Kahn's and Co., Division of Consolidated Food Co.

KAHN'S AND COMPANY, DIVISION OF CONSOLIDATED FOOD CO. Kahn's and Company, Division of Consolidated Food Co. and Reginald Akers. Case 9-CA-13752 October 10, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.I.O On June 10, 1980, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. We do not agree with the Administrative Law Judge's finding that the discharge itself stemmed from the unlawful interview and thus constitutes an independent violation of Section 8(a)(l) of the Act. I The Administrative Law Judge found that the collective-bargaining agreement between Respondent and the Union provided, inter alia, for a three-step grievance procedure culminating in final and binding aribtra- tion The Administrative Law Judge further found that the dispute over Akers' discharge was submitted to arbitration. The arbitrator's award. which was a part of the record in this case, found that Akers as dis- charged for cause; i.e., specifically for violating plant rules pertaining to length of breaks and negligently destroying company property Respondent requested that the Administrative Law Judge defer to the abritrator's award on grounds of Spielberg Manufacturing Company, 112 NLRB 1080 (1955) The Administrative Law Judge did not. hoswever. honor Respondent's request for a Spielberg deferral, inasmuch as the issue of whether Akers was discharged for engaging in protected activities was not considered by the arbitrator. Respondent has excepted to the Admin- istrative Law Judge's denial of its request to defer to the arbitrator's award We agree with the Administrative Lasw Judge's finding and we find that Respondent's exception lacks merit. See Suburban .otor Freight. Inc., 247 NLRB No 2 (1980), where the Board held [We] will no longer honor the results of an arbitration proceeding under Spielberg unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator.... W]e will give no deference to an arbitration award which bears no indication that the arbitrator ruled on the statutory issue of discrimination in determining the propriety of an employer's disciplinary actions. Our examination of the arbitrator's award shows that he did not con- sider the discrimination issue. We note, too, that, as Resplondent urges us to defer, Respondent also has the burden of affirmatively proving that de- ferral is warranted. Respondent has failed to offer any evidence that the issue of Akers' grievance filing was considered by the arbitrator. In light of Respondent's failure to meet its affirmative burden, we agree with the Administrative Law Judge's finding that deferral is not warranted For reasons set forth in Member Penello's dissenting opinion in Subur- ban Motor Freight, he would defer to the arbitration award at issue herein. Accordingly. Member Penello concurs only in the result reached by the Board in dismissing the complaint allegations that Respondent vio- lated Sec. 8(aXI) of the Act by discharging Akers for filing grievances 253 NLRB No. 4 The gravamen of the offense in cases where disci- pline is imposed absent the safeguards of N'L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), is the denial of an employee's right to representation during an interview where the employee reason- ably fears that discipline will be imposed, and not the discipline itself. As we indicated in our recent Decision in Illinois Bell Telephone Company, 251 NLRB No. 128 (1980), discipline imposed for con- duct which is the subject of a Weingarten interview does not itself constitute a separate violation of Section 8(a)(l) of the Act, unless the General Counsel shows that the employee was discharged for requesting the presence of his union representa- tive or for engaging in other protected activity un- related to the exercise of the employee's Weingar- ten rights. 2 Remedy We agree with the Administrative Law Judge, but for different reasons, that the appropriate remedy for Respondent's denial of Akers' Weingar- ten rights is a make-whole remedy of reinstatement and backpay. In Kraft Foods, Inc., 251 NLRB No. 6 (1980), which issued subsequent to the Adminis- trative Law Judge's Decision herein, we set forth the circumstances in which a make-whole remedy is warranted. As we said in that case, the General Counsel may make a prima facie showing that a make-whole remedy is appropriate by proving that an investigatory interview was conducted in viola- tion of Weingarten, and that the employee/inter- viewee was subsequently disciplined for conduct which was the subject of the interview. At that point the burden shifts to the respondent to negate the prima facie showing by demonstrating that the decision to discipline the employee was not based on information obtained at the unlawful interview. Applying that test to these facts, the evidence shows that the General Counsel has met his burden by showing that Respondent conducted an investi- gatory interview which violated the rule estab- lished in Weingarten, and that Akers was subse- quently disciplined as a result. Respondent has in turn failed to meet its burden, inasmuch as it did not show that the decision to discipline Akers was not based upon the tainted information derived fron the unlawful interview. Thus, in light of our Decision in Kraft, supra, we find that a make-whole remedy is appropriate, and will order that Akers be reinstated with backpay, and that any reference to 2 Member Penello, who did not participate in Illinis Bell. relies on that Dlcision only insofar as it held that the General Counsel failed Io demonstrate that the alleged discriminatee had been ischarged bheau t, f a request fr representaltion at the investigatory intersieSS 25 DECISIONS OF NATIO()NAL ABOI()R REILA'l'IO)NS BOARD) the disciplinary interview and subsequent discharge be expunged from his personnel records.:' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Kahn's and Company, Division of Consolidated Food Co., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph l(a): "(a) Requiring that employees participate in in- terviews or meetings without union representation where such representation has been refused by Re- spondent and where the employees have reasonable grounds to believe that the matters to be discussed may result in their being the subject of disciplinary action." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Delete from Reginald Akers' personnel re- cords any reference to the April 18, 1979, disciplin- ary interview and subsequent discharge." 3. Substitute the attached notice for that of the Administrative Law Judge. ' Membher Jenkins concurs ill tli result APPENDIX Norilcil To EMP.OYLIES POST'ID BY ORDER F01 rTH NATIONAL. LABOR RELA'IIONS BOARD An Agency of the United States Government WE' WItL Nor require any employee to take part in an interview or meeting where the em- ployee has reasonable grounds to believe that the matters to be discussed may result in his or her being the subject of disciplinary action and where we have refused to permit him or her to be represented at such meeting by a labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WtE wii. offer Reginald Akers immediate and full reinstatement to his former job or, if such job no longer exists, to substantially equivalent employment, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of our discharge of him, plus interest. Wil wii.l. delete from Reginald Akers' per- sonnel records any reference to the April 18, 1979, disciplinary interview and subsequent discharge. KAHN'S AND COMPANY, DIVISION OF CONSOI.II)ATI) FooD) Co. DECISION S I A I MtNI 01 liti CASIL AIMIRA AHHBBOT SVENSON, Administrative Law Judge: A hearing was conducted in this proceeding at Cincinnati, Ohio, November 30. 1979. The charge was served on the Respondent April 19, 1979. The complaint was issued May 31, 1979, and the Respondent duly filed an answer, and an amended answer, to the complaint. The issues are whether or not the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, on April 18, 1979, in that the Respondent's su- pervisor, Freddie Logan, threatened employees that re- peated filing of grievances could lead to discharge, denied the request of Charging Party Reginald Akers to he represented by the Union in an interview, which Akers had reasonable cause to believe would result in disciplinary action, interviewved Akers notwithstanding the denial of representation; and whether or not the Re- spondent violated Section 8(a)(1) and (3) of the Act on April 18, 1979, by discharging Akers as a result of the interview and/or his union activities.' Upon the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following: FINI)IN(;S 0 FAC I I. UNFAIR ABOR PRACriCtS A. Facts I. Introduction The Respondent operates a slaughterhouse in Cincin- nati, Ohio, where it employs about 1,000 people. The complaint alleges, the answer admits, and I find that the Noi issue is raised as to jurisdicion or labor organiation status Based 11i the allegations of the complainl and admissions of the answer. I find that Ihc Respondenl meets the jurisdicti onal standards of the National I. lhlor Relations Board and that l ocal 7 Amalgamated Meat Cutters and Butcher 'Workmen of North America AFt CIO. is a labor orga;;lantion vthit the meaning of the Act th Respondenit' request for deferral to the awa rd of an arbitrator findinig hat Akers as discharged for good cause tinder Spielhbeerg anru a¢wturig (;Conpany, 112 NI R B 1081i (I 55). is denied because Ihle issue iof wshclher or nol Akers' discharge resulted in wshole or in part from his unillio actii ties, i e , filing grievances, w as niot presented o ior considered by the ;arhitrator. Subhurhan Motor reih. Inc., 247 NRB No 2 (1979). 26 KAHN'S AND C()MI'ANY I)IVISI()N OF COSO().I)ATFD FOOD CO) following persons were its supervisors and agents at ma- terial times: William Maxwell senior vice president Lucien Royse vice president, plant operations John O'Connell personnel manager Freddie Logan superintendent The Respondent has had successive collective-bargain- ing agreements with Local 7, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, for more than 28 years. At material times the union offi- cers consisted of Ernest Grote, steward of the hog-floor department of around 70 employees; William Merritt, chief steward with an office provided for his use and spending full time on his union duties; Austin Rains, sec- retary-treasurer who is located off plant premises; and President and Business Representative Thomas Ranshaw who is also located off premises. The current collective- bargaining agreement contains a three-step grievance procedure culminating in final and binding arbitration. There is a posted rule, agreed to by the Union, setting a 7-minute time limit on personal breaks taken between regularly scheduled breaks. It is an establish practice of the Respondent to provide union representation upon re- quest in all disciplinary proceedings. Reginald Akers, a 25-year old man in good physical condition, was employed by the Respondent from Sep- tember 1971 until his termination on April 18, 1979. His regular job was neck boner and hind feet trimmer for which he was paid $8.10 an hour. Akers' immediate su- pervisor was Freddie Logan. Akers' personnel file shows that in 1974 he was given a verbal warning for unwillingness or failure to follow directions in performance of work and wasting time or loitering in toilets or on company property during work- ing hours. In 1975 he was given a week suspension, waived by the Company, for complete disregard of an order or instruction by a supervisor; neglect, wastage, and willful damage to, or destruction of, Company prop- erty; and unwillingness or failure to follow instructions. In 1977 he was required to appear before the contract absentee committee for excessive absenteeism and tardi- ness. On June 7, 1978, he was given two written warn- ings for absenteeism and tardiness and for failure to call in. On August 24, 1978, Vice President Royse placed a written memo in Akers' file concerning a verbal warning for inefficiency and lack of motivation in his work effort. During the first 11 days of April 1979 Akers was late on 4 days and absent 2 days. Akers testified he was aware of his right to union representation during disciplinary pro- ceedings and that he was accompanied by a steward in all the above-described proceedings. Akers testified he had been filing an average of one grievance a month. Union officials put this figure higher and Steward Grote testified that no employee filed griev- ances more often than Akers. Akers testified that some years ago his former foreman, Dave Barber (who is no longer employed by the Respondent), told him on two occasions that Akers was "messing him up" filing so many grievances, and that Barber once told Akers, about 2 years before Akers' discharge, that before Barber left the Respondent's employ "he's got to fire [Akers] and a few others that file grievances.'" On Monday, April 16, 1979, Akers injured his hand at work and on Tuesday, April 17, Akers filed a grievance over the amount he was paid for the day he was injured. 2. Events of April 18, 1979 When Akers reported for work for the day-shift that morning, he told Foreman Logan he was unable to per- form his regular duties because of his injured hand. Logan instructed Akers to go upstairs where employee Dale Meadows would instruct him on how to perform the gambrels-and-rollers job. Akers had performed this job for a short period about 3 years before and Meadows took a few minutes to show him what to do. The job is one of the easiest in the plant and is regularly assigned to Art Jones, an older employee who is semi-crippled with arthritis and moves about slowly. Gambrels are piled into a shute and rollers are hung on a rail. Gambrels and rollers descend by shute and rail to a floor below where two employees insert gambrels between the hind feet of hogs fed to them by conveyor belt, hook the gambrels to rollers on the overhead rail, and start the hogs down the line for further processing. Meadows told Akers he would not have to get relief if he took a personal break, that he was to relieve himself. Akers' testimony: Shortly before the 9:10 a.m., regular breaktime, Akers "stacked the [shute with gambrel] sticks all the way . . . back, as far as I could, and the rollers the same way' to allow himself enough time to visit the restroom and return before the men at the con- veyor belt below ran out of gambrels and rollers. He left his work station and went down the stairs to the res- troom. While he was in the restroom he heard the plant horn sound warning of trouble on the floor. He left the restroom and returned to his work station 5 minutes after he had left it. Upon arrival he found Foreman Logan putting rollers on the rail. Logan asked Akers where he had been, and told him hogs had fallen to the floor below. Akers explained he had been to the restroom and Logan told him to let Logan know the next time and he would send a relief man. After Akers had worked about another 5 minutes, Logan sent him to Personnel Manager John O'Connell. Charles Clay, whose work station is near the restoom, testified he observed Akers come down the stairs at 8:45 and spoke with him at 8:50 when he came out of the restroom on his way back upstairs and that Clay had looked at his watch each time. Foreman Logan testifies that he heard the warning horn sound and proceeded to the area where he saw a pile of 20 hogs on the floor where they had fallen from the end of the conveyor belt. He then went up to the gambrel-and-roller station and found there were no roll- ers on the rail and no one at Akers' work station. He began hanging rollers on the rail which he kept doing, with the help of another foreman, for about 5 minutes until Akers arrived. Logan sought out Union Steward Ernest Grote and told him to go and see what Akers had done. When Grote returned from looking at the pile of hogs Logan told him, "1 don't need an employee like 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that working for me" and sent word to Akers that he was to report to personnel. Management estimated Akers was away from his work station 15 to 17 minutes, as follows: The roller chain runs at a speed set to process 420 hogs an hour, or 7 hogs a minute; 2 the maximum number of rollers which could be backlogged by Akers was 63; so it would take 9 minutes to exhaust the supply of rollers. Add to that 3 minutes, which was about the time required for 20 hogs to fall from the conveyor belt at 7 a minute, plus the 5 minutes Logan performed Akers' tasks. Assessing this evidence, it seems there were few ways in which the interruption in production could have oc- curred. If Akers was absent from his station for only 5 minutes, as he and Clay insist, then he could have failed to fill the rail with rollers as he said he did; but no one suggests that this happened. Or the front roller could have stuck at a bend in the rail, which was below Akers' station and hidden from his sight, so that he did not real- ize that the rail was not adequately stocked at the time he departed, as the General Counsel suggests; but there is no evidence to support this theory. The only other possibility is the one worked out by the Respondent- that Akers was away from his station longer than the 9 minutes it takes for the men working below to use up an entire rail full of rollers, and probably was away as long as 17 minutes. Further supporting the likelihood that this is what happened is the evidence that Akers is a person with no concept of time and that Clay's estimates did not seem reliable. I therefore discredit Akers and Clay and find that Akers' absence from his work station for a period of approximately 17 minutes caused the 20 hogs to fall to the floor below and the consequent interruption in production. To resume the chronology, Akers testified that upon his arrival in the personnel office he told Personnel Man- ager O'Connell that he wanted his steward present if he had been sent there on company business3 and that O'Connell, without responding to this demand, told him to wait in the back room. Akers continued, with substan- tial corroboration by Union Steward Grote, that a few minutes later Akers overheard a conversation between O'Connell and Grote in which Grote asked O'Connell if Akers wanted a steward and O'Connell responded, "no," but he would call when a steward was needed. 4 Akers did not come out of the back room and challenge this statement by O'Connell. Based on the Respondent's failure, without explana- tion, to call Personnel Manager John O'Connell as a wit- ness, I infer that O'Connell would not have controverted this testimony by Akers and Grote if he had been 2 Running the chain at this speed, the Company achieves a production rate of only 375 hogs an hour because of rest periods and stops by gov- ernment inspectors. 3 Akers distinguished company business from personal business such as that involved when he had been sent to personnel on a previous occasion to discuss a parking ticket with traffic officers. 4 Vice President Royse, who was waiting in the personnel office for Logan so he could discuss the Akers incident with him, also heard O'Connell deny that Akers asked for the steward Royse did not, howev- er, mention in his testimony O'Connell's promise to call Grote when needed. called." I find that Akers told O'Connell he wanted his steward and that O'Connell told Steward Grote shortly thereafter that Akers had not requested him but he would be called when needed. I also find, based on Akers' uncontroverted testimony, that some time after that Akers again came out of the back room and, observ- ing Royse waiting, asked whether Akers was there "for the Company." Royse said, "yes," and Akers informed Royse that in that case he wanted his steward. Royse re- sponded, "When I get through with you, you can see anybody you want to." A few minutes later Logan reported the hog-falling in- cident to Vice President Royse in the personnel office and, after some discussion, they called Akers into a con- ference room where he was confronted by Royce, Logan, and O'Connell." According to Akers, he requested the presence of his steward twice during this interview, once at the very start, but the interview proceeded without the steward being provided, and ended with Royse's telling him "now, you can have your Steward because you are fired." As I have above discredited Akers' contradicted testimony as to the length of time he was away from his work station; as Royse flatly denied that Akers request- ed, or was denied, a steward during this interview; and as Logan's account of the interview coincided more closely with Royse's version than with Akers' version, I discredit Akers here and find that Akers failed to ask for union representation at the beginning of this interview. Based on an amalgamation of the testimony of the three witnesses present, I find that the following probably was said: Royse told Akers he wanted to talk to him to find out why the hogs fell on the floor, where Akers went, and what he did, but Akers did not have to talk about it if he did not wish to. Akers responded by asking, "Will this be held against me?" And Royse told him it would not if he had a reasonable excuse. Akers then said he had to go to the restroom. Royse asked how long he was gone and Akers said approximately 4 minutes. Royse said he could not accept that and at that point asked Akers whether he wanted union representation and Akers re- sponded he did. Royse testified that he knew at that point that Akers was not being truthful with him, saying he had been gone only 4 minutes, when Royse figured he had been gone 15 to 17 minutes, and he decided then to recom- mend discharge. About an hour and a half later, Steward Grote, Chief Steward Merritt, Business Representative Austin Rains, and President Thomas Ranshaw assembled and conferred with Akers. Thereafter the five of them met with O'Con- nell, Royse, and Logan. Only the General Counsel's wit- nesses testified to this meeting. The weight of this testi- mony establishes that Union President Ranshaw urged that Akers' offense was not serious enough to justify dis- charge, but management disagreed. Ranshaw then ac- cused management of violating Federal law by denying 5 aMrrrin Luther King. Sr. ANursing Center. 231 NLRB 15, fn (1977) 6 Although Logan and Royse did not refer, in their testimony, to O'Connell's presence at this interview, they did not deny Akers' testimo- ny that he was present, and I find therefore that he was. 28 KAHN'S AND CO()MP'ANY I)I\DIVISI()N ()F C()S()I I)ATDED FOODl) CO. Akers union representation. O'Connell replied that Akers did not need a union representative at the time Steward Grote asked if Akers had requested him. Royse said when Akers first requested representation, he was inves- tigating the incident which he had a right to do before calling the union steward. Business Representative Rains demanded a meeting with Senior Vice President William Maxwell. Shortly thereafter the group, all except ()'Connell, as- sembled again with Maxwell. Based on an amalgamation of the testimony of all witnesses, I find that Vice Presi- dent Maxwell reviewed Akers' disciplinary record as set forth above. The union representalives repeated their charge that Akers was denied union representation and argued that Akers was guilty only of "a misjudgment of time . . . and it was just a mistake" which was not seri- ous enough for discharge. After a recess, the group assembled again and Maxwell asked Logan what he recommended. Based o a comptos- ite of the testimony, I find that Logan responded that he did not want Akers, he was an unsatisfactory employee in several respects, and he filed too many grievances. Chief Steward Merritt promptly asked, "You mean to tell me your going to fire a guy for filing grievances'?" And Maxwell responded, "You know that's riot the reason." Maxwell testified he made the decision to discharge Akers based foremost on Logan's recommendation, and also on Akers' past disciplinary record. He said he would not have fired Akers if Logan had asked him not to, hut he vigorously denied that the filing of grievances played any part in his decision. Akers' termination slip, dated April 14, 1979, and signed by Maxwell, O'Connell, Royse, and Logan gives the following as reasons for the discharge: neglect, wast- age, and willful damage to or destruction of company property; unwillingness or failure to follow directions in performance of work; and prior discipline. B. Conclusions 1. It is clear, and I find, based on what happened on the floor that morning, that Akers had reasonable cause to believe, when Logan sent him to the personnel office, that any investigatory interview would result in disciplin- ary action, which he demonstrated by asking both O'Connell and Royse whether he was there "for the Company." I have also found that Akers requested the presence of his union steward at any interview from Per- sonnel Manager O'Connell and from Vice President Royse. It is further clear that Royse, nevertheless, with- out summoning the steward proceeded with what he himself termed an investigation of the incident by obtain- ing Akers' version, as a result of which he decided to recommend the discharge of Akers. Even though Akers did not repeat his request for representation at the begin- ning of the actual investigatory interview, and Royse did not directly refuse at that time to provide it, Akers had made the request of Royse before the interview began only to be told his request would be granted "when I get through with you." Akers was not required to repeat his request to Royse and his statements at the interview did not constitute a waiver. On the contrary, Royse was re- quired to either provide representation and conduct the interview or give Akers a choice of being interviewed without representation or not being intervie, ed at all, wvhich he failed to do. Accordingly I conclude that the Respondent violated Section 8(a)(1) of the Act by refusing employee Akers' request for representation by his union representative at an investigatory interview arid compelling Akers to appear unassisted at the interview. If Royse had decided as a result of the interview not to rcommenicd discharge it seems likely that there would have been nro discharge for the General Counsel to com- plain of. As Royse decided, however. on the discharge reconimmcnr dation that was the beginning of the end for Akers and, as the Supreme Court has said, it thereafter became "increasingly difficult for the employee to vindi- cate himself, and the value of representation [as] corre- spondingly diminished." 7 As the subsequent first meeting with the union representatives revealed, Akers would in fact have hecen at the end of the line had Business Repre- sentative Rains ot appealed Royse's decision to Max- well. That Akers had union representaltior at the time Maxwell made what turned out to be the final decision in the matter did not cure the defect in the Respondent's failure to grant Akers' request for represeltation at the initial interview. And as the discharge was the ultimate result of the initial interview, I conclude that the dis- charge was also a violation of Section X(a)(l) of the Act." 2. 1 find no merit, however, in the General Counsel's contention that Foreman Logan's inclusion of Akers' filing too many grievances as one of the reasons he did not want to retain him in the Respondent's employ was a violation of Section 8(a)(l) of the Act. or in his conten- tion that the filing of grievances played a part in the dis- charge of Akers. The record shows that Logan's statement was immedi- ately, specifically, and unambiguously disavowed by Logan's superior, Vice President Maxwell, in the pres- ence of all who heard it,9 and Maxwell persuasively tes- tified that the filing of grievances was not a factor in his decision to accept Logan's recommendation that Akers be terminated. It is true that Akers filed more grievances than any other employee in his department and had even filed a grievance the day before his discharge. It is also true that a former foreman had threatened to discharge Akers for filing grievances, but that was some years ago .. I.HR.B. ' J Weingarten. Inc., 420 U S. 251 (1975) J Witgriln. Inc., upra: Lennox Industrle. Inc., 244 NlRB h0)7 (1979)1 Anchoran.k, Inc., 239 NLRB 430 (1978) Pacific Soumthel .4irlrhne. Inc. 242 NIR1 l 169 (1979), relied on by the Respondenlt i distinguish- ahble in that unhlike thi case the denial of union repreental n there did not take place at the initial intervie, after which, the Supreme Court said in H'eingarlten. ', "it becomes increasingly difficult for the emploee to vindicate himself, and the salue of represenlation is correspondingl di- ninlished" 1 can find i, merit in the Respondent's contention that Ithe Board has nisinterpreted the Keingaurten decision by requiring an rem- pleCr to either proside an employee ith representatio and conduct [he interview or gieC him a choice of being intersiev.ed ithoui repre- sentaolln oil lnt being intersievsed at all I am required Io fIllos the Board in such rlattrs liia Bej P Puctk,rl. Inc., 144 NI RB h i5 '1h3) ( Poaivani .feitpril[ rU lopitul, 2317 NlRB 138 i 1978) 1 hlon lair, I .ernbherer roth r. In u and ('linho, In., 159 NRRB 1415 (19hh66) 29) DECISIONS ()F NA'I()NAI I.AOR)K REI.ATI()NS B()ARI) and the foreman is no longer employed by the Respond- ent. As against that, there is the fact that Akers had a poor work record. In addition, Akers was familiar with the 7-minute limit on personal breaks; he nevertheless was gone from his work station for up to 17 minutes; his absence resulted in 20 hogs falling off the conveyor belt onto the floor and interrupted production; and he was terminated on the same day this occurred. In these cir- cumstances. and in the absence of any evidence of cur- rent union animus, I find that Akers was discharged for cause, and that these allegations are not supported by a preponderance of the credible evidence. I conclude that the allegations should be dismissed. RILMI:I)Y In order to effectuate the policies of the Act, I recom- mend that the Respondent be ordered to cease and desist from the unfair labor practices found and from infringing in any like or related manner on its employees' rights guaranteed by the Act. The Respondent, relying on N.L.R.B. v. Potter Electric Signal Co., 600 F.2d 120 (8th Cir. 1979), contends that Section 10(c) of the Act prohibits the Board from order- ing the reinstatement of Akers because he was dis- charged for cause. The Board has held, however, that an employer's unlawful refusal to allow an employee union representation renders "unlawful what was an otherwise lawful discharge for cause," and that the appropriate remedy is reinstatement with backpay. Anchortank, Inc., supra. Accordingly, as I have found that the Respondent in- terfered with, coerced, and restrained its employees by unlawfully discharging Reginald Akers on April 18, 1979, in order to effectuate the policies of the Act, I rec- ommend that the Respondent be ordered to take certain affirmative action including that it offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings suffered by reason of the Respondent's unlawful conduct against him. Backpay shall be computed as provided in F W. Woolworth Company, 90 NLRB 289 (1950). Interest shall be paid on all backpay due. Florida Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 0 The Respondent, Kahn's and Company, Division of Consolidated Food Co., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: 'O In the event no exceptions are filed as provided bh Sec. (12.46 of the Rules and Regulations of the National Lahbor Relations Itoa)rd, the I. Cease and desist from: (a) Requiring that employees participate l interviues or meetings without union representation, when such represelntationl has been refused by the Respondenl: when the employees have reasonable grounds to believe that the fmatters to be discussed may result itt their being the subject of disciplinary action; and actually imposing such disciplinary action on employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Sectiot 7 of the Act. 2. Take the following affirnativ e action necessary to effectuate the purposes of the Act: (a) Offer Reginald Akers immediate anid full reinistate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without prej- udice to his seniority and other rights and privileges pre- viously enjoyed, and make him whole for any loss of earnings he may have suffered as a result of the discrimi- nation against him, in the mannier set forth i the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all per- sonnel records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to determine the amount of backpay due under the terms of this Order. (c) Post at its premises in Cincinnati, Ohio, copies of the attached notice. Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondenit's representative, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FUR'I'FIR ORI)I REI) that the complaint be dis- missed insofar as it alleges unfair labor practices not found herein. findings, conclusio(ns. ad reconmmenlde ()rder hlriln sl as proide(ld il Sec. 102 48 of the Rules arid Regulaotinls. e adopted hy he Ioard and hecome its findings, conclusilons. ad Order. and al ohjectilrs theret ,hall he deemeld waived ftir all purposes IT the event that this Order is enclle,red hb a Jutdgmcntl 1 Unilted States Court f Appeals. the word i the lCe realding "Po,'sted by Order (of the National Labor Relations i, ard" shiall read "P'lsted I'ursu- ant to a Judgmerit of the llnired States Court of Appeals Fnfo(rcinlg al Order f tile National Labor Relattions 1li ard " 30