T. L. Lay Packing Co.

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. By laying off the aforenamed 10 employees on February 27, 1964, and refusing to reinstate said employees until varying dates thereafter, thereby discriminating in regard to their hire and tenure of employment, and discouraging union membership and activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] T. L. Lay Packing Company and United Packinghouse, Food and Allied Workers, AFL-CIO. Case No. 10-CA-5758. May 3,1965 DECISION AND ORDER On February 15,1965, Trial Examiner Owsley Vose issued his Deci- sion in the above-entitled proceeding, finding that Respondent had not engaged in unfair labor practices as alleged in the complaint, and rec- ommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions, the Respondent filed cross-exceptions to the Trial Examiner's Decision, and both parties filed supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed. MEMBER BROWN took no part in the consideration of the above Deci- sion and Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed by the Charging Party on June 15, 1964, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, 152 NLRB No. 30. T. L. LAY PACKING COMPANY 343 issued a complaint on August 13, 1964, alleging that the Respondent had violated Section 8(a) (5) and (1) of the Act, by unilaterally announcing a wage increase on March 26, 1964, and by refusing to bargain collectively with the Charging Party (herein called the Union) thereafter. The Respondent filed an answer in which it admitted the jurisdictional allegations of the complaint but denied engaging in any unfair labor practices. Pursuant to due notice a hearing was held before Trial Examiner Owsley Vose in Knoxville, Tennessee, on September 16 and 17, 1964. All parties were afforded full opportunity to be heard, to introduce relevant evidence, and to present oral argu- ment. Counsel for the General Counsel and the Respondent submitted briefs, which have been carefully considered. Upon the entire record in the case, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Tennessee corporation, having its principal office and place of business at Knoxville, Tennessee, is engaged in the processing, sale, and distribution of meat products. During the 12 months preceding the issuance of the complaint, a representative period, the Respondent sold and shipped products valued in excess of $50,000 from its Knoxville, Tennessee, plant directly to customers located outside of Tennessee. Upon these facts, which are admitted by the Respondent, I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Packinghouse, Food and Allied Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's majority status in the appropriate unit The Respondent's answer admits that the following employees at its Knoxville plant constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All the over-the-road truckdrivers, including truck mechanics, excluding all office and managerial employees, clerical employees, salesmen, buyers, guards, production and maintenance employees, and all supervisors, as defined in the Act. Cards authorizing the Union to act for the signers "as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of employment" signed by 20 of the 28 employees in the above- stated appropriate bargaining unit were received in evidence in this case. The NLRB date stamp on the cards establishes that they were all signed before 9:55 a.m., March 24, 1964. The Respondent does not now challenge the authenticity of any of the signatures on these 20 cards Upon the basis of these signed bargaining authorization cards, I find that the Union represented a majority of the employees in the above-stated appropriate unit on and after March 24, 1964. The Respondent, relying on the testimony of eight of the signers of the cards, contends that the employees were fraudulently induced to sign the cards with the representation that they would be used to obtain a National Labor Relations Board election and that no other use for them was suggested. The following facts are undisputed: Fifteen cards were signed at the first union meeting which was held on Sunday, March 1, 1964, at the home of Clifford Ballinger, one of the employees. At least two additional employees, Robert McNallie and Melvin Cameron, signed cards in the interval between the first and second meeting, which was held on March 15, 1964. These two cards and three others were turned in to Union Repre- sentative George Rines at the second union meeting on March 15. The Respondent's claim of fraudulent misrepresentation is based upon the testimony of the six of the employees who signed at the March 1 meeting, and the testimony of McNallie and Cameron, who each signed at the request of a fellow driver in the interval between the first and the second meeting. There is a conflict in the testimony concerning the remaining events at the union meetings, particularly regarding events at the March 1 union meeting at which the 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first 15 union cards were signed. The record also does not present a clear picture of the statements made to McNallie and Cameron before they signed their cards. After weighing the conflicting testimony and considering the probabilities involved, I find the facts to be as follows : Union Representative Rines spoke to the group at the March 1 meeting concerning the procedure to be followed to secure union representation . He explained that they would first have to sign membership cards and said that if a majority signed cards the Union would write a letter to the Respondent requesting that it sit down and bargain collectively about wages and work- ing conditions . In response to a question concerning what would be done if the Respondent refused to recognize the Union, Rines stated that the cards would be used to petition the Board to hold an election . In answer to another question, Rines said that the actual negotiations would be conducted by a committee elected by the employees who would accompany him to a bargaining conference with the Respond- ent's representatives . After this discussion , Rines invited the men to think about the matter and to sign the bargaining authorization cards if they felt they had made up their minds . All of those present signed cards and handed them to Rines. These cards, in addition to authorizing the Union to act as their "collective bargaining agency in all matters pertaining to rates of pay . . . or other conditions of employ- ment," recited that the signers "accept[ed] membership" in the Union. The second union meeting on March 15, 1964 , was attended by 19 drivers. By this time the Union had secured cards from a substantial majority of the drivers. Union Representative Rines asked for a show of hands of those favoring his proposal that a letter be sent to the Respondent requesting recognition of the Union as the representative of its drivers and the commencement of bargaining negotiations. All present raised their hands Upon the foregoing facts I conclude that while Union Representative Rines men- tioned at the March 1 meeting the possibility of the Union having to establish its majority status through a Board-conducted election in the event that the Respondent refused the Union's request for recognition, he did not represent that the cards would not be used as a basis for seeking immediate recognition and bargaining or that they would be used only as a basis for obtaining a Board-conducted election. The Respondent's contention to the contrary is not borne out by credible testimony. Accordingly, the cards of Kenneth Catlett, Lewis Clayton, Wilbur Pryor, P. A. War- wick, Ray Adams, and Ralph Cannon are entitled to be counted towards the Union's majority.1 'The foregoing findings are based largely on the testimony of Union Representative Rines. The significant portions of his testimony as to the statements made by him to the employees regarding an election at the March 1 meeting are fully corroborated by the testimony of one of the Respondent 's witnesses , Armour Campbell. I do not credit the testimony of the six employees relied upon by the Respondent, that Union Agent Rines represented to them at the March 1 meeting that the cards would be used to obtain an NLRB election and that no mention was made by him of using the cards as the basis for seeking recognition from the Respondent . Their testimony was, in part, highly confused and contradictory They appeared to be attempting to parrot the phrases used by their predecessors on the stand which appeared to be meeting favor with the Respondent' s counsel. Never in my experience have I observed a group of witnesses who appeared as fearful of giving testimony which would antagonize their employer or as eager to restore themselves to their employer 's good graces by giving helpful testimony. In my opinion it is contrary to the realities of such organizing situa- tions for such a group of employees to have attended successive union meetings and to have signed bargaining authorization cards if all they were seeking was an opportunity, later on in an election , to accept or reject a union. While I do not believe the versions given by these six witnesses , this does not mean that I accept the version of Union Representative Rines in tote . Rines was mistaken, to say the least, when he testified that McNallie was present at the first union meeting and consequently Rines' Identifica- tion of McNallie's card was erroneous . However, when I consider the version of Rines and Respondent's witness , Campbell, in light of the background of events in this case and'compare this version against the version of the six men in question , I unhesitatingly give preference to the version of Rines and Campbell. In any event, in most instances the testimony relied on by the Respondent , even if credited , does not establish that kind of material misrepresentation or fraud which re- quires the Board to disregard the employees ' affirmative act in signing cards which expressly authorized the Union to act as their collective-bargaining agent. See Peterson Brothers, Inc, 144 NLRB 679, 681-683 , and cases therein cited ; Jas H. Matthews & Co., 149 NLRB 161 ; of. N.L R B. v. Gene Hyde, d/ b/a Hyde's Supermarket , 339 F. 2d 568 (C.A. 9), 58 LRRM 2005, 2006-2008. T. L. LAY PACKING COMPANY 345 There remains the question of the cards signed by Robert McNallie and Melvin Cameron, who were solicited to sign cards by fellow employees in the interval between the first and second union meetings. I cannot accept Cameron's or McNallie's testi- mony that it was represented to them before they signed cards that the cards were to be used for an election. McNallie's testimony, in particular, was contradictory and implausible on its face. Kenneth Catlett, who solicited McNallie's signature, when asked, "You heard Mr. Rines make further statements at that meeting, that if enough signed cards, the company would be asked to recognize the union and if they didn't recognize the union, they would petition for an election?" replied, "Yes, sir." Ralph Cannon was the employee who solicited Cameron to sign an authoriza- tion card. When asked what Rines had said at the March 1 meeting "about why employees should sign a union card," Cannon replied as follows: "Well, I don't think he ever said. I think everybody knowed why they was signing a union card. I think they was there for that purpose. They knowed, to get a union." In view of the above-quoted testimony of Catlett and Cannon I find it highly improbable that they would have represented to others that the cards were being signed only for the pur- pose of obtaining an election. Under all the circumstances, I conclude, as in the case of the six employees who signed cards at the March 1 meeting, that no misrepre- sentations concerning the holding of an election were made to McNallie and Cameron before they signed authorization cards. B. The Respondent's unilateral announcement of a wage increase on Maich 26, 1964, and its subsequent failure to bargain collectively with the Union 1. The facts The Respondent has granted wage increases to its employees every year for the past 10 years, except 1962. In 1955, 1956, and 1957 two across-the-board increases were granted to the Respondent's employees. With the exception of 1956 and 1958, some increase was granted during the second quarter of the year and all the recent increases have been granted in April or May. The 1963 increase was made retro- active to the week ending April 4, the first week in the second quarter. This required the issuance of separate checks for the retroactive pay. The minutes of the Respondent's board of directors' meeting which was held on December 23, 1963, contain the following entry: The Board went on record, intended to pay 6 cents across board, wage increase some time in the next quarter, provided profits justify. Frank Higdon is the cashier, credit manager, and office manager of the Respondent. One of his responsibilities is the typing of the minutes of the Respondent's board of directors' meetings so that they can be placed in the Respondent's official minute books. Higdon did not get around to typing up the minutes of the December 23, 1963, meeting until sometime in March 1964. Upon typing up the minutes, Higdon noticed the entry about the wage increase contemplated for "some time in next quarter." Remembering the extra work involved in figuring the amounts due and in making out the checks for retroactive pay for the 1963 increase, Higdon suggested to Ira V. Lay, Sr., the Respondent's president, that if the Respondent were going to put the wage increase into effect during the first quarter, if possible, to put it into effect during the quarter and not to delay until after the quarter was over because of the considerable amount of additional clerical work involved in figuring the retroactive pay and in preparing the separate checks. President Lay called a meeting of the Respondent's board of directors on Wednes- day, March 18, 1964. At this meeting the Board voted to grant the employees a 6-cent across-the-board increase effective the payroll week beginning the following morning. The Respondent's payroll week begins on Thursday and ends on Wednes- day. The employees are paid on Thursdays and some on Fridays. Under this deci- sion to grant an increase, the employees would receive paychecks including the increase for the first time on Thursday, March 26, 1964. On March 19, 1964, Ira V. Lay, Jr., the Respondent's vice president and superin- tendent of the plant, drafted the following letter, and placed the date, March 19, 1964, on the draft: HAPPY EASTER To: ALL EMPLOYEES Your Board of Directors voted last December 23, at the same meeting your bonus was voted, that if the profits during the first quarter permitted, a .06¢ raise would be put into effect. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As you remember last year, we waited until the Auditors report was received on May 13th and then made your increase retroactive to April 4th. This cre- ated a lot of extra bookkeeping and two separate checks. Today your board decided to gamble on the outcome of March profits results in view of profits thus far this year and the general business outlook for the balance of the year and put the raise in effect for Easter. We hope we have not jumped the gun and counted our chickens before they hatched . Without profits there can be no raises. With everyone doing his best work, making every effort to decrease costs, giving full cooperation , and striving for 100 % teamwork by pulling together in peace and harmony, we can continue to enjoy the benefits of our association together. This raise will be received by all hourly paid and salaried Employees except Officers of the Company , Salesmen, Handicapped Workers, and Beef Boners piece work. Beef Boners hourly rate will show the iaise LAY PACKING COMPANY Lay, Junior, gave the draft of the letter to one of the Respondent 's secretaries with instructions to have mimeographed copies ready for distribution with the next week's checks. The Respondent's office force reports for work at 7 a .m. Shortly after Vice Presi- dent Lay reported for work at 7 a.m. on Thursday, March 26 , he passed by the pay- roll clerk's office . Lay credibly testified that he paused long enough to have the following conversation with Catherine Mincey, the payroll clerk: I said, "You are using the new pay increases , aren't you ." And she says, "No; what increases are you talking about." I said, "Didn 't dad tell you about it? We had a meeting the 18th and I assumed that he told you about it." She said, "Well, if he did , I don't remember it." and I said , "Well, put them into effect, they are supposed to go out on today's checks ." She said, "All right," that she would.2 At least an hour later Vice President Lay was summoned to his father's office. There, his father handed him a copy of the Union 's petition for certification as bar- gaining representative of the Respondent's drivers , together with a letter from the Board's Atlanta Regional Office about the petition . The petition had just been received in the morning mail. Both President Lay, Senior , and Vice President Lay, Junior, credibly testified that prior to receiving this letter enclosing the petition they had no knowledge that the drivers were interested in the Union Lay, Junior, suggested to his father that in view of this development , they should call Hutcheson , the Respondent's attorney in Chattanooga . When Hutcheson was not in, Lay, Junior, asked to speak to Harold Humphreys, one of Hutcheson 's part- ners. Then, as Lay, Junior, credibly testified , the following conversation with Attor- ney Humphreys ensued: I said, "We have just received a petition for the truckdrivers ." and I said. "Harold, here is our situation : the board voted on December 23 if profits justify a six-cent wage increase the first quarter." I said, "In addition to that, we've got the notices . We had a meeting on the 18th and decided to put it into effect and the letter has been written and the pay clerk has already been notified and probably by this time she has already written some checks. Should we void these checks)" He says, "Well, give me some information on your history of past wage increases," and I explained to him that in the past ten years , with the exception of 1962, that we had given a wage increase every year and there had been three or four years that we gave two increases." .. . He says, "Well , based on the past practices , let it alone, let the wage increase stay into effect." He says, "Now, the reason for that is this," and I said , "Well, let me write it down." And I wrote it down exactly what he said ... and Harold said the wage increase was given consistent with past practices and in accordance with the decision made to giving increases on a specific date prior to receiving the petition. ... He just said let it stand and he said, ... "There are conditions since there are more people involved than just the truckdrivers , after all you've got 250 other employees down there that there are conditions under which you could be charged if you didn't give a pay increase." 2 Mincey's testimony regarding this conversation corroborates that of Lay, Junior. T. L. LAY PACKING COMPANY 347 Pursuant to Attorney Humphreys' advice, the decision was reached to release the announcement of the wage increase (the March 19, "Happy Easter" letter) along with the checks, as had been originally planned. The payroll clerks continued with the work of preparing the checks and stapling the March 19 letter to them. Later during the day the Respondent received by registered mail a letter from T. H. Vincent, the director of District 7 of the Union, asserting that a majority of the Respondent's over-the-road drivers were members of the Union, and requesting that the Respondent recognize the Union as the bargaining representative of the drivers and set a date for the commencement of bargaining negotiations. This letter came to Respondent's attention about 2 p.m. on March 26, when President Lay opened it. Despite the receipt of this letter, the Respondent adhered to its earlier decision to let the wage increase stand. The Respondent did not consult with the Union at any time before putting the wage increase into effect and it has not since bargained collectively with the Union. The Union has not sought to prove its majority status to the Respondent by any means other than the Board-conducted election which it requested in the petition mailed to the Board the same day that it mailed its request for recognition and bar- gaining to the Respondent. After a propaganda campaign among the drivers and mechanics in which the Respondent's president repeatedly expressed his strong oppo- sition to the employees' selection of the Union as bargaining agent, the Union lost the election, which was held on April 24, 1964. The vote was 21 to 7. 2. Conclusions The General Counsel contends that the Respondent had a full opportunity to with- hold the wage increase, which he characterizes as a "non-conforming" one,3 and that the Respondent's failure to do so upon being informed of filing of the Union's petition constituted an act of interference and coercion which made a free election impossible, and that consequently the Respondent cannot be permitted to defend its subsequent failure to recognize and bargain collectively with the Union upon the ground that it doubted the Union's majority status While I do not question the proposition of law upon which the General Counsel relies (Joy Silk Mills, Inc., 85 NLRB 1263, 1264- 1265, enfd. as modified 185 F. 2d 732, 741-742 (C A.D.C.), cert. denied 341 U.S. 914), I find it inapplicable upon the facts of this case. Here, the Respondent had decided upon, had prepared the announcement of, and had issued the necessary instructions to put into effect, the March 26 wage increase before it became aware that its drivers were interested in the Union. All that remained to be done at the time the Respondent received the copy of the Union's petition for certification was the issuance of the checks and the announcement of the increase. These facts clearly establish that the grant of the March 26 increase was not for the purpose of interfering with the drivers' choice of bargaining representa- tives. Nor can it be said on the facts of this case that the Respondent's failure to withhold the wage increase at the last minute reasonably tended to interfere with the free exercise of employee rights under the Act. There was nothing about the March 26 increase to distinguish it from past increases which had been almost every year in the past, except that it was given 1 or 2 months earlier. But the reasons for advancing the date was fully explained by the Respondent's officials-the desire to avoid the additional clerical work involved in figuring and writing the separate checks for retroactive pay-and this explanation was included on the announcement of the wage increase which was prepared a week before the Respondent first received notice that the drivers were organizing Under all the circumstances, I find that the Respond- ent's going ahead with its previous plans and putting into effect the previously decided- 3 This apparently is a reference to the fact that this was the first wage increase granted by the Respondent without having available for consideration financial state- ments showing the results of the full first quarter's operations. When the increase was decided upon, the Respondent had available only the monthly statements showing the results of the Respondent's January and February 1964 operations. However, the fact that the March 1964 increase may have in this respect constituted a departure from past practice is significant only if it affords a basis for inferring that the increase was decided upon with knowledge that the drivers were interested in the Union and was put into effect in an effort to dissuade them from adhering to the Union. The record as a whole establishes to my complete satisfaction that this increase was decided upon and ordered into effect before the Respondent had any knowledge of the union activities of the drivers For this reason I do not believe it significant that this increase was put into effect 1 or 2 months earlier than previous increases. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon increase, despite its last minute notice that the drivers were organizing, was not accomplished in such a way that it reasonably could be said to interfere with its employees' rights of self-organization and collective bargaining under the Act. In this connection it also should be borne in mind that the March 26 increase was intended to be an across-the-board increase, covering all of the Respondent's employ- ees, not only the Respondent's 28 drivers and mechanics, but also 250 other produc- tion and maintenance employees as well. To have deprived these 250 employees of a previously planned wage increase because of the last-minute discovery that the 28 drivers and mechanics were organizing, as Attorney Humphreys advised Vice President Lay, might have subjected the Respondent to charges that it was interfering with the rights of these 250 production and maintenance employees. For the foregoing reasons I conclude that the Respondent has not violated Section 8(a)( I) of the Act by putting into effect its previously planned March 26, 1964, wage increase, and therefore has not engaged in such conduct as would render a free elec- tion impossible. See Derby Coal & Oil Co., Inc., et al., 139 NLRB 1485, 1486; True Temper Corporation, 127 NLRB 839, 842-844; cf. C. J. Glascow Co., 148 NLRB 98. Accordingly, the Respondent was within its rights in awaiting the outcome of the election before recognizing and bargaining collectively with the Union as the repre- sentative of its drivers and mechanics. Since the Union lost the election, the Respondent was under no obligation to bargain collectively with it, and the Respond- ent, therefore, has not refused to bargain collectively with the Union in violation of Section 8(a) (5) of the Act .4 RECOMMENDED ORDER It is ordered that the complaint herein be, and it is hereby, dismissed. 'In view of the result which I have reached in this case, it is perhaps unnecessary for me to mention an alternative defense raised by the Respondent, namely, that the Union's request for bargaining related to a different unit from that found herein to be an appropriate unit and one which was inappropriate for collective-bargaining purposes. However, since the Board may disagree with my conclusion herein, it may be helpful to state my views regarding this contention . Assuming, as contended by the Respond- ent, that a unit of 25 drivers alone is not appropriate for the purposes of collective bargaining and that upon the facts of this case the 3 mechanics who work on the trucks and occasionally substitute for the drivers must be included in the unit with the drivers, nevertheless , I conclude that a request for bargaining as to a unit of drivers alone is not such a substantial variance from a request for bargaining upon behalf of the unit herein found appropriate ( consisting of 25 drivers and 3 mechanics ) as would excuse the Respondent from bargaining collectively with the Union. See The Lone Star Com- pany, 149 NLRB 688, and cases therein cited. Maritime Advancement Programs and Office Employes Interna- tional Union, Local 153, AFL-CIO, Petitioner. Case No. 2-RC- 13596. May 3, 1965 DECISION ON REVIEW AND DIRECTION OF ELECTION On September 23, 1964, the Regional Director for Region 2 issued a Decision and Order in the above-entitled proceeding, dismissing the petition on the basis of his finding that the operations of the Employer, a nonprofit organization, are noncommercial in character and that it would not effectuate the purposes of the National Labor Relations Act, as amended, to assert the National Labor Relations Board's jurisdic- tion. Thereafter, the Petitioner, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, filed with the Board a timely request for review of such decision asserting that the Regional Director departed from officially reported Board precedent. 152 NLRB No. 34.