Herman Sausage Co., Inc.

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal employees, plant clerical employees, salaried employees, guards, and supervisors as defined in the Act : 10 (1) All toolroom employees. (2) All maintenance employees, including janitors and boiler watch operators. (3) All production employees. If a majority in voting groups (1) or (2) vote for the IAM, they will be taken to have indicated their desire to constitute a separate appropriate unit or units, and the Regional Director conducting the elections herein is instructed to issue a certification of representatives to the IAM for such unit or units, which the Board under the circum- stances finds to be appropriate for purposes of collective bargaining. If the employees in voting groups (1) and (2) vote in each instance for the IAM and if a majority of the employees in voting group (3) elect to be represented by the IUE, then the Regional Director is instructed to issue a certification of representatives to the IUE for a separate unit of production workers, which the Board under the cir- cumstances finds to be appropriate for purposes of collective bar- gaining. If a majority of the employees in either of voting groups (1) and (2) do not vote for separate representation by the IAM, such group or groups shall be included in the same unit with the employees in voting group (3) and their votes will be pooled with those in voting group (3).11 The Regional Director conducting the elections is in- structed to issue a certification of representatives to the IUE if that labor organization is selected by a majority of the employees in the pooled group, which the Board in such circumstances finds to be a single unit appropriate for purposes of collective bargaining. How- ever, if a majority of the employees in voting group (3) vote against the IUE, the Regional Director is instructed to issue a certification of results of election. [Text of Direction of Elections omitted from publication.] 10 The exclusions follow an agreement of the parties. "'If the votes are pooled , they are to be tallied in the following manner : The votes for the IAM shall be counted as valid votes, but neither for nor against the IUE ; all other votes are to be accorded their face value, whether for the ME or for no union. Herman Sausage Co., Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 282, AFL-CIO. Case No. 12-CA-132. November 21, 1958 DECISION AND ORDER On April 2, 1958, Trial Examiner Ralph Winkler issued his Inter- mediate Report in this case, finding that the Respondent had engaged 122 NLRB No. 23. HERMAN SAUSAGE CO., INC. 169 in certain unfair labor practices in violation of Section 8(a) (1) and (5) of the Act and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also recommended that the 8 (a) (3) allegation in the com- plaint be dismissed. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and Recom- mended Order and supporting briefs. In addition, the General Coun- sel filed a brief in support of the Intermediate Report and the Re- spondent filed a request for oral argument.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.2 The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions 3 and briefs, and the entire record in the case,4 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the additions and modifica- tions stated herein. 1. The Trial Examiner found, and we agree, that the Respondent failed to bargain in good faith with the Union, the employees' bar- gaining representative, with respect to the negotiation of a new con- tract to supersede the then expiring one, thereby violating Section 8 (a) (5) and 8 (a) (1) of the Act. As evidence of bad faith, the Trial Examiner found it sufficient to rely only on Manager Bond's speeches 1 As the record, briefs, and exceptions fully and adequately present the issues and the positions of the parties, the request for oral argument is denied. 9 Contrary to the Respondent's assertions, there is nothing in the separation of func- tions provision in Sec. 5(c) of the Administrative Procedure Act, 5 U.S.C. Sec. 1005(c), which prohibits the agency from employing the same individual in the performance of investigative and prosecuting functions. There is equally no merit in the Respondent's contention that there is an unethical conflict of interest involved in employing the same individual as the agent for the Board in cases in which an employer is both a charging party and a party charged. The Board vindicates public, not private, rights, and its employees act "on behalf" of the Government, not for the charging party. We therefore find no merit in the Respondent's objections to the Trial Examiner's permitting the participation of Mrs. Margaret L. Fassig, as representative of the General Counsel, herein. 8 The General Counsel excepts to the Trial Examiner's failure to find that Section 8(a) (3) was also violated by the unlawful conduct in this case. As we agree with the Trial Examiner that the conduct herein was essentially 8(a)(5) rather than 8(a)(3), we shall adopt the Trial Examiner's recommendation that the 8(a) (3) allegations herein be dismissed. 4 Upon an examination of the entire record and the briefs of the parties, we find with- out merit the Respondent's allegations of improper conduct and asserted bias on the part of the Trial Examiner. There is no basis for a finding that bias or partiality existed because the Trial Examiner resolved important factual conflicts arising in the proceeding in favor of the General Counsel's witnesses. 11. . . [T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." N.L.R.B. v. Pittsburgh S.S. Company, 337 U.S. 656, 659. No credited testimony herein "carries its own death wound" and no discredited testimony "carries its own irrefutable truth." N,L.R.B. v. Robbins Tire & Rubber Company, Inc., 161 F. 2d 798, 800 (C.A. 5). Accord- ingly, we adopt the Trial Examiner's credibility findings. Universal Camera Corpora- tion v. N.L.R.B., 340 U.S. 474, 496-497. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to employees on August 30, the Respondent's unilateral changes in terms of employment, and the "prayer-meeting" remarks of the Re- spondent's President Ward. We find that the Respondent's bad faith was reflected not only in the matters relied on by the Trial Examiner but also in the Respondent's entire course of dealing with the Union. Thus, as more fully related in the Intermediate Report, we find further evidence of the Respondent's bad faith, for exam- ple, in: (a) The Respondent's unwillingness to accept or consider any con- tract other than its proposed contract which, although based on a con- tract that the Union had executed on May 1, 1957, with Lykes Brothers, Inc., constituted such a radical departure from the previous contract in eliminating approximately 26 existing benefits-such as, the right to process as a grievance discharges based on the failure of any em- ployee to perform his duties, notice of layoffs, seniority rights, and prohibition against discharge without cause-as to be predictably un- acceptable to the Union.' (b) Despite the Union's attempts to reach agreement by revising its proposals, the Respondent throughout the negotiations rejected such proposals outright and made no genuine effort to reconcile dif- ferences but instead adopted a take-it-or-leave-it attitude. (c) The Respondent's limitation of the authority of its negotiators to accept only the Respondent's proposed contract 5 (d) The Respondent's threat to the Union at the August 28 meet- ing to withdraw the checkoff privileges, which the Union then enjoyed, unless the Union accepted its proposed contract by midnight of the next day when the existing contract was due to expire; and the Re- spondent's subsequent and unexplained exclusion of a checkoff provi- sion from any proposal.' (e) Plant Manager Bond's notification to the Respondent's em- ployees on August 30 that the elimination of the dues checkoff would result in an increase in their take-home pay. (f) The Respondent's refusal to continue in effect the terms of the expiring agreement during pendency of the negotiations, as was the past practice on the plant, and instead, despite the Union' s protests 5A.tlanta Broadcasting Company, 90 NLRB 808, 819-820 , enfd. 193 F. 2d 461 (C.A. 5, 1952 ). General Manager Bond 's testimony to the effect that the Respondent felt that it was "entitled to what our competitor bargained for" indicates a basic misunderstanding of the nature of the collective-bargaining process in which the parties are expected to approach the bargaining table with an open mind and through the give -and-take of negotiations attempt to reach an agreement . See L. L . Majure Transport Company v. N.L.R.B., 198 F. 2d 735, 739 (C.A. 5). e See Great Southern Trucking Co. v. N.L.R.B., 127 F. 2d 180 , 185 (C.A. 4), cert. denied 317 U.S. 652; N.L.R.B. v. Martin Brothers Box Company, 130 F. 2d 202, 207-208 (C.A. 7), cert. denied 317 U. S. 660 ; and see Fant Milling Company, 117 NLRB 1277, 1300, enforcement denied on other grounds , 42 LRRM 2566 (C.A. 5, 1958). T Such a sudden and unexplained reversal of position is evidence of bad faith . Atlanta Broadcasting Co., supra; N .L.R.B. v. International Furniture Company, 212 F. 2d 431, 433 (C.A. 5). HERMAN SAUSAGE CO., INC. 171 and willingness to continue negotiations, and the absence of a genuine impasse, unilaterally making changes in terms and conditions of employment. (g) The Respondent's rejection at the August 30 meeting of every contract proposed by the Union, including the Lykes contract which the Respondent had previously and consistently stated during the ne- gotiations that it wanted. When International Representative Acker- man charged that the rejection of the Lykes contract proved that the Respondent did not want a contract but wanted to "get rid of the Union," Emmanuel, the Respondent's negotiator and attorney, ad- mitted that the Company "would be happier" if it "didn't have the Union." (h) The Respondent's unwillingness to incorporate in any written contract several provisions omitted from the Respondent's proposed contract-such as, the limitation of discharges to those for cause, leave of absence for deaths in the employee's immediate family, etc.-on which there was no ultimate disagreement between the parties, whether or not the Respondent's representative "felt insulted" because the Union "insisted they leave [such provisions] in." 8 It is thus clear that the Respondent did not approach the bargaining table with an open mind and sincere desire to reach agreement. In- deed, its conduct revealed an attitude not only of disparagement of the bargaining process but of a determined effort to undermine the status and prestige of its employees' bargaining agent. In view of the fore- going, we find that the Respondent failed to bargain in good faith with the Union and thereby violated Section 8 (a) (5) and (1) of the Act. 2. We further find that by taking the unilateral action in granting a wage increase and withdrawing benefits, in derogation of the employees' bargaining representative, the Respondent independently violated Section 8(a) (5) and (1) of the Act. The Respondent, however, seeks to justify its unilateral actions on the ground, among others, that the changes were put into effect only after they were offered to the Union and the Union was both "consulted at length" and "notified in advance that it was to be placed in effect," and that the Respondent therefore did not undermine the Union. In support of this contention, the Respondent relies on the Supreme Court's decision in Crompton-Highland.' We find no merit in this contention. In that case the Court indicated in a dictum that circumstances might exist where an employer could grant a unilateral wage increase if it did not do so "without consulting" the Union." However, such circumstances presuppose a situation where the employer acts in good faith in its relations with the Union and engages s See H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 526; Section 8(d) of the Act. n N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. 'O ld. at 223, 224-225. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in genuine bargaining. This is not the case here. Thus, among other things, on August 28, the parties had not completed an initial discussion of the wage adjustments the Respondent proposed for numerous job classifications, allegedly to make them conform to com- parable classifications under the Lykes contract. At that time the Respondent stated that it had then made "the best offer that they possibly could," that the Union could "accept it or strike," and indicated that they were "going to put" the Respondent's contract proposals "into effect when the contract expired." It is clear from the questions raised by the Union's representatives during the August 30 negotiating session that the Union had regarded this as a threat rather than bona fide effort to resolve their differences. Moreover, the Union made timely objection to the changes and there is no evidence that there was a pressing economic need which the changes would alleviate. Furthermore, the extrinsic evidence of Bond's and Ward's remarks establish that by such changes the Respondent sought to discredit the Union and its agents and to persuade the employees that they really did not need a Union and were in fact better off without it. On these facts, we cannot agree that the Respondent had granted the Union the opportunity to negotiate on the impact of the changes unilaterally put into effect or met its duty to consult and negotiate in good faith before taking such action." THE REMEDY In addition to the remedy recommended by the Trial Examiner, we shall order the Respondent to take certain affirmative action designed to rectify its unilateral actions in granting a wage increase and changing certain terms and conditions of employment. It is the Board's customary policy to direct a respondent-employer to restore the status quo where he has taken unlawful unilateral action to the detriment of his employees.12 Such an order is warranted to prevent the wrongdoer from enjoying the fruits of his unfair labor practices and gaining an undue advantage at the bargaining table. This is the case here insofar as the Respondent had unilaterally changed certain terms and conditions of employ- ment. However, it is not clear here, whether the overall effect of the unilateral changes has been to the detriment of the employees The Respondent contends that it withdrew the fringe benefits in order to be able to give the wage increase which substantially com- pensated the employees for loss of these benefits. In such a "mixed" situation, we are not in a position to determine that the amount of "See Langlade Veneer Products Corporation , 118 NLRB 985, 988; Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843 , 847-848 ( C.A. 5). Compare the scope of the duty "to confer," under the Railway Labor Act. The Order of Railroad Telegraphers v. Rail- road Express Agency, 321 U.S. 342, 346. 12 See, e.g., John IV. Bolton d Sons, Inc., 91 NLRB 989. HERMAN SAUSAGE CO., INC. 173 the wage increase is less than the value of the eliminated benefits, nor to determine with accuracy whether or not there will be confusion and dissatisfaction on the part of the employees, from the entry of a restoration order reinstating the fringe benefits but rescinding the wage increase. The Union, as the bargaining representative of the employees, is in a better position than the Board to make such a determination. Accordingly, we shall in this situation enter a res- toration order conditioned upon the affirmative desire of the affected employees for such, as expressed through their collective-bargaining representative.13 ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Herman Sausage Co., Inc., Tampa, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Meat Cut- ters and Butcher Workmen of North America, Local Union No. 282, AFL-CIO, as bargaining representative of all production and main- tenance employees at its plant at Six Mile Creek, Tampa, Florida, excluding all managerial, professional, clerical and office employees, salesmen, watchmen, buyers, and supervisors, as defined in the Act, and from making unilateral changes in wages, or other terms and con- ditions of employment, without consulting and negotiating with the Union or otherwise derogating the status of the aforesaid Union. (b) In the same or any related manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the Union or any other labor or- ganization, 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 or all such activities, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Revoke the general wage increase instituted on August 30, 1957, and revert to the fringe benefits and the wage scale which existed prior thereto, if the Amalgamated Meat Cutters and Butcher Work- men of North America, Local Union No. 282, AFL-CIO, as the exclu- sive representative of the employees, so desires. 33 Beacon Piece Dyeing cml Finishing Co., Inc., 121 NLR.tB 953. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Upon request, bargain collectively with the Union as the exclu- sive bargaining representative of all employees in the aforesaid appro- priate unit, concerning rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (c) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, -without prejudice to their seniority or other rights and privileges, to all those employees who were on strike on September 10, 1957, or thereafter, dismissing, if necessary, any person hired on or after that date, and make such applicants whole for any loss of pay suffered by reason of the Respond- ent's refusal, if any, to reinstate them beginning five (5) days after their application to the date of the Respondent's offer of reinstatement. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of back pay due and their right to reinstatement under the terms herein. (e) Post in conspicuous places at its plant, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other inaterial. (f) Notify the Regional Director for the Twelfth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the 8(a) (3) allegations in the com- plaint be, and they hereby are, dismissed. 14 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain, upon request, with Amalgamated Meat Cut- ters and Butcher Workmen of North America, Local Union No. 282, AFL-CIO, as the exclusive representative of all employees HERMAN SAUSAGE CO., INC. 175 in the bargaining unit described below in respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody it in a signed agree- ment. The bargaining unit is : All production and maintenance employees at our plant at Six Mile Creek, Tampa, Florida, excluding all mana- gerial, professional, clerical and office employees, salesmen, Watchmen, buyers, and supervisors, as defined in the Act. WE WILL NOT make unilateral changes in wages or other terms and conditions of employment without consulting and negotiat- ing with the Union, and we will not otherwise seek to discredit or undermine the bargaining status of the union or otherwise refuse or fail to bargain in good faith with the union. WE WILL NOT in the same or in any related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment in conformity with Section 8 (a) (3) of the Act. WE WILL, upon request from the Union, revoke the general wage increase instituted on August 30, 1957, and revert to the fringe benefits and the wage scale which existed prior thereto. WE WILL, upon unconditional application, restore to his former position any employee who engaged in the strike of September 10, 1957, discharging if necessary any replacement hired on or since that date, and make such applicant whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate him beginning five (5) days after his application to the date of the Respondent's offer of reinstatement. HERMAN SAUSAGE CO., INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 282, AFL-CIO, herein called the Union, the General 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel of the National Labor Relations Board issued a complaint dated October 25, 1957, against Herman Sausage Co., Inc., herein called Respondent, alleging that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. -136, herein called the Act. Copies of the complaint and charges were duly served upon Respondent, in response to which Respondent filed an answer denying the unfair labor practices alleged. Pursuant to notice, a hearing was held on November 19-21, 1957, at Tampa, Flor- ida, before the duly designated Trial Examiner. All parties were represented at the hearing and were given full opportunity to examine and cross-examine witnesses, and to introduce evidence bearing on the issues; they were also given opportunity for oral argument at the close of the hearing and to file briefs as well. The complaint and the answer were amended at the hearing. Upon the entire record in the case, and upon observation of the demeanor of wit- nesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Herman Sausage Co., Inc., Respondent herein, is a Florida corporation with its principal office and place of business at Tampa, Florida, where it is engaged in the manufacture, sale, and distribution of meat products, selling to jobbers and super- markets. During the 12-month period ending August 31, 1957, Respondent made direct and indirect interstate purchases exceeding values of $1,000,000 and $125,000, respectively. Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union and Respondent have been parties to a 1955 collective-bargaining agree- ment covering Respondent's employees in a production and maintenance unit which the parties agree, and I find, constitutes an appropriate bargaining unit within the meaning of Section 9(b) of the Act. The record establishes, and no issue is raised concerning the fact, that the Union represents a majority of the employees in the unit. I accordingly find that at all times herein the Union has been, and still is, the statu- tory bargaining representative of all employees in the mentioned unit within the meaning of Section 9(a) of the Act. Article 21 of the mentioned 1955 contract provides as follows: This agreement shall take effect as of August 29, 1955 and shall remain in effect until August 29, 1957. At the expiration hereof, it shall remain in full force and effect for another year, and from year to year thereafter, unless notice in writing is given by either party to the other sixty (60) days prior to such expira- tion date of the desire for a change. And such notice shall set forth in detail the proposed changes. Upon such written notice, the parties shall immediately begin negotiations on such proposals, and an attempt will be made to such a settlement during such sixty (60) day period. By registered letter dated June 21, 1957, and received by Respondent a day or two later, Union Business Representative Mario Cabrera notified Respondent of the Union's desire to negotiate changes in the 1955 contract under article 21, above; in- cluded in this letter was a list of the Union's proposed changes. Respondent asserts, and it adduced testimony to the effect, that it sent a letter to the Union by regular mail respecting its own desire to negotiate changes. This purported letter is dated June 27, 1957, and signed by Respondent's General Manager John Bond, and is directed to Cabrera's attention. This purported June 27 letter acknowledges receipt of the union notification of June 21 and further states that "We, therefore, join with you and hereby give notice that we wish to negotiate a new contract" and it then suggests a meeting on July 1, 1957. This purported letter does not show what changes Re- spondent desired and Respondent did not submit proposed changes until after the running of the 60-day period mentioned in article 21 of the 1955 contract. I have used the adjective "purported" in connection with Respondent's letter of June 27 because the Union not only denies receiving such letter but even challenges HERMAN SAUSAGE CO., INC. 177 the fact that the letter was mailed. As I do not consider the matter material in this proceeding, I shall not further discuss or resolve this conflict.' Cabrera and Bond had several preliminary conversations early in July in connec- tion with setting up the actual negotiations, and on or about July 11, Bond gave Cabrera a copy of Respondent's proposed contract. This proposed contract did not contain job classifications or wage rates; Respondent furnished such items on August 23. The Respective Proposals The Union's proposed changes, 10 altogether, are as follows: time and one-half pay, instead of regular pay, for Saturday work; more liberal benefits under existing group insurance program; sick benefits, already in effect under the 1955 contract, to be paid following the week for which they are due; time and one-half pay for all work performed over 8, instead of 10, hours in any 1 day; posting of job vacancies (a new provision); 15-minute instead of 10-minute rest periods for employees in slice luncheon meats department; triple-time pay, instead of double-time pay, for all. work performed on New Year's Day, Independence Day, and other stated holidays;' 3 weeks' vacation after 10 years of service (a new provision, supplementing vacation provisions giving, among other things, 2 weeks' vacation to employees having 3 years' accumulated service); review classifications and wage rates where necessary; 15 cents an hour general wage increase. Respondent's proposed contract, which Bond gave Cabrera on July 11, would change the 1955 contract terms as follows: eliminate all provisions for sick benefits; delete clause granting scheduled rest periods for male employees; delete clause that Respondent will not discharge any employee without "just cause"; eliminate clause giving employees 2 days off with pay where death occurs in immediate family; elimi- nate the following emphasized portion of a provision stating that "The employees recognize the unqualified right of the Company to establish general policies for the conduct of its business, to plan, direct, and control plant operations; to hire, fire, suspend, transfer from department to department, or dismiss employees; to relieve employees from duty because lack of work or for other reasons, including the inability or failure of any employee to perform his duties to the satisfaction of the management , subject to grievance procedure"; eliminate clause stating that em- ployees will not be required to work more than 5 hours without time out for a meal period; eliminate clause, which affects vacation rights, to the effect that "loss of time because of plant accident shall not be charged against employee's attendance record"; eliminate requirement that employees be given 3-day notice in case of lay- off; eliminate clause that holidays falling on Sundays shall be observed on the Monday following if so nationally observed; eliminate super seniority of shop steward; elimi- nate provision that foremen will not do the work of rank-and-file employees; elimi- nate a 75-cent meal allowance for employees working more than 10'/2 hours in any 1 day; eliminate night lodging allowance for truckdrivers. Other proposed changes would have affected changes in vacation allowances, weekly guarantees, call-in pay, group insurance benefits, tool and clothing allowances, etc. Bond testified that Respondent's proposed wage schedule would have raised the average hourly rate by 7.7 cents and that the proposed changes on other monetary items would have the effect of reducing the average hourly rate by 6 cents. Respondent's monetary pro- posals would thus grant an average net increase of 1.7 cents per hour. Negotiations The first bargaining session was on August 5, 1957. Representing the Union were Business Representative Cabrera (the principal spokesman) and a negotiating com- mittee of Respondent's employees; Manager Bond and Plant Superintendent Herman Still represented Respondent. Cabrera had prepared a list of so-called take-a-way items, approximately 26 in number, consisting of benefits in the 1955 contract which were deleted from, or otherwise changed in Respondent's proposed contract, and the parties devoted the August 5, session to considering some of these items. .One of Respondent's principal competitors in Tampa, according to Respondent, is a concern called Lykes Brothers, Inc.; Lykes has been, and still is, under contract with the Union. Respondent's proposed contract was somewhat similar to the 'The General Counsel did not litigate this case on the theory that Respondent was foreclosed from negotiating matters not included in or related to specific proposed changes served before the mentioned 60-day period . I therefore do not address myself to this question , and this report is not to be taken as passing on that matter. 505395-59-vol. 122-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's 1957 contract with Lykes and as to many of the points raised at this first meeting, Respondent referred to the fact that the Lykes contract also did not have similar take-a-way provisions, and it stated that it wanted an identical contract in mentioned respects. The parties resolved no differences at the first meeting, except that the Union agreed to delete super-seniority for shop stewards. The second meeting was held on August 7, 1957. The parties continued their discussion of take-a-ways and Respondent continued to refer to the Lykes contract as basis for its proposed changes; it appeared at this meeting that Bond was really not familiar with operational differences between Lykes and Respondent or with the actual practices at Lykes under the Lykes agreement. No agreement was reached on disputed items at this meeting. The third meeting was held on August 23, and this session also was devoted to take-a-way items. It was at this meeting that Respondent submitted its proposed wage rates and job classifications. No agreement was reached. The next meeting was held on August 28. This time the Respondent's principal spokesman was Michel Emmanuel, Respondent's attorney in the present case; Bond and Still also were present. At the opening of this meeting, Cabrera proposed the 1955 contract with a 10-cent-an-hour increase, to which Emmanuel replied that Respondent had already made its offer and "that was about the best they could do." Emmanuel further stated that the 1955 contract was "one sided"; when asked for specification by Cabrera, Emmanuel referred only to the sick benefit program; then it developed, as Emmanuel informed the union representatives at the time, that Emmanuel "wasn't very familiar with the meat industry." Emmanuel repeated that Respondent had made "the best offer that they possible could" and that the Union could "accept it or strike, or do whatever we wanted to do"; Emmanuel further stated that, if the Union did strike, Respondent would replace the strikers and con- tinue to operate. Emmanuel then told Cabrera that Respondent's proposed contract, as did the 1955 contract, had a union checkoff provision, but that Respondent would withdraw all its proposals, including the checkoff clause, unless the Union signed Respondent's proposed contract before expiration of the 1955 agreement at mid- night, August 29. Emmanuel again repeated that Respondent had made its best offer and that they "were going to put it into effect when the 119551 contract expired at midnight." Emmanuel stated that Respondent would nevertheless continue to bargain even though it would institute new wage rates. The parties met again on August 30, with Emmanuel, Bond, and Still for Re- spondent; representing the Union were C. J. Hardee (the Union's attorney) and Robert Ackerman (international representative of the Amalgamated), in addition to Cabrera and the other regular members of the negotiating committee. Ackerman inquired, according to Cabrera's credible testimony, whether it was true that Respondent was going to put its proposed contract changes into effect, and Emmanuel replied that Respondent would do so. Ackerman then stated that Respondent would be committing unfair labor practices by making such changes during negotiations and that Respondent also was not bargaining in good faith by holding certain meetings with employees. (I shall discuss these meetings hereinafter.) The dis- cussion then proceeded to the negotiations at hand, and Ackerman presented a counterproposal consisting substantially of the 1955 contract terms with a 10-cent hourly increase and a downward modification of the 1955 contract vacation policy. Emmanuel rejected this proposal. Then Ackerman proposed the 1955 contract plus the vacation modification but without a wage increase. Emmanuel rejected this. After much more discussion Ackerman asked whether, in view of the fact that Respondent had been referring so often to the Lykes contract, Respondent would accept the Lykes contract "just as she stands." (The Lykes contract was for 3 years, with a 10-cent increase the first year and 71/2-cent increase the remaining 2 years.) Emanual rejected this offer and Ackerman stated that "that proves that you don't want the Lykes contract, that what you want to do is get rid of the Union." 2 Emmanuel responded, according to Ackerman's credible testimony, that "if we didn't have the Union we would be happier than we are now." Ackerman then offered the Lykes contract with a provision to forego the 71/2-cent increase the last 2 years if Respondent were unable to pay such increase . Emmanuel rejected this, stating that he wanted the contract submitted by Respondent. At one 2 Bond testified that he had desired to get the Lykes contract. Then he testified that Respondent's negotiators had no authority to accept the Lykes contract in its entirety, but that his instructions were to get the Lykes contract except for a time and one-half provision for Saturday work. Bond also testified that, although he did not feel strongly concerning some disputed matters, he nevertheless did not advise the Union that Respondent would concede any specific item. HERMAN SAUSAGE CO., INC. 179 point in this discussion Ackerman referred to the fact that some of Respondent's proposed charges did not involve cost items and that he could not understand why Respondent was insisting on proposals which would materially weaken seniority and grievance rights 3 and which fail to provide against discharges without "just cause." The August 30 meeting finally ended and as indicated above, the 1955 contract had expired the previous midnight. Mindful of Respondent's statement that it would institute changes along the lines of its proposal rather than continue the 1955 terms and conditions of employment until the negotiations were finally resolved, Ackerman requested another meeting for the next day, Saturday; Respondent's representatives refused. Ackerman then requested a meeting on Sunday; Respondent rejected this. Then Ackerman requested a meeting on Monday (Labor Day); Emmanuel rejected this. The parties finally agreed to hold the next meeting on Tuesday night (September 3). During business hours on August 30, meanwhile, and before the aforementioned bargaining session held that day, Plant Manager Bond and Superintendent Still convened employee meetings and had the machinery stopped in each plant depart- ment. Bond made substantially similar remarks at each meeting. Bond told the assembled employees, according to credible testimony, that the 1955 contract had expired and "we will have to work under some agreement, so we are going to put our contract into effect"; that Respondent was changing the wage rates and existing practices as to vacations, sick benefits,4 rest periods,5 seniority,6 and leave 7 in case of death of family members, and that union dues would no longer be checked off. Bond told the employees that Respondent would continue bargaining; he also said that the elimination of the dues checkoff would, together with the raise in wages, increase the employees' take-home pay and that they therefore would not be hurt even if Respondent negotiated for "three years." Bond further told the employees that Respondent had proposed a "good" contract to the Union and that the employees would have accepted such contract if Cabrera had not "misrepresented" its terms to the employees. That same day (August 30) Respondent posted a new schedule of wage rates and it gave a copy of the following notice to each of its employees when paying them on or about August 30: Due to the expiration of the Union contract on August 29, we have not deducted union dues from your pay check this week, and will not make such deductions in future. Effective today, we are also increasing wages in line with the pro- posal which we made to the Union and which they rejected. Also in conformity with its proposed contract, Respondent contemporaneously reduced premium pay for night work, reduced the clothing allowance, and dis- continued supper money allowances except for drivers. The next bargaining session was on September 3. This meeting was attended by Commissioner John Kenney of the Federal Mediation and Conciliation Service. The parties again took up the so-called take-a-ways; after Ackerman had been making various concessions on items proposed by Respondent, Ackerman asked Emmanuel whether Emmanuel had authority to make concessions and reach a final agreement that day for Respondent. Emmanuel replied that he was only authorized to sign the contract proposed by Respondent, but without provision for checkoff of union dues. Ackerman stated his willingness at this meeting to accept all the monetary changes in addition to some nonmonetary items, requested by Respondent; the parties still reached no agreement. The parties met again on September 5. Ackerman did not attend this or any subsequent meeting. At the beginning of this meeting, Emmanuel stated that he did not believe Respondent was under the jurisdiction of the National Labor Rela- 3 Bond testified that only a few minor grievances had arisen under the 1955 contract and that these were quickly resolved. 4 Bond told the employees that sick benefits were being eliminated entirely, but that Respondent would grant them in individual cases. The employees, Bond further stated, "would have to believe" in him. 5 Bond told the employees that regular rest periods for male employees were being eliminated and that the men "could hold your hand up, like you were in school, and get permission from your foreman for the time you had to go." Respondent posted a new schedule of rest periods within a few days. G In this connection Bond also told the employees they "would have to believe in me." 4 Bond told the employees they could "trust" him to get 2 days' leave in such situations even though it was not in the contract. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Act and, in effect, that it was not an unfair labor practice to put the various aforementioned changes into effect. Emmanuel announced again the Respondent had made its best offer and that the Union "Could take it or leave it, or strike" and that Respondent, in the event of a strike, would replace all strikers. Union Business Representative Cabrera then asked Emmanuel if Respondent would accept the Lykes contract; Emmanuel replied that such contract was unacceptable be- cause it contained provision for time and a half for Saturday work and because it also provided for a checkoff of union dues. Respondent mentioned some alleged concessions it would make, whereupon Cabrera asked Emmanuel to provide a written list of such items, and the meeting thereupon adjourned. The Union held a meeting on September 9. After reviewing the course of nego- tiations, and related events, the employees voted to strike and they did strike on September 10. The reason for the strike, according to Cabrera, was "that the Company just ignored our contract and refused to bargain with us, and put their contract into effect, disregarding our union and everything we had." A picket line was immediately established at the plant. On September 9, before the mentioned strike meeting, Bond asked Shop Steward James Hincy to explain Respondent's proposals at the union meeting that night. Hincy told Bond that at the time that Respondent had "made the people mad [by instituting the monetary changes] before we had reached some kind of an agreement." David E. Ward is president and half owner of Respondent. On September 13, while employees were picketing and other striking employees were in the vicinity, Ward asked Shop Steward Hincy to call the pickets together for "a word of prayer." Ward told Hincy, in effect, that he would not discuss the negotiations. The pickets and other striking employees thereupon gathered around Ward and Ward uttered an amended version of the Lord's prayer. Then Ward told the employees that they "don't need a contract to work down there in the plant. All you need is this Bible, and to believe in the Bible and in me." Ward then walked over to and addressed some of the striking employees who had withdrawn from the group just addressed by Ward. The bargaining committees met again on September 16 and 24, and October 2, and Hardee had one or two separate discussions with Ward in an effort to resolve the difficulties. The dispute and the strike still continue. Conclusions While it may not be unrelated to the ultimate issue of good or bad -faith bargaining involved here , I do not intend to determine to what extent there are operational as well as labor relations differences between Lykes Brothers and Respondent. Nor shall I draw any inferences from a resolution as to whether or not Respondent's computations and related testimony adduced at the hearing accurately and honestly portray the comparative costs of operating under its 1955 contract and under the Lykes contract . Nor, in determining whether Respondent was engaging in plain " surface bargaining as distinguished from hard , but good faith, bargaining, shall I analyze how meritorious , if at all, were Respondent's various proposals. I need not resolve the aforementioned matters, because , in my judgment, the record otherwise demonstrates that Respondent did not bargain in good faith. I refer particularly to Bond's speeches to the employees on August 30, to Respondent's unilateral changes, and to Ward's "prayer -meeting" remarks to the employees on September 16. Monetary and all other contract clauses were still under negotia- tion and not at an impasse,8 when Respondent instituted its wage and other men- tioned changes on or about August 30. There was no reason of economic necessity for the changes at that time, and Respondent's explanation for such action was rising living costs and the convenience of cost-accounting procedures and to avoid laying', aside cash reserves for a retroactive increase later on . This explanation is com- pletely-pretextual in the circumstances , and 'I find that Respondent's sole reason for the changes was to subvert the Union in the employees ' eyes. Bond told the employees; as recited above, that Respondent had' submitted a "good" contract to the Union; that the Union rejected this contract, and that the employees would have accepted such contract if Cabrera had not "misrepresented" its terms to the em- ployees. Moreover , even' if' negotiations lasted "three years," Bond told the em- ployees that they would not b6-hurt" because, among other things, they henceforth would have the moneys ' formerly deducted as union dues. But, the employees could only have the amount of their dues , within the plain intendment of Bond's 8Bond testified, that he did' not feel that negotiations had reached ; the point on August 30 where there was no point in further negotating `tvith : the--Union.i _ , HERMAN SAUSAGE CO., INC. 181 remarks, if they entirely ceased paying such dues and consequently left the Union. 'Also, so far as Ward was concerned, the employees did not need a contract to work in the plant; all they needed was "to believe in the Bible and in me." Relying on the Crompton-Highland 9 and Bradley Wash fountain 10 cases, Re- spondent asserts that the wage and other changes instituted by it on August 30 were not unlawful unilateral action because Respondent had previously submitted and discussed such changes with the Union. In the Crompton-Highland case the Court stated (337 U.S., p. 224): "A unilateral grant of an increase in pay made by an employer after the same proposal has been made by the employer in the course of collective bargaining . . . left unaccepted or even rejected in those ne- gotiations . . . might well carry no disparagement of the collective bargaining proceedings. Instead of being regarded as an unfair labor practice, it might be welcomed by the bargaining representatives, without prejudice to the rest of the negotiations." And the court in the Bradley-Wash fountain case emphasized that "nothing in this notice [of wage increases] could have been interpreted by the employees as an indication that the employer was seeking to deprive the Union of prestige" (192 F. 2d, p. 151). The same cases cited by Respondent thus indicate that the inquiry in unilateral- change cases is whether, in the circumstances of any given situation, such action carries "disparagement of the collective bargaining proceedings" and/or whether the employer has caused the employees to interpret his action as "seeking to deprive the union of prestige." Unlike the facts in these cited cases, the instant inquiry does not turn on whether the circumstance of unilateral change alone supports the requi- site inference of unlawfulness. For not only did the Union make timely objection to the changes and there was no impasse and there was no pressing economic need which the changes alleviated, but the extrinsic evidence of Bond's and Ward's remarks establish that by such changes and these contemporaneous remarks, Re- spondent sought to discredit the Union and its agents and to persuade the employees that they really did not need a Union and were in fact better off without it. Such conduct during negotiations is not good-faith bargaining and violates Section 8(a)(5) and (1) of the Act.ll I further find, as the General Counsel alleges, that the strike of September 10 was caused by Respondent's failure to bargain in good faith, as described. The strike was in its inception, and continues to be, an unfair labor practice strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having also found that the strike of September 10 was caused by Respondent's unfair labor practices, I shall recommend that, upon their unconditional applica- tion, Respondent shall restore all strikers to their former positions and discharge, if necessary, any replacement hired on or since that date in order to provide work for such strikers. CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 282, AFL-CIO, is a labor organization within the meaning of the Act. 2. All production and maintenance employees at Respondent's plant at Six Mile Creek, Tampa, Florida, excluding all managerial, professional, clerical and office employees, salesmen, watchmen, buyers, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. e N.L.R.B. v. Crompton-Highland Mills, 337 U.S. 217. io N.L.R.B. v. Bradley Washfountain Co., 192 F. 2d 144 (C.A. 7). "The conduct in this case Is essentially 8(a)(5) rather than 8(a)(3) action, as the complaint also alleges but which the General Counsel did not urge in his brief. Accord- ingly, I shall dismiss the 8(a) (3) allegation. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Union, at all times material hereto, has been and still is the exclusive representative of all the employees in the aforesaid unit for the purpose of col- lective bargaining, within the meaning of Section 9(a) of the Act. 4. By unilaterally instituting wage and other changes and by otherwise engaging in conduct in order to discredit and to undermine the Union's status as statutory -bargaining representative, Respondent has violated Section 8 (a) (5) and ( 1) of the Act. Such unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The strike of September 10 was , and continues to be, an unfair labor practices strike. [Recommendations omitted from publication.] General Molds and Plastics Corporation and Retail, Wholesale and Department Store Union, AFL-CIO and District 50, United Mine Workers of America , and Its Local Union 14024, Parties to the Contract. Case No. 6-CA-1056. November 21, 1958 DECISION AND ORDER On December 2, 1957, Trial Examiner W. Gerard Ryan, issued his Intermediate Report in this case, finding that the Respondent had engaged and was engaging in certain unfair labor practices within the meaning of Section 8(a) (1) and (2), and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondent and District 50, United Mine Workers of America and its Local Union 14024, Intervenors and Parties to the Contract, filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, exceptions and briefs, and the entire record in this .case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner, with the modifications noted below. 1. We adopt the Trial Examiner's findings as to the purposes and ,scope of activities of the General Molds and Plastics Corporation Factory Board, and his conclusion that it is a labor organization dominated by the Respondent.' 2. We find, in agreement with the Trial Examiner, that the Re- spondent unlawfully assisted and contributed financial and other support to District 50 and Local 14024. We do not, however, agree with the Trial Examiner's further conclusion that the evidence also establishes domination of District 50 and Local 14024 by the Respondent. IN.L.R.B. v. Sharpies Chemicals, Inc., 209 F. 2d 645 ( C.A. 6), enfg. 100 NLRB 20; N.L;R.B. v. Stow Manufacturing Co., 217 F. 2d 900 ( C.A. 2), enfg. 103 NLRB 1280; Pacemaker Corporation, 120 NLRB 987. 122 NLRB No. 28.