- tion was effective on April 15 when he received notice that Melendez could not report to work for a month be- cause of an injury. According to him , when he received this notice, he decided to terminate Melendez because he had to have someone immediately. On April 29, according to Melendez , he met with Frank Elliott at Frank Elliott 's request. Frank Elliott asked why Melendez was doing what he was doing and why he did not want to work for Respondent anymore. Melendez said Frank Elliott was not normally around so he did not know what was going on. Frank Elliott asked what happened at the plant, what was going on over there, why was everyone mad at them , why was every- one going to walk off the job , and why was this happen- ing? Thereafter, Melendez received a handwritten letter, dated May 6 and signed by Frank Elliott, which stated, "Dennis, I plan on putting you to work, at least part time very soon, possibly May 8, 1986." On June 28 Me- lendez signed a statement stating, "I quit working at F&R Meat Co., Inc., of my own accord." Frank Elliott asked him to have the statement notarized, which he did. Melendez was rehired by Respondent about 5 weeks prior to the hearing herein. K. Conclusions as to the Alleged Threats On April 7 Union Representative Gollas requested rec- ognition and delivered to Wright a "known organizer" letter and a copy of the representation petition filed that day by the Union. Immediately after learning of this visit and reading the letter and petition , an angry red-faced Elliott responded by yelling to Wright, in the presence of employees, various threats against employees. Elliott and/or Wright admit that Elliott said, "The god damn guys want a fucking union in this plant ." "Who the hell do they think they are fucking with. They do not know 22 Griego testified he never left the State who they are messing with"; "They think they want a fucking union in here I'll shut it down "; and there would not be any union in the plant. Employee witnesses credi- bly testified that Elliott also said , "There's no way I am letting the fucking union in this plant" ; that he would "shut the fucking door before he would let a union in"; that he was not "going to stand this god damn shit"; and he wanted "no more talking on the table, no more head- phones, no more coffee, no more breaks and no more radio playing on company time"; and if the employees could not keep up, Wright should fire them. I find that the purported direction of his remarks to Wright was a ploy and that his statements were, in fact, directed to the employees. I further find that these statements clearly constitute threats of reprisal because of the employees' union activities. Accordingly, I find that by the above statements Respondent has violated Section 8(a)(1) of the Act. Further, based on the credited testimony of Norman and Clark, I find that Respondent violated Section 8(a)(1) of the Act by Elliott's April 8 statements that he was not going to allow any union in the plant; he would shut it down before he would let them come in; that he did not want to let a union in and he would close the doors before he would let a union in. Respondent also violated Section 8(a)(1) of the Act by telling Melendez that anyone backing the Union would not work for him; Tom Griego would no longer work for him, and he would hire a whole new crew if necessary. I also find that Respondent violated Section 8(a)(1) of the Act by Wright's statement to Norman that he would not receive a promised $1-an-hour wage increase because of the "labor dispute." L. Conclusions as to Promises, Offers, and Grants of Increased Benefits It is undisputed that on April 8 Elliott asked Melendez to stay after the end of the work shift and help him clean the cooler, because he needed to get the meat out of the cooler. It is further undisputed that he offered to pay Melendez an extra dollar an hour for that work. The General Counsel argues that Elliott's alleged concern re- garding the beef in the cooler was a pretext and his real motivation was to persuade Melendez to withhold his support from the Union . Elliott contends that the extra pay was offered because Melendez would be working overtime and in addition to performing boner's work he would have to do the laborer's work of loading the table, returning the beef to the cooler, and cleaning up after he finished. I am not persuaded that this offer of an additional $1 an hour on a one-time basis for a few hours overtime work involving additional responsibilities was an attempt to persuade Melendez to abandon his support for the Union. The maximum of $5 or $6 involved could not reasonable be assumed to be much of an inducement to abandon union activity which Elliott must have realized was prompted by the $ 1-an-hour reduction in wage rate and the elimination of health insurance coverage for de- pendents. Rather, I conclude that Respondent was in a bind because of the precipitous layoff of employees on F & R MEAT CO. 767 April 7 and, following Melendez' initial refusal to stay, attempted to induce him to change his mind by the offer of an extra $ 1 an hour. I further find that because it was overtime work, which involved a combination of job functions, Respondent was not offering an increase in the wage rate paid to boners . In all of the circumstances, I find that by offering Melendez $9.50 an hour to perform certain work after the end of his regular shift on April 8 Respondent did not violate Section 8(a)(1) of the Act. The July 16 promise and grant of benefits Frank Elliott admits he told employees if Respondent's financial condition continued to improve the boners' wages would be restored to $9.50 an hour, health insur- ance coverage for dependents would be .restored, and the employees might receive a bonus. It is well established that the promise or grant of a benefit during a union campaign raises an inference that such promise or grant was designed to induce employees to withhold their support from the Union . NLRB v. Ex- change Parts Co., 375 U.S. 405 ( 1964). Here, the inference is particularly strong since the promise of benefit was to restore the benefits, in which reduction prompted the union activity. In the absence of evidence to rebut the inference, I find that Respondent violated Section 8(a)(1) of the Act by promising to restore wages and health ben- efits to their previous level and by promising that it might give employees a bonus . I further find that Re- spondent violated Section 8(a)(1) of the Act by restoring health insurance coverage for dependents. M. Conclusions as to the Alleged Violations of Section 8(a)(3) of the Act 1. The refusal to permit Apodaca to perform cleanup work Respondent does not dispute, or offer any explanation for, refusing to allow Apodaca to continue to perform cleanup work previously performed by him, thereby re- ducing his hours of employment . In view of Apodaca being identified to Respondent as an employee union or- ganizer, and the threats of reprisal made by Elliott only 8 days previous, I find that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to allow Apodaca to continue to perform cleanup work. 3. Melendez' termination To support the complaint allegations that Melendez' discharge was motivated by his union activities, the Gen- eral Counsel has the initial burden of making a prima facie showing sufficient to support an inference that Me- lendez' union activities was a motivating factor in the de- cision to discharge him. Once this is established, the burden shifts to Respondent to demonstrate that Melen- dez would have been discharged even in the absence of any union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert . denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Here, Respondent learned of its employees' union ac- tivities on April 7 and on that same date Melendez and Berrelez told Elliott they supported the Union. Elliott's immediate response to the union activity included threats to close the plant before he would let the Union in and to discharge anyone who supported the Union. He also laid off most of the boners before the end of the work- day on April 7. Melendez and Griego testified at the rep- resentation hearing . There, for the first time, Melendez learned of his termination when Elliott testified that Me- lendez was terminated on April 15 allegedly because of an injury which made him unavailable for work for a month. According to Elliott, he needed someone imme- diately so he hired Brown as a permanent replacement for Melendez. However, the evidence does not support this contention. Brown testified that he first worked for Respondent for only 2 days in April and then, in May, he was hired full time. Respondent's payroll records show that he worked 8 hours during the week ending April 11; 7-1/2 hours during the week ending April 25; 8 hours during the week ending May 23; and continued to work full time thereafter. Thus Brown was not employed full time until after the expiration of the month Melendez required to recuperate from his illness . This belies El- liott's contention of an immediate need to replace Melen- dez. In these circumstances, I find that the General Counsel has made a prima facie showing that Melendez' union ac- tivities was a motivating factor in his termination. I fur- ther find that Respondent has failed to demonstrate that Melendez would have been discharged even absent his union activities . Accordingly, I find that by terminating Melendez, Respondent has violated Section 8(a)(3) and (1) of the Act. 2. The removal of the coffeepot Respondent does not dispute that the coffeepot was re- moved thereby depriving employees of the free coffee they had previously enjoyed. Since I have credited Norman and Sada that the coffeepot had not been re- moved prior to their April 7 layoff and that it had been removed when they returned to work on April 8 and 14, respectively, and since removal of the coffeepot was one of the threats of reprisals made by Elliott on April 7 in response to the employees' union activity, I find that Re- spondent thereby violated Section 8(a)(1) and (3) of the Act. 4. The layoff and refusal to recall Griego On April 7, around 12:30 or 1 p.m., Elliott learned of the employees' union activities and received a copy of the NLRB representation petition filed by the Union and a letter from the Union identifying five employees as union organizers. All five of the employees listed were boners. Later that day, two other boners, Melendez and Berrelez, told Elliott they supported the Union. Immedi- ately upon learning of the union activity, Elliott threat- ened to close the plant before he would let a union in, to fire any employee who could not keep up, and to take away benefits such as free coffee and permission to listen to a radio during work hours. At about 1:15 p.m., an 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hour before the end of the shift, production was halted and the boners were told there was no more work for them that day or for the following day. Yet, on April 8, several of the boners were recalled, and again, Elliott made threats to close the plant before he would let a union in. He also told Melendez that anyone backing the Union would not work for him; Tom Griego would not work for him and he would hire a whole new crew if necessary. Griego was never recalled , even though two new boners were hired. Respondent argues that there was no work for the boners because they had walked off the job on April 4 prompting Respondent to cancel orders for beef deliv- eries the following week. Again, the evidence does not support Respondent's position. Thus, even assuming, ar- guendo, that on Friday, April 4, Respondent had reason to conclude the boners would not report to work on Monday, April 7; on Sunday, April 6, Clark informed Elliott the boners were willing to work at the reduced wage rate and would all report for work on Monday. On Monday, Elliott questioned the boners individually as to their willingness to work at the reduced wage rate. They assured him they were. Thus, almost all of the cancella- tions-which with one exception, occurred on or after Monday, April 7-occurred after their return to work. Further, a load of beef was delivered on April 7 and at the time of this layoff, the cooler was full of meat. In these circumstances , Respondent's argument regard- ing lack of work is not convincing, nor is Respondent's argument that the reason Griego was slated to be the last boner recalled was his slowdown the previous week. As set forth above, I found Elliott's and Wright' s account of a slowdown to be rather exaggerated and conclude that to the extent there was any slowdown, it was not signifi- cant enough to have reasonably influenced such a deci- sion. I also note that, despite Respondent's assertions of unsuccessful attempts to contact Griego, Griego was present at the April 18 representation hearing and bowled with Weingart and Yacovetta twice a week. Yet, the desire to have him return to work was not communi- cated to him on those occasions. Based on the above, I find that the General Counsel has made out a prima facie case that Griego's union ac- tivities was a motivating factor in his layoff and the fail- ure to recall him. I further find that Respondent has failed to establish that Griego would have been laid off and not recalled even in the absence of such union ac- tivities. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act by the layoff of, and the subsequent failure to recall, Griego. N. The Unit 1. The status of cleanup personnel The complaint alleges the appropriate unit as: All production employees, including truckdrivers, employed by Respondent at its Denver, Colorado facility, but excluding office clerical employees, clean up employees, meat peddlers, salesmen, buyers, guards, temporary employees, casual em- ployees, all other employees, and supervisors as de- fined in the Act. Respondent agrees with this description , with one excep- tion . Respondent contends that cleanup employees should not be excluded from the unit . Respondent's pay- roll records show only one cleanup employee, Norman Sage. However, it is undisputed that from the beginning of Sage's employ, the actual cleanup work has been done by both Sage and his wife, Kathy Sage. During the rep- resentation hearing,23 Elliott testified that cleanup per- sonnel work approximately 5 hours daily on the same days worked by the boners and baggers. However, their workday begins after the workday of the boners and baggers ends. If the boners work overtime, cleanup is de- layed . Wright tells them when they can commence their workday. The cleanup personnel clean the plant, to meet U.S. Department of Agriculture specifications, before the production employees begin their workshift the follow- ing day. They receive the same insurance and vacation benefits as the boners, boxers, and baggers and, accord- ing to Elliott, worked under Wright's supervision. How- ever, Wright is only in the plant for an hour after the production employees leave. Although the Sages work approximately 5 hours a day, the actual hours worked depends upon how long it takes to finish the cleanup procedure. They are generally alone in the plant when they do their work. No one actually supervises them at work. They just work until all of the cleaning has been done. They are paid $260 a week. Weingart testified that when the Sages first started working for Respondent, they requested, for tax pur- poses, that they be issued only one check. According to Weingart, they work 5 hours a day, 25 hours a week, and each makes $5.20 per hour for a total of $10.40 hourly. If they miss a day's work, they are docked for that day's pay. Only Norman Sage is covered as an em- ployee under Respondent's health insurance plan. Kathy Sage is covered as his dependent . However, Respondent pays for the dependent's coverage. According to Wein- gart, this is because she is considered an employee enti- tled to health insurance coverage. Social security, Feder- al, and state withholding taxes are deducted only for Norman Sage. Nothing appears on Respondent's records to indicate that Kathy Sage is an employee receiving wages from the Company. Norman Sage also owns Col- orado Beef Luggers, a company under contract to Re- spondent to unload beef delivered to Respondent's plant. Weingart testified that the checks for Colorado Beef Luggers are not made out to the company but rather are made out to Norman Sage , individually, and that it is her understanding that Norman runs Colorado Beef Luggers. Rick Elliott testified that the Sages' hours vary, but Weingart denies this. When questioned as to why they work the exact same number of hours and minutes each week, she testified, "They do the same thing everyday. They know exactly the amount of time it's going to take them to do it." And, that's what they get paid for. She further testified that the condition of the plant should be 23 The transcript of the representation hearing is part of the record herein. F & R MEAT CO. the same everyday so their work would be exactly the same each day. The Sages ' hours for cleanup work are not recorded even though the hours worked by all other employees are recorded . Weingart explained that this is because they have worked there for so long their hours do not vary; whereas the hours of all other employees vary from week to week. The only variance in the Sages' hours is if they do not work a day . Weingart testi- fied that the Sages report to Wright the time they begin work and how long they work. Further, according to Weingart, Respondent would know if the Sages were "goofing off and not putting in their full time" because Yacovetta lives in a house, owned by Frank Elliott, lo- cated on company premises directly behind the plant where the Sages park their car; and the car is there for 5 hours every workday. Melendez testified that several years ago he did the cleanup work for a time after the cleanup man quit. Ac- cording to him, every part of all machinery that has been used, the boning line and the floor has to be washed so that everything is completely clean without any meat or fat being left on the floor , tables, or in the machinery. He further testified that he was not paid an hourly rate for the cleanup work . Rather, he was paid a set amount under an arrangement made with Elliott . There was no discussion regarding hours ; Elliott just told him he would be paid a certain amount-around $125 or $130 a week-to do the cleanup work regardless of the number of hours he worked. He did cleanup work for probably the last 6 or 7 months of his first term of employment with Respondent, which ended roughly 3 years prior to the representation hearing. Melendez further testified that the condition of the plant varied from day to day. Some days the grinder and patty machines were used. Other days, those machines were not used so they would not have to be cleaned. Also, at times, meat is left in tubs or gondolas, covered and placed in the freezer until the next day; and at other times, all of the gondolas are empty and have to be washed. His wife also helped him. Their hours varied. If they had a good day and everything went right, they could get done in 3-1/2 to 4 hours . On the other hand, there were times when he stayed until 1 a.m. because he had to clean up with cold water. According to him, the time it took to do cleanup varied from 16 to 50 hours a week. According to Melendez, the Sages perform the same job currently. The General Counsel argues that the Sages are inde- pendent contractors and should be excluded from the unit. It is well established that in determining the status of persons alleged to be independent contractors, the common law right-of-control test is used . This test has been stated by the Board in News Syndicate Co., 164 NLRB 422 (1967), as follows: Where the one for whom the services are per- formed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment ; while, on the other hand , where control is reserved only as to the result sought, the relationship is that of an inde- pendent contractor. The resolution of this question 769 depends on the facts of each case, and no one factor is determinative. Here the Sages performed their work, without supervi- sion, while alone in the plant. Nothing in the record, other than the bare assertion of Elliott, establishes that they receive any kind of supervision . Rather, they cleaned the plant according to specifications of, and to pass inspection by, the U.S. Department of Agriculture. In Air Transit, Inc., 271 NLRB 1108, the Board relied upon the court's decision in Seafarers Local 777 (Yellow Cab) v. NLRB, 603 F.2d 862, 872-873 (D.C. Cir. 1978), in which the court refined the meaning of "right of con- trol," in a case involving the independent contractor status of taxicab drivers who leased their vehicles for a flat fee. There the court stated: Although this test essentially requires an "all of the circumstances" approach and no one factor is deter- minative . . . the extent of the actual supervision exercised by a putative employer over the "means and manner" of the worker's performance is the most important element to be considered in deter- mining whether or not one is dealing with inde- pendent contractors or employees. The court, as summarized by the Board in Air Transit, supra at 1110, "identified the two dispositive elements as, first, the company's lack of control over the manner and means by which the drivers conducted business after leaving the garage and, second, the lack of any relation- ship between the company's compensation and the amount of fares collected." The court rejected the argu- ment that Goverment-imposed regulations constitute company control over the "means and manner" of a worker's performance. Here the only indications of an employer-employee re- lationship are the employment benefits given to Norman Sage and the payroll deductions of social security and Federal and state withholding for Norman Sage. Kathy Sage receives no benefits except those received because of her status as the wife of Norman and does not appear on Respondent's payroll. There is no evidence that Re- spondent has retained the right to control the actual manner and means by which the Sages perform their services except for the requirement that they be per- formed in compliance with Government-imposed regula- tions. Such a requirement does not constitute company control. Air Transit, supra; Don Bass Trucking, 275 NLRB 1172, 1174 (1985); Precision Bulk Transport, 279 NLRB 437 (1986). Further, there is an absence of any re- lationship between the Sages' compensation and the number of hours required in the performance of their services . In these circumstances, I find that the Sages are independent contractors who should be excluded from the unit. 2. The unit status of Yacovetta The parties agree as to the unit description in all other respects. However, there is some dispute as to whether specific employees should be excluded from the unit. Thus, Respondent would include Yacovetta, and the 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD General Counsel would exclude her. It is undisputed that she works as a combination boxer/bagger. However, she is the daughter of Frank Elliott, the sole shareholder of Respondent. Section 2(3) of the Act provides, "The term 'employ- ee' . . . shall not include . . . any individual employed by his parent or spouse .. .." It is well established that when the employer is a corporation, the Board has limit- ed the Section 2(3) exclusion to children or spouses of a shareholder having a 50-percent or more ownership in- terest in a closely held corporation . 24 Cerni Motor Sales, 201 NLRB 918 (1973); Scandia, 167 NLRB 623 (1969); Campbell-Harris, 263 NLRB 1143 (1982), enfd. 719 F.2d 292 (8th Cir. 1983); Central Broadcast Co., 280 NLRB 501 at 512 (1986); see also NLRB v. Action Automotive, 469 U.S. 490 at fn. 7 (1985). Accordingly, since Yaco- vetta is the daughter of sole shareholder Frank Elliott, she is not a statutory employee and should be excluded from the unit.25 3. Martin Persichitti In its brief, Respondent alleges that Martin Persichitti should be included in the unit . However, there was no mention of him either in the representation hearing or in the hearing herein. At one point during the representa- tion hearing, Richard Elliott was specifically asked if there were any employees other than those already men- tioned . In response Elliott named only one other employ- ee, Ed Brown. After the close of the hearing herein, the record was reopened for the limited purpose of receiving the affidavit of Martin Persichitti dated January 20, 1988. In that affidavit Persichitti stated that he worked for Re- spondent from approximately the second week of Febru- ary 1986 to approximately the second week of April 1986. During this period he worked solely as a salesman and performed no production work. The Order to Show Cause why the record should not be reopened to receive Persichitti's affidavit required that any opposition be sup- ported by sworn affidavits. However, Respondent's op- position was not so supported and made no allegation that Persichitti's affidavit was inaccurate in any respect. In these circumstances, I conclude that it is appropriate to reopen the record to receive Persichitti's affidavit into evidence.26 Accordingly, based on the sworn statement of Persichitti, I find that as a salesman he should be ex- cluded from the unit. 4. Glen Williams Respondent would include Glen Williams in the unit. The General Counsel would exclude him as a supervisor. Elliott testified that Williams is the lead boner who sets the pace for other boners. He reports for work an hour before the other boners to set up their equipment. He also leaves an hour later. He tells the employees when to go on, and return from, break. However, there is a set 24 It is not necessary here to reach the Board doctrine of exclusion based on special status 2 The cases cited by Respondent are inapposite in that they apply to children or spouses of individuals who have less than 50 -percent owner- ship in the employer 26 Persichitti's affidavit is received into evidence as G.C Exh 33 time for breaks. There is no evidence that Williams makes the predetermination of this time . He also relays to the boners instructions from Wright or Elliott that a break is to be delayed . According to the undisputed testi- mony of Elliott, Williams has no authority to hire or fire. He does receive $ 1 an hour more than the other boners. If the boners are not maintaining the proper pace, he will tell them to pick up the pace. There is no evidence that he reprimands boners, nor is there any evidence that he has the authority to effectively recommend the hire, fire, or discipline of employees. Elliott testified that Williams keeps a record of em- ployees' hours in Wright's absence and that it is "his privilege to write the hours down, even if Wright is there." However, he is not required to do so when Wright is present. Griego testified during the representa- tion hearing that Wright keeps track of employees' hours, that at the end of the day he goes into the lunch- room and records in handwriting the hours worked. Griego also testified that aside from telling employees when they need to pick the pace up, he does not give any instructions to boners. Williams works at the boning table during the entire shift. According to Griego, Wright is around the boning area 3 to 4 hours a day. In all of the circumstances, I conclude that any instructions given by Williams to the other boners is of a routine nature not requiring independent judgment . Accordingly, I find that he is not a supervisor within the meaning of Section 2(11) of the Act and that he should be included in the bargaining unit. 5. David Shelton During the representation hearing, Richard Elliott tes- tified that David Shelton is a part-time truckdriver em- ployed on a call-in basis. Respondent, in its posthearing brief does not contend that Shelton should be included in the unit. According to Elliott, Shelton had not worked for Respondent for at least 1 month before the represen- tation hearing. He admits Frank Elliott wanted to make some cuts so Respondent has tried to use only the regu- lar employees. He denied that Shelton was laid off per- manently, and testified he would be recalled if business got better. According to him, he told Shelton if they could get in some work, he would definitely call him. When asked if he had any expectation at this time that Shelton would be recalled in the near future, he an- swered, "None." Respondent's payroll records show that Shelton did not work for Respondent in 1986. It is well settled that a laid-off employee is entitled to vote in a representation election if the employee has a reasonable expectancy of recall in the near future. How- ever, absence any employer's past experience or future plans, where an employee is given no estimate as to the duration of the layoff or any specific indication as to when, if at all, he will be recalled there is no reasonable expectancy. Vague statements by the employer as to the "chance" or "possibility" of the employee being rehired do not provide an adequate basis for concluding that the employee had a rea- F & R MEAT CO. sonable expectancy of reemployment . [Foam Fabri- cators of Minnesota , 273 NLRB 511 at 512 (1984).] In the circumstances herein , I find that Shelton had no reasonable expectancy of recall in the near future and, therefore, should be excluded from the unit. 6. Wright, Elliott, and Weingart The parties stipulated that Wright and Richard Elliott are supervisors and should be excluded from the unit. They also stipulated that Weingart is an office clerical employee who should be excluded from the unit. 7. Ed Brown It is unclear from Respondent's records when Ed Brown was first employed by Respondent . He testified he does not recall the exact date he first worked for Re- spondent; however, he worked for them the first time for 2 days. Respondent's records show he worked 8 hours during the week ending April 11; 7-1/2 hours during the week ending April 25; and 8 hours during the week ending May 23 . Thereafter he worked full time until February or March 1987 when he was laid off. Accord- ing to his testimony, it was when he began work in May that he was given a steady job . Further, Elliott testified that Brown was hired as a permanent employee to re- place Melendez and that he was hired on the date of the representation hearing, April 18. Thus, Elliott appears to be conceding that any previous work done by him was as a casual employee. Further, Respondent's records in- dicate that Brown did not work that week, only worked 1 day the following week, and did not work again until the week ending May 30 when according to Brown, he was hired full time. In these circumstances, I find that Brown's employment prior to May was as a casual em- ployee. I find that on April 7 the appropriate unit consisted of the following employees: Marion Clark Thomas Griego Danny Apodaca Jose Sada Kenneth Norman Dennis Melendez Richard Berrelez Nina McCready Gerald Brunetti Glen Williams Garland (Burt) Gibson On April 6, Clark, Norman, Griego, Sada, and Apodaca signed a document which stated they wished to be repre- sented by the Union. On that same day, Berrelez in- formed the union representative he was unable to attend the meeting but he also wished to be represented by the Union. On April 7 Al Gollas gave Clark blank union au- thorization cards. On April 8 union authorization cards were signed by Griego, Norman, Clark, Apodaca, Berre- 771 lez, and Sada. 27 Melendez signed a card on April 9. Ed Brown signed a union authorization card on June 28. Ac- cordingly, I find that the Union represented a majority of the employees in the appropriate unit as of April 6, and that this majority was memorialized by the signing of union authorization cards on April 8. 0. The Appropriateness of a Bargaining Order I have found above that the Union represented a ma- jority of Respondent's employees in the appropriate unit as of April 6 and had a card majority as of April 8. I further find that the Union's April 7 demand for recogni- tion was a continuing one and that in view of Respond- ent's swift, unlawful response to that demand further de- mands would be futile. J. P. Stevens & Co., 244 NLRB 407, 423 (1979); Area Disposal, 200 NLRB 350, 352 (1972). Further, the filing of the petition and its process- ing through a hearing is further indicia of a continuing demand. See Hardy-Herpolsheimer, 173 NLRB 1109, 1122 (1968). Thus, the issue herein is whether the Union is entitled to recognition based on a card count or whether Re- spondent may lawfully refuse such recognition until the Union establishes its majority in an election conducted by the Board pursuant to Section 9 of the Act. In NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969), the Su- preme Court approved the Board's use of bargaining orders as remedies in cases marked by substantial em- ployer misconduct which has the "tendency to under- mine the Union's majority strength and impede the elec- tion process" and which were of "such a nature that their coercive effects cannot be eliminated by the appli- cation of traditional remedies, with the result that a fair and reliable election cannot be held." I find that Respondent's misconduct meets the Gissel test. Respondent's violations were swift and severe. Threats of plant closure are among the type of unfair labor practices which destroy election conditions for a longer period of time than others. Gissel, supra, 395 U.S. at 611, fn. 31. Further, where as here, Respondent's un- lawful conduct came within 2 hours of the Union's demand, the swiftness of Respondent's response demon- strated that the penalty for union support would be severe. Coupled with the threats was the shutdown of production prior to the end of the workday and the in- forming of employees that no work was available the fol- lowing day. The failure to recall Griego and the dis- charge of Melendez indicated to employees that Elliott's threats were serious and that he would implement them if they continued to support the Union. This conduct, and the subsequent promise to restore the benefits which had prompted the union activity, had coercive effects which cannot be eliminated by the application of tradi- tional remedies. In view of the small size of the unit, the timing and seriousness of Respondent's violations, and the substan- tial percentage of unit employees directly affected by 27 Norman, Clark, and Sada dated their cards April 6 because they as- sumed that the card should bear the same date as the petition authorizing the union representation. 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's unlawful conduct, I find that Respondent's unfair labor practices would tend to undermine the Union's majority status and impede the election process and that "the possibility of erasing the effects of past practices and of insuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." Gissel, 395 U.S. at 614-615. Accord- ingly, I find that a bargaining order is warranted28 and that Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing since April 8 to recognize and bargain collectively with the Union as the exclusive collective-bargaining representative of its employees in the appropriate unit and by unilaterally, without notifica- tion to or consultation with the Union, granting health insurance benefits to unit employees by restoring these benefits to the level they were at on or before March 28, 1986. CONCLUSIONS OF LAW 1. Respondent, F & R Meat Co., Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food & Commercial Workers, Local No. 7, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production employees, including truckdrivers, employed by Respondent at its Denver, Colorado, facility, but excluding office clerical employees, clean up employees, meat peddlers, salesmen, buyers, guards, temporary employees, casual em- ployees, all other employees, and supervisors as de- fined in the Act. 4. Since April 6, 1986, the Union has represented a majority of the employees in the above -described appro- priate bargaining unit and has been the exclusive collec- tive-bargaining representative of said employees for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Since April 7, 1986, and continuing to date, the Union has requested , and is requesting, the Respondent to bargain collectively with it as the exclusive collective- bargaining representative of the employees in the above- described unit with respect to their rates of pay , wages, hours of employment, and other terms and conditions of employment. 6. Since April 7, 1986, Respondent has violated Sec- tion 8(a)(5) and (1) of the Act by failing and refusing to 28 In reaching this conclusion I have carefully considered , and reject, Respondent 's argument that a bargaining order is inappropriate because of an unreasonable lapse of time between the Union's attainment of ma- jority status and the issuance of a bargaining order The lasting effects of Respondent 's serious misconduct cannot easily be eradicated by the mere passage of time. "The passage of time, though regrettable, is unavoidable, and is not a sufficient basis for denying the bargaining order." Quality Aluminum Products, 278 NLRB 338 at 340 (1986) recognize and bargain collectively with the Union as the exclusive collective-bargaining representative of its em- ployees in the above-described unit. 7. By unilaterally, without notice to or consultation with the above-named Union, granting health insurance benefits to its employees, by restoring these benefits to the level they were at on or before March 28, 1986, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Respondent has discriminated against its employees because of their union activities and has thereby engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act by: (a) Laying off Thomas Griego on April 7, 1986, and thereafter failing and refusing to recall him. (b) Terminating Dennis Melendez on April 15, 1986. (c) Reducing on and after April 15, 1986, the hours of employment of Danny Apodaca by refusing to allow him to perform clean up work he had previously performed. (d) Ceasing on April 8, 1986, to provide free coffee to its employees. 9. Respondent has interfered with, restrained, and co- erced its employees in the exercise of their rights guaran- teed in Section 7 of the Act, and has thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by: (a) Threatening employees with plant closure if they continued to support or assist the Union. (b) Telling employees there would not be any union in Respondent's plant. (c) Threatening to discharge employees if they could not keep up their production. (d) Telling employees Respondent would not stand for their union activities. (e) Threatening employees with the removal of head- phones, radios, and free coffee because of their union ac- tivities. (f) Threatening employees with the elimination of un- scheduled restroom breaks and the prohibition of talking at their work stations during worktime because of their union activities. (g) Telling employees that anyone backing the Union would not work for Respondent, that a fellow employee would no longer work for Respondent because of his union activity, and that Respondent would hire an entire new crew if necessary. (h) Telling an employee he would not receive a previ- ously promised pay raise because of union activities. (i) Inducing employees to withdraw their support from the Union by promising employees that if Respondent's financial condition continued to improve Respondent would rescind the wage cut they had previously re- ceived, would restore health insurance coverage for de- pendents to its employees, and might pay employees a bonus. (j) Responding to employees' union activities by telling employees, "Who in the fuck do they think they are messing with, they. had better not fuck with me." 10. Respondent did not engage in unfair labor prac- tices, as alleged in the complaint, by offering an employ- ee $1 more per hour than was paid to other employees. F & R MEAT CO. 773 11. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY29 Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent has discharged Dennis Melendez and has laid off and failed and refused to recall Thomas Griego in violation of Section 8(a)(3) and (1) of the Act, I recommend that Respondent be ordered to offer Melendez, to the extent it has not already done so, and to offer Griego immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions , without preju- dice to their seniority or other benefits or privileges, and that each of them be made whole for any loss of earnings incurred as a result of the discrimination against him, with backpay to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1962), and New Horizons for the Retarded, 283 NLRB 1173 (1987). Since Danny Apodaca is no longer in Respond- ent's employ, I will not recommend that he be allowed to perform the cleanup work previously performed by him. As the unfair labor practices committed by Respond- ent were serious and go to the very heart of the Act, I shall recommend that it cease and desist therefrom and in any manner from interfering with, restraining, and coerc- ing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act.30 In view of Respondent's extensive and pervasive unfair labor practices which were calculated to destroy the Union's previously enjoyed majority status, and my con- clusion that the application of the traditional cease-and- desist order and authorization of a representation election will not eradicate the lingering effects of Respondent's unfair labor practices or deter their recurrence so that the holding of a free and uncoerced election is virtually impossible, I will recommend the issuance of an order re- quiring Respondent to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of the Respondent's employees in the appropriate unit.31 On the foregoing findings of fact, conclusions of law, and the entire record I issue the following recommend- ed32 29 1 find that the circumstances herein do not warrant a visitatorial clause remedy as requested by the General Counsel Cherokee Marine Terminal, 287 NLRB 1080 (1988) 20 Hichmott Foods, 242 NLRB 1357 (1979) 31 NLRB Y. G,ssel Packing Co, supra. 32 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. ORDER The Respondent, F & R Meat Co., Inc., Denver, Colo- rado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize United Food & Commercial Workers, Local No. 7, as the exclusive collective-bar- gaining representative of its employees in the appropriate unit set forth below: All production employees, including truckdrivers, employed by Respondent at its Denver, Colorado, facility, but excluding office clerical employees, clean up employees, meat peddlers, salesmen, buyers, guards, temporary employees , casual em- ployees, all other employees, and supervisors as de- fined in the Act. (b) Unilaterally granting health insurance benefits to its employees by restoring those benefits to their pre-March 28, 1986 level.33 (c) Terminating, laying off, or otherwise discriminating against employees because of their union activities. (d) Ceasing, or threatening to cease , to provide free coffee to its employees because of their union activities. (e) Reducing the hours of employment of employees because of their union activities by refusing to allow them to perform cleanup work they had previously per- formed. (f) Threatening employees with plant closure and/or discharge if they continued to support or assist the Union. (g) Telling employees there will not be any union in Respondent's plant and that Respondent will not stand for their union activities. (h) Threatening employees with the prohibition of use of headphones, playing of radios, unscheduled restroom breaks, and talking at their work stations during work- time because of their union activities. (i) Threatening employees with unidentified reprisals because of their union activities. (j) Telling employees that anyone backing the Union will not work for Respondent, that a fellow employee identified to Respondent as a union organizer will no longer work for Respondent and that Respondent will hire a whole new crew if necessary. (k) Telling employees they would not receive a previ- ously promised raise because of the union activities. (1) Inducing employees to withhold their support from the Union by promising them that if Respondent 's finan- cial condition continued to improve Respondent would rescind the wage cut they previously received, would re- store health insurance coverage for dependents to its em- ployees, and might pay employees a bonus. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 32 Nothing herein is to be interpreted as requiring Respondent to with- draw these increased benefits 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Recognize and, on request, bargain with United Food & Commercial Workers, Local No. 7, as the exclu- sive representative of the employees in the appropriate unit set forth above with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the under- standing in a written signed agreement. (b) Reinstitute the provision of free coffee for employ- ees. (c) Offer to Dennis Melendez, to the extent it has not already done so, and to Thomas Griego immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (d) Expunge from its files any reference to the April 7, 1986 layoff of Thomas Griego and the April 15 termina- tion of Dennis Melendez. (e) 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. (f) Post at its Denver, Colorado facility, copies of the attached notice marked, "Appendix."34 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive 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. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. a' 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT terminate or layoff our employees be- cause of their union activities. WE WILL NOT cease, or threaten to cease, providing free coffee to our employees because of their union ac- tivities. WE WILL NOT reduce the hours of employment of our employees because of their union activities by refusing to allow them to perform cleanup work they had previous- ly performed. WE WILL NOT threaten our employees with plant clo- sure if they continue to support or assist the Union. WE WILL NOT tell our employees there will not be any union in our plant. WE WILL NOT threaten our employees with discharge because of their union activities. WE WILL NOT tell our employees we will not stand for their union activities. WE WILL NOT threaten our employees with the prohi- bition of their use of headphones, playing of radios, un- scheduled restroom breaks, and talking at their work sta- tion during worktime because of their union activities. WE WILL NOT threaten our employees with unidenti- fied reprisals because of their union activities. WE WILL NOT tell our employees that anyone backing the Union will not work for us, that a fellow employee identified to us as a union organizer will no longer work for us and that we will hire an entire new crew if neces- sary. WE WILL NOT tell our employees they will not receive previously promised wage increases because of their union activities. WE WILL NOT induce our employees to withhold their support from the Union by promising them that if our fi- nancial condition continues to improve we will rescind the wage cut they previously received, restore health in- surance coverage for dependents to our employees, and that we might pay them a bonus. WE WILL NOT refuse to recognize or bargain with United Food & Commercial Workers, Local No. 7, as the exclusive representative of our employees in the unit described below. WE WILL NOT unilaterally increase health insurance benefits by restoring such benefits to their previous level. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL recognize and, on request, bargain with United Food & Commercial Workers, Local No. 7, as the exclusive representative of the employees in the unit described below respecting rates of pay, wages, hours, or other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement. The bargaining unit is: F & R MEAT CO 775 All production employees, including truckdrivers, employed by Respondent at its Denver, Colorado, facility, but excluding office clerical employees, clean up employees, meat peddlers, salesmen, buyers, guards, temporary employees, casual em- ployees, all other employees, and supervisors as de- fined in the Act. WE WILL offer to Dennis Melendez to the extent we have not already done so and to Thomas Griego immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make each of them whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have removed from our files any reference to his discharge or layoff and that the discharge or layoff will not be used against him in any way. WE WILL resume providing free coffee to our employ- ees. All our employees are free to become or remain, or refuse to become or remain, members of United Food & Commercial Workers, Local No. 7, or any other labor organization. F & R MEAT Co., INC.