Wahoo Packing Co.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain or refrain from becoming or remaining members of the above named or any other labor organization FRONTIER GUARD PATROL INC D/B/A FRONTIER GUARD AND DELUE INC COLORADO GUARD-PATROL SERVICE INC AND/OR PATROL SERVICES INC Employer Dated------------------- By------------------------------------------- (Representative) (Title) NOTE -We will notify any of the above named employees if serving in the Armed Services of the United States of their right to reinstatement upon apphca tion in accordance with the Selective Service Act as amended , after discharge from the Armed Forces This notice must remain posted for 60 consecutive days from the date of post ing and must not be altered defaced or covered by any other material If employees have any question concerning this notice or compliance with its pro- visions they may communicate directly with the Board s Regional Office 607 Railway Exchange Building 17th and Champa Streets Denver Colorado 80202 Telephone 297-3551 Wahoo Packing Company, Anthony B Cudahy, John Q Runyan and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, District Union No 271 Case 17- CA-2771 October 20,1966 DECISION AND ORDER On June 13, 1966, Trial Examiner Alba B Martin issued his Decision in the above entitled proceeding, finding that Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three member panel [Chair man McCulloch and Members Brown and Zagona] 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 the brief, and the entire record in this case," and hereby adopts the findings, conclusions 2 and I The Respondents request for oral argument is hereby denied as in our opinion the record exceptions and brief adequately present the issues and the positions of the parties 2 The Board makes the following additional conclusion of law based on the Trial Examiner s findings By assisting and attempting to get the Union decertified with the purpose or foreseeable effect of obstructing the bargaining process Respondents have refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act 161 NLRB No 14 WAHOO PACKING COMPANY 175 recommendations 3 of the Trial Examiner, with the additions and modifications noted below [The Board adopted the Trial Examiner's Recommended Order with the following modifications [1 Substitute the following for paragraph 1(e) [" (e) Refusing to bargain collectively with the above named Union by attempting or assisting to get the Union decertified, by unilaterally granting employees Rage increases, or by otherwise refusing to bargain collecti-vely concerning rates of pay, wages, hours of employment, and other conditions of employment with the Union as the exclusive representative of its employees in the appropriate unit " [2 Substitute the following for the fifth indented paragraph of the notice [WE WILL NOT refuse to bargain collectively with the above named Union by attempting or assisting to get it decertified, by unilaterally granting employees wage increases, or by otherwise refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with the Union as the exclusive representative of our employees in the appropriate unit [3 Add the following as the ninth indented paragraph of the notice [WE WILL bargain, upon request, with the above named labor organization, as the exclusive representative of the employees in the appropriate unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of em ployment, and, if an understanding is reached, embody such un derstanding in a signed contract The bargaining unit is [All production and maintenance employees of Wahoo Pack ing Company employed at its Wahoo, Nebraska, plant, excluding office clerical employees, guards, professional em ployees, and supervisors as defined in the Act ] 'The individually named Respondents shall not in their individual capacities be liable for the reinstatement of and backpay to Prohaska referred to in the Trial Examiner s Recommended Order and notice See Kortarikk Ino 111 NLRB 630 TRIAL EXAMINERS DECISION STATEMENT OF THE CASE This proceeding with all parties represented was heard before Trial Examiner Alba B Martin in Wahoo Nebraska on January 24 to 27 1966 on complaint of the General Counsel and answer of Wahoo Packing Company Anthony B Cudahy 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and John Q. Runyan, Respondents herein.' The issues litigated were whether Respondents violated Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, 29 U.S.C. Sec. 151, et seq., by promising employees a 15-cent-an-hour wage increase if the Union was voted out; by preparing a decertifi- cation petition and preparing and causing employees to sign decertification slips in an effort to get the Union decertified; by threatening to discharge an employee if he engaged in concerted activities; by discharging Louis Prohaska because of his union activities to discourage membership in and support for the Union and/or because of his concerted activities for his own and other employees' mutual aid and protection; and by putting a 15-cent-an-hour wage increase into effect without previously notifying or consulting with the Union, the certified collective-bargaining agent. After the hearing the General Counsel filed a brief, which has been carefully considered; and also a motion to correct the record in certain respects. As the suggested corrections appear warranted to me, and as no objection has been filed by any party, this motion is hereby granted. This motion has been placed in the original exhibit file as General Counsel's Exhibit 8. Upon the entire record and my observation of the witnesses I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT COMPANY Respondent Wahoo Packing Company (herein called Respondent Company, Respondent, and the Company,) is a Nebraska corporation having its office and principal place of business (herein called the plant), at Wahoo, Nebraska, where at the time of the hearing herein, it was engaged in the beef processing industry. It employs around 40 employees. Wahoo is a small community of about 3,600 popu- lation located about 40 miles west of Omaha, Nebraska. The complaints alleged, the answers admitted, and I find, that Respondent annually sells goods and products valued in excess of $50,000 to customers outside the State of Nebraska, and that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Company began operations in Wahoo in September 1963. Its presi- dent since 1963 is Respondent John Q. Runyan. Its vice president and manager since its opening is Respondent Anthony B. Cudahy. Runyan and Cudahy are both stockholders as well as officers. They helped form the Company, began its operations, and conduct the business. Wahoo Industries is a nonprofit corporation formed by local businessmen to pro- mote industry in and around the community of Wahoo. Nearly all of Wahoo's business and professional men are stockholders. Wahoo Industries bought the ground, built the plant, built the packinghouse installation and equipped it, and entered into a lease-purchase contract with Respondent Wahoo Packing Company. Robert Sullivan, a local lawyer who has served as Wahoo Industries' lawyer since 1958 or 1959, represented Wahoo Industries in its negotiations with Respondent Wahoo Packing Company. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, District Union No. 271, herein called the Union is a labor orgaanization with- in the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Union was certified in August 1964 for a production and maintenance unit, consisting of about 30 employees.2 There were negotiations between the Company and the Union until the spring of 1965 without a meeting of the minds and without a contract; at which time the Union voted to strike over economic issues. The strike i The Union filed the charge on October 8, 1965, the first amended charge on October 19, 1965, the second amended charge on December 29, 1965. 2 The appropriate unit consists of all production and maintenance employees at the Wahoo plant, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. WAHOO PACKING COMPANY 177 did not occur, however, because the Union decided to accept "the Company's plead- ings of its financial position" and decided to defer further bargaining until "such time as the Company got into a better economic picture." No further negotiations occurred until after the events involved herein. Thus the events herein occurred while bargaining was in a state of suspension during and shortly after the certifica- tion year. They occurred when employees were anxious for a raise in wages, not having received any through the Union's earlier bargaining efforts. During the negotiations the some 30 employees in the appropriate unit were rep- resented by union representatives and also by their fellow employees Kenneth Lee Hanson, aged 23, and Donald Kemerling. During the hiatus in the negotiations, on August 1, 1965, Hanson became the foreman of the kill floor. Kemerling quit his employment with Respondent in early October 1965, after most of the events herein. B. The effo,ts of Respondent Company and Respondent Runyan to get the Union dicer tified Action to get the Union decertified was taken by the local, Wahoo lawyer, Robert Sullivan, on September 1, 1965, after a telephone conversation with President Run- yan. The conversation related in part to some legal work Sullivan was then perform- ing for members of President Runyan's family, and during it they discussed getting the Union out of the plant. Sullivan, whose testimony contained much vagueness and uncertainty on vital matters,. allowed that his pretrial affidavit would help refresh his recollection. Having read' his pretrial affidavit,, dated November 10, 1965, some 21/3 months after the events,, Sullivan testified: Well,. at that time I must have felt that he talked to me about getting the Union out of the plant. At this time I don't' remember it, but' it must have been that was closer to the time of our telephone conversation and I am assuming that if I remembered it that way at that time, that is probably more accurate than what I remember today. [Emphasis supplied.] Sullivan then testified that he had discussions with. Runyan about getting the Union out of the plant, and that they occurred in August or September. The pretrial affi- davit which, refreshed his recollection stated that in his September 1 telephone conversation with Runyan the latter "asked if anybody had been to see me about getting the ,Union out of the Wahoo Packing plant . I am sure he mentioned this in one previous conversation and. possibly as many as three or four. I would say these talks took place over a. period of 3 weeks prior to September 1 ... . Deferring to Sullivan's testimony that there was a September 1 conversation between them because Sullivan had an office entry which confirmed' it,, President Runyan testified that "to the best of my recollection" they did not discuss the Union. Then, assisted by the leading question, "what you talked about had nothing to do, absolutely with the Company, isn't that correct?" Runyan replied, "Right." As Run- yan was unconvincing that he had any specific recollection of this particular con- versation, and as Sullivan, on his, entire testimony clearly did, I credit Sullivan's testimony rather than, Runyan's. I credit only Sullivan's oral testimony at the hear- ing, and find, on the. preponderance of the evidence, that on September 1, President Runyan talked to Sullivan about getting the Union. out of the plant and that at other times in August or September Runyan and Sullivan had discussions about get- ting the Union out of the plant. Upon the entire record I conclude that the two of them discussed this subject in August as well, as September. In the summer of 1965, while bargaining between the Company and the Union was in abeyance, Joe Breuing , who owns a rendering plant near Respondent Com- pany's plant and is a vice president and stockholder of Wahoo Industries but not a stockholder of Respondent Company, talked' to Frank Novak and Matthew Hay- elka, who told him they were interested in getting the Union out of the plant. Although the record does not show, presumably Novak and Hayelka=were' employ- ees at the plant. Nor does the record disclose who initiated the conversation between Breuing' and the two men or who introduced the subject of expelling the Union. Breuing told the two men to see a lawyer, and the further conversation revealed that Sullivan' had previously done legal work for Hayelka as well as for Brewing and for Wahoo Industries. Nevertheless the men did not contact a lawyer. At an undisclosed time Breuing discussed the subject of decertification with Attorney Sullivan. 264-188-67-vol. 161-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 1, Sullivan took the initiative and talked with Hayelka about a decertification proceeding. Hayelka suggested the name of employee Gordon E. Specht as one who night or would assist such a move. Sullivan telephoned Specht's home, talked with Mrs. Specht, and made an appointment to go to Specht's home and talk with him, which he did on or about September 9. Sullivan drafted and asked Specht to have employees sign a slip of paper reading as follows: September 1965 I am an employee of the Wahoo Packing Company, Wahoo, Nebraska, as of the above date, and I support the petition for decertification being prepared for filing by who is a fellow worker of mine. Either before or after the slips were signed, Sullivan's secretary typed in the name "Gordon E. Specht" in the blank space for the preparer of the decertification peti- tion. After Specht returned the slips to Sullivan the latter had his secretary type in the date "11" after "September," September 11 being the date Sullivan understood they were signed. Prior to his first call at Specht's house, Sullivan had not represented Specht before and on this occasion Specht did not ask him to represent him or any other group of employees. Sullivan did not ask Specht if he was for or against the Union. Nor before then had Attorney Sullivan ever represented any group of employees at the plant or taken any part-in the negotiations between the Company and the Union; although since the Union first arrived on the scene he had had many conversations with President Runyan about the Union and about problems in connection with it. Sullivan and Runyan were members of the same church, civic clubs, lived about 3 blocks apart, and were friendly. Specht passed out the decertification slips to employees during lunch hour on or about September 11, and received some 15 signed ones back, which he returned to Sullivan. One of the slips was signed by Foreman Hanson. 'Using a decertification petition form he procured from the Board's Regional Office, Sullivan went to Omaha and obtained from Respondent's attorney, Malcolm D. Young, the necessary information to fill it out. He had had many conversations with Young in getting the enterprise started in the plant, Sullivan representing Wahoo Industries and Young representing Wahoo Packing Company. It was unlikely-that Sullivan would have been able to get this necessary information from employees in the plant. He could have obtained it from the Regional Office. Instead he chose to get it from Respondent's attorney. This necessary information included the full name and address of the certified bargaining agent and the date of the cer- tification. With this information Sullivan then drew the decertification petition Sullivan took the prepared petition to President Runyan's private office, Specht was called in and asked to sign it by Sullivan, and he signed. President Runyan was in the outer office, not in his private office, at the time, but obviously Sullivan was using the office with his express or implied approval. Sullivan then sent the decertification petition and the 15 decertification slips to the Regional Office, where the case was docketed on September 21, 1965, as Case 17-RD-291. The parties stipulated that thereafter the parties entered into a stipu- lation for certification upon consent election setting the election for October 14, 1965. I take official notice from that-proceeding that this stipulation was executed by the Company and the Union on October 5, 1965. Conclusions It is clear on the preponderance of the evidence, and I find, that in his actions to remove the Union from the plant Sullivan was acting in the interest of the Respond- ent Company and was acting as its agent. Sullivan went into action on September 1, the same day he talked with President Runyan about getting the Union out of the plant, by talking with Hayelka about a decertification proceeding. Thereafter he con- tinued in action until the decertification petition was filed. Thus it is clear that regardless of any earlier or later conversations he had with Breuing, the conversa- tion that set him into motion and kept him in motion was the one with President Runyan on September 1. That Sullivan was Respondent's agent was further shown by the fact that no employees hired or appointed him to prepare or file decertifi- cation slips or a decertification petition, even though two employees had been alerted to do so by Breuing. That Sullivan was Respondent's agent was further shown by the fact that Respondent through its attorney, Young, supplied the neces- sary information for Sullivan's completion and execution of the decertification peti- tion. Further, Foreman Hanson signed one of these slips. Further evidence is the WAHOO PACKING COMPANY 179 fact that Sullivan did not disclose to employees that he prepared the petition for decertification but misled them, through the decertification slips, into' believing that a fellow employee was preparing it. If Sullivan was acting on behalf of the employ- ees or a group of them, no reason appears why he would not have disclosed his role to them. If he was acting on behalf of Wahoo Industries no reason appears why he should not have disclosed this fact to the employees. Further evidence that Sullivan was representing Respondent Company was his use of its president's private office for having an employee sign the decertification petition. Thus, on the preponderance of the evidence and 'the entire record as a whole, I conclude that Respondents authorized or ratified Sullivan's activities concerning the decertification slips and petition and that it is bound by his activities, Respond- ents thereby interfering with employee rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1). As Respondents' conduct had the purpose and foreseeable effect of obstructing the bargaining process, Respondent also violated Section 8(a) (5) of the Act. See Screen Print Corporation, 151 NLRB 1266 C. Promising a 15-cent wage increase to eliminate the Union Through August at least two employees, Terry Swanson and Robert Walla, asked the newly made foreman, Hanson,3 a number of times for a raise, either for themselves individually or for the group. According to their testimony , undenied by Hanson,4 the latter always replied that they could not have a raise until the Union was voted out, and that if the Union was voted out they would get a 15- cent-an-hour raise. ' On August 27, employees Kemerling and Louis Prohaska, who worked under Foreman Hanson, told Hanson, when he asked them why they were talking to other employees, that they were planning a work stoppage in order to get a wage increase. According to their undenied and credited testimony, Foreman Hanson replied that there was no reason to do that and it would do them no good; that they would get a 15-cent increase whenever the Union was voted out and that it would be retroactive. Shortly these two employees and some four others stopped work and demanded of Hanson an immediate 50-cent wage increase. Kemerling and Prohaska threatened to quit unless they got the 50-cent' raise. President Run- yan called a quick meeting of-all employees, told them he could not give them a raise because of the Union, that any raises had to be negotiated with the Union. He urged them to return to work, and they did. Two General Counsel witnesses testified,. and President Runyan denied, that Runyan, told the employees that -he could not give them a raise until the Union was voted out, and that when it was out they could get a raise. As it was improb- able that all the employees, especially those who had stopped work and particularly the two who threatened to quit,.would have returned to work so readily if Presi- dent Runyan had not promised the raise; as Respondents were concurrently start- ing the move to get the Union decertified; as Respondents later unilaterally granted a 15-cent wage increase; and as it was unlikely the newly made 23-year-old fore- man would have talked as he did without authority from his superiors; I believe and find that President Runyan promised an increase when the Union was voted out, Respondents thereby further violating Section 8(a)(1) of the Act. Foreman Hanson's numerous promises of benefit were further violations of Section 8(a) (1). According to the uncontradicted and credited testimony of employee Donald Kemerling, a credible witness, at a time not given in the evidence David Runyan, a 20-year-old son of President John Q. Runyan who lived in his father's home with the family and worked at the plant in the "cooler," asked Kemerling what he thought the Union was doing. Kemerling replied he did not know. David Runyan replied that "he had heard there would be a 15-cent wage increase for us if the Union was voted out." As Foreman Hanson was making the same kind of promise during August, and as David Runyan's father made the same promise on August 27, I find that David Runyan's statement was also made in August. 3 Although by their testimony Respondents appeared to contend that Respondents ware not responsible for Hanson's statements, there can be no doubt on this record that after his promotion Hanson was a supervisor within the meaning of the Act and that Respond- ents were bound by his statements. He had authority to hire and recommend firing em= ployees, responsibly to assign and direct their work, authority to discipline employees , and the exercise of this authority required the use of independent judgment. 'Hanson testified that he told the employees he could not give them a raise because of the negotiations with the Union but he did not deny the employees' version. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to living in his father's home, David Runyan was one of seven beneficiaries of 350 shares of stock in Respondent Company held in trust by Respondent's counsel. Thus David's community of interest was not with the employees but was with his father and the other holders of the Company's stock. In a real sense he was working for himself. In view of David Runyan's relationship with President Runyan; in view of his beneficial stock interest in the Company; as it was a small plant, consisting of about 30 employees in the appropriate unit; and as he made the same promise of benefit that President Runyan and Foreman Hanson were concurrently making to employees; I find on the preponderance of evidence that David Runyan was an agent of Respondent Company and of Respondent Runyan, and that they author- ized or ratified his statements to employees, Respondent Company and Respondent Runyan thereby further violating Section 8(a)(1) of the Act. D. The discharge of Louis Prohaska Louis Prohaska worked for Respondents from September 1963 until his discharge on October 7, 1965. During his employment he worked at numerous, jobs in the kill department. He received four wage increases, from $1.50 an hour to $2 an hour. At the time of his discharge he worked on a high platform at the beginning of the line right after the kill, with three others. His workmanship was satisfactory to Respondent. As has been seen, Prohaska was one of two employees who led a short work stoppage on August 27, 1965, in an effort to force a 50-cent wage increase; and thereby inconvienced President Runyan and forced him to hold an impromptu meeting with employees and explain to them that he could not grant a raise at that time. The other work-stoppage leader was Kemerling, who with Hanson, had been the employee committee in the unsuccessful earlier bargaining with Respond- ents prior to the Union's voluntary suspension of negotiations to give Respondent an opportunity to improve its financial posture On August 27 Prohaska and Kem- erling admitted to the newly made foreman, Hanson, that they were planning a work stoppage and demanded an immediate 50-cent wage increase. Prohaska thereby' established himself in Hanson's mind as allied with Kemerling on behalf of the employees. At least two of Hanson's reactions to Prohaska's assertion of leadership of the employees was Hanson's statement and threat to Prohaska the following day, August 28, that Prohaska's actions the day before had caused the employees to lose respect for Hanson and that if Prohaska ever again went around talking up a strike he would be "through." On the witness stand Hanson admitted the former statement but denied the latter threat. As Prohaska appeared to me to be a credible witness, I credit his testimony; and find that by this threat of economic reprisal Respondents further violated Section 8(a)(1) of the Act. Respondents started operating in Wahoo in September 1963. In July 1964, they gave a week off without pay to some employees who had been with them since September 1963; and then when they passed their first anniversary date in Sep- tember 1964, Respondents gave them a 1-week vacation check. This was a way of initiating a vacation policy of 1 week's paid vacation after a year's work. Pro- haska did not take a vacation in 1964 because when he wanted to go he was needed at the plant and so forewent his vacation. Although some employees who took no time off in 1964 were given vacation checks, Prohaska somehow received no vacation check in 1964. In the summer of 1965 employees who had worked for Respondents for at least a year were entitled to a 1-week paid vacation. No employees were given a 2-week paid vacation, but one man, Jack McGuire, the head maintenance man in the plant, was gone from the plant 2 consecutive weeks that summer and was paid for 1 week. Although the record does not reveal how his special arrangement was made, obviously his 2-week absence was with Respondents' permission. In early September 1965 Prohaska told Foreman Hanson that he planned to be married on September 25 and that he would like to take his vacation starting then. Hanson approved his plans. The testimony was in sharp conflict as to the length of time Prohaska requested and was given permission to be off, Prohaska and employee Walla, who overheard, testifying it was 2 weeks; Foreman Hanson testifying it was only 1 week. According to Prohaska, on September 24 Hanson jokingly told him that he should not take his vacation, that Hanson did not know how he could get along without him. Prohaska replied that Hanson could do without him for 2 weeks. WAHOO PACKING COMPANY 181 Hanson laughingly said , "Okay," Hanson did not deny this testimony although he gave a different version of a September 24 conversation which referred to 1 week off for Prohaska . That day Prohaska told Hanson that Prohaska had not taken a vacation the previous year and then Hanson had a 2-week paycheck made out for Prohaska and President Runyan signed it. Respondents contend that Prohaska was given only 1 week off and that the 2 -week check was for that week plus the amount he was entitled to for the vacation he did not take the previous summer. Respondent Company's normal workweek was Tuesday through Saturday. On Tuesday morning, October 5, the beginning of the second week since Prohaska's marriage and absence, Hanson telephoned Prohaska at 7 o'clock in the morning. He called him at the same time the following morning , Wednesday. According to Prohaska, in both these conversations Hanson asked him if he would come to work that day because the plant was short of help ; Prohaska replying the first day that he could not because he had to go to Omaha to see a heart specialist;5 Pro- haska replying the second morning that he could not because he wanted to look for a place to live , that he would try to be at the plant at noon . On those 2 days Prohaska was staying at his father-in-law's home. Hanson's version of these two conversations was that in each Hanson simply asked Prohaska if he was coming to work that morning; that both days Prohaska replied that he had to go to Omaha for a reexamination of his heart, and that on Wednesday he said he would be in at noon. On Thursday morning, October 7 , when Prohaska reported for work at 6:30 o'clock, there was a termination notice on his timecard signed by Vice President and Manager Cudahy saying that he was terminated immediately for "Failure to report for work or report reasons for not showing." Cudahy testified that Prohaska was discharged not only for the reasons on his termination notice but also because of "a summation of his passed record .. . being on probation under cause more or less . . . unsatisfactory employment .. . not being a satisfactory employee ." No reason was offered as to why any alleged additional reasons for the discharge were omitted from the discharge slip. Prohaska was warned on June 25, 1965, by Manager Cudahy for horseplay on the high platform, and was warned again by Cudahy on July 12, when Cudahy put a statement in Prohaska's file reading as follows: Probation-any tardiness . Lay off without permission , any calling in by some one else, any horsing around , etc.-subject to immediate discharge. Prohaska was absent from work on September 18, although it was not claimed that he had not reported that he would be absent . His last week prior to his marriage on Saturday, September 25, Prohaska had been excused by Hanson on Tuesday, September 21, to take a preinduction Army physical examination in Omaha. He was absent the following day also, allegedly without permission, and was in no way disciplined or even spoken to about it when he worked on Thursday and Friday. From this it reasonably follows that Respondents understood that the days just before his induction into the Army and into wedded bliss were special days in Prohaska's life, and that Respondents did not then intend to use any absenteeism this week against him as a basis for discharge. The record showed that others than Prohaska indulged in horseplay from time to time, but it was not shown that it had ever contributed to anybody 's discharge. About September one employee , Osmera, threw a chunk of fat at a beef that another employee , Patro, was cutting, thereby diverting Patro's attention and causing him to cut his thumb badly . Although Patro told Manager Cudahy about this and who did it, Osmera was not disciplined for it. Nor was it shown that others had been permanently discharged for absenteeism. In fact when employee Cecil Roberts was absent without leave for a workweek in the spring of 1965, he was not terminated but disciplined for it ; he was deprived of his vacation , his wages were cut, and he was told he was fired and rehired. Further Roberts, a credible witness, testified that he had been absent a number of times, that a few times he did not call in, and that he was never disciplined for it. Of note in the consideration of Respondents' motive in discharging Prohaska is that the discharge was made 2 days after the stipulation for decertification upon 5 At the hearing decision was reserved upon the General Counsel's and the Union's mo- tions to strike the testimony of Dr. David K Merrick These motions are hereby denied. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consent election was signed setting the election for October 14 , and 7 days before the election. Conclusions Upon the preponderance of the evidence and the entire record considered as a whole, I conclude that Respondents, discharged Prohaska just before the election set for October 14 in order to discourage employees' support for the Union at the polls and in order to get the Union out of the plant. Such a motive was consistent with their initiation and promotion of the decertification effort through their agent, Robert Sullivan, and their promises to grant a wage increase if and when the Union was voted out. As Prohaska was a credible witness, I credit his version of his prevacation conversations with Hanson and find that the arrange- ment between them was that Prohaska would be away from the plant for 2 weeks. It is reasonable to believe Prohaska would have tried to be excused for 2 weeks after his marriage rather than 1 week. It is a reasonable conclusion that Respond- ents would have granted Prohaska's request for 2 weeks, in view of its knowledge that he was going to be married, that he was about to be inducted into the military , service, and that he had missed his vacation the previous summer. Although, not conclusive , the fact that Respondents gave Prohaska the check for 2 weeks at this time rather than for 1 week, points to the conclusion that it knew and expected he would be absent for 2 weeks instead of 1. Also I credit Prohaska's version of his October 5 and 6 conversations with Foreman Hanson, to the effect that Hanson called to request Prohaska to come to work because he was needed ; not to tell him to come to work because he had a duty to. It was not shown that it was customary for Hanson to telephone absent employees to see if they were coming to work that day. If Prohaska had not understood he was excused for the second week as well as the first, it is improb- able that he would have postponed looking for a place to live with his bride until the Wednesday of the second week. Nor is Hanson's version credible that Pro- haska would have known that he had to return to Omaha for a reexamination of his heart on Wednesday before he was reexamined on Tuesday. Nor is it reasonable to believe that a company with a somewhat relaxed policy toward discharging for absenteeism would have discharged a newly married employee who was about to be inducted into the Armed Service for being absent of 2 successive days to have special heart examinations. Nor was it explained, if Respondents really considered Prohaska on probation since July 12, as Cudahy's statement put in Prohaska's file that day suggested , why Respondents did not dis- charge him immediately for his absence on October 5 rather than wait another day; or why they had not discharged him for absenteeism without explanation right after his September 18 and/or September 22 absences. In any case an alleged reason for the discharge asserted in the termination notice, "failure to . . . report, reasons for not, showing was not.based. on correct fact under even Hanson's version . Respondents knew through Hanson, who talked each morning on the telephone with Prohaska, why the latter did not report for work on Tuesday and Wednesday mornings October 5 and 6, and Cudahy, who wrote the termination notice, admitted that before discharging Prohaska he dis- cussed doing so with Hanson. In addition to all the above, a statement by President Runyan to an employee about 2 days after Prohaska's discharge established beyond doubt the connection between Prohaska's discharge, his concerted activities, and Respondents' continuing efforts to get rid of the Union. President Runyan admitted on the witness stand that he knew what was going on concerning and was familiar with Prohaska's termination when it happened . Employee Patro went to see President Runyan on October 9 to try and get a raise. According to the credited testimony of employee Patro, who impressed me as an honest and credible witness, President Runyan told him there was no chance for a raise . Then Runyan, according to Patro, started in about Louis Prohaska, that he neglected his work, that he missed a lot of time, a trouble maker, and that he was for the Union and that he caused a walk-off in the plant . . he also asked me if I would go and talk to some of the employees , the men, to try to get them to vote the Union out. As Respondents were concurrently actively engaged in trying to get the Union decertified, as Respondents promised employees a 15-cent wage increase if and when the Union was voted out, and actually granted wage increases later on (see below) without negotiating them with the Union; and as they discharged Prohaska WAH00 PACKING COMPANY 183 a week before the scheduled decertification election when such discharge would have had a major impact upon employee minds as the election approached; I believe and find that Respondents' asserted reasons were but pretexts and that the real reason for the discharge was because of Prohaska's concerted activities of August 27 and in order to get the Union decertified at the poll on October 14, Respondents thereby discouraging any concerted activities and any further support for the Union and thereby violating Section 8(a)(3) and (1) of the Act. Respond- ent Runyan's effort to get Patro to urge other employees to vote the Union out was further interference with employee rights guaranteed in Section 7 of the Act, Respondents thereby further violating Section 8(a)(1). E. The strike On the night of October 12, 1965, the employees decided to strike, and 23 were on strike from October 13 until at least the time of the bearing herein in January 1966. The decision to strike was made at a union meeting on October 12 attended by about 21 employees, after the union business agent spoke to them about the Company's activities. He referred to the Company's promises of a wage increase if the Union was voted out, its discharge of a prounion employee, and the Company's striking at the foundation and roots of the Union and the possibil- ity of the Union's being decertified. Negotiations between the Company and the Union were still in suspension, and the economic differences between them were not discusssed at this meeting. The business agent gave it to the employees as his opinion that in view of the Company's recent activities mentioned by him, a strike at this time would be an unfair labor practice strike. A secret ballot was taken and 23 employees went on strike the following day. The picket signs they carried referred to the Company's unfair labor practices and did not refer to economic issues. Upon all of these facts and upon the preponderance of the evidence I con- clude and find that the strike was principally an unfair labor practice strike and that the employees would not have struck at this time over the economic differ- ences alone. The original charge herein was filed October 8, 1965. The Regional Director did not conduct the election set for October 14, and on November 30 issued the complaint herein. F. Respondents' unilateral granting of wage increases Effective January 7, 1966, Respondents, without first advising the Union of their intentions, unilaterally granted all employees in the appropriate unit wage increases averaging 15 cents per hour. Respondents advised the Union of these raises on January 13, 1966. In the negotiations in the spring of 1965, and since, Respondents had offered the Union a 15-cent wage increase for all employees in the appropriate unit. Nego- tiations had resumed sometime during the strike, and at a negotiating session on December 29, 1965, Respondents had repeated their offer of a 15-cent wage increase. On December 29, the Union had made a wage proposal for a greater wage increase than 15 cents, at which time Respondents had neither accepted it nor rejected it. No negotiation sessions were shown to have occurred between December 29 and January 7. It follows and I conclude, therefore, that when the raise was given effective January 7, it was made in the face of an outstanding union offer which had been neither accepted nor rejected by Respondents. With the negotiations in this posture there was clearly no existing impasse at the time of the wage increase, and by this unilateral action Respondents violated Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Katz, 369 U.S. 736. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with the operation of the Respondent Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As has been seen throughout this Decision, Respondents Runyan and Cudahy were intimately involved in the unfair labor practices committed. A small plant 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and a small group of employees were involved, and Runyan and Cudahy were the principals of management and almost the only management . Under the circum- stances it is appropriate that they, as well as Respondent Company, be held to remedy the unfair labor practices. Having found that Respondents have engaged in the unfair labor practices set forth above, I recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. Respondents having unlawfully discharged Louis Prohaska to discourage em- ployee concerted activities and support for the Union and to get the Union decerti- fied, and Respondents not having offered Prohaska reinstatement, I recommend that Respondents offer to Prohaska immediate and full reinstatement to his former or substantially equivalent position 6 without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suf- fered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge , October 7 , 1965, the date of the discrimination against him, to the date when, pursuant to the Recommended Order herein, Respondents shall offer him reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497, 498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligation of Respondents shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recommend further that Respondents make available to the Board on request, pay- roll and other records in order to facilitate the checking of the amount of back- pay due. As the strike which began October 12, 1965, was an unfair labor practice strike, the striking employees are entitled to their jobs back, or substantially equivalent employment, upon the strikers' unqualified application to return to work. It is therefore recommended that upon the strikers' unqualified application to return to work Respondents offer to each of them immediate and full reinstatement to his former or substantially equivalent position (Chase National Bank, supra) without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of any discrimination against him by payment to each of a sum of money equal to that which he nor- mally would have earned as wages from the date of Respondents' failure to offer him reinstatement or substantially equivalent position, the date of the discrimina- tion against him, to the date when, pursuant to the Recommended Order herein, Respondents shall offer him reinstatement, less his net earnings during said period (Crossett Lumber Company, supra), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, supra. The backpay obligation of Respondents shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., supra. As provided in the Woolworth case, I recommend further that Respondents make available to the Board on request payroll and other records in order to facilitate the checking of the amount of any backpay due. The violations of the Act committed by Respondents are persuasively related to other unfair labor practices pioscribed by the Act and the danger of their commis- sion in the future is to be anticipated from the Respondents' conduct in the past. The preventive purposes of the Act will be thwarted unless the Order is coexten- sive with the threat. In order therefore to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, I shall recommend that Respondents be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Wahoo Packing Company, of Wahoo, Nebraska, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. C The Chase National Bank of the City of New York, ,San Juan, Puerto Rico, Branch 65 NLRB 827. WAHOO PACKING COMPANY 185 2 Amalgamated Meat Cutters and Butcher Workmen of North America AFL- CIO District Union No 271 is a labor organization within the meaning of Sec tion 2 (5) of the Act 3 By attempting and assisting to get the Union decertified by promising employees a wage increase if and when the Union is decertified by threatening discharge if any employee encourages a strike and by other acts Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act 4 By discriminating in regard to the hire and tenure of employment of Louis Prohaska thereby discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO District Union No 271 Respond ents have engaged in and are engaging in unfair labor practices within the mean ing of Section 8(a)(3) and ( 1) of the Act 5 By uilaterally granting employees wage increases during negotiations with the Union and in the absence of an impasse Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 6 The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case considered as a whole I recommend that Wahoo Packing Company Wahoo Nebraska its officers agents successors and assigns, and also that John Q Runyan and Anthony B Cudahy shall 1 Cease and desist from (a) Attempting to and assisting in getting the Union decertified (b) Promising employees a wage increase if and when the Union is decertified (c) Threatening employees with discharge if they encourage a strike (d) Discouraging membership in Amalgamated Meat Cutters and Butcher Work men of North America AFL-CIO, District Union No 271 of any other labor organization of its employees and discouraging concerted activities of employees by discriminating in regard to their hire or tenure of employment or any term or condition of employment (e) Refusing to bargain collectively with the above named Union by unilater ally granting employees wage increases during negotiations with the Union and in the absence of an impasse (f) In a tty other manner interfering with restraining or coercing Its employees in the exercise of their rights to self-organization to form labor organizations, to join or assist the above named Union, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in con carted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities 2 Take the following affirmative action which I find will effectuate the policies of the Act (a) Upon request bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO District Union No 271 as the exclusive representative of the employees in the appropriate unit with respect to 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 (b) Offer reinstatement to and make whole Louis Prohaska for any loss of pay he may have suffered by reason of any discrimination practiced against him in accordance with the recommendations set forth in The Remedy" herein Notify Louis Prohaska if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act as amended after discharge from the Armed Forces (c) Upon application offer immediate and full reinstatement to their former or substantially equivalent positions to all those employees who went on strike on October 13 1965 without prejudice to their seniority or other rights and pnv ileges dismissing if necessary all persons hired on or after that day and make such applicants whole for any loss of pay suffered by reason of the Respondents refusal if any to reinstate them by payment to each of them of a sum of money equal to that which he normally would have earned less the net earnings during 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the period from 5 days after the date on which he applies or has applied for rein- statement to the date of the Respondents' offer of reinstatement. Notify all those employees who went on strike on October 13, 1965, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records necessary to analyze the amount of backpay due and the rights of employees under the terms of these recommendations. (e) Post at its plant in Wahoo, Nebraska, copies of the attached notice marked "Appendix." 7 Copies of said notice to be furnished by the Regional Director for Region 17 (Kansas City, Missouri) after being signed by the representative of the Respondent Company, and by Respondent Runyan and Respondent Cudahy, shall be posted by Respondents and be maintained by them for consecutive days thereafter, in conspicuous places, including all places where notices to all employ- ees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps Responaents have taken to comply herewith .8 7In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." ' 8In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT attempt to or assist in getting Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, District Union No. 271, or any other labor organization of our employees, decertified or put out of the plant. WE WILL NOT promise employees a wage increase if and when the above- named Union or any labor organization of our employees is decertified. WE WILL NOT threaten employees with discharge if they encourage other employees to strike. WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, District Union No. 271, or any other labor organization, by discriminating against our employees in any manner in regard to their hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT refuse to bargain collectively with the abovenamed Union by unilaterally granting employees wage increases during negotiations with the Union and in the absence of an impasse. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, District Union No. 271, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. UNIFORM RENTAL SERVICE 187 WE WILL offer to Louis Prohaska, and upon application to those who went on strike October 13 , 1965, immediate and full reinstatement to their former or substantially equivalent positions , without regard to their seniority and other rights and privileges previously enjoyed. WE WILL make whole Louis Prohaska and those who went on strike Octo- ber 13, 1965, for any loss of pay suffered by them by reason of the discrimina- tion practiced against them in accordance with the recommendations of the Trial Examiner's Decision. All our employees are free to become or refrain from becoming members of the above-named labor organization. WAHOO PACKING COMPANY, Dated------------------- By------------------------------------------- (Representative) (Title) ANTHONY B. CUDAHY Dated------------------- By------------------------------------------- (Representative) (Title) JOHN Q. RUNYAN Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Louis Prohaska and all those employees who went on strike on October 13, 1965, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri 64106, Telephone 221-2732. Uniform Rental Service, Inc. and Local 215, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 25-CA-.289. October 20, 1906 DECISION AND ORDER On April 15, 1966, Trial Examiner W. Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of the complaint with respect thereto. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, a brief in support thereof, and a brief in sup- port of part of the Trial Examiner's Decision. The Respondent filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has 161 NLRB No. 15.