II BACKGROUND:
A. Complainant's Background:
18. Complainant Edward Tillman, a Black male, was employed full-time as a production worker at Respondents Monfort in Marshalltown, Iowa from September or October of 1989 until he was discharged effective May 25, 1990. (CP. EX. 2; Tr. at 117, 274, 706). He had previously been employed for almost five years in another packing facility in Garden City, Kansas. (Tr. at 116). He began work on the loin line as a loin trimmer. This line is on part of the production facility known as the cut floor. The cut floor, which is the general area where Complainant Tillman always worked, is accurately depicted in the map of the cut floor entered into evidence as Complainant's Exhibit 1. (CP. EX. 1; Tr. at 117, 480). He was in loin trimmer position for three to four weeks before he was moved to the "'main break" or "main line" on the cut floor. (CP. EX. 1; Tr. at 120-21). On the main break, Complainant Tillman began hooking sides. By May of 1990, and possibly before, he was also trimming hams. (Tr. at 117, 121, 135). This took place on an elevated station where Tillman could see the entire cut floor except for the rib and belly lines. (Tr. at 136). With the exception of seven or eight days when Complainant was on light duty, he spent the remainder of his employment hooking sides and trimming hams. (Tr. at 134). His locations on the cut floor when hooking sides and when trimming hams are marked, respectively, on Complainant's Exhibit 1 by his initials and his circled initials. (Tr. at 122, 136).
B. Respondents' Background:
1. Respondents' Monfort's Background:
19. Respondents Monfort, named in the complaint as "Monfort of Colorado, Inc." and "Con Agra," admit, on brief, that Con Agra is a foreign corporation licensed to do business in Iowa. It operates under the name, among others, of "Monfort". (Notice of Hearing; Respondent's Monfort's Hearing Brief at 2). Respondents Monfort operate a hog processing facility in Marshalltown, Iowa known as the Monfort Pork Plant. (Respondents Monfort's Hearing Brief at 2; Tr. at 703, 705). Respondents Monfort bought fifty percent of the plant in 1987 and the remainder in 1988. (Tr. at 705).
20. In 1990, the plant manager was Lincoln Woods, a Black male. (Tr. at 705, 733). Bary Carl, personnel manager, a white male, reported directly to Mr. Woods. (Tr. at 705-706). The line of authority in 1990 from Complainant Tillman to Lincoln Woods was: production worker (Complainant Tillman)-->production line supervisor (Dean Welton, white male or Mike Slifer, white male)-->general foreman (Charlie Freese, white male)-->operations manager--->plant manager (Lincoln Woods). (Tr. at 121, 472, 479, 481, 571, 572, 596, 603-04, 706).
21. There is some confusion in the record as to who Complainant Tillman's immediate supervisor was in May of 1990. Complainant Tillman and Bary Carl both testified that Tillman's supervisor after he moved to main break was Dean Welton. (Tr. at 121, 802). Dean Welton testified that, although Tillman was on the main line, which was Welton's area of supervision, Tillman performed a butt line job under Mike Slifer. (Tr. at 598-99, 603-04). Mike Slifer testified that he was the supervisor of the picnic line from October of 1989 to May of 1990 and had nothing to do with the shoulder or butt line. (Tr. at 473, 479, 481). Bary Carl's notes indicate that, after the altercation of May 24, 1990, Complainant Tillman and Bret Goken were "brought to the personnel office by their supervisors." The only supervisors listed as being present are Dean Welton and Mike Slifer. (R. EX. M, N). The identity of the operations manager at that time is not shown in the record.
22. The Monfort Pork Plant is a unionized facility. The production and maintenance employees in the bargaining unit are represented by Local 50N of the United Food and Commercial Workers International Union (UFCW). (Joint EX. 1). There are multiple union stewards in each department, as well as various union officials throughout the plant. (Tr. at 800). The bargaining agreement includes a non-discrimination clause which bars race discrimination by either Monfort or the union. The agreement also provides for a three step grievance procedure to process grievances "pertaining to a specific violation of the Agreement, or violation of employee's working conditions." Thus, the grievance is presented in consecutive steps to: (Step 1) the department or shift superintendent; (Step 2) the personnel director and the department or shift superintendent; and (Step 3) the plant manager. Grievances concerning discharges commence at the third step. If the matter is not settled at the third step it proceeds to a "Pre-Arbitration Hearing" before the Company Industrial Relations Division. In the event the matter is not settled there, it may be taken to arbitration. (JOINT EX. 1).
22A. The employee information packet or handbook sets forth the following policies with respect to horseplay, fighting and racial harassment:
GENERAL RULES
There are other general rules which we must all abide by to make your workplace run smooth and be a pleasant place to work. Violation of these rules is considered to be a major infraction, and each of them are dischargeable offenses.
. . .
HORSEPLAY - Horse play is a serious offense because it generally leads to injury of an innocent bystander. Spraying water, throwing product, pushing and shoving, and other forms of horseplay can result in an accident, so it is expressly forbidden.
. . .
FIGHTING - No fighting is allowed anywhere on Company property. If you are having a problem with another employee, see your Supervisor, the Personnel Department, or your Union Steward, and we will get the problem resolved before it escalates into a fight.
. . .
RACIAL/SEXUAL HARASSMENT - No form of racial or sexual harassment toward another employee will be tolerated. This would include comments with a sexual connotation, racial slurs, or touching another employee. Treat others as you expect to be treated.
(R. EX. AB). In May of 1990, this policy would have been posted at 4-5 bulletin boards in the plant. (Tr. at 474-75, 713).
22B. Further definition of the policy for handling fighting and horseplay was agreed to by the union and management following a strike in 1986. The old policy had required that both participants in a fight be discharged. (Tr. at 107-08, 649-50). The new policy was, at various times, posted. (Tr. at 653). It states, in part:
. . .
l Fighting among employees is expressly forbidden and will not be tolerated.
In the event that two employees are involved in an altercation the following procedure will be used:
1. Both employees will be suspended pending an immediate investigation by a joint Company-Union investigation team.
2. When the facts of the situation are known, the Company will make a decision as to what action will be taken.
3. A meeting will be held with both parties. If both parties are equally guilty of physical aggression, both parties will be discharged. If one party was the aggressor, and the other party only defended himself, the aggressor will be discharged. If neither party is guilty of physical aggression and the altercation was verbal, both parties will be reprimanded with the understanding that further recurrences will result in discharge.
Horseplay on the job cannot be tolerated. Effective immediately, anyone guilty of horseplay will be reprimanded on first occurrence and discharged after the second occurrence.
(Joint EX. # 2).
2. Respondent Bret Goken's Background:
23. Respondent Bret Goken, a white male individual or person, was a production worker who began work at the Monfort Pork Plant on June 5, 1989. (CP. EX. 8; Tr. at 724). In May of 1990, he was working on the butt line on the cut floor. (CP. EX. 8; Tr. at 138-39). Respondent Bret Goken left his employment with Monfort on January 8, 1992. (CP. EX. 8).