Huron Dressed Beef

HURON DRESSED BEEF Huron Dressed Beef, Inc. and Mike Beck, Bob Maher, Denton Gross, Russ Flolo, Jim Brock, Bill Eining. Case 18-CA-6422 September 15, 1980 DECISION AND ORDER On June 30, 1980, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Huron Dressed Beef, Inc., Huron, South Dakota, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 3 i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Member Penello would find that Respondent's hackpay liability com- mences from 5 days after each of the discharged strikers makes an uncon- ditional offer to return to work. See his dissenting opinion in Abilities and Goodwill. Inc., 241 NLRB 27 (1979), enforcement denied 612 F2d 6 (Ist Cir. 1979); Valley Oil Co., Inc., 210 NLRB 370 (1974) 3 Member Jenkins would compute interest on the backpay in accord- ance with his dissent in Olympic Medical Corporation, 250 NLRB No. II (1980). DECISION Preliminary Statement; Issues STANLEY N. OHLBAUM, Administrative Law Judge: This proceeding' under the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., was heard before me in Huron, South Dakota, on April 10-11, 1980, with all parties participating throughout by counsel and given full opportunity to present evidence, argu- ments, proposed findings and conclusions, and briefs re- ceived by May 23, 1980. Record and briefs have been carefully considered. The principal issues are whether Respondent Employ- er violated Section 8(a)(l) of the Act by threatening em- ployees with discharge if they engaged in a strike to pro- Complaint issued November 30, growing out of charge filed October 10 as amended November 30. 1979 Unless otherwise specified, all dates are in 1979. test Respondent's refusal to meet and negotiate about im- proved wages and benefits; by discharging employees for so striking; by treating reinstated strikers as new employ- ees, at reduced wages and without seniority; and for re- fusing to reinstate employees for alleged picket line mis- conduct. Upon the entire record and my observation of the tes- timonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONCLUSIONS I. JURISDICTION At all material times, Respondent has been and is a Minnesota corporation engaged in the slaughter, process- ing, and nonretail sale and distribution of beef and relat- ed products at and from its facility in Huron, South Dakota. During the 1979 calendar year, a representative period, Respondent purchased and received at that facili- ty, directly in interstate commerce from places outside of South Dakota, products, goods, and materials valued at over $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce and in oper- ations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. AI.LEGED UNFAIR LABOR PRACTICES A. Facts as Found Respondent operates a beef slaughtering and meat packing business in Huron, South Dakota, with over 100 employees, most of whom engage in slaughter or direct- ly related tasks. At or around 8:30 a.m. (starting time was 6 a.m., the shift being from 6 am. to 4:30 p.m.) on Wednesday, Sep- tember 26, 1979, Respondent's kill floor employees, after discussing among themselves the need for a cost-of-living wage increase, designated a committee of four-Gross, Maher, Flolo, and Beck, all Charging Parties here-to meet with company officials on that subject as well as concerning perceived shortcomings in the training pro- gram for new employees. The designated four according- ly thereupon met briefly in the hallway with General Manager Vandervest and Plant Superintendent Fisher, requesting an audience with Company President Miller. Stating that he lacked the power to authorize such a meeting, Vandervest with Fisher nevertheless indicated they would attempt to arrange it for later that week. The employees' committee of four reported this to their fellow workers shortly before 9 a.m. That evening (Sep- tember 26), 12 to 15 employees met at Gross' home to discuss the foregoing. Since the employees heard nothing by the end of the week, they-that is, most of the kill floor employees- met again during their workbreak on Friday morning, re- viewing their problems, needs, and intentions, and voted to picket if nothing developed. That afternoon (Friday, September 28) at the 2 p.m. workbreak, two members of the employees' committee (i.e., kill floor employees Gross and Maher, with committeeman Flolo coming in 252 NLRB No. 31 151 DECISIONS OF NATIONAL LABOR REL ATIONS BOARD later), this time joined by two cooler room employees (Pate and Steinblock), visited the company office, where they again met with General Manager Vandervest and Plant Superintendent Fisher together with two other company officials. 2 At this meeting, employees' repre- sentative Maher explained the need for and requested a 15-percent cost-of-living adjustment, particularly in view of what they considered to be their continuing substan- dard wages following a general wage reduction in Sep- tember 1977. Employees' representative Gross also com- mented on perceived inadequacies in training newly hired employees. It was suggested to the employees by Garsowl that the company representatives had no au- thority to accede to any adjustment, and to take the matter up through proper "channels"- the present being the "wrong channels"-in November. Gross explained that the employees (who were unrepresented by a union) were opposed to any further delay. When the employees' representatives reported the foregoing to their fellows, the latter (around 30 to 35) expressed their impatience with further delay and unwillingness to wait another month, whereby about 90 percent of the employees then voted to strike. This being close to the end of the shift on Friday, with no kill room work scheduled for Satur- day, the employees agreed to meet in the company park- ing lot around 5:30 a.m., a half hour before starting time, on Monday. On the way out, Gross informed the forego- ing four company representatives of the employees' deci- sion, drawing from them the response that they were "stupid" and going about it "the wrong way." Garsow adding that he was "scared" to tell Company President Miller because he (Garsow) knew "what would happen, that [you] would all be fired." On Monday morning, October 1, around 5:30 a.m.-a half hour before shift start-most of the kill floor em- ployees were accordingly assembled in the company parking lot, across the road from the company office building. Around 5:45 a.m., the employees' representa- tives, Gross, Flolo, and Maher, visited Vandervest and Fisher, inquired if there was a change of heart, and stated that the employees wanted to work but would like "something to go on." The company representatives in- dicated its position remained "the same." The employees' representatives rejoined their colleagues in the parking lot, followed shortly by Vandervest and Fisher, who, after asking the assembled employees, "How any of [you] guys could be on strike, what are (you] going to do for money," announced to the 30-35 employees there (including substantially all kill floor employees, as well as some employees from elsewhere in the plant) that any employee "not through the gate working by 6:00 o'clock would be fired, or would never set foot inside the gate again" and that "somebody would be there to take their place." 4 When Plant Superintendent Fisher asked kill 2 I.e., Respondent's secretary and accountant Tyrrell and another ac- countant and manager of another facility, Garsow, described as the "right hand man" of Company President Miller, who was not there Of the foregoing, only Vandervest testified at the hearing. 3 See fn. 2, supra. 'As against the overwhelming body of credited testimony of numerous employees to the contrary, I do not credit the testimony of employee Quiram-a witness of dubious credibility for additional reasons explicated below-that Fisher merely indicated to the assembled employees that if floor employees Curtis, Martinmaas, and Sterrett why they were doing this and to return to work, they de- clined, stating that "we [are] part of [them]." Vandervest and Fisher then left. After a brief discussion, the six Charging Parties in this proceeding commenced picketing, about 6:05 a.m., with signs, on the road in front of the main gate to the plant. Other employees stood by or left, later spelling the picketers. Of the 30-35 employees as- sembled in the parking lot that morning, at least 29-33 identified by name at the hearing did not go to work that day. Picketing continued thereafter all day, all week except Saturday and Sunday, until October 10. On Tuesday evening, October 2, employee representa- tive and picketer Denton Gross, a long-term resident of Huron and in Respondent's employ since 1975 as a kill floor butcher, visited Plant Superintendent Fish and told him he had probably made a mistake and needed his job back. Fisher told him that "sometimes you have to live with your mistakes," but would "see what he could do" and let him know by 7 a.m. the next morning. Later that day Gross also visited General Manager Vandervest with the same explanation and plea, and Vandervest likewise told him he "would have to check with someone" and let him know. Since Gross did not hear from either of them, he again called Vandervest the next day. Vander- vest told him the Company was adhering to its an- nounced policy (supra) that anyone (including Gross) not through the gate by 6 o'clock "would be fired and would never work there again." On Friday morning, October 5, Gross, accompanied by fellow employee committeemen Flolo and Maher, in- terrupted his picketing to meet in the company office with Vandervest and Fisher, and inquired who else had been sent the discharge letter of October 3, who would be taken back, and whether the Company would negoti- ate with the employees, again indicating that the men de- sired to return if there was "some action that there would be a meeting, just something to give the men some hope for." Vandervest said it was up to Fisher as they failed to return to work they would he "replaced." Testifying as Re- spondent's witness, Quiram conceded he was the onl) employee of all those attending the meeting in the parking lot on the morning of October I who, after agreeing to picket later, returned to work that day (and has since remained there and was promoted to leadman). I similarly reject Vandervest's testimony that Fisher merely indicated to the assembled em- ployees that they would be "replace[dl" if they did not return, as being far outweighed by the cumulated, corroborated testimony of numerous employee witnesses. Without explanation, the author of the statement itself Plant Superintendent Fisher, was not produced by Respondent to testify to what he said; and on cross-examination Vandervest conceded he could not recall Fisher's exact words, that he could not "recall" whether Fisher said "fired," and that Fisher did indeed announce to the employees that any employee not through the gate or punching the timeclock by 6 a.m. would "never set foot inside the gate again" (substantially as testified by the General Counsel's employee witnesses). Although the employees' rep- resentatives had on September 28 been given a "position" paper by Re- sporndent indicating, among other things, that for employees not report- ing for work Respondent "will make appropriate replacements" (Resp Exh 5) This (as well as a prepared phraseology allegedly read by Van- dersest to employees he solicited on the telephone to return to work- Resp. Exh. 6) and an October 4 letter advising employees that" a perma- nent replacement is being hired to take your job" (Resp Exh 7; emphasis supplied) do not negate or overcome the force of Fisher's remarks, as herein found, to the assembled employees, that they would be "fired" and "never set foot inside the gate again" if they did not clock in at once or under the rigorous "new hire" conditions set by Respondent. 152 HURON DRESSED BEEF to rehire, including jobs and wages, but that in any event rehire would be at the Company's starting-rate low scale ($4.70 per hour) with loss of all seniority. 5 Credited testimony of various of the striking employ- ees 6 establishes that prior to being reinstated or offered reinstatement 7 they were required to fill out a new em- ployee's job application form, with loss of all accrued se- niority, and loss of all accrued vacation pay and insur- ance benefits (the latter available only after 90 days of employment), as well as (in almost all cases) starting at a new employee's wage rate, because of their having gone out on strike. Not all of the striking employees were of- fered8 or accepted" these terms. Those who did not return on these terms were sent a letter by Vandervest dated October 4 that since they had not reported at 5:30 a.m. on October 8 (sic), "a permanent replacement is being hired to take your job" (Resp. Exh. 7). Vandervest testified at the hearing that he considers all employees who did not report to work by 6 a.m. on October I (in response to Fisher's aforequoted admonition) to have quit Respondent's employ and to no longer be its em- ployees, and to have lost all of their accumulated senior- ity and accrued benefits; and that if they returned it could only be as new employees at the starting wage rate ($4.70 per hour) upon the basis of a new employment ap- plication. And Vandervest testified that during the week of October I and the following week, permanent replace- ments were in fact hired in place of all employees who did not return to work in response to its foregoing job "offer" or on the aforedescribed terms and conditions. Vandervest further testified that employees who had been thus "replaced" were not permitted to return to work; and that, although some of the replacements have left, the original employees have not been offered those jobs. Vandervest also testified that on October 8 and the following 2 weeks there were no "permanently assigned" jobs on the kill floor because of the large number of new personnel. Vandervest concedes that all reinstated strik- " The foregoing findings are based on credited, mutually corroborative testimony of the General Counsel witnesses Gross, Beck, Williams, Curts, Cooper, Paul, Donald Dorris, David Dorris, Flolo. and Brock ^ Only some of the striking employees were reinstated Neither the em- ployees' committee members nor Charging Parties were reinstated. I Williams, Curtls, Cxooper, Paul (not restored to his former job despite his request and its being unfilled), Donald Dorris, and David Dorris; as well as other reinstated striking employees. These employees had been solicited by Respondent to return to work-on the terms and conditions indicated, as "new" employees Curts, for example, was rehired as a new employee at the starting rate of 4 70 instead of his former $5.90 per hour, as well as total loss of his seniority since his 1975 hire date Al- though Curts initially declined this offer because the strike was still in progress and, as he puts it, "management had not [even] agreed to meet with the employee representatives" and because he was being stripped of all seniority, as well as vacation pay, and returned to starting pay. Curls nevertheless acceded to these terms a month later and returned to work on that basis early in November After a week back, Curls was restored to his previous pay scale. Striking employee Donald Dorris was reinstat- ed at $2 per hour less than his prestrike rate (also raised back some ltime after his return). r Concededly none of the six charging parties received any offer of "reinstatement," een on the terms and conditions described, since they had already been discharged for allegedly having threatened another em- ployee or employees, as will be described in section IlI.B., infra. 9 E.g.. David Dorris, and James Paul, for example, who was "reiiisl:t- ed" at lower pay ad loss of seniority, to a different job under his protest. was soon laid ff and not since recalled ing employees were rehired on the basis of new employ- ment applications at the beginning rate of pay (which was raised after I week to their former rate) and that they have been permanently stripped of all seniority and accrued benefits including vacations. B. Resolution and Rationale Thwarted or rebuffed in their attempts to obtain what they considered to be overdue cost-of-living wage ad- justments and other betterments, Respondent's employees concertedly withheld their services, engaging in an eco- nomic strike. It is elementary that, under the Act, the employees had the right both to seek these betterments and to engage in an economic strike to obtain them. Re- spondent's response was to threaten to fire them and not permit them to enter the plant again if they failed to return to work at once; and, thereafter, indeed to fire some, notably the ringleaders constituting the "commit- tee" designated by the employees to talk to the employ- er, and to "permanently replace" all others who failed to return to Respondent's employ on condition that they apply as "new" employees, at starting wages (in some cases around $2 per hour less than they had been making) and with total loss of their accumulated senior- ity and benefits (vacations and medical insurance). It is a violation of the Act for an employer to dis- charge or to threaten to discharge, or to restrain and coerce such as through elimination of seniority or eco- nomic benefits, an employee because he has exercised or seeks to exercise any right under the Act. It is a viola- tion of the Act for an employer to discharge or to threaten to discharge employees for seeking improve- ment of the terms and conditions of their employment (N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969); N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962)), or to discharge or economically penalize them (such as through denial or reduction of seniority or vaca- tion rights) for withholding their services in pursuance of that effort in an "economic strike" (.L.R.B. v. United Stares Cold Storage Corp., 203 F.2d 924 (5th Cir. 1953), cert. denied 346 U.S. 818; The LaidlaKw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970); L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967); N.L.R.B. . Great Dane Trailers, Inc., 388 U.S. 26, 32-34 (1967). Since that is precisely what Respondent did here, as found, those actions were and continue to be violative of Section 8(a)(1) of the Act, and it is accordingly so deter- mined. Nor has Respondent established that its economic strikers were accorded their "Laidlaw rights,"t" or, indeed, that they were even replaced before being dis- charged or treated as no longer having reinstatement rights." Although Respondent unlawfully discharged its striking employees on October 1, even if it had consid- "I he LaidlaK (orporatiln, 171 NlRBH 1366 (1908g). nf(d 414 F 2d 9'? (7th Cir I969). cert denied 397 li S 920 ()(1970) i Cf .I. R B. v [n'ited Stat (old Storage (Crp . 2(01 1: 2d 924 (5th Cir 151), crl denied 346 US 8 X1( 1953) The G(ineral Counsel docs not contend that the strike herein sw as at any linle conlvcred to an ll uifallr labor practice slrike: nor does he llege olkilion of Sec v aX)(3) ,It th Act 15 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ered them economic strikers it failed to accord them "Laidlaw rights" or to offer them undiluted job reinstate- ment as required. Respondent's Contentions Concerning Alleged Employee Threats and Picket Line Misconduct Respondent contends that its discharge of the six charging parties here, as well as its refusal to reinstate them to its employ, are warranted because of certain threats they are alleged to have made to other employees and because of alleged picket line misconduct. It is con- ceded that on October 3 Respondent sent all six charging parties identical letters stating that they were being dis- charged because of threats made to an employee. It will be recalled that of the six thus discharged, four-Gross, Maher, Flolo, and Beck-constituted the committee designated on September 26 by the employees to present their requests to Respondent. (The remaining two are Brock and Eining, together with the foregoing four committeemen constituting the six charging parties in this proceeding and active picketers.) Respondent presented a number of witnesses-Quiram (with Mrs. Quiram as partial corroborator), Imker, Til- bury, and Hutton-to support its contention that it dis- charged the six employees in question for threatening an- other employee or employees. It is necessary to consider the testimony of these witnesses, together with counter- vailing testimony by the discharged employees in ques- tion. Respondent's former kill floor gutter, Quiram-until his elevation to leadman a few weeks before testifying here on Respondent's behalf-testified that at the em- ployees' aforedescribed September 28 (Friday afternoon) meeting, where he conceded most favored a strike, em- ployee' committeeman Beck remarked that "whoever would come back to work would have knobs beat on their heads," which "scared" Quiram. Observing Quiram, I seriously doubt that. Furthermore, according to Quiram, when the employees' committeemen returned that afternoon (September 28) to report the outcome of their meeting with management, they indicated that they would meet with management again on Monday morn- ing, October 1, and that there was no certainty of a strike even on October 1. It will be recalled, supra, that in the early morning of October 1, after the unsuccessful visit of the employees' committee to the office, and the confrontation of Vandervest and Fisher with the assem- bled employees in the parking lot, although Quiram had agreed to picket later that morning, instead he-alone of all the employees there-returned to work that day, con- cededly driving in then as well as daily thereafter with- out hindrance or molestation, or threat thereof, of any kind-belying his purported "scared" frame of mind. On October 5, Respondent through Vandervest subscribed a complaint in its name as plaintiff in the Beadle County South Dakota Circuit Court, based in part on supporting affidavits of Quiram (as we as lmker, Tilbury, and Hutton), seeking an injunction against acts or threats of violence or such picketing or "intimidation" by the charging parties herein, named as defendants. Although the allegations were denied under oath by the defendants (charging parties here), nevertheless a temporary re- straining order was issued on the same day (October 5) ex parte, and that order apparently still remains in effect, not only as to the charging parties here but also as to "all other persons acting in concert with them" having knowledge, "until further order of this Court," but with- out any hearing yet having been held. In March 1980, shortly before the hearing in the instant proceeding, em- ployees' committeeman Gross, a neighbor of Quiram pre- viously on friendly terms with him, visited the latter and asked him why he had signed the affidavit resulting in the injunction order. In response, Quiram, according to his own testimony, asked Gross, "Why do you have to threaten anybody"-although according to Quiram's tes- timony, supra, it had been Beck who had made the afore- describe alleged "threat." Although Quiram also testified on direct examination that he also asked Gross on this occasion, "Why do you have to threaten to burn some- body's house down, on cross-examination Quiram con- ceded that Gross had made no such threat to him, but had only said, in a group of 20-25 other kill floor em- ployees, that those reporting to work would be "in trou- ble." Quiram concedes that at no time-before, during, or after the strike-has he encountered any problem in entering or leaving the plant. Finally, Quiram-who was promoted to leadman a few weeks before he testified as Respondent's witness here-testified that his affidavit in support of the injunction application, was already fully typed, presented to him by Respondent's office. Concerning the foregoing, employees' committeemen, Beck and Gross, sharply disputed Quiram's version. Beck testified that what he did say to the employees on the afternoon of September 28 was to urge them to be on hand Monday morning (October 1) in view of a plan "hopefully . . . to get ahold of management during the weekend" and that "if we all stuck together we'd be able to lick this deal." On comparative demeanor observations alone and without more, I most certainly prefer and credit the version of Beck, sincere and forthright wit- ness, to the alleged spotty recollections and inabilities to recall into which Quiram, an unprepossessing witness, re- peatedly retreated. Gross, also a forthright and impres- sive witness, likewise credibly denies that he ever indi- cated that anybody returning to work would "be in trou- ble" (whatever such a remark might or might not mean, and in any event hardly necessarily a "threat"). Regard- ing his visit to Quiram's home, Gross admits he asked Quiram why and how he could sign such an affidavit- hardly an improper act on Gross' part. According to Gross, whom I credit, Quiram replied he did it because of fear of losing his job. In other respects, Gross, whom I credit in preference to Quiram, disputes Quiram as to the statements attributed to him by Quiram at the latter's home. 2 12 I can best characterize the surrebuttal testimony of Quiram's wife on this subject, as seeming to me to be confused confabulation. largely inconsistent with her husband's testimony as well as with that of Gross. Mrs Quiram claims to have overheard only snatches of the conversation between Gross and Quiram in the Quiram home, where, according to Mrs Quiram, she pretended to be asleep on a living rooxm couch some 65 feet away from the kitchen where the conversation was taking place. with an intervening dining room For these reasons, as well as demeanor Continued 154 HURON DRESSED BEEF Respondent's witness Imker, who did not participate in the October strike, testified that on October 3, as he ap- proached the plant in his vehicle, he observed a line of picketers across the road, but that he was nevertheless permitted to drive through, although employees' com- mitteeman Flolo remarked that he would "mess up [your] tires, maybe tip [your other pickup truck-which had been parked in the employees' parking lot for 3 or 4 months in a substantially damaged condition following an accident] over." Flolo flatly denies making the state- ment attributed to him by Imker. Imker's testimony is in various respects inconsistent with his own affidavit given in support of the aforementioned temporary injunction application; for example, in contradistinction to his testi- mony here, Imnker there swore that he was "physically blocked . . . for approximately five (5) minutes" from entering and that Flolo "threatened . . . specifically that . . . [I] and others would not be permitted to enter." Be- cause of these contradictions by Imker of his own affida- vit, his repeatedly defective memory, my poor impres- sions of him as a witness, and my preference for Flolo's testimony as observed, I discredit Imker. Respondent's witness, Tilbury, who likewise did not join the walkout, testified that as he approached the plant gate shortly after 7 a.m. on the morning of October 3, he observed Brock and Beck standing on the road, and they asked him why he did not join the strike. Til- bury replied that he needed the work, planned to get married, and "wanted things to go good." Although Brock and Beck moved aside and Tilbury proceeded to enter, according to Tilbury, Brock remarked that his truck could be wrecked, his house burned down, or he physically harmed-all of which Tilbury "didn't take it serious." Tilbury concedes that no threatening gestures were made and that he made no report to the police. Tilbury admits that when Brock and Beck came over to his window to speak to him, he (Tilbury) need not have stopped but could have driven his vehicle ahead and into the plant since there was nobody in front of it. Still, according to Tilbury, when, later that day, General Manager Vandervest asked him if he had any problems about being "threatened," he told Vandervest about the episode of that morning but that he (Tilbury) was "not too concerned about it because I knew the strikers were upset with what was going on and everything." Never- theless, Tilbury, as Imker later executed an affidavit pre- sented to him by Respondent, at odds with his testimony here, that he "was physically prevented from entering" the plant by Brock and Beck and was "froced [sic] to stop [my] vehicle" on the occasion in question-state- ments which, in view of his contrary testimony in this proceeding, I am compelled to regard as untrue, and for which reason I am constrained to reject the remainder of his testiony, preferring instead the straightforward de- nials of both Brock and Beck, which I credit. Finally, Respondent's part-time gutter, Hutton, who also did not participate in and was opposed to the strike, testified that on the morning of October 3, as he drove to work accompanied by fellow employee Mastel, he observations and her evident interest in supporting her husband I dis- count her testimony was flagged by Gross and Eining, who approached the driver's side of the vehicle. According to Hutton, since there was nobody in front of the vehicle he could readily have driven in. Instead, he stopped and exchanged a "Hi" greeting with Gross, who, however, remarked to Mastel (a person of siight build), "If we catch you any- where we are going to beat your butt." Hutton laughed, because he thought "it was funny." Mastel said, "Let's go," and the vehicle proceeded without interruption. Ac- cording to Hutton, Mastel later remarked he was "scared. I don't know what to do." Hutton concedes that at no time was he hindered from going in or coming out of work, and that at no time was he threatened by any of the pickets, with whom he chatted at times. Gross denies making the remark to Mastel ascribed to Gross by Hutton. Without explanation, Mastel was not produced to testify. At best I cannot regard Hutton's testimony in any way as preponderating in weight over Gross' denial; and purely on testimonial demeanor observations, I prefer and credit the latter. In view of the foregoing, it is determined that the al- leged instances of threats and picket line misconduct relied on by Respondent to justify its discharges of and its refusal to reinstate the charging parties here did not in fact occur. The remaining "Burnup & Sims"'3 aspect of this de- fense turns on whether () the conduct attributed to the employees occurred during the course of Act-protected concerted activity and (2) whether the alleged conduct in fact-as distinguished from mere employer belief, even if bona fide-occurred. If both of these requisites are sat- isfied, a defense is established. The first of these require- ments is clearly satisfied, since without doubt the con- duct occurred in the course of Act-protected concerted activity. However, I find that the second requirement is not satisfied, since, as found, the conduct attributed to the employees did not in fact occur. Accordingly, the "Burnup & Sims" defense here is not established, and I so determine. 14 Upon the foregoing findings and the entire record, I make the following: CONCIUSIONS OF LAW 1. Jurisdiction is properly asserted here. 2. Through () its threats to discharge employees for engaging in a concerted work stoppage and strike to pro- test Respondent's refusal to meet, discuss, and negotiate with its employees' representatives regarding wages and terms and conditions of employment, (2) its discharge of employees for acting as spokesmen for other employees ' I e, employer "belief' that valid cause for discharge existed N.L.R.B. v. Burnup & Sims, Inc., 379 U.S 21, 23 (1964) 14 Additionally, Respondent's contention during the hearing and on brief that the employees' actiities here were unconcerted is unavailing. since it is contrary to fact and unfounded in law. It is elementary that "unorganized" or informally or loosely organized employees acting in concert, as here, possess Sectiont 7 rights under the Act, and may deal or atltempt to deal with their employer thrlough their own employee repre- sentatles. without he interplsition of a union Indeed, the Act itself, Sec 2(5) defines "labhor organization" to include an "employee represen- atill commniittee" See al)o VN . I Bl v Walshingon .llunitum Co., 370 U S 9 19h62): Vic lnny Iniernalonal. Inc., 232 NIR1 353 (19771, enfd h, I.RRNM 14t8 (hh Cir 19)80) 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and for engaging in an economic strike, (3) its failure and refusal to reinstate economic strikers except as new hires, at starting wages, and with loss of seniority accrued va- cation and medical and other benefits, and (4) its hiring of "permanent replacements" in place of strikers not re- turning to work on such terms and conditions, as found in section II, supra, under the circumstances there de- tailed, Respondent has interfered with, restrained, and coerced, and is continuing to interfere with, restrain, and coerce, employees in the exercise of their rights under Section 7, in violation of Section 8(a)(l) of the Act. 3. The aforesaid violations and each of them constitute unfair labor practices under the Act, and they have af- fected and, unless permanently restrained and enjoined and otherwise appropriately remedied will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having been found to have interfered with, restrained, and coerced employees in the exercise of rights guaran- teed to them by Congress under Section 7 of the Act, Respondent should, as is usual in cases of this descrip- tion, be ordered to cease and desist from such violations. Having discharged some employees and reinstated others on prejudicial and retaliatory conditions for having exer- cised their rights under Federal law, Respondent should further, as is also usual, be required to offer uncondition- al and full reinstatement to all discharged employees and to make them whole for any wages, accruals and benefits (including vacations and vacation pay, and hospitaliza- tion and other medical benefits, including reimbursement for any expenses incurred by reason of any cancellation, withdrawal, or lapse thereof) lost or reduced and which may be due, plus interest, and with restoration of senior- ity, all as determinable in a supplemental backpay pro- ceeding if necessary. Sums and interest due should be computed as explicated in F. W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977).'5 All references in Respondent's re- cords indicating discharge of any of the affected employ- ees for cause or in relation to the described strike should be deleted; and Respondent should be ordered not to so indicate to any prospective employer or reference-seeker. Respondent should be required to preserve and make available to the Board's agents its books and records for backpay computation and compliance determination pur- poses; and to post the customary notice. In view of what must be regarded as Respondent's deliberate flouting of the most basic policies and provisions of the Act, through its discharges of the entire employees' negotiat- ing committee, and its harshly retaliatory measures pun- ishing all of its employees who exercised fundamental rights guaranteed to them by the Act, thereby stabbing at "the very heart of the Act."'6 Respondent should also '5 The General Counsel's plea that interest be assessed at 9 percent, as supported by its persuasive supplemental brief, is denied, since that con- tention has to date been rejected by the Board in other cases. ' A. J. Krajewski Mfg. Co., 180 NLRB 1071 (1970). be required to cease and desist from violating its provi- sions. 7 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: ORDER1 8 The Respondent, Huron Dressed Beef, Inc., Huron, South Dakota, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging or threatening to discharge any em- ployee for acting as a spokesman for other employees seeking to discuss and negotiate concerning improved wages and other work-related betterments, or for engag- ing in a concerted work stoppage or strike, lawful under the National Labor Relations Act, to protest Respond- ent's refusal to meet, confer, and negotiate with its em- ployees' representatives concerning wages, benefits, and other terms and conditions of employment, or to obtain such benefits. (b) Imposing or threatening to impose any sanction or condition upon any economic striker as a condition to job reinstatement, including but not limited to requiring him or her to file an employment application as a newly hired employee or at wages less than previous wages, or eliminating or forfeiting his or her seniority or accrued vacation, hospitalization, or other medical or insurance or other benefits. (c) Failing or refusing to accord strikers their full rein- statement rights as required by law. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization; to form, join, or assist any labor organi- zation; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activi- ties to the extent provided by law. 2. Take the following affirmative action, necessary to effectuate the policies of the Act: (a) Offer to all discharged employees, including but not limited to the following employees, and each of them immediate, full, and unconditional reinstatement to their former jobs with Respondent (or, if not available, sub- stantially equivalent jobs with Respondent), without prejudice to their seniority and other rights, privileges, wages, benefits, and emoluments, including but not limit- ed to any and all wage and pay scale increases and pro- gressions as if not discharged; and make them whole for any loss of income (including overtime, holiday, and va- cation pay, and reimbursement for all hospitalization, surgical, medical, and other payments or obligations in- curred by reason of Respondent's cancellation, with- N A'L.R.B. v Entwistle Manufacturing Company, 120 F.2d 532, 536 (4th Cir. 1941). ~" In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order which follows herein shall, as provided in Sec. 10248 of those Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 156 HURON DRESSED EEF drawal, or nonpayment of any applicable insurance cov- erages in consequence of said employees' discharges) to- gether with interest, in the manner set forth in the sec- tion of this Decision entitled "Remedy": Mike Beck Bob Maher Denton Gross Russ Flolo Jim Brock Bill Eining and all other employees discharged by Respondent when it declared them fired in its parking lot on October 1, 1979. (b) Offer to all employees engaged in the strike on or since October 1, 1979, who have not been reinstated or lawfully replaced, unconditional reinstatement as re- quired by law, and make them whole, in the manner specified in the section of this Decision entitled "Remedy," for any loss of income by reason of any fail- ure by Respondent to observe such requirements. 3(c) Expunge from all of Respondent's books and re- cords any entry or reference indicating or to the effect that the discharge, non reinstatement, or reinstatement of any of the foregoing employees, or any rehire as a new employee at a beginning wage or any loss of seniority or of any vacation or medical or other benefit or accrual, was because of or related to any job-related fault, dere- liction or misconduct on his or her part or because he or she engaged in the strike here involved; and refrain from making any such statement voluntarily or in response to any inquiry from any employer, prospective employer, employment agency, unemployment insurance office, ref- erence-seeker, or credit or character inquiry. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage rate records, overtime records, re- cords of employees hired, records of jobs held by and payments made to employees, and all work schedules, personnel records and reports, social security records, in- surance records, and all other records necessary or ap- propriate to determine the amounts of backpay and other sums due as well as the adjustment of seniority required under, and the extent of compliance with the terms of this Order. (e) Post at its premises in Huron, South Dakota, copies of the attached Notice marked "Appendix A."'9 Copies of said notice, on forms provided by the Board's Region- al Director for Region 18, shall, after being signed by Respondent's authorized representative, be posted in said premises by Respondent immediately upon receipt there- of and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- tered, defaced, or covered by any other material. ig In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" (f) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith. APPENDIX NoTrlcI To EMPIOYIFES POSTED) BY ORI)I.R OF THE NATIONAI. LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Wl: WILL NOT violate these rights of yours. WE WILL NOT threaten employees with discharge for striking for better wages or working conditions, or for attempting through any employees' commit- tee or other representative to meet and negotiate with us on that subject, or for striking to protest our failure or refusal to do so. WE WILL NOT discharge any employees for acting as your representatives or spokesmen or for striking to protest our failure or refusal to meet and negotiate with them about improved wages and benefits. WE WIL.L NOT, as condition to reinstating em- ployees who have engaged in a lawful strike, re- quire them to apply for employment as new em- ployees, or at starting wages or wages less than they previously received, or with forfeiture of se- niority or of vacations or of medical or any other benifits. WE WILI. NOT in any other manner interfere with, restrain, or coerce you in your exercise of any of your rights under the National Labor Relations Act. WE WILL offer all employees we discharged on October 1, 1979, including but not limited to the following employees, and each of them, immediate, full, and unconditional reinstatement to their former jobs with us (or, if not available, to substantially equivalent jobs with us), with full seniority and other rights, privileges, benefits, and emoluments, just as if we had not discharged them, and WE WILL pay each of them in full, plus interest, for any wages and benefits (including overtime, holiday and vacation pay, and reimbursement for any hospital, 157 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD surgical, medical, and other expenses which would have been covered by any applicable insurance can- celed, withdrawn, or not paid by us growing out of our discharge of those employees) lost by them since the date we took that action: Mike Beck Bob Maher Denton Gross Russ Flolo Jim Brock Bill Eining and all other employees we fired in our parking lot on October 1, 1979. We will restore full seniority and all job rights to all employees who engaged in the strike on or after October 1, 1979, and who have been reinstated to our employ; and WE Wllt pay them in full, plus in- terest, for any wages and benefits (including over- time, holiday and vacation pay, and reimbursement for any hospital, surgical, medical and other ex- penses which would have been covered by any ap- plicable insurance cancelled, withdrawn or not paid by us at any time after our discharge of those em- ployees) lost or reduced as a condition of or at the time of their reinstatement to our employ. WE WIL1. eliminate from our books and records all indications that any of the above discharged em- ployees or any of the employees participating in the above strike was discharged, not reinstated, rehired as a new hire, or reinstated at lower wages or with- out seniority or benefits, because of any fault or misconduct or because of striking or attempting to exercise any lawful right; and WE WILL. NOT report or say that to any employer, prospective employer, employment agency, unemployment insurance office, reference-seeker, or credit or character in- quiry. All of our employees are free to discuss with us, them- selves, or through their representatives, their wages, or any other terms or conditions of their employment; and they are free to strike in case of our failure or refusal to meet, talk, discuss, negotiate, or grant improvements or the changes they want. HURON DRESSED BEEF:, INC. 158