Heart of America Meat Dealer Association

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heart of America Meat Dealers Association and its members, Arnold Bros. Meat Company, Art Meat Company, Boyle Meat Company, Inc., Burnett Meat Company, G. R. Fisher Meat Company, L & C Meat Company, Lutz Meat Company, S & S Meat Company, Snow & Company, Williams Meat Company and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local No. 576 Heart of America Meat Dealers Association, Art Meat Company and Allied Meat Company and Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union 576. Cases 17-CA-2965 and 17-CA-2992 December 12, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On April 26, 1967, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled consolidated proceeding finding that the Respond- ents, except Respondent Allied Meat Company in Case 17-CA-2992, had not engaged in the unfair labor practices alleged in the complaint and recom- mending dismissal of the complaint in its entirety except as to Respondent Allied which was ordered to take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed ex- ceptions to the Trial Examiner's Decision in Case 17-CA-2965 and supporting briefs,' and Respond- ent Association filed cross-exceptions to the Trial Examiner's Decision in Case 17-CA-2992 and a supporting brief. Respondent Association also filed a brief in support of the Trial Examiner's Decision in Case 17-CA-2965. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. 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, cross- exceptions, briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications: The Trial Examiner failed to make any findings with respect to the complaint allegation in Case 17-CA-2965 that Respondent S & S Meat Com- pany violated Section 8(a)(1) of the Act by "threatening employees with bodily harm, loss of employment , and other reprisals" for engaging in protected concerted activity . The General Counsel excepted to the Trial Examiner's failure to find a violation based on the foregoing allegation . For the reasons set forth below, we find merit in the General Counsel's exception. The Charging Party struck Burnett Meat Com- pany, a member of the Association, at noon on June 28, 1966 . The Association, with the exception of two companies which did not join the lockout at all, and two other companies which locked out their unit employees at a later time , locked out the unit employees at the end of the workday on June 28. The next morning John Alexander and Gene Col- lins, employees of S & S Meat Company, were as- signed to picketing duty at the premises of their Em- ployer. While they were on duty, a truck carrying meat for S & S appeared at its driveway entrance. Recognizing the driver, Alexander told him that it was all right to make the delivery but that he, Alex- ander, would have to turn the driver's name and truck number in to the Union. At first, the driver did not take the truck across the picket line. How- ever, a short time later the truck was driven across and unloaded. Thereafter, another truck drew up to the picket line but drove away without unloading. After the second truck drove off, Santo Scavuz- zo, president of S & S , approached Alexander and Collins and threatened to fire them if they did not refrain from "harassing" the incoming truckdrivers. The only evidence of contact between truckdrivers and employees picketing at S & S is Alexander's conversation referred to above . As far as the record reveals, this was a brief encounter between acquaintances , occurring without incident. Thus, Scavuzzo threatened Alexander and Collins with discharge for conduct which amounted to no more than peaceful, protected picketing. Accordingly, we find that, by the foregoing, statement, Respondent S & S Meat Company violated Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW Delete paragraph 4 of the Trial Examiner's Con- clusions of Law and substitute therefor the follow- ing paragraphs , numbered 4, 5, and 6: "4. By threatening employees John Alexander and Gene Collins with discharge if they did not cease `harassing' truckdrivers attempting to make deliveries, Respondent S & S Meat Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." ' The General Counsel and the Charging Party also moved to con- solidate the instant case with Boyle's Famous Corned Beef Co., an unfair labor practice proceeding bearing Case 17-CA-3038 We hereby deny these motions since the record in each proceeding reveals that the cases are sufficiently distinct to warrant separate consideration and disposition. 168 NLRB No. 110 HEART OF AMERICA MEAT DEALERS ASSN. 835 "5. The aforesaid are unfair labor practices af- fecting commerce within the meaning of Section 2(6) and (7) of the Act." "6. Respondent Association and its member Companies , with the exception of Allied Meat Company and S & S Meat Company, have not com- mitted violations of Section 8(a)(1), (3), or (5) of the Act." tuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act by threatening them with discharge for engaging in protected concerted activities. ORDER Pursuant to Sectie ; 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Allied Meat Company, Kansas City, Missou- ri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: By deleting from paragraph 2(b) that part thereof which reads "to be furnished" and sub- stituting therefor "on forms provided ...." B. S & S Meat Company, Kansas City, Missou- ri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: Interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act by threatening them with discharge for engaging in protected concerted activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its plant in Kansas City, Missouri, co- pies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Re- gional Director for Region 17, after being duly signed by Respondent S & S Meat Company's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent S & S Meat Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2 IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the Na- tional Labor Relations Board and in order to effec- S & S MEAT COMPANY (Employer) Dated By (Title) (Representative) This notice must remain posted for 60 consecu- tive 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, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone Fr 4-5282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge filed on July 6, in Case 17-CA-2965 and thereafter amended on July 21, August 23, and November 15, 1966, by Amalgamated Meat Cutters & Butcher Work- men of North America, AFL-CIO, Local No. 576, hereafter referred to as the Union, Local 576, or Charg- ing Party, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board respectively, by the Regional Director for Region 17, Kansas City , Missouri, issued its complaint dated October 14, 1966, and an amended complaint therein on January 12, 1967, against Heart of America Meat Dealers Association and its named members, hereinafter called the Respondent. In addition upon a charge duly filed on August 10, 1966, and thereafter amended on August 16, 1966, and on August 23, 1966, by Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union 576 in Case 17-CA-2992,2 the said General Counsel by the Regional Director for Region 17 issued its complaint dated October 14, 1966, against Heart of America Meat I This term specifically includes the attorney appearing for the General Counsel at the hearing. 2 By order dated January 12, 1967, the Regional Director consolidated the above two cases for hearing and they were so heard. However, despite the consolidation for hearing, the pleadings here consisted of a complaint and amended complaint in the first case and a complaint in the second case with appropriate answers filed to each of these documents. This plethora of papers and documents tend to lead to confusion and to confuse the issues. In order to simplify the proceedings and sharpen the issues, the Trial Examiner suggests that, in cases of consolidation and of amendment, better practice requires a single consolidated amended complaint be is- sued hereafter. 386-845 o - 70 - 54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dealers Association, Art Meat Company, and Allied Meat Company, hereinafter called the Respondents. These complaints and amended complaint allege that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Respondents duly filed various answers to these com- plaints and amended complaints admitting certain allega- tions thereof but denying the commission of any unfair labor practices. Pursuant to notice, a consolidated hearing thereon was held in Kansas City, Missouri, on February 14, 15, 16, and 17, 1967, before this Trial Examiner. All parties ap- peared at the hearing, were represented by counsel and afforded full opportunity to be heard, to produce, ex- amine, and cross-examine witnesses and to introduce evidence material and pertinent to the issues. At the con- clusion of the hearing, oral argument was waived. Briefs were received from General Counsel and Respondents on April 10, 1967. Upon the entire record in the case and from the obser- vation of the witnesses, the Trial Examiner makes the fol- lowing findings of fact: 1. THE BUSINESS OF RESPONDENTS The various complaints alleged, Respondents admitted, and the Trial Examiner finds: Respondent Association is a multiemployer group of individuals, corporations, companies, and others engaged in the processing and sale of meat on a wholesale basis in the Greater Kansas City, Missouri, and Kansas City, Kansas, area which engaged in collective-bargaining on behalf of its members with various labor organizations. At all times material herein, Respondents, Arnold, Art, Boyle, Burnett, Fisher, L & C, Lutz, S & S, Snow, Wil- liams, and each of them, have been, and are, members of Respondent Association. In the course and conduct of their respective business operations, the members of Respondent Association and Respondent Allied annually purchased, in totality, goods and products valued in excess of $50,000 directly from points located outside the States of their respective busi- ness operations and annually sold, in totality, goods and products valued in excess of $50,000 directly to customers located outside the States of their respective business operations. Accordingly the Trial Examiner finds, based upon their admissions, that Respondents, and each of them, are, and at all times material herein have been, employers engaged in commerce within the meaning of the Act. II. THE UNION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local No. 576, is a labor or- ganization admitting to membership employees of each of said Respondents and has been for more than 25 years last past the recognized bargaining representative of all employees in the following found appropriate unit: All skilled wholesale meat cutters , semiskilled workers, unskilled workers , porters, and apprentices employed by members of Respondent Association in the metropolitan Kansas City area, excluding all other employees, guards, and supervisors as defined in the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged Refusal to Bargain 1. The facts For over 25 years Heart of America Meat Dealers As- sociation, albeit until about 1956 under a different name, has acted as the collective-bargaining representative for a multiemployer group of wholesale meat companies in the Kansas City area. For that same period of time the meat cutter employees have similarly been represented in collective bargaining by Local 576. Except for one short 3-4 day strike in 1953 labor relations in the industry have been excellent with the parties operating continuously under contracts usually of a 2-year duration.3 Since 1959 these contracts had provided for an em- ployer-paid health and welfare plan which the Associa- tion carried with-the-AuTa Life Insurance Company. The sole connection therewith by the Union was to negotiate with the Association the benefits to be provided for in said contract. The 1964 collective-bargaining agreement provided a pension plan for the first time. Although all these agreements contained grievance and arbitration provisions, grievances have customarily been handled satisfactorily by the business agent of Local 576 over the telephone with the individual employers so that there has never been an arbitration proceeding under the contract. The Association also handled the negotiation of labor agreements on behalf of the same multiemployer group with the Teamsters representing the Company's drivers. Until 1966 the contracts with the Teamsters were usually executed after the Meat Cutters contract had been signed, despite the fact that the Teamsters contracts by their terms expired prior to the expiration date of the con- tracts with Local 576. On March 6, 1966, Carl H. Nothnagel, secretary-trea- surer and business agent of Local 576 as well as its prin- cipal spokesman, gave notice of that Union's desire to reopen the existing contract with the Association. On April 12 ,4 Local 576 submitted its proposed changes in the contract to the Association. Among others this proposal put on the table a $9.50-per-week (23.75 cents per hour) across-the-board wage increase, improvements in the health and welfare benefits, 4 weeks' vacation after 18 years' employment, severance pay, extra overtime pay, plus some fringe costs such as the Employer supply- ing freezer coats, gloves, rubber boots and $1 per day for those employees working in salt, as well as funeral leave and vacations. In addition there were several other mat- ters placed on- the table applicable in large part to in- dividual members of the Association. The Union's proposal thus was not an inexpensive package. The parties met on April 22 when the Association sub- mitted its counterproposal. In large measure this counter- proposal was for a 5-year contract containing changes in the grievance and arbitration clauses, a management perogative clause, deletion of the 40-hour guarantee, a no-strike no-lockout clause, and no wage increase. At 3 There is agreement among all parties both as to the multiemployer ap- propriate unit as well as the Union's majority therein. 9 All dates herein are in the year 1966 unless otherwise noted HEART OF AMERICA MEAT DEALERS ASSN. 837 that meeting and at the hearing Nothnagel rather aptly characterized this proposal as "a little jewel." At negotiation meetings held on May 6, May 13, and again May 16 the Association voiced objections to the extravagant costs of the Union's proposals. To this com- plaint Nothnagel would reply, "Well, it's only money" and suggested as a solution to that problem that the As- sociation raise its prices. During these meetings the mat- ters involving individual members had been satisfactorily disposed of, the new grievance and arbitration clauses ac- cepted and the Union had withdrawn temporarily at least most, if not all, of its fringe costs but with funeral leave left dormant. Towards the end of the May 16 meeting the Associa- tion feeling, as the negotiator put it, that, because of the number of cost items the Union still had on the table, it was not yet in a position to make a "realistic" offer, did in fact offer a 5-year contract to include all items the Union still had on the table but without any increase in wages. In the alternative Elliott for the Association offered to ac- cept the health and welfare improvements , together with vacations in a 3-year contract with annual increases of 3-3-5 cents per hour. With these alternate proposals be- fore him Nothnagel told the Association that "negotia- tions were at an end. When they got something to propose to us to call" and left the meeting. Respondent did not "call" but the Federal Mediation and Conciliation Service did and arranged another meet- ing between the parties on May 31. During this meeting the conciliator separated the parties and, while speaking with Elliott privately, told Elliott that Nothnagel was going to insist upon the same terms he had negotiated on behalf of Local 576 in the fall of 1965, after a 6-week strike, with the retail or chain stores,5 to wit, a 3-year con- tract with annual wage increases of 14-11-5 cents per hour, improvements in health and welfare, and 4 weeks' vacation after 18 years of employme^it.s After Nothnagel had withdrawn most of the Union's fringe demands, the Association offered a 3-year contract, improvements in health and welfare as in the retail contract with annual wage increases of 6-7-8 cents per hour. To this offer Nothnagel said, "It is all okay except for money and the length of the contract." Following another caucus the Union proposed a 2-year contract with annual wage in- creases of 15-15 cents plus the retail health and welfare improvements, sick leave, 4 weeks' vacation after 18 years, and overtime for Christmas and New Year. For the Association Elliott objected that the Union was de- manding more than the Association had agreed to in the Teamsters contract.7 Nothnagel answered "We are not interested in the Teamsters. We are not negotiating their contract and they aren't negotiating ours." Before the meeting ended, Elliott indicated that vacations and holidays remained a problem so that the Association would not have another offer to make until after it had had another membership meeting. Again Nothnagel re- peated his familiar phrase , "It's only money" before the meeting adjourned. As usual Elliott indicated that the As- sociation had not reached its final money figure. The Mediation Service again got the parties together on June 3. Elliott rejected the union proposal on the ground that it was too high, cost too much. Nothnagel reiterated that "It's only money. All the Association had to do was to raise prices." At this meeting Elliott repeated the same Association proposal as previously made except that this time the annual raises were to be 8-8-9 cents per hour, again making assurances that this was not the Associa- tion's final offer. Nothnagel stated that they would take this proposal back to the union membership with a recommendation that it be rejected. As they were leaving the meeting, Elliott indicated his belief to Nothnagel that the Teamsters would not support a picket line by Local 576. Nothnagel replied that it would not be the first time" but objected to the thought of a strike.9 Elliott made it clear that "Action against one would be action against all Association members." As the contract was to expire the following day, the mediator insisted upon another meeting on June 4 despite Nothnagel's objections thereto. At this meeting Nothnagel informed the group that the Union had unanimously rejected the Association proposal and then increased the Union's demands by adding funeral leave. Elliott objected that he did not understand what Nothnagel had meant by saying that the proposal was "okay except for money" because the Union was now raising its demands by putting funeral leave on the table. The meeting adjourned without results after 20 minutes. At the request of Nothnagel the Mediation Service called another meeting of the parties on June 20 at which time Nothnagel, pointing out that Elliott had been careful to state that none of the Association offers previously made had been "final," requested a final offer from the Association with a statement that, if the Association were not in a position to make a better offer, they were just wasting their time at the meeting. This time the Associa- tion offered another 3-year contract with the retail health and welfare benefits plus annual wage increases of 8-10-10 cents with retroactivity. Elliott made it clear that, if this offer were rejected, retroactivity would be withdrawn. Nothnagel agreed to submit the proposal to the membership of Local 576 at a meeting on the evening of June 22. The Association considered this offer to be both realistic and reasonable and, for the first time, with a chance of being accepted by the membership. Ac- cordingly the Association published and distributed to all This agreement is referred to throughout the transcript and here as the "retail contract." " Nothnagel denied having made any such comment. But whether Nothnagel actually made this statement or not, it is the information which Elliott received and passed on to the Association bargaining commits This information did not assist the negotiations. For the first time in the history of these negotiations the Association had completed its Teamsters contract prior to the present negotiations for annual increases of 10-10-10 cents. The wage increases of that contract Nothnagel knew There had also been a change made in the picket line clause of the Teamsters contract but this Nothnagel did not learn until later. 8 The Teamsters had not honored the Local 576 picket line during the 6-month strike during the retail negotiations in November 1965. " Nothnagel suspected that a deal had been arranged between the As- sociation and the Teamsters whereby the Teamsters would refuse to honor any picket line of Local 576 while Local 576 was demanding more than the 10-10-10-cent formula . This suspicion did not assist the negotia- tions either 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees prior to the June 22 meeting the following notice: IMPORTANT NOTICE TO ALL AMALGAMATED MEAT CUTTER EMPLOYEES TAKE TIME OUT RIGHT NOW TO READ THIS This letter is sent on behalf of the members of the Heart of America Meat Dealers Association, con- sisting of the Employers noted below. It concerns the status of the negotiations which have been going on with your Union. On Monday, June 20, the negotiating committee of the Association met with your negotiating commit- tee. At this meeting, the Association made its last and final offer to settle the negotiations. "Last and final" means just that-it is the very best the As- sociation can consider, and we will neither make nor accept a higher offer. Our last and final offer is: 1. All tentative agreements to date: A. Changes in language of arbitration clause. B. Extend vacation period to February 1 to Oc- tober 31, inclusive. C. Sick leave - provide the first two times a man is off, he shall be paid from the first day off, and when he is off thereafter payment shall com- mence on the third day off. D. Extend an employee's right to retain seniori- ty while on layoff from 90 days to six months. II. Negotiating Committee of the Association agreed to recommend to the members of the Associa- tion that a uniform policy of funeral leave for deaths in the immediate family be adopted. III. A three-year contract. IV. The Health and Welfare benefit increase requested by the Union to be effective during the first year of the contract. V. In addition to Health and Welfare adjust- ments, wage increases: Effective June 4, 1966 eight cents (.08) Effective June 4, 1967 ten cents (.10) Effective June 4, 1968 ten cents (10) This proposal is based on a three-year contract. Three-year contracts are prevalent among industries today and have worked out very well for both parties, and forms the basis for the substantial offer the Assocaition has made here. The contract means that, if ratified, in less than two years each employee will receive 28 cents per hour in wage increases - plus the requested increase in insurance. The wage increase package, not including Health and Welfare, based on straight-time hours only, will increase the existing labor cost over the three years by over $200,000! What we are saying is simply this: The Association has done its very best to offer the best package it can. There is no more to come. The Union Committee has advised us of its inten- tion to take our offer back to you and recommend it be rejected. We wish you to know that we believe that will be a mistake. We urge each of you to go to the Union meeting, so that your wishes may be made known. We hope that a strike may be avoided by acceptance of this fair and reasonable proposal. For the Association, we have done all we can and will take whatever comes for as long as it may be necessary. We do not believe anyone wants a strike, and this is why we have prepared this letter. We want you to know what has been done and that your attendance at the Union meeting is vitally important to the security of you and your family. We understand the meeting is Wednesday night, June 22, at 8:00 p.m. Arnold Bros. Meat Co. Art Meat Company Boyle Meat Co., Inc. Burnett Meat Company Ferguson Meat Company G. R. Fisher Meat Company L & C Meat Company Lutz Meat Company S & S Meat Company Snow & Company Sterner Meat Company Williams Meat Company Despite this persuasive effort the members of Local 576 rejected the Association proposal at their June 22 meeting. By 10 p.m. that evening the Association was so notified by a "birdie" at the meeting who also informed the Association that the Union had been given strike authority. On June 24 the Association members published and posted the following notice: NOTICE TO ALL EMPLOYEES This is to notify you that the labor contract between this Company and Local 576, Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, is no longer in effect. We will, however, volun- tarily maintain the provisions of the old contract per- taining to wages, hours of work, and economic fringe benefits until further notice. The other provisions of the old contract, including specifically the grievance and arbitration provisions, the union shop, and the check-off, are no longer in effect. We wish to further advise you that your health and welfare insurance benefits and other economic fringe benefits can be paid only for employees who are working, on vacation, on leave of absence, or on sick leave. These benefits cannot be paid by the employer on behalf of any employee in the bargaining unit dur- ing the existence of a strike. Upon receipt of this notice on Monday, June 27, Nothnagel telephoned Attorney Harry Browne and queried him as to what the notice meant. All Browne would say was that the notice spoke for itself. Soon after the receipt of this notice Nothnagel decided to strike the Burnett Meat Company, the Company with which Local 576 had most difficulities and grievances. Local 576 went out on strike at Burnett at noon on June 28. At the end of the workday on June 28, in accordance with prearranged plans, all members of the Association handed their employees the following notice: TO ALL MEAT CUTTER EMPLOYEES Because of the strike by the Amalgamated Meat Cutters and Butcher Workmen of North America HEART OF AMERICA MEAT DEALERS ASSN. 839 against a member of the Heart of America Meat Dealers Association, we are forced to layoff all of our employees represented by the above union tem- porarily in order to preserve [sic] the integrity of our bargaining unit. We regard a strike against one member of our As- sociation as a strike against all members. All other employees will be allowed to continue to work since they are not envolved [sic] in this dispute. The only exceptions to the above were Respondents Sterner Meat and Ferguson Meat which refused to lock out their employees at anytime during the strike as well as Williams Meat and Arnold Meat which did not distribute the above notice until July 5 and July 18, respectively. At Respondent Boyle Meat, Robert Boyle, president of Respondent Boyle as well as Association president, passed out the lockout notices to all employees, including his working foreman and supervisor Thomas H. Williams, except that Boyle told employees William Brinkmeyer and Vernon Lathrom that the notice did not apply to them as they were not union members. Lathrom, a cleanup man, continued to work but Brinkmeyer joined the strikers despite Boyle's threat that, if he did not work, he would be considered to have quit, an error in judgment which Boyle subsequently corrected in writing during the pendency of this strike.'0 It was stipulated that all mem- bers of the Association continued operations throughout the strike using managerial , supervisory, secretarial, and temporary help. On July 5, Association members published and dis- tributed to the striking employees and to the Union the following notice: During the existence of the present labor dispute caused by the strike of the Butcher' s union, in- surance payments which the company ordinary makes on your behalf were suspensed as of the first of the month [July] and will no longer be paid. Em- ployees must make their own arrangements for in- surance coverage if they wish it. The payments made by the company on your be- half for pension benefits will likewise terminate while the labor dispute is pending. We are sorry that we have been forced to take the action because of the Union' s initial strike against one of the members of our Association. Eddie Williams, President of Williams Meat, added two additional paragraphs to the notice which he sent to his employees as follows: Our offer on wages is slightly more than we gave the drivers when you add the additional benefits to health and welfare. How can we possibly justify more to you than we gave to our loyal driver employees? Upon receipt of this notice Nothnagel for the Union telephoned Association Attorney Harry Browne and irately informed Browne that he could not do this as of July 1 because the employees had worked the requisite number of hours during the month of June. By letter dated July 11 to the Union, Browne acknowledged his error and the correctness of Nothnagel's objection. The employees, however, were not notified of this error by the Association until July 25, when they received the following notice from the As- sociation: Dear Employee: This is to advise you that effective August 1, 1966, payments made by the company on your behalf for both health and welfare benefits and pension will be discontinued until a new contract is reached. This means, of course, that you will not be covered by Health and welfare benefits as of August 1. Our earli- er advice to you that the payments would be discon- tinued on July 1 was in error, and we so informed the Union a couple of weeks ago. We are sorry to report that there is no change in negotiations. On July 12 the Union wrote the com- panies as follows: "This letter is to advise you of our position so there will be no misunderstanding. Regarding our phone conversation as of today, (the letter was sent to our attorney) you asked me when we were going to move. If you will recall, the last proposal that was submitted to the Local Union on June 20, 1966, was a final proposal of the em- ployer. In view of this fact, the move is up to the industry." You are entitled to have the company position. Our bargaining committee met with your commit- tee on at least nine different occasions in an attempt to reach an agreement in which we made proposals and counterproposals, sometimes making one proposal and then another proposal in an effort to reach an agreement. Finally, we made our last offer. We are not going to be put in the situation of having moved, our proposal rejected, and then being told that it is our move again - and again - and again. All of the companies in the association -are willing to meet through their bargaining committee when- ever it is indicated there is a reasonable chance of reaching a contract within the framework of our last offer and we have so told the Union. This is now up to the Union and the membership." At the request of the Association the Mediator got the parties together again on July 27 when Elliott inquired if Local 576 had any proposal to make. Nothnagel had none. Elliott then said, "... from our point of view we had made the best offer we could, and that we weren't in a position where we could be told to keep filling up the pot to keep, just make one offer and then add more to it and more to it until finally we made an offer where the Union said stop we will except this." So the Association stood pat on its 8-10-10-cent offer without reciprocity. Nothnagel expressed his solution to this dilemma by say- ing, "Pay the fare-it's only money." The results were nil. 10 Brinkmeyer had previously joined the Union and requested Respond- ent Boyle to check off his dues to the Union. Due to laxity on the part of Respondent Boyle no money had actually been so checked off. t1 Browne's quotation from the July letter of Nothnagel omits a para- graph therein stating that Local 576 was willing to meet for negotiations at anytime and also willing to work for all Association members except Bur- nett. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following this July 27 negotiation session the Associa- tion sent to the striking and locked out employees the fol- lowing notice: A meeting was held between the employer's bar- gaining committee and the Union's bargaining com- mittee on Wednesday, July 27 in the offices of the Federal Mediation and Conciliation Service. We are sorry to report that no progress was made, because the Union told us that there was absolutely no change in their position. The Union stated that they were still insisting on the demand which they made early in June because the Union showed no willingness to move. It seemed clear that there was no reasonable chance of settling the dispute within the reasonable framework of the Employer's offer to June 20. This offer, you will recall, provided for a 3 year contract with a health and welfare increase plus 8 cent per hour the first year, a further increase of 10 cent per hour the second year, and an additional 10 per hour the third year. We would hope that when the next meeting is held that we can have a more optimistic report. We remain willing to meet at any time to discuss a settle- ment which would be within the reasonable bounds of our last offer. Reasonableness will settle this dispute. Stubborn- ness or maintaining a fixed position can only in- definitely prolong it. The parties met again on August 9 when the Union of- fered a 3-year contract, the retail changes in the health and welfare program, and 4 weeks' vacation after 18 years with a 15-15-15-cent wage increase. After a recess the Association made an counteroffer of 15-15 cents on an 18-month contract but deleted health and welfare changes and the 4-week vacation after 18 years. Nothnagel maintained that, despite the different phraseology in which the offer was framed, this offer worked out to the same old 10-10-10-cent formula. El- liott acknowledged the truth of Nothnagel's analysis by agreeing that the new offer was in the framework of the Association's "last offer" of June 20. The meeting broke up without further progress. Following this August 9 meeting the Union, profiting from the prior publicity efforts of the Association, rushed out the following notice to its members: Dear Member: We had a meeting today with the negotiating commit- tee of the association and they made a proposal which is only re-arranging their last proposal, which deletes some of the benefits they originally proposed. We notified the negotiating committee of the associa- tion that their proposal does not meet the demands of the members. Their proposal was: 1. All agreements we tentatively agreed on to date with the exception, they withdrew their proposal to improve Health and Welfare. 2. Day before Christmas and day before New Years time and one-half for the three (3) hours, plus straight time, if the three hours is worked. 3. A three (3) year contract. Contract expires June 1969. 4. Wages - Effective the date, if agreed to-.15 cents an hour for 16-1/2 months. NO RETROACTIVE PAY for the time worked from June 4, 1966 through June 28, 1966. Effec- tive December 4, 1967 - 15 cents for 18 months. 5. No increase in Health and Welfare for three (3) years. 6. Funeral Leave left up to each individual company, but won't put it in the contract. 7. No improvement in vacations. On the surface this looks like an improved proposal. However, if you take time to analyse [sic] it still amounts to .30 cents in three (3) years on each job classification. No improvement on the Health and Welfare for the three years. On a three years contract no chances of improving the Pension Program for the three years. Evidently the negotiating committee for the associa- tion feels that after six weeks strike the people are willing to accept approximately the same thing that was submitted to us on June 20, 1966. I would like to call to your attention that working past the expiration date of the contract of June 4, that we were under a bona fide legal agreement until such time the employer notified us on June 24th that they were canceling the contract , but they refused to PAY RETROACTIVE from June 4 to June 28. You will be notified of any further developments. Fraternally yours, C.H. Nothnagel, Sec.-Treas. Local Union 576 Following a meeting held in Chicago about which there is no testimony in this record, the parties met twice on August 15 when they agreed, subject to ratification by the union membership, upon a 3-year contract containing, among other things, the new grievance and arbitration provisions (which had been acceptable almost from the beginning of the negotiations), a no-strike or lockout clause, a vacation clause containing a provision for 4 weeks' vacation after 20 years of employment, a new sick leave clause (which also had been acceptable almost from the beginning), the retail changes in the health and welfare program (which had been in and out of the various offers throughout the negotiations but had actually been ac- ceptable almost from the beginning), a funeral leave clause (which most Association members allowed but which the Association did not want referred to in the con- tract), a provision that the new health and welfare premium and the pension contribution should be made for eligible employees employed as of August 22, plus wage increases of 14-11-12 cent per hour annually dur- ing the 3-year contract. Local 576 ratified the agreement and its members returned to work on August 17. HEART OF AMERICA MEAT DEALERS ASSN. 841 2. The discharge of Leroy Chenowith On June 28 G. R. Fisher Meat Company, a member of the Association, locked out all its employees including employee Leroy Chenowith, as found above. On or about June 30 Bobby Stackhouse, son of the owner of Allied Meat Company which was not an As- sociation member but which occupied premises adjacent to Respondent Fisher, telephoned Leroy Chenowith and asked if Chenowith wanted to work for Allied. Chenowith accepted and began working the same day. Thomas Fisher of Respondent Fisher testified that it was he who, out of "compassion" for Chenowith, had requested Stackhouse to give Chenowith employment at this time. Soon after his employment began, Stackhouse told Chenowith, "after you finish boning these plates, I have some meat Tommy [Fisher] want[s] you to cut for him." After getting advice from his father and fellow meatcutter Joseph A. Chenowith, Leroy Chenowith told Respondent Allied that he, Chenowith, could not cut meat for Fisher. Stackhouse answered, "Okay." Chenowith was never thereafter requested to cut meat for any member of the Association. This episode was soon known throughout the area. Thomas Fisher heard about it also. About a week thereafter Respondent Allied's Manager Warner Keegan told Leroy, in the presence of fellow em- ployee Howard Steever, "sorry, I have to let you go ... I just had to turn down a $300 order from Art Mat Com- pany [a Respondent and a member of the Association]. . I didn't want to get in the middle of the union and the Association .... The Association is pressuring me and Art. Art said `you have a boy [Leroy Chenowith]' in there that is suppose to be walking the street." Soon after Leroy's discharge, Keegan saw Joseph Chenowith on the picket line and told Joseph that Art Meat Company was doing about a $1,000 worth of busi- ness a month with him and that they, Art, had threatened to close out that account if he did not let Leroy go. Howard D. Steever, a meatcutter employed by Allied at this time, heard Warner tell Leroy that "due to the pressure from the Association," Keegan was going to have to lay Leroy off. Subsequently in a private conversation Keegan told Steever that Art Meat Company had called and wanted a $300 meat order but, when Keegan had to turn them down on the order, they remarked about the fact that Al- lied had an employee who formerly worked for an As- sociation 'member [Fisher] and that "after this was all settled, they wouldn't do any business with Allied if [Allied] didn't do something about Leroy." Keegan added that, "Tommy [Fisher] had gone to an Association meeting on a Tuesday before and told about Leroy work- ing over there and the Association should do something about it. 1112 Steever also testified without contradiction that, after the discharge of Leroy, Allied was forced to work its employees overtime.13 B. Conclusions 1. The alleged refusal to bargain General Counsel argues that under the facts found above that Respondent by: 1. Conducting the "negotiations with the Union with a fixed decision and a closed mind that no agreement would be reached with the Union which varied substan- tially from the contract the Respondent had made with the Teamsters"; and 2. Unilaterally canceling the collective-bargaining contract with the Union and thus changing the existing terms and conditions of employment of its employees on June 24 had violated Section 8(a)(1) and (5) by refusing to bargain in good faith with the Union and thus the union strike at Burnett Meat Company on June 28 was an un- fair labor strike. The Trial Examiner cannot agree. General Counsel argues that "the evidence in this case conclusively shows that the Respondents either made an agreement with the Teamsters, or by their conduct led the Union to believe that such an agreement had been made with the Teamsters, wherein the Union would be offered a total wage package no greater than the wage package the Respondents had given the Teamsters. Obviously, the agreement or the holding out of such agreement by the Respondents presupposes a fixed intent and closed mind with respect to negotiations with the Union." The Trial Examiner cannot agree. General Counsel's "either/or" statement above as to what he says the evidence "conclusively" shows confirms the Trial Ex- aminer's opinion that there is no competent evidence in this record which disproves the testimony of Association witnesses that there was in fact no such agreement between the Association and Teamsters. Even Nothnagel only testified that "in my opinion" there was a deal made between the Association and Teamsters. This "opinion" apparently was based upon the facts that the Teamsters did not respect the Union's picket line and Respondent did its best to hold the wage increase to the Union down to the increase given previously by it to the Teamsters. Conceivably the first might be some indication of a "deal" (along with the somewhat innocuous change in the picket line clause of the Teamsters contract - about 12 Keegan denied having even talked to Joseph Chenowith or Steever about the discharge of Leroy. He further denied having given Leroy any reason for his discharge other than that there was not enough business to justify his further employment Keegan denied that Allied did $1,000 a month business with Art and variously estimated that business at $100 per month on one occasion and about $200 a month on another. Allied did not choose to offer its business records to corroborate his oral testimony. When "Tommy" Fisher was asked if there had been any discussion in Association meetings about Leroy's refusal to cut meat at Allied intended for Fisher, his answer was denial of sorts: "If there was, sir, it was very vague, because there was more pressing things at hand at the time " None of these denials was impressive , particularly when contrasted to the testimony of Steever, a completely disinterested witness who testified to the contrary although such testimony might have jeopardized his job with Allied. Manfred Bergmann, "manager, president, whatever you call it," of Art Meat Company, testified on direct examination for Respondent that Art had never tried to get Allied to discharge or terminate Leroy Chenowith, in fact knew nothing of Leroy. On cross-examination Bergmann was not so definite . In fact, according to his testimony, anything became possible The most charitable thing to say about this testimony is that it was so vague as to be completely worthless. The three employees gave all the appearances of witnesses telling the truth. Neither Keegan nor Fisher did The circumstances also tend to cor- roborate the witnesses for the General Counsel. Accordingly, the Trial Examiner must and does accept the testimony of the General Counsel's witnesses. 11 Allied made no offer of its books and records to disprove this testimony. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which Nothnagel did not know at that time) except for the fact that even before the Teamsters-Association contract had been negotiated, the Teamsters had failed to respect the Union's picket line in the strike during the negotiation of the retail contract. As to the second point it is just con- ceivable that the Association thought that it had given the Teamsters a reasonable wage increase which would con- stitute a reasonable increase for the Union as well. Unlike the General Counsel the Trial Examiner can find no evidence of any "deal" with the Teamsters nor of any holding out of any such deal by the Association. Next General Counsel argues that "the most cursory analysis of the bargaining between the Respondents and the Union from April 22 to June 20 shows that the Respondents were engaging in surface bargaining. There are three factors present that prove the aforementioned conclusion." The first alleged basis for this claim is that the Associa- tion's first offer to the Union was a 5-year contract with no additional benefits and no wage increase. Even the As- sociation witnesses conceded that this was not a "realistic" or a "reasonable" offer. In fact they had no thought that the Union would accept it. Acknowledging that the Association's first offer was unrealistic, it was in fact no more unreasonable than the huge cost package which Nothnagel placed on the table in order to start negotiations. An unreasonable demand was thus coun- tered by an unrealistic offer. Unfortunately collective bargaining frequently commences from such untenable positions. The second factor General Counsel relies on here is the fact that the Association suggested that certain matters which the Union wanted could be worked out between the Union and the individual employers without the necessity of its inclusion in the contract. He cites as a specific example of this the Union's request for funeral leave. The facts, however, show that a multitude of union demands applicable to a few or only one of the Associa- tion members such as freezer coats, gloves, $1 for those working on salt, etc., were in fact settled during the negotiations satisfactorily to all without their inclusion in the contract. Also a funeral leave clause was included in the final Union-Association agreement after a checkered career throughout the negotiations when at various times it was demanded and then forgotten or offered and then deleted depending upon the vagaries of the situation. The third factor relied on by General Counsel was the fact that Respondents "refused" to make a final offer on wages for the first 2 months of the negotiations whereas an Association bargaining committee representative had testified that in prior negotiations every offer the Associa- tion made had been a "final" offer. This is largely a matter of semantics. It is undenied in this record that the con- tracts finally executed between the Association and the Union always contained wage rates higher than any previous "final" offer made theretofore by the Associa- tion. The same proved true in the negotiations under discussion here despite the strong propaganda ploy made by the Association in its memorandum to the union mem- bers regarding its so-called "last and final" offer that on this occasion "last and final" really meant last and final. As had been customary this "last and final" offer proved no more "last and final" than had any of the previous ones. The important fact here is that from the commence- ment of negotiations to the "last and final" offer of June 20 the Association's offers had been slowly increased from no wage increase for 5 years to 3-3-5 cents to 6-7-8 cents to 8-10-10 cents with a further increase still to come. Although this may seem a rather unduly long period of jockeying for position, these increases indicate that Respondent Association did not have a closed mind nor, in the opinion of this Trial Examiner, was refusing to bargain in good faith for the reason that the Union also continued to add and subtract numerous fringe cost items as fancy dictated. The facts show that Nothnagel was not withdrawing any cost demands permanently at any time. Funeral leave, for instance, was on and off the table several times depending upon Nothnagel's estimate of the exigencies of the situation at the particular moment. General Counsel calls attention to alleged "admis- sions" by two individual Association members, Albert Arnold and Tom Likely, to the effect that it would be un- fair to Respondent's "loyal drivers" to give the Union more of a raise than it had previously given to them. These individual statements14 do not prove a "deal" with the Teamsters anymore than they prove, if made, that, rightly or wrongly, the Association members figured that the raise given to the Teamsters was a reasonable raise to be given to the Union also. These alleged "admissions" constitute a most slender reed. Consequently on the record made here the Trial Ex- aminer cannot find that Respondent Association was bar- gaining with a closed mind due to a "deal" with the Team- sters nor just engaged in surface bargaining. The name of the game being played here is collective bargaining where the rules today call for one side to get as much as the traffic will bear and the other side to give as little as it can get by with. For the Union Nothnagel was determined to outdo the Teamsters 10-10-10-cent settle- ment and, in addition, wanted more than he had obtained in the retail contract he had negotiated with the Associa- tion and Elliott, to wit 14-11-5 cents. On the other hand Elliott for the Association set his sights on the "reasona- ble" increase previously given by the Association to the Teamsters. From the first moment when Nothnagel first laid his unreasonably large cost package on the table and Elliott countered with the Association's equally un- realistic first offer, the sides maneuvered and jockeyed back and forth in a game of wits, demanding this in order to get the pot sweetened or deleting the other in order to reduce the demands a bit. If at the commencement of the game each side had set reasonable goals, the game would have ended much sooner and without a strike. Under the extreme positions taken by each side here it took a lot of preliminary jockeying before the game even became realistic. Nothnagel was unreasonable. And, without meaning any disparagement to Elliott personally, innumerable Board cases indicate that legal training in all the techni- calities does not necessarily qualify an attorney as the best or speediest of negotiators. Admittedly Elliott was handicapped by his unfamiliarity with the industry at the beginning. Nothnagel and Elliott were hardly conversing in the same language. All this slowed down the progress of the negotiations. 14 The Trial Examiner has grave doubts that Likely even made such a statement although solicited to do so in a private conversation with a per- sonal union friend of his. HEART OF AMERICA MEAT DEALERS ASSN. 843 However from the very beginning it was obvious that the stumbling block was money and money alone. Nothnagel and Elliott shadowboxed around with ar- bitration and grievances, health and welfare, funeral leave, and other similar matters throughout the negotia- tions but these things were actually settled early and ex- peditiously. Money was not. Nothnagel candidly re- peated numerous times, "it's only money" or "it's all okay except the money." He fitted his actions to his words on May 15 when he ended the negotiations, telling the Association to call him when they had a better monetary offer to make. The pot was not being sweetened fast enough for him. Nothnagel again repeated this maneuver on June 28 when Local 576 called its strike against Burnett. The ex- cuse suggested in the complaint for calling this strike against one member of the Association was the fact that the Association had just notified Local 576 and its mem- bers that the contract between the Association and Union had expired by its terms and that, while the Association members intended voluntarily to maintain the same wage scale and working conditions, the grievance and arbitra- tion, union-security and checkoff provisions of that con- tract were no longer in existence. It is this Trial Ex- aminer's opinion that the above was an afterthought.'5 General Counsel contends that by this notice Respond- ent unilaterally changed the working conditions of the employees during the negotiations and thus violated Sec- tion 8(a)(5) of the Act. The contract establishing the aforementioned matters had in fact expired on June 4 by the terms of the agreement itself. Thus any changes made thereby occurred by operation of law and not by the uni- lateral action of the Association. Admittedly, as General Counsel claims, the matters referred to above were all mandatory subjects of negotiation. But in this case they were created by the contract itself and thus expired with the contract which had created them. The Association was at this very time willingly engaged in negotiating their re-creation in the contract then under negotiation. At the hearing Nothnagel claimed that the strike against Burnett was an unfair labor practice strike because of Respondent's refusal to bargain. As previ- ously indicated, the Trial Examiner can find no closed mind or other refusal to bargain on the part of the As- sociation as well as no unilateral change in working condi- tions as claimed by the General Counsel. The Trial Ex- aminer believes and, therefore, finds that as of June 20, June 28, and throughout Respondent Association was bargaining in good faith, albeit it was "hard bargaining." Respondent was still trying to get the cheapest deal possi- ble from the Union which it had the right to do under the existing rules of the game. So the Trial Examiner is convinced and, therefore, finds that the Union called the June 28 strike against Bur- nett as a tactical maneuver to force the Association to sweeten the pot once again by increasing its wage offer. Nothnagel himself had stated that the June 20 offer by the Association was "all okay except for the money." Hence the strike of June 28 was purely an economic strike and not caused by any refusal to bargain or other unfair labor practices on the part of the Association. Nothnagel's economic pressure paid off some weeks later, on August 15. Faced with this economic power, the Association im- mediately retaliated with economic pressure of its own in the, form of a multiemployer lockout which, at the hear- ing, the Association steadfastly maintained was instituted in order to "preserve its multiemployer bargaining unit." More realistically the Trial Examiner believes that the lockout was instituted by the Association as a means to secure more favorable settlement terms than to "preserve its bargaining unit."'' The Supreme Court cases 17 on this subject of lockouts during negotiations by multiemployer groups make it quite clear now that, in the absence of an antiunion motivation on the part of the Association and/or its mem- bers, a multiemployer group may use the lockout as a defensive tactic to a "whip saw" strike situation despite the normal and natural discouragement inherently result- ing to the Union and its members from the use of such lockout tactics in order to secure more favorable settle- ment terms. The Supreme Court ends its discussion of an 8(a)(3) finding in the Brown Food cases as follows: "Certainly then, in the absence of evidentiary findings of hostile mo- tive [on the part of the multiemployer group], there is no support for the conclusion that respondents violated § 8(a)(1)." While its discussion of a possible 8(a)(3) violation in the American Ship Building case concludes: "Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favorable terms, no violation of § 8(a)(3) is shown." On the record made in this case the Trial Examiner has been unable to find that indispensible hostile, antiunion motivation on the part of the Association over and beyond that discouragement of unionization inherently resulting from the use of a countervailing economic force of a lockout to that being employed by the Union. In fact the evidence is to the contrary. However, General Counsel presented evidence that upon the resumption of work Respondent Burnett failed to recall nine of its meatcutters for a considerable period of time. Burnett testified that this delay in recalling the nine meatcutters was due to a slowdown in business. General Counsel made no attempt to disprove this claim. With the burden upon the General Counsel in this in- stance, the Trial Examiner must hold that there was no discriminatory motive in this episode. General Counsel also presented evidence that at the time of the lockout Robert Boyle, president of Boyle Meat Company and also Association president, handed lockout slips to all employees except William Brinkmeyer and Vernon Lathrom on the grounds that they were not union members and therefore were not affected by the lockout. Brinkmeyer, having joined the Union previously, joined the strikers despite the threat by Boyle that, if he failed to report for work, he would be considered to have quit, a mistake which Boyle corrected by letter sub- sequently. At most the Brinkmeyer incident is an isolated incident. 95 For 25 years all grievances had been settled by telephone and not in accord with this grievance procedure provided in the contracts so these al- leged changes in working conditions seem more theoretical than real. 16 On October 10, its first meeting after the settlement of the strike, the Association expelled two members of the Association. " N.L.R.B. v. Truck Drivers Local Union [Buffalo Linen Supply Co.], 353 U S. 87, N.L R.B v. Brown Food Stores, 380 U.S 278; Local 374, International Brotherhood of Boilermakers, etc. [American Ship Building Co.l v. N.L.R.B., 380 U S. 306. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing Boyle maintained that historically the Union had always permitted cleanup men to continue work during strikes. This contention was not disproved. Accordingly this Trial Examiner will recommend the dismissal of the allegations of the complaint in Case 17-CA-2965 in reference to the refusal to bargain in toto. 2. The discharge of Leroy Chenowith For reasons explicated supra, the Trial Examiner has had to credit the testimony of employees Leroy Chenowith, Howard Steever, and Joseph Chenowith as against the denial thereof by Allied's manager, Warner Keegan, that Keegan explained his discharge of Leroy to them on the grounds that Respondent Art and the As- sociation had brought business pressure against Allied and forced Allied to discharge Leroy because Leroy was a union member, locked out in the Association's dispute with the Union, who "should be walking the street." With this credibility question thus disposed of, Keegan's credited explanation to the employees, re- gardless of its actual truth or falsity, constitutes an admis- sion by Allied that it was discriminating in regard to the tenure of employment of Leroy because he was a locked out union member and thus Allied violated Section 8(a)(3) and (1) of the Act. The Trial Examiner so finds. The fact that business pressure was brought to bear upon Allied by third parties in order to force Allied to dis- criminate _against Leroy constitutes no defense. for Respondent Allied. The discrimination remains the same regardless of where the impetus for the discriminatory ac- tion came from. Warner Keegan testified that, at the time of his discharge, he told Chenowith that the discharge was due to a lack of business. However, there is competent evidence in this record which shows that, immediately following the discharge of Leroy Chenowith, Respondent was forced to work its employees overtime. As Keegan did not deny this testimony regarding overtime nor did Respondent Allied attempt to produce its books and records to disprove such testimony, the Trial Examiner must find that there was sufficient work in Respondent's place of business and that Chenowith was not discharged because of any lack of business. The law is clear that, if there is competent proof in this record that Respondents Association and Art in fact brought pressure upon Allied forcing Allied to commit the discriminatory discharge here involved, Respondents Art and Association are also responsible and liable there- fore. See West Texas Utilities Company, 108 NLRB 407, enfd. 218 F.2d 824 (C,A. 5), cert. denied 349 U.S. 953. The only question here then is whether there is proba- tive evidence in this record that Respondents Association and Art in fact brought pressure on Allied causing this discriminatory act. The only testimony in this record connecting Respond- ents Association and Art with this discharge is the testimony of employees Leroy Chenowith, Steever, and Joseph Chenowith who all testified that Allied in the per- son of Keegan told them in explanation of Leroy's discharge that Art and the Association had brought pres- sure and forced Allied to discharge Leroy. Although, as found above, this constitutes an admission as against Al- lied, this testimony amounts only to hearsay as regards Respondents Art and Association. Keegan, Respondents Art and Association, and Allied all denied that any such pressure was in fact brought to bear. The Trial Examiner found all these denials , for reasons which need not be gone into here, to be most unconvincing . However, no matter how unconvincing denials may be , still the denials do not constitute probative evidence to the contrary thereof. There is thus no probative and admissible evidence as against Respondents Art and Association in this record. Consequently, the Trial Examiner must find that the General Counsel has failed in his burden of prov- ing by competent and admissible probative evidence that Respondents Art and Association pressured Allied to dis- criminate against Leroy Chenowith and will , therefore, recommend that the allegations of the complaint regard- ing the discharge of Leroy Chenowith be dismissed as to Respondents Association and Art. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Allied set forth in section III, above, occurring in connection with the operation of all Respondents described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that Respondent Allied dis- criminated in regard to the tenure of employment of Leroy Chenowith, the Trial Examiner will accordingly recommend that Respondent Allied offer to Leroy Chenowith immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may haves suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of his reinstatement, less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum. CONCLUSIONS OF LAW 1. Respondent Association and its member companies and Respondent Allied are employers within the meaning of Section 2(2) of the Act and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local No. 576, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Leroy Chenowith in early July 1966 thereby discriminating in regard to his tenure of employ- ment and thus discouraging union membership and activi- ties among its employees, Respondent Allied has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. Respondent Association and its member companies have not been proved to have committed violations of Section 8(a)(1), (3), or (5) of the Act. HEART OF AMERICA MEAT DEALERS ASSN. 845 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, I recommend that Allied Meat Company (Kansas City, Missouri), its officers, agents, successors, and assigns, shall: 1. Cease and desist from discouraging union member- ship and activities among its employees by discriminating in regard to the hire and tenure of any of its employees in order to discourage such union membership and activi- ties. 2. Take the following affirmative action which the Trial Examiner finds will effectuate the policies of the Act: (a) Offer to Leroy Chenowith immediate and full rein- statement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its plant in Kansas City, Missouri, copies of the attached notice marked "Appendix A." "' Copies of said notice, to be furnished by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Allied to insure that said notices are not altered, defaced, or covered by any other material. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.'9 The Trial Examiner hereby recommends that the al- legations of the complaint as to all Respondents except Respondent Allied be dismissed. The Trial Examiner further recommends that unless within 20 days from the receipt of this Decision Respond- ent Allied has notified the said Regional Director that it will comply with the foregoing recommendations, the Board issue an order requiring Respondent Allied to take the aforesaid action. 11 In 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 19 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps Respondent had taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage union membership or ac- tivities of our employees on behalf of Amalgamated Meat Cutters & Butcher Workmen of North Amer- ica, AFL-CIO, Local No. 576, or any other labor or- ganization, by discriminating in regard to hire and tenure of employment of any of our employees because of such affiliation or activity. WE WILL offer Leroy Chenowith immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and will make him whole for any loss of pay he may have suffered by reason of the discrimination practiced against him together with interest thereon at 6 percent per an- num. WE WILL NOT in any like or similar manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choos- ing, or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activi- ties. ALLIED MEAT COMPANY (Employer) Dated By (Representative) (Title) 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, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-5282.