Stokely-Van Camp, Inc.

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stokely-Van Camp, Inc. and General Drivers, Helpers ,&'Inside Employees Union, Local No. 487 -affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 18-CA-2567 November 9, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 5, 1970, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Deci- sion and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of 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. The Board has reviewed the ruling of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. Board, against Stokely-Van Camp, Inc., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. At the hearing, all parties were represented by counsel and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument . Subsequent to the close of hearing, timely briefs were filed by counsel for the General Counsel and for the Respondent. Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Stokely-Van Camp, Inc., with its principal office located in Indianapolis, Indiana, owns and operates food process- ing and canning plants in numerous States of the United States, including Fairmont and Winnebago, Minnesota, the locations involved in this proceeding. The Respondent, in the course of its business, annually ships products valued in excess of $50,000 from its Fairmont and Winnebago, Minnesota, plants directly to points outside the State of Minnesota. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that General Drivers, Helpers & Inside Employees Union, Local No. 487, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 1 In the circumstances of this case, including the bargaining impasse which he finds attended the lockout , Member Brown affirms the Trial Examiner's dismissal of the complaint. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: This case was heard by me at Fairmont, Minnesota, and is based on a charge filed on March 5, 1968, by General Drivers, Helpers & Inside Employees Union, Local No. 487, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, upon a complaint, issued on February 18, 1969, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the A. Complaint Allegations Between December 14, when the Union notified the Respondent of its desire to open the existing collective- bargaining contract, and April 6, when a new contract was finally executed, the Union and the Respondent held 13 bargaining sessions. With respect to the period between January 17 and March 1, the complaint alleges that the Respondent engaged in bad-faith bargaining in violation of Section 8(a)(5) and (1) of the Act, (a) in entering negotiations on January 17 with a closed mind and with no intention of entering into any agreement with the Union except upon the proposals submitted by Respondent; (b) in presenting its contract proposals on January 18, on a take- it-or-leave-it basis and with a predetermined resolve not to alter its initial position; (c) during negotiations subsequent 186 NLRB No. 64 STOKELY-VAN CAMP, INC. 441 to February 6 when it proposed significant changes in job classifications and job brackets in connection with its wage proposal, in refusing to explain the meaning and effect of such proposals or to supply the Union with information to understand the proposals, while insisting that the Union accept the proposals and present them for ratification to its membership; (d) in repeatedly threatening, throughout the negotiations prior to March 4, to lockout its employees unless the Union accepted the Respondent's proposals; (e) in compelling certain employees, on February 22, to attend meetings with Respondent's officials, thereby bypassing and undermining the Union as bargaining representative, using the meetings for the purpose of persuading employees to exert pressure on the Union to accept the Respondent's proposals; and (f) in refusing to consider, discuss, or negotiate with the Union, during negotiations on March 1, on counterproposals which were submitted to the Respon- dent by the Union previously. The complaint further alleges that, in locking out all of its employees on and after March 4, while engaging in bad-faith bargaining, the Respondent's action was calculated to discourage union activities and to evade the Respondent's bargaining obligation, in violation of Section 8(a)(3) and (1) of the Act. B. The Facts At all times since 1956, the Union has been the certified bargaining representative for the employees at the Respon- dent's three Minnesota plants, two of which are located in Fairmont and the third at Winnebago.' Following the execution of a number of collective-bargaining contracts through the years covering the employees employed at these three plants, the Union by letter dated December 14, 1967, timely notified the Respondent of its desire to modify ,.as we feel necessary" the terms of the current 3-year collective-bargaining agreement which was due to expire on February 29, 1968.2 The following day, December 15, the Respondent served notice on the Union of its intention to terminate the contract on its expiration date and, indicating a desire to commence negotiations for a new contract as soon as possible, requested that the Union meet at the Fairmont Hotel at 9 a.m., on January 3, 1968. By letter of December 19, Harold Krueger, secretary-treasurer of Local 487, informed the Respondent that because of other negotiating commitments, he would not be able to meet on January 3, and indicated that he would contact the Company as soon as he could arrange a date. By letter dated December 27, acknowledging receipt of the Union's letter, the Company, anticipating considerable contract changes in a new contract requiring time, requested a meeting with the union representatives on January 9. By reply of December 29, Krueger indicated that he could not meet on January 9 as suggested by the Company, but that he would be available on January 17, 18, and 19. The 1 Acknowledging that the second of these, plant 172 in Fairmont, was eliminated on August 1, 1968, the unit stipulated to as appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act is comprised of the following: All regular and seasonal production, maintenance, cooler, shipping, receiving, garage and viner shop employees employed by the Respondent at its plants No. 171 and No. 172 at Fairmont, Minnesota, and its plant No. 173 at Winnebago, Minnesota ; excluding office, clerical, watchmen, guards, professional, viner (except viner shop Company responded on January 2, agreeing to the January 17 date and expressing a hope that Krueger, could be available for January 18 and 19 as well, if necessary. Thus, the first series of bargaining sessions got under way on January 17, 18, and 19, at the Augusta Hotel in Fairmont. Representing Local 487, in addition to members of the three-plant bargaining committee, were Donald Eaton, secretary-treasurer of Local 695 in Madison, Wisconsin, and Harold Krueger, Local 487 secretary- treasurer and business representative. Present for the Respondent were Harvey Davis, manager of labor relations, C. LeRoy Eldridge, then assistant to the president, Uddo Idstrom, personnel manager for the Minnesota district, and Francis Vernon, industrial relations representative. After the meeting opened at 10 a.m. with an expressed desire by Eldridge that a contract be concluded by the February 29 expiration date of the existing contract, it was turned over to Davis and Eaton, the principal spokesmen for the parties. The Union presented to the Respondent its written proposal for a new contract, a five- page document setting forth suggested deletions, additions, and changes, article by article relating to the existing agreement. During the course of the 10 a.m. to 4 p.m. meeting, in an exploratory manner, the parties went through the various articles of the Union's proposal, discussing generally that which the Union was seeking, with perhaps preliminary or tentative agreement reached on at least some of the provisions .3 The following day, January 18, with the same representa- tives present, except for Eldridge, the parties again spent a 7-hour session in negotiations. This time the negotiators spent the whole day in reviewing a company counterpropo- sal, article by article, which contained basically a complete contract minus the Company's economic offer, to which there was no bracket schedule or wages attached. The Company's counterproposal was annotated with reference to provisions of the existing contract. To expedite an understanding of the Company's proposal, the Respondent presented the Union with a four-page document, referred to during the hearing as a "road map," containing a summary of the proposed changes as applied to the existing contract. Davis explained to Eaton that the Company's proposed revised bracket structure would be presented later and would be related to the Company's proposal to eliminate the computed average rate system and to substitute a protective rate system. Considerable time was spent during this session in discussing checkoff procedures, grievance procedures, vacations and seniority, and picket line language. At the conclusion of this second session, it appeared that there were some provisions of the existing contract that neither party wished to change, that there were areas where there was tentative agreement, and that there were many items that were definitely in dispute. employees), new construction employees and supervisors as defined in the Act. 2 Unless otherwise specified, all dates herein refer to the fall of 1967 and the winter of 1968. 3 Davis testified that, in discussing the question of termination, Krueger stated that the Union did not want anything longer than a 2-year contract, and, when Davis questioned whether they were about to get into "the same sort of situation" as before, Eaton replied that the length of the contract was a matter for negotiation. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 19, the parties again met, spending the better part of the day discussing the Company's proposals and going further into items raised by the Union's proposals. During this session the Union raised the position that it wanted a 2-year contract. When Davis, who on behalf of the Company was seeking another 3-year contract, became concerned about "that same old story" and took the position that "we are not going to get tied up with expiration dates and a national agreement," Eaton replied that "we are not interested in a national agreement, we aren't here to talk to you about it, we are here to talk about the term of this contract, which is a subject of which you are required to bargain with us." 4 By the end of this session, it appeared that the parties were able to agree on many provisions of a new contract and had identified other areas of disagreement. In areas where the parties had found agreement but that required modification or word changes, Davis told Eaton he would rewrite these as agreed and submit them at the next meeting. Before closing, Eldridge suggested that they meet again on January 22 through 25, also on January 29 through 31. The Union replied that they would not be available on these dates. Then Eldridge suggested the week of February 5, to which the union representatives agreed, which agreement was subsequently confirmed by letter of January 22 from Eldridge to Krueger. On February 1, having been telephonically apprised by Eaton that he would not be able to attend the meetings scheduled for February 5, 6, and 7, because of some official business that he had to attend to, and that he should attempt to postpone them, Krueger went to the plant and talked with Idstrom who told him that he had better speak to Davis. Davis, on the telephone, stressed the importance of continuing the negotiations, that the Company was fast approaching a time when planting would commence, and then referred Krueger to Eldridge. Krueger, who also wanted out on February 5, 6, and 7 because he "was anticipating a strike that morning" at a plant in Mankato, Minnesota, asked Eldridge if he would agree to postponing the meetings. Eldridge accused the Union of stalling and, because of having made arrangements causing the post- ponement of other matters in order to accommodate the scheduled meetings, Eldridge refused the Union's post- ponement request. Later on Davis called Eaton, expressing his feelings over Eaton's request that the meetings be postponed, and reminding him of the Company' s arrange- ment to have a company plane stop at Madison and pick him up. Davis said that they were going to go ahead with the meetings anyway, that the plane would stop for him as agreed. Eaton urged that they not go ahead with the meeting "since I felt we had made some progress." Davis accused Eaton of stalling and, notwithstanding Eaton's explanation for not being able to be present, after consulting with Eldridge on his end of the telephone and angry at Eaton for his giving priority to other business and * Whether this occurred on January 19 as testified to by Eaton, from whose testimony the quotations are taken, or on January 17, as recalled by Davis, there is no dispute as to the issue having been raised early in the proceedings. 5 Davis testified that, at this time, Eaton told him that if a meeting were held and he were not there, "there will be no decisions made , you are just going to be spinning your wheels." I do not credit Eaton's denial, or that breaking his agreement to meet, Davis stated that they would hold the negotiations anyway.5 Such intent was subsequently expressed by letter of February 1, Eldridge to Krueger. The Union substituted Don Burger, vice president of Local 662, Eau Claire, Wisconsin, for Eaton, and the representatives met as scheduled on February 5, 6, and 7 at the Augusta Hotel in Fairmont .6 Shortly after the meeting on February 5 commenced in the early afternoon, Davis handed to the Union a dozen copies of the rewrite job he had promised concerning the changes that had been agreed to at the January 19 meeting. The parties went about discussing these "pink sheets," and making additional changes as they went along. These changes, along with others that were arrived at during these 3 days, were rewritten by the Company while in session and given to the Union. On the morning of February 6, Davis presented to the Union a document containing a revised bracket structure with a proposal to eliminate the computed average rate and substitute a system for providing a protective rate for employees in brackets I--through III. Lengthy discussion ensued during which Davis explained the basis and the reasons for proposing the changes in bracket structure, discussion which involved job classifica- tions, number of employees in each classification, and even the names of employees in some of the brackets. Just before adjournment on February 6, Eldridge told Krueger that he would give the Union the Company's wage proposal and that the money offer would offset any dispute that might exist on some noneconomic provisions. According to Davis, just prior to noon on February 7, the parties, after further discussion on noneconomic provi- sions, had reached a point in their negotiations where there was an agreement on the basic language of a contract, except for provisions relating to picket lines, maintenance of standards, a "no-strike, no-lockout" clause, and a management rights provision. Krueger then said that, if the Company would put back the picket line clause and the Union's maintenance of standards, the Union would agree to the "no-strike, no-lockout" clause and then the parties would be in agreement on the basic language of the contract, minus any money offer. After lunch on February 7, Eldridge reappeared and was advised by Davis that the committee and the Company were then in agreement as to the basic language, without any money offer. According to Davis and Eldridge, in reply to the latter's direct question, Krueger and Burger confirmed Davis' statement, as to having reached an agreement on the basic language, and the meeting was turned over to Eldridge to make a money offer, which he promptly did. Among other items, the money offer included economic benefits such as increase in rates for all brackets, upgrading of certain jobs, an additional holiday, increased group insurance and pension plan items, sick leave, and overtime provisions. This money offer, in turn, generated a lengthy discussion, particularly he merely "told him that to preserve the continuity of the meeting it would be better if I would be there, and I thought we would make more progress." 6 Krueger and Burger, along with seven or eight negotiating committee members, were present for the Union , and Davis, Eldridge, Vernon, Idstrom, and four other management people were in attendance for the Respondent. STOKELY-VAN CAMP, INC. 443 with respect to the new bracket structure, union questions being answered primarily by Davis and Idstrom. At some point, Eldridge asked the Union when it would present the proposed contract to its members for ratification. Krueger replied that he would not present it, giving as a basic reason, according to Davis and Eldridge, that it was a 3- year contract and the Union was not interested in anything more than a 2-year contract.? Finally, after an extended exchange between Eldridge and Krueger, and an insistence on the part of Eldridge that under the Taft-Hartley Law he had to take it to the members, Krueger agreed to take it to his people, but stated that he would not recommend its acceptance. Davis told the Union that Idstrom would put into proper form all of the language agreed upon in the company proposal and deliver clear and legible copies to the Union. Within a day or so of February 7, Davis prepared 10 copies of the proposed document showing all the things that had been agreed upon up to that time and, then, Idstrom forwarded several copies to Krueger. On February 16, after Krueger had approached Idstrom the day before and asked Krueger to meet with him for the purpose of making a few changes and correcting a few errors and omissions in the document, Idstrom met with Krueger. Krueger asked for eight changes, all of which Idstrom agreed to, subject to Davis' approval. Idstrom then telephoned Davis and got his approval on all of the eight changes. Idstrom agreed to retype the pages involved in the eight proposed changes, in order to assist Krueger in presenting the proposal to the union membership the following day. Krueger also suggested that it would be helpful to him if he had something which would identify the new job nomenclature of the old jobs as they existed in the brackets. That evening Idstrom had the pages retyped and prepared a document containing the job information, which he packaged and delivered to the union steward that night, February 16. On February 17 at the V.F.W. Hall in Fairmont, pursuant to the call of the Union, a meeting of the Respondent's employees was held, with Eaton, Krueger, Burger, and Schlieve and the employee bargaining committee in attendance. Krueger opened the meeting, introducing the other union officials and, using the documents supplied by Idstrom, presented and explained the Company's proposals, as they related to the expiring contract. After going into the noneconomic aspects of the proposal, Krueger explained the wage package. Eaton and Schlieve then talked to the employees, indicating what they felt were shortcomings, such as the lack of an adequate picket line clause and a less than adequate money package. Krueger, at some point, apprised the membership that the contract was for a 3-year term. The employees were told by Eaton and Schlieve that they were of the opinion that a better agreement could be negotiated but, as Eaton cautioned, that the possibility of a lockout existed if the proposal were rejected "because this Company had locked out their employees in other areas." After several hours, with but few questions from the floor, a vote was taken, with the proposal being rejected 429 to 25. Following the vote, the committee and union officers were directed by action of the membership to prepare counterproposals and to continue negotiations with the Company.8 Shortly after the employee's rejection of the Company's contract proposals, Krueger called Idstrom and informed him of the outcome. Within minutes Eldridge called and asked Krueger what had happened, to which Krueger replied that "the employees had rejected his 3-year proposal."9 During an exchange that followed, Eldridge made known his feeling that had the Union kept the Wisconsin delegation out of the proceedings they would have had a contract. When Krueger said he would try to get some counterproposals and set up a meeting as soon as possible, Eldridge asked what dates they could agree on. Krueger replied that he did not know, that he had to have a meeting of his committee first to come up with new counterpropo- sals. After the telephone conversation, Krueger sent Eldridge a telegram confirming the fact that "your employees at plants 171-172 and 173 have rejected your proposal for a 3-year agreement." 10 On February 19, Eldridge sent a telegram back to Krueger which read as follows: On Saturday, February 17, 1968, I contacted you at your home by telephone at 10:50 p.m. e.s.t. and you advised that the Union membership had rejected our offer primarily because they did not want a 3-year contract. I asked for an immediate meeting on Tuesday, February 20, 1968 to continue negotiations. You said you could not meet on that date. I then asked for a meeting on Wednesday, February 21; again you refused to meet. I got the same answer to my requests for meetings on Thursday and Friday, February 22 and 23, 1968. This collective-bargaining agreement is an extremely important document to many people and while it has been apparent to us that you have been stalling these negotiations since notice was given of contract termina- tion it would seem to me that you should give this matter top priority, particularly in view of the little time left before expiration of the contract. I again ask for a meeting to continue negotiations any day or hour this week, and insist that you meet with us not later than Monday, February 26, 1968, or we shall have to proceed with out plan to close the plants on termination of the contract at 12:01 a.m. March 1, 1968. 7 According to committee member Alice Minick, Krueger told Eldridge that he could not recommend it because "we didn't agree 100 percent on the wording of it," and could not understand the price brackets as related to wages. Krueger's testimony is that he told Eldridge he could not recommend it because he could not agree on his proposed wage rates. However, that Krueger asked Eldridge for a 2-year contract is corroborated by Minick. s The above account is taken from the testimony of Eaton and Krueger, the principal union officials at the meeting . Schlieve's testimony varies somewhat from that of Eaton and Krueger . To the extent that such variance exists, Schlieve's testimony is not credited. 9 The quotation is taken from the testimony of Krueger. 10 The telegram in full reads: Your employees at plants 171-172 and 173 have rejected your proposal for a 3-year agreement. The negotiating committee will immediately prepare a counterproposal for your considerations. These proposals will be submitted to you in writing as soon as they are prepared. At that time we request that you meet with us to bargain. It is the Union's wish that bargaining continue on an emicable (sic) basis and that equitable agreement is reached. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The word "out" in last sentence was corrected by teletype the following day to read "our." ] By lengthy letter addressed to Respondent's employees dated February 19, with a copy to Krueger, Eldridge traced the contract negotiations between the Company and the Union from December 14 through the February 17 rejection vote, with emphasis placed on the Company's efforts to expedite the meetings with the union officials, and the asserted stalling action by the latter. In the letter, attached to which was a summary of the Company's economic offer, Eldridge adverted to the Company's proposal for a new contract as the best offer the employees had ever had, suggesting that it would have been accepted by the employees but for the dubious advice of out-of-the- area union officials, expressing a readiness and willingness to meet and discuss further the matter with the committee and union representatives any time before the expiration of the contract and, after making reference to union efforts the year before to force a master contract during the negotiations in Wisconsin that resulted in a 20-day lockout, closed with the regret that "if the situation reaches an impasse the plants will be closed at the close of business on February 29, 1968." At the bottom of the first page of the attachment, entitled "Company Offer," the following appears: 11 This is by far the best money offer ever put before you. We hope that you will give it serious re-consideration and communicate your feelings to your business agent immediately. The decision as to whether you work or not after February 29, 1968, is strictly up to you. Make no mistake, if the present impasse continues over the duration of the contract, the plants will be locked up on February 29. Several days later, on February 22, the Company held a meeting at each of its three plants to which seven employees, in each plant, were asked to attend. The meeting for plant 171, which lasted about 1 hour, was called for 9:45 a.m. in the general office, and was attended by Olesen, Idstrom, and Plant Manager Jim Risher. Olesen opened the meeting by making clear that this was not a negotiating meeting, that he had called this in an attempt to clarify some of the misunderstandings and misinterpreta- tions of the Company's proposal that had been presented to the employees for a vote and to answer any questions that they might have with regard to the company letter that had been mailed to all the employees on February 19. Risher answered questions concerning the protected rates and clarified certain points concerning the job brackets. Olesen explained the Company's position with respect to a 2-year versus 3-year contract, specifically stating that the Compa- ny could not approve a collective-bargaining contract that contained the same maturity date as its Kuner-Empson Division, its Wisconsin Division, and its Michigan Division because of the economic pressures that the Union could put on it, that other area companies like Libby and Del Monte did not have a national agreement, and that Green Giant, a big competitor in the area and countrywide, had no union at all. Other questions were answered, questions concerning the insurance plan, the medical plan, and the nomenclature for administrative employees. At some point, according to employee Eleanor Hagen, Olesen "mentioned about a strike we had some years before . . . and they didn't want to get into that position again," and asked if they did not think that the employee objection to the proposal "was more because of the men from Wisconsin than from a 3- year contract." Olesen also asked the employees to go out and talk with their negotiating committee and try to get a settlement "so we could get back to planting the peas." At some point, Olesen stated that the Company would not plant its pea seed until an agreement were reached, that the Fairmont plants represented only 10 percent of Stokely's operations, and that they had decided to sacrifice that 10 percent. The meeting at plant 172 commenced at 1:30 that afternoon in Plant Manager Schultz' office and lasted about 2 hours. It was opened by Olesen in the same manner as at plant 171, Olesen specifically making it known that this was not a negotiating meeting, that the Company wanted to meet with a few employees and clarify the Company's proposal which had been offered and rejected. Present for the Company were Olesen, Idstrom, Schultz, and Plant Superintendent Bishop. Employee questions were answered, questions relating to the cost-of-living increases, the insurance program, seniority in the various job brackets, and the wage spread within the brackets. In addition to answering questions, Olesen, as he had that morning, told the employees that the three plants represented 10 percent of Stokely's operations, and that he hoped that the employees could urge the negotiating committee to get together as soon as possible to resolve the differences that existed, "so that we wouldn't have a work stoppage." Olesen, as in the morning, went into the 2-year versus 3-year contract and the reasons for the Company wanting a 3-year agreement, and the implications of a national agreement. Also, as testified to by employee Bernice Stoner, Olesen said that he hoped that they would try to explain the proposal to the rest of their fellow workers so that they would understand it better, "because they thought that it hadn't been explained fully at our mass meeting that we had when we rejected the contract." Also, Stoner corroborated Olesen in that the latter said he disliked the words "lockout" and "strike," but if they did not reach an agreement the Company "wouldn't have any alternative because the competitive basis and the economic situation we would place them in would be imperative that they not plant peas." Idstrom told the employees that he knew the Union was only stalling'long enough to let them get the peas in the ground and then the Company would be at the Union's mercy as they were the other time the Union struck them.12 The final meeting took place in Winnebago at plant 173 at approximately 3:30 p.m. the same afternoon. The seven employees attending the meeting in Plant Manager Ken Schutt's office received overtime pay. At the start of the 11 The letter, with the first page of the attachment but minus the four meetings, I credit Olesen's denial of employee Ralph Pierce's testimony pages setting forth Wage Rates by Brackets, has been reproduced and is that he told Pierce, who assertedly thought he should return to his job to attached as Appendix A. take care of a kettle of gravy, he would have to stay for the meeting. 12 With respect to one of the few testimonial conflicts concerning these STOKELY-VAN CAMP, INC. 445 meeting, noticing that an employee, Elbert Miller, was present, and recalling that Miller had indicated that he did not want to attend, Schutt informed him that he was not required to be there. Miller decided to stay anyway. After opening with the same thoughts as expressed at the earlier meetings concerning the misunderstandings relating to the Union's presentation of the proposal and the Company's February 19 letter, Olesen took the opportunity to make reference to the newspaper article and the 2-year versus 3- year contract position of the Company.13 During this meeting, which lasted 1-1/2 hours, approximately the same questions were asked with the same answers given as took place in the other meetings, matters pertaining to wage differentials, the insurance program, and other benefits. As testified to by longtime employee Blanche Hickok, Olesen at some point told the employees that the Company was not going to get caught like it had the last time when the Union struck, that they were not going to let it go until they got the peas in the ground like the last time. Hickok testified that the company officials made no promises to the employees nor did they ask the employees what they wanted in their contract. On this same day, February 22, the union committee, with Eaton, Krueger, and Schlieve, met in Minneapolis where it drafted counterproposals. The following day, February 23, the Union and the Respondent, by teletype, were notified by Barton H. Hess of the Federal Mediation and Conciliation Service that a joint conference of the parties was scheduled for 10 a.m., March 1, in Fairmont. On this same day Krueger replied to his copy of Eldridge's February 19 letter to the employees, taking exception to the statement therein that he had at any time informed Eldridge that he would not discuss a 3-year contract, and indicating that he was prepared to negotiate the length of the contract along with the other unresolved issues at a meeting of March 1. On February 26, the Union mailed two copies of its counterproposals to Eldridge, which were received by him on February 28, accompanied by a promise from Krueger to meet and discuss the counterproposals on March 1. The various representatives of the parties met at the Gilbert Hotel in Fairmont on March 1 to resume contract negotiations, this time with the assistance of Barton Hess of the Federal Mediation and Conciliation Service. Although the meeting was set for 10 a.m., Hess met separately with the parties starting around 11 a.m., going back and forth a time or two between the groups, attempting to delineate the issues separating the parties. Apparently with little success at this, the two groups finally got together around noon.14 The meeting opened with Eaton asking Eldridge to continue bargaining on the basis of the new union counterproposals recently submitted by Krueger. Eldridge stated that he could see no reason to start bargaining from a brand new proposal when there had been agreement on the 13 A February 19 local newspaper item covering the Union vote on the company contract proposal indicated that Krueger had reported that the "principal objections were a 3-year contract instead of the present 2-year agreement, and dissatisfaction with the wage schedule offered." The publication of this article, which also stated that "the present three-year contract expires Feb. 28," was one of the reasons asserted by the Company that prompted the holding of these employee meetings. 14 Because the union people were late in arriving and, having been basic language of a contract. Eaton replied by stating the Union's position that since the committee had refused to recommend and the membership had rejected the Compa- ny's proposal, no agreement of any kind existed between the Company and the Union as to language. Eaton continued to press for consideration of the Union's counterproposals and Eldridge continued to reject such consideration. Eldridge stated, if it were merely a matter of money or additional fringe benefits, the Company was flexible with respect to that, but that as far as the basic language of agreement was concerned he did not intend to start from scratch after spending so much time achieving a basic agreement. Eaton again stated his position, that they were obligated to start over again because the employees had turned down the full agreement on February 17. Eldridge retorted that, based on the telegram from Krueger, the fact was that the employees had voted the company proposal down solely on the ground that it was a 3-year contract. At some point, they got into a discussion of why the company proposal had been rejected, to which Eaton answered that, one thing, the people did not understand the bracket system. When Eldridge accused the Union of misrepresenting the Company's proposal at the member- ship meeting, Eaton countered with the question of, how could it have been misrepresented if the Union did not understand it. Eaton stated that he did not believe that it was misrepresented but that, because of the multitude of changes in it, it was really misunderstood, that Krueger could not be expected to explain. Eaton continued asking questions about the jobs and which employees filled them, and Idstrom provided the answers from some documents he held. Idstrom then, at Eldridge's suggestion, turned over the documents to Eaton. Lengthy discussion then ensued concerning the matter. Subsequently, Eldridge requested that negotiations contin- ue using the employee-rejected company proposal as a basis. Eaton replied that if the Company were to continue negotiations, it would have to be based on the Union's counterproposals. When Eaton made known that the Union would need more time to study and analyze the bracket information given them by the Company, Eldridge stated that they did not have much more time, unless an agreement could be reached by March 4 it would be necessary to lock up the plant. When Eaton said that the Company could not analyze the material in that period, Hess suggested that the parties hold separate sessions. The parties adjourned for lunch, and then resumed separately around 2 p.m. After 45 minutes, Hess reported to the company representatives that the Union was insisting upon negotiating from their counterproposals, but that they were going to leave at 3:30 p.m. to catch their plane. With the hope, pessimistic perhaps, of still settling the matter, Hess brought the two groups together again. After very apprised by Hess that they had 4:40 p.m. plane reservations out of Fairmont that afternoon and that they were going to insist on negotiating from scratch with the counterproposals, leaving a bleak outlook for reaching agreement, Eldridge felt that the Union was stalling. By the same token, Eaton was informed by Hess that the Company's position was unchanged from the previous meetings, and that Eldridge had informed Hess that if no agreement were reached by Sunday night the plants would close the following day. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limited discussion, during which Eaton and Eldridge both maintained their initial positions, Eldridge read a state- ment, a lengthy prepared statement, setting forth the Company's position and stating that if there were no agreement reached by Sunday night and an absolute impasse reached the plants will be closed as of the close of business on March 4, and announced that copies of the statement would be placed on the plant bulletin boards that aftemoon.15 When Eaton protested that this was an ultimatum, Eldridge replied that Eaton could call it what he liked, that he was there "to negotiate tonight, tomorrow, the next day, and Sunday, and there is no reason why we can't come to an agreement. But if we don't, that statement stands." Shortly after the adjournment of the meeting about 3 p.m., Eldridge asked Hess to check on the possibility of scheduling another meeting between then and Monday, March 4. Hess reported back that he did not think there was a possibility of making any specific dates. When Eldridge then suggested March 5 , 6, 7, and 8, the Union, through Hess, countered with March 11-13. Agreement was finally reached on the week of March 18-21. During a break in the March 1 meeting, Eaton and Davis went to the washroom together. According to Eaton's testimony, Eaton stated that it looked like they were in trouble, that it appeared to be serious. When Davis agreed, and Eaton asked if there were not some way they could solve the problem , Davis retorted that Eldridge was handling the matter and that he (Davis) did not see any way out. Eaton volunteered that if the Company locked out the employees the Minnesota law provided for these people to receive unemployment compensation. Davis, questioning the validity of the statement , indicated that in any event that the Company was not going to finance the dispute. Davis' version, which I credit, is that at 3:20 p .m., which places it after adjournment, and after the Company's lockout announcement, he (Davis) took the initiative with Eaton in expressing a strong desire not to "see this much work go down the drain." Eaton's reply was that, unless the Company were willing to change its position on bargaining from the Union's counterproposals, he did not see that anything could be done. When Davis replied to Eaton concerning his thoughts on the possibility of the employees being eligible for unemployment compensation, Eaton stated that the Company's case was "on much shakier ground this time than you were in 1967, and you are going to lose this one . we have taken particular pains to see that we didn't make the same mistakes that we made a year ago." 16 Thereafter, on March 1, the Respondent posted on its bulletin boards the following notice: NOTICE TO EMPLOYEES March 1, 1968 Because of the currently existing labor dispute with 15 In this statement, after tracing the bargaining developments to date, and indicating a willingness to consider the economic phase of the Union's counterproposal, Eldridge accused the Union of a lack of good-faith bargaining and of stalling, and reiterated the Company 's position that it intended to resist the Union 's effort to tie in the contract expiration date to those of the Wisconsin and Michigan plants, as well as others , represented by the Union. This statement has been reproduced and is attached as Teamsters Local Union No. 487 and the attendant risks of economic hardship, as fully set forth in our letter to you, dated February 19,1968 , the Company is forced to suspend operations of its Fairmont and Winnebago, Minnesota plants Nos. 171, 172 and 173, effective at the close of business Monday, Mar. 4, 1968. All employees at those plants are hereby laid off until further notice. Stokely-Van Camp, Inc. By [signature] C. L. Eldridge 17 Assistant to the President The next bargaining session got underway at the Gilbert Hotel during the morning of March 18, with approximately the same representatives present on both sides , and again with Hess in attendance. After several separate sessions with Hess, the parties met and, using the Union's February 22 counterproposals, an effort was made to determine which of the counterproposals were the same as the proposals contained in the Company's proposed contract. A large number of provisions were discussed, many of which appeared to have been the same as those in the Company's proposal, while, with respect to others, it was found that there was no disagreement. Upon adjournment on March 18, the parties mutually agreed to resume the following day at the Inn Towne Motel in Minneapolis . Opening the meeting, Eaton reviewed the provisions discussed the previous day and, using the Union's counterproposals as well as the "old contract," the parties continued in their exchange . The Union agreed to modifications and changes, and the Respondent did the same. Other provisions remained unacceptable to one party or the other, including language of the termination article. During the day, the parties caucused separately and then met together with further agreement accomplished on both sides. Later in the day, March 19, just before adjourning, Eaton met with Davis, and orally made some further counterproposals, which Davis wrote down. These included proposals pertaining to holidays , vacations, management rights, picketline, and hours of overtime. The following day, March 20, the parties met again with the Company requesting more time to consider the Union's latest counterproposals and to come up with a complete counterproposal covering all of the items, including the economic items, and asking whether the Union's last proposal covered the entire language package or whether the Union wanted any other language changes . The Union indicated that no further changes were contemplated, but that if the Company were to come up with an economic proposal the Union would want more information while considering it. Eldridge opened the afternoon session, stating that the Company had gone over everything that had been discussed up to then, and that the Company was ready to give the Union an entire proposal for its serious consideration, which proposal appears to have been based Appendix B. 16 This was in obvious reference to the Company's lockout in Wisconsin in 1967 which resulted in a decision denying unemployment compensation to the locked-out employees. 17 The date, the signature, and the words "at the close of business Monday, Mar. 4, 1968" were handwritten in ink. STOKELY-VAN CAMP, INC. 447 on the Union's February 22 counterproposal. Eldridge went through the entire draft, article by article, including all provisions previously agreed to and making changes from the Company's previous position with respect to many of those not previously agreed upon. After finishing, Eldridge then made the economic proposal, reading from the February 19 company letter to Respondent's employees, in effect proposing the same economic package as contained therein. When the Union protested that the Company had not changed a thing in its economic offer, thereby having wasted 3 days, the meeting broke up. After the Local Union committee left for home, Neal, one of the two Federal mediators, approached Eaton and Schlieve who had not left and told them that Eldridge wanted to continue the meeting. Eaton refused to meet without the committee. At some point, however, the Union asked the Company to draft what had been completed up to that date and to submit it to them. Thereafter, the Company prepared a document containing all the noneco- nomic provisions of a contract that had been agreed upon by the Union and the Company during the March 18-20 negotiating sessions. On March 28, pursuant to a telephone call to Eldridge from Pete Andrade, director of the Western Conference of Teamsters-Cannery Division, Eldridge and Davis traveled to Washington, D. C. for a meeting with high union officials at the Teamsters Headquarters. After lunch they met with Eaton, Krueger, Schlieve, Jim Nolan of Local 135, Indianapolis, Indiana, and with Harold Gibbons, vice president of the International Union. Gibbons opened by stating that he had asked them to Washington because of the seriousness of the situation with respect to the Company's lockout of its employees. Gibbons stated that this was the second time, that it was embarassing to the Teamsters International, and that it could not be tolerated, that he was demanding that the Company immediately put its employees back to work. Eldridge replied that the employees would go back to work when the Company had a signed contract. Gibbons indicated his dissatisfaction and threatened that if the Company did not put the employees back now the Union would put a picketline around every store in the country that handles Stokely goods and would see that no Stokely products were moved by truck. Gibbons offered to substantiate his threat by calling in Frank Fitzsimmons, vice president and acting head of the Teamsters International, which substantiation Eldridge indicated was not necessary. When Gibbons acknowledged Eldndge's realization that such conduct on the part of the Union could put the Company out of business, Eldridge told him to do it if he had to, but that there was no reason for it, that they could negotiate a contract right there that afternoon. Gibbons replied that Eldridge and Davis were not called to Washington to negotiate, and in any event, the Union would not negotiate without the Local committee. Eldridge offered to fly the committee to Washington in the Company's plane or, in the alternative, to fly the Washington group to Minneapolis or Fairmont. Gibbons rejected this offer, at which Eldridge accused Gibbons of "attempting to pull exactly the same thing you pulled in 1967, an attempt to force some kind of national agree- ment." At this point, Eaton pointed out that at no time during the negotiations had the Union asked for a National Master Agreement, and in fact had taken pains not to raise it. Eldridge acknowledged that it had not been mentioned, but accused the Union of trying to achieve it through the use of stalling tactics, the refusal to meet on many, many occasions when requested by the Company, and through a common expiration date on certain agreements. Thereafter, the final series of bargaining sessions took place at the office of the Federal Mediation and Conciliation Service in Minneapolis on April 3, 4, and 5. In addition to the regular party representatives, Andrade was also present for the Union. During the course of the initial meeting, while attempting to define the issues, Eldridge requested a private meeting with Eaton, Schlieve, and Andrade. Meeting in an adjoining room, Eldridge told the union officials that he had some more money, and that he had to have a 3-year contract, and that he knew that they had to buy it. When asked how much more, Eldridge replied that he had close to $100,000. The Union then stated that it needed more information from Eldridge concerning the number of hours, and the various classifica- tions and brackets, in order to determine whether they could distribute the extra money in a manner satisfactory to the union membership. Eldridge, who did not have it with him, agreed to give the Union the information. At the two following meetings, using the document compiled by the Company and submitted to the Union containing provi- sions agreed on through March 20, the parties made further concessions, including the Company's new $100,000 wage proposal. With this monetary offer incorporated into the earlier wage proposals of the Company, the Union and the Respondent finally, on April 5, agreed on the provisions of a new 3-year contract, which contract, retroactively effective to March 1, 1968, was executed by the parties on April 7. Commencing on April 6 and continuing through April 8, the Respondent's employees were called back to work, thus ending the lockout that had commenced on March 4. C. Analysis and Conclusions Apart from the respective positions of the parties concerning the specific complaint allegations, the General Counsel's overall assertion is that the Respondent, having the year before engaged in a successful lockout of its Wisconsin and Michigan employees, entered into negotia- tions on January 17, 1968, with a predetermined resolve to force the Union to accept its contract proposals on a take- it-or-leave-it basis and to sign a company-proposed contract prior to the expiration date of the old contract, and with a predetermined resolve that should the Company be unsuccessful, to engage in a lockout of its employees upon the contract's expiration regardless of the status of the negotiations at that time. In support of its position, the General Counsel and the counsel for the Charging Party assert that the Company seized upon these contract negotiations to completely rewrite the substantive provi- sions of the existing contract. They further assert that, thereafter, the Company refused to budge from its proposals, failed to explain them so that the Union could understand them, insisted that the Union take the proposed 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract to an employee vote, and that after the union membership voted the Company's proposal down, the Company attempted to persuade the employees to accept its proposal, subsequently refused to consider the Union's counterproposals while threatening a unitwide lockout, and that not until after the March 1 meeting and during the lockout did the Company finally bargain in good faith with the Union. The Respondent, on the other hand, contends that the Union entered into negotiations with an intent to stall, to avoid real bargaining, and to not agree on a contract until such time that the Company would be subject to an irretrievable economic loss through a strike, all pointing toward the eventual accomplishment of the Union's prime goal of, first, obtaining a common expiration date of all contracts which the Union had covering Respondent's plants throughout the country and, second, securing a national master agreement covering these plants, thus strengthening the Union's future bargaining power. In support of its position in this regard, the Respondent points to the fact that in the Minnesota District, the Company is engaged in the growing, contracting, and processing of vegetables, as well as in the cattle feeding business. Its own farming operations cover some 9,000 acres with an additional 1-8,000 acres in Minnesota and Iowa under contract with farmers. In addition to the Minnesota District involved in this proceeding, the Respondent owns 14 plants in Wisconsin comprising an employee unit covered by a single contract with the Union, a Michigan plant constituting a separate unit under contract with the Union and, through a subsidiary, Kuner- Empson Company, four more plants in Colorado also under contract with the Union. The Respondent asserts that the year before, during the 1967 contract negotiations in Wisconsin, the Union openly proclaimed its determina- tion to force the Company into a master agreement covering all of the plants represented by the Teamsters, demanding that the Company enter into a single contract covering not only the plants whose contracts were open for negotiation, but all other plants under contract with locals of the International. When, during the 1967 negotiations, it appeared to the Company that the Union was stalling to a point where the Company would have huge economic commitments to its farmers, i.e., crops in the ground and peas ready for harvest, resulting in a potential huge economic loss were a strike called (as was the case in 1961), the Company engaged in a successful lockout of its Wisconsin and Michigan employees. At that time, accord- ing to the Respondent, Eldridge of the Company, was warned by Gibbons of the Teamsters that the following year when the Minnesota contract was up for negotiations the Union planned to carry out its 1967 announced plan of forcing the Respondent either into a master agreement or, short of that, forcing the Company to agree to a 2-year contract, thereby accomplishing a common expiration date for all of the Company's plants. While the Respondent admits that during the current negotiations the term "master agreement" or "national agreement" was never used, and that the Union at no time specifically reiterated its intent in this regard, the Company maintains that the Union, which was represented in these bargaining negotiations by a number of its Wisconsin local officials, was, nevertheless, attempting to secure its long range objective, by refusing, time after time, to agree to early meeting dates, attempting to postpone agreed-upon dates, refusing to recommend to its members contract proposals the language of which had been substantially agreed to, for the reason that the proposed agreement contained a 3-year term rather than a 1970 termination date, inadequately presenting the contract to the employees resulting in its being turned down, and then insisting that the Company start bargaining from scratch based on counterproposals submitted to the Respondent as the old contract was about to expire and just before the crucial time when growing contracts to farmers were to be executed. Finally, in defense of its March 4 lockout, which it maintains falls within the rules governing a legal lockout, the Respondent asserts, first, that an impasse "dressed up as a stall" had been reached and, secondly, that it was a lockout called in aid of its bargaining position, to protect itself against a large economic loss, and to compel the Union to bargain in good faith. With these contentions well in mind, let us concern ourselves with the specific conduct alleged in the complaint as reflecting general bad-faith bargaining by the Respon- dent. Initially, the complaint alleges that (a) Respondent entered negotiations on January 17 with a closed mind and with no intention of entering into any agreement with the Union except upon the proposals submitted by the Respondent, and (b) the Respondent on January 18, presented its contract proposals to the Union on a take-it- or-leave-it basis and with a predetermined resolve not to alter its initial position. The General Counsel, in support of this position, relies in part on the fact that, unlike the Union's proposed contract changes, the Company's proposals consisted of a drastic revision of the existing contract, involving the rewriting of most of the provisions, and, as urged in its brief, "the extensive revisions .. . shows that the Respondent entered the negotiations feeling that it was in a very strong position." I fail to see the relevancy of this fact to the assertion. Regardless of what may or may not have been the Respondent's unexpressed appraisal of its bargaining position, and notwithstanding the extensiveness of its proposed contract changes, the fact remains, as the record clearly reveals, that from the initial December notification of a request to modify the contract through the final successful completion of a new contract in April, the Respondent continually pressed for early and extended negotiating sessions. Nor am I of the opinion that the record otherwise supports the complaint allegation in this regard. Thus, without attempting to detail the negotiations here, the evidence reveals that the Company discussed at length with the Union the latter's initial proposals, and, upon submitting its own the following day, entered into extensive discussion and explanation of these. Thereafter, during the sessions that followed, the Respondent continued to discuss both the Union's proposals as well as its own, in some instances making concessions, modifications, and changes suggested by the Union. This is totally inconsistent with the charge that the Respondent presented its proposals on a take-it-or-leave-it basis. STOKELY-VAN CAMP, INC. 449 The complaint further alleges as indicative of bad-faith bargaining the Respondent's failure and refusal during subsequent negotiations to explain the meaning and effect of its proposals in connection with its wage proposal, job classifications, and job brackets or to supply the Union with information to interpret and understand the proposals, while insisting that the Union present them to the membership for ratification. While there unquestionably existed some confusion concerning the Company's pro- posed job classifications and job brackets as related to its wage proposal, the evidence, including testimony of General Counsel witnesses, reveals that the Company provided the Union with explanatory material to assist the Union in understanding the proposals, and that Davis and Idstrom furnished the Union with additional information requested by the Union, on one occasion travelling back to the plant for clarifying data, and answered all questions raised by the Union pertaining thereto . While much of the testimony of Krueger and Minick would indicate that on February 7, when Eldridge insisted that the proposed contract be taken to a vote, there were still a number of noneconomic provisions with which there was no agree- ment, other parts of their testimony appear to substantiate that of Eldridge and Davis to the effect that there was substantial agreement as to the basic language of the contract. Thus, apart from alleged misunderstanding concerning brackets and wages, Minick testified that Kruegers' expressed reason for not recommending the contract was because "we didn't agree 100 percent on the wording of it." In this regard, Krueger admitted on cross- examination that many of the provisions of the Company's proposal with which the Union disagreed during the February 5-7 negotiations were in fact changed and written the way the Union wanted, and that others, without exception, were changed by the Company to meet the Union's approval during the meeting Krueger had with Idstrom prior to the membership ratification meeting on February 17. The fact that at no time did the Union raise nonagreement on noneconomic provisions as a reason for not recommending the proposed contract, coupled with the fact that it was at the Union's subsequent request that certain changes be made prior to submitting the contract to a vote, appears to corroborate the Respondent's assertion that there was essential agreement on the proposal as it went to the membership on February 17. Accordingly, I find that the record does not support the General Counsel's assertion that the Company refused to explain or supply the Union with information, and further find that, under the circumstances, the Respondent's "insistence" that the Union present the proposed contract to the membership for ratification does not constitute evidence of bad-faith bargaining. The complaint specifically alleges that in holding the ,three employee meetings on February 22, the Respondent compelled certain employees to attend, and did so for the purpose of persuading the employees to exert pressure on the Union to accept the Respondent's contract proposals, thereby bypassing and undermining the Union as bargain- ing agent. The Respondent, in denying the allegation, asserts that the sole motivation for conducting these meetings was prompted by reports of extensive employee discussion following the February 19 newspaper article and the Company letter of the same date to employees indicating some confusion as to the contract proposals. The Respondent maintains that its purpose was to explain the proposed contract to a cross section of employees from each of the plants, to answer their questions, and to clear up any misunderstanding or misinterpretation the employees might have. The record tends to bear out the Respondent. Thus, while the several employees in each plant were asked to attend, there is no credible evidence indicating that they were compelled to be present. At the start of each meeting the Respondent made it clear that the meeting was not a negotiating meeting, and that it was called in order to clarify any misunderstanding the employees might have concerning the proposals and to answer any questions they might have pertaining to the proposals or the Company's recent letter. Questions were in fact raised and were answered. Either Olesen or Idstrom at one point or another stated the Company's reasons for requiring a 3-year contract and its fears concerning its economic position in the event of further delay in finalizing an agreement with the Union. In explaining the Company's feelings that the union officials were stalling in order to place the Company in a position where, once the peas were planted, it would be at the Union's mercy, and indicating that it would not plant its seed until an agreement were reached, suggesting the possibility of a lockout if this should occur, while at the same time asking the employees to explain to the rest of their fellow employees the proposals and urging them to talk with their union representatives to try to get a settlement "so we could get back to planting peas," there was no attempt to bargain with the employees, no promises made to the employees, and no questions asked as to their contract desires. It would appear that the Respondent's conduct in this regard falls well within the purview of Section 8(c) of the Act 18 and the Board's rationale in Proctor and Gamble Mfg. Co.,19 where the Board held that, "as a matter of settled law, Section 8(a)(5) does not, on a per se basis, preclude an employer from communicating, in non-coercive terms, with employees during collective bargaining negotiations. The fact that an employer chooses to inform employees of the status of negotiations, or of proposals previously made to the Union, or of its version of a breakdown in negotiations will not alone establish a failure to bargain in good faith." The instant case, like Proctor and Gamble, is distinguishable from General Electric Company20 where the employer engaged in an extensive campaign of communication coupled with a fixed position at the bargaining table, in that the record reveals that the Respondent here entered negotiations sincerely desirous of reaching an early agreement with the Union, thereafter engaging in extensive rs Sec. 8(c) provides : under any of the provisions of this Act, if such expression contains no The expressing of any views, arguments, or opinion, or the threat of reprisal or force or promise of benefit. dissemination thereof, whether in written, printed, graphic, or visual 19 160 NLRB 334. form, shall not constitute or be evidence of any unfair labor practice 20 150 NLRB 192. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussion, submitting proposals, and making concessions. Thus, in the complete absence of threats, promises, and interrogation of the employees during these meetings, and in light of the Board's pronouncement in Wantagh Auto Sales, Inc.,21 to the effect that, violations of Section 8(a)(5) involving employer communication with employees during collective-bargaining negotiations "have been found only when the employer's language was itself coercive, or could reasonably be construed as coercive in the context of other unfair labor practices of the employer," I find, contrary to the General Counsel's assertion, that no attempt was here made by the Respondent to bypass or undermine the Union as the employee bargaining representative. With respect to the complaint allegation that, during the negotiations on March 1, the Respondent refused to consider the Union's counterproposals submitted to the Respondent on February 26, the record is clear, and the Respondent readily admits, that such was the case. The Respondent's position, as repeatedly stated by Eldridge at the time, is that the Company did not intend to start from scratch on a new set of proposals after so much time had been spent in arriving at a basic agreement with respect to a new contract. The evidence reveals that while the Company was insistent upon not using the Union's counterproposals as a basis for continuing negotiations, the Union was equally adamant in refusing to further negotiate on any basis other than using its own counterproposals. While, at a later date certain noneconomic changes were made, it would appear that the real disagreement on March 1 involved contract economics, money matters, and fringe benefits, as well as some confusion concerning the job bracket system, subjects which the Company expressed a willingness to discuss.22 While there existed other problems, including the duration of the contract term, I question the validity of the General Counsel's assertion that a refusal at this point in the contract negotiations to continue bargaining except upon a completely new set of proposals constitutes bad-faith bargaining. I find to the contrary. There remains for discussion the related complaint allegations that (a) throughout the negotiations prior to March 4, the Respondent repeatedly threatened to lock out its employees "unless the Union accepted Respondent's contract proposals," and (b) in locking out its employees on March 4, while engaged in bad-faith bargaining, the Respondent did so to discourage union activity and "to evade the Respondent's bargaining obligation." As to (a), the evidence reveals that at no time did the Company predicate its threat of lockout upon an accept- ance of its contract proposals. In fact, the Company's proposals were never mentioned in connection with statements threatening a lockout. Commencing on Febru- ary 19 when the Company first indicated that a lockout was imminent, the lockout threat was always geared to an impasse in bargaining or to the economic necessity of such action. The Company first threatened a March l lockout in Eldridge's February 19 telegram to the Union wherein he accused the Union of stalling and stated that "I again ask for a meeting to continue negotiations any day or hour this week, and insist that you meet with us not later than Monday, February 26, 1968, or we shall have to proceed with our plan to close the plants on termination of the contract at 12:01 a.m. March 1, 1968." In the Respondent's letter to its employees on the same date, after expressing a strong desire to meet and discuss contract matters immediately, the Respondent stated that "if the situation reaches an impasse the plants will be closed at the close of business on February 29, 1968," and, by way of attachment, "if the present impasse continues over the duration of the contract, the plants will be locked up on February 29." During the February 22 employee meetings the employ- ees were apprised of the Respondent's concern over the possibility of a work stoppage and the position it would place the Company in once the peas were planted and told that if an agreement were not reached the Company would have no alternative but to engage in a lockout. Finally, Eldridge's lengthy statement on March 1 to the union negotiators to the effect that if no agreement were reached by Sunday night and an absolute impasse reached the plants would be closed on March 4, clearly conditions the threat of a lockout on something other than acceptance by the Union of the Company's proposals. I find totally without merit this portion of the complaint. Turning now to (b), which appears to be the matter of prime concern in this proceeding. In view of the above findings this allegation is divested of a strong supporting ingredient, namely, the assertion that the lockout occurred while the Respondent was engaged in bad-faith bargaining. In resolving the issue as to the legality of the lockout, I deem it unnecessary to determine whether or not the parties had reached an impasse on March 4 when the lockout commenced. I find that the matter is clearly governed by the rationale of the Supreme Court's decision in American Ship Building, as amplified by the Board in Evening News Association, and recently extended in Darling and Company.23 In the American Ship Building case, the Court in effect held that a lockout of employees to support a bargaining position after an impasse in negotiations had been reached was not violative of the Act, and established as a test of a lockout's legality, whether, assuming no motive to discourage union activity or to evade bargaining exists, the lockout is "inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent . . . is required." Subsequently, the Board in Evening News recognized that the Supreme Court in American Ship Building had "obliterated, as a matter of law, the line previously drawn ... between offensive and defensive lockouts." Finally, in the Darling case, the Board concluded that the test of a lockout's legality, as enunciated by the Supreme Court in American Ship Building, is also properly applicable to situations involving a lockout of employees prior to an impasse in contract negotiations. Here, as in the strikingly similar Darling case, I find there exists no specific evidence of an intent by the Respondent to discourage union activity or to avoid its bargaining obligation. The record evidence supports the Respondent's 21 177 NLRB No. 19. - 23 American Ship Building Co. v. N.LR.B., 380 U.S. 300, Evening News 22 Eventual contract agreement and execution became a reality after the Association, 166 NLRB 219, and Darling and Company, 171 NLRB No. 95. Respondent came up with a new.$100,000 wage offer. STOKELY-VAN CAMP, INC. 451 assertion that the purpose of the lockout was to get the Union to negotiate an agreement before the time the Company had to plant the pea crop and to forestall the possibility of a work stoppage after the crop was in the ground. I find that it was called by the Respondent in support of its bargaining position, and particularly, to protect itself from a potential large economic loss should the Union, as it had before, call a strike once the pea crop was planted and the Company committed. Accordingly, I find that the Respondent's decision to engage in the lockout was not unlawfully motivated. Further, in view of the Company's continuing efforts throughout negotiations to expedite bargaining sessions looking toward an early contract agreement, and the fact that it offered proposals, discussed union proposals, made concessions, and reached agreement with the Union on certainly most of the provisions of a collective-bargaining agreement prior to March 4 lockout, coupled with a well- founded fear of a disastrous strike at a time most advantageous to the Union, I conclude that the lockout by the Respondent was neither inherently prejudicial to union interests nor devoid of significant economic justification. Accordingly, under all of the circumstances, I find that in locking out its employees between March 4 and April 6, 1968, the Respondent did not violate Section 8(a)(3) or (1) of the Act.24 Furthermore, over and above the specific allegations of the complaint which I have found to be without merit, I also find that the credited record evidence herein fails to establish the existence of a bad-faith bargaining motive on the part of the Respondent and shall recommend that the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Stokely-Van Camp, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Helpers and Inside Employees Union, Local No. 487, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint, herein, be dismissed in its entirety. 24 See Wantagh Auto Sales Inc., supra. APPENDIX A February 19, 1968 Dear Stokely Van Camp Employees: I feel duty bound to inform each of you of the facts as they have developed in the current negotiations for a new collective bargaining agreement covering all Stokely Van Camp employees covered by the current collective bargaining agreement with Local 487. 1. On December 14, 1967 Mr. Harold Krueger sent a letter to me opening the agreement for such adjustments and modifications as the Union felt necessary. 2. On December 15, 1967 I answered that letter stating that the Company would terminate the present agreement on its expiration date. I requested that the Union Negotiating Committee arrange to meet with the Company Negotiating Committee at the Fairmont Hotel in Fairmont, Minnesota at 9:00 AM on Wednesday, January 3rd, 1968 for the purpose of commencing negotiations for a new contract. 3. I received a letter from Mr. Krueger dated December 19th in which he stated he could not meet on January 3rd and that he would contact me as soon as possible to arrange a date. 4. I wrote Mr. Krueger on December 27, 1967 requesting a meeting at the Fairmont Hotel at 9:00 AM on Tuesday, January 9th. I received an answer to my letter from Mr. Krueger dated December 29th in which he stated he could not meet on January 9th, but did say he had January 17th, 18th, and 19th open. I immediately an- swered his letter confirming that we would meet with him at the Augusta Hotel at 10:00 AM on Wednesday, January 17th, and meetings were held January 17th, 18th, and 19th, and I felt that progress was made at those meetings. Mr. Donald Eaton, from the Wisconsin Locals was present. When the meetings adjourned on the 19th of January, we requested we meet again on the 22nd, 23rd, 24th, or the 25th or 26th of January. Mr. Krueger stated that no meetings could be held at that time. We then asked if we could meet on the 29th, 30th, and 31st of January, and he stated that no meetings could be held then. We finally agreed to meet on February 5th, 6th, 7th, and 8th. 5. On Friday, February 2nd, Mr. Krueger called Mr. Davis and stated that the meetings for February 5th, 6th, 7th, and 8th must be postponed indefinitely. Mr. Davis transferred the call to me and I demanded that we meet as scheduled. We also talked with Mr. Eaton and they finally agreed to meet at 1 PM on Monday, February 5th. The meetings were held again on the 6th and 7th. Mr. Eaton did not attend these meetings, but Don Berger, representing the Wisconsin Locals, did attend. At the close of the meeting on February 7th, Mr. Krueger informed us that no contract would be accepted on a three year basis. 6. Last week Mr. Krueger advised Mr. Idstrom that a meeting of all employees involved would be held on Saturday, February 17 for the purpose of ratifying or rejecting the Company's last proposal. He told Mr. Idstrom that he would notify him as to the results as soon as the meeting ended. Saturday evening Mr. Krueger notified Mr. Idstrom that the contract proposal had been turned down. I received this information by telephone at my home at approximately 10:30 PM Saturday evening. I immediately called Harold 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Krueger and he re-stated that the agreement was rejected on a three year basis. I asked him then for a meeting on Tuesday, February 20th and he refused. I asked for a meeting on February 21st and he again refused, and on Thursday, February 22nd, he again refused and again on February 23rd, and he again refused. I told him that he was causing a most serious situation by this attitude and putting the employees in jeopardy. He said he was sending me a night letter and said, "good night." We have placed before you people the best offer of a new agreement that you have ever had. We have attempted to re-write the contract so as to overcome or minimize problems of the past. The economic package is far above the average of other settlements in this industry, and in this area, and we felt that it would be accepted by you if you were not receiving dubious advice by different people from other local unions that have little or no concern for you individually. I know that you realize how serious it would be financially to you, the farmers in this locality, and the company, if an impasse is reached in these negotiations and the company is forced to close the plants. During the past year, your local business agent has been identified with the so-called, "Stokely Van Camp National Committee." A representative of this commit- tee has been present during the negotiations in Fairmont. For your information, this committee last spring attempted to force Stokely Van Camp to agree to a master contract during the negotiations in Wisconsin. The Company did not agree to the Union demands and it was finally necessary for the Company to lock out the employees and close the plants, causing the employees to lose twenty working days pay. The Company's actions at that time were upheld and approved by the National Labor Relations Board. Because your welfare and the welfare of your family is so much involved in this matter, we knew you would like to be informed. We hope you will think about this carefully, talk it over with your family and particularly talk it over with your Union representative so the Union representative will know how you feel. If you feel that further discussion is necessary in this matter, the Company is ready and willing to meet with your committee and the Union representative anytime before the expiration date on this agreement. However, I sincerely regret to state that if the situation reaches an impasse the plants will be closed at the close of business on February 29, 1968. We are enclosing for your information a summary of the economic offer, and you will note on Schedule A that Bracket numbering was changed as agreed by Harold Krueger and Mr. Idstrom. Sincerely, [signature ] C. L. Eldridge C. L. Eldridge Assistant to the President cc: Harold Krueger Donald Eaton E. 0. Olesen Federal Mediation & Conciliation Service 1402 U.S. Courthouse & Federal Office Bldg. Chicago, Illinois 60604 Division of Mediation & Arbitration Minnesota Department of Labor & Industry 434 State Office Building St. Paul, Minnesota 55101 APPENDIX B STATEMENT BY C. L. ELDRIDGE-FAIRMONT, MARCH 1, 1968 The developments in these negotiations have definitely and without question convinced me that this Union is collaborating with the Teamsters Local Unions in Wisconsin and Michigan to stall the bargaining and carry negotiations to a future date that will be advantageous to the Union. This is proven by the fact that Mr. Krueger opened the agreement by a letter dated December 14, 1967. On December 15, I answered that letter and requested a meeting for January 3, 1968, for the purpose of commencing new negotiations . Mr. Krueger answered my letter by a letter dated December 19, stating that he could not possibly meet on January 3, 1968. I wrote Mr. Krueger on December 27, 1967, requesting a meeting on January 9, 1968. I received an answer to that letter from Mr. Krueger dated December 29, 1967, stating that he could not meet on January 9, but he did state that he had January 17, 18, and 19 open. I immediately answered him confirming meetings on those dates. When I arrived for the first meeting, Mr. Donald Eaton, representative of the Wisconsin Locals was present. When we adjourned on January 19, we asked for meetings January 22, 23 and 24, or January 25, and 26. Mr. Eaton and Mr. Krueger stated no meetings could be held on those dates. We then asked for meetings on January 29, 30 and 31 and Mr. Krueger and Eaton stated no meetings could be held then . We finally agreed to meet February 5, 6, 7 and 8. On Friday February 2, Mr. Krueger and Mr. Eaton advised us that they could not meet on February 5, 6, 7 and 8, and the meetings must be postponed indefinitely. In a telephone conversation with Mr. Krueger I insisted upon a meeting on February 5, and he finally agreed to meet at 1 p.m. February 5. We met on the 5th, 6th and 7th. Mr. Eaton was not present but Mr. Donald Burger another representative of the Wisconsin Locals was present. During those meetings all language clauses of the agreement were agreed to and on the 7th the Company presented its economic proposal. There were many questions asked and some changes made at that time in the economic setup and I insisted that this proposal be presented to the people for ratification or rejection. Mr. Krueger stated he could not present it to the people because they would not accept a three year contract. After much insistence on my part he stated he would submit it to the people without recommendation of the committee. I asked him when he would present it-he stated he did not know when he would present it. STOKELY-VAN CAMP, INC. 453 Some time during the next week Mr. Krueger advised Mr. Idstrom that a meeting of the employees would be held on Saturday, February 17, and he stated he would notify Mr. Idstrom immediately after the meeting the action that resulted. He did not notify Mr. Idstrom until late on the evening of Saturday 17. I received the information from Mr. Idstrom around 10:15 p.m. Saturday night and I immediately called Mr. Krueger and he stated that the agreement was rejected on a three year basis. I asked him if there was anything wrong with the proposal and he answered "Well they didn't like some parts of the money offer." I then asked Mr. Krueger for meetings on February 20, 21, 22, or 23, and he refused to meet on any of these dates and stated he was sending me a night letter. I received the night letter at approximately 11:45 a.m. Monday, February 19. In that night letter Mr. Krueger stated that the proposal was rejected on a three year basis and that the negotiating committee would immediately prepare a counter proposal for our consideration. These proposals would be presented in writing as soon as prepared. I received that counter proposal at 11:45 a.m. Wednes- day, February 28. I immediately answered the night letter by a straight telegram and I stated in that telegram that we were ready and willing to meet with them to discuss the matter any day or any hour up until February 26, 1968. We heard nothing from the Union until you as commissioner of the Federal Mediation and Conciliation Service set up the meeting for today. On Monday, February 26, I received a letter from Mr. Krueger dated February 23 in which he claimed he had never told me they would not discuss a three year contract and that he was prepared to negotiate the length of the contract along with the many other issues that are still not resolved . And he would be happy to discuss these matters with me on March 1, as previously arranged. I might say here that he stated verbally many times that he would not discuss a three year contract and he dictated it to Western Union in his night letter. He also states that the March 1, meeting had previously been arranged. Both you and Mr. Krueger know it had not been set up until Monday, February 26, three days after he had written his letter, when you asked me to meet on March 1, and to hold everything status quo until we meet and conciliation procedures had been exhausted and I am sure you noted in my answer to you I agreed to status quo at least until after the March 1, meeting only. I am sure that any one checking the above mentioned developments will agree with me that there has been no effort whatsoever by this Union to negotiate a new contract in good faith. This counter proposal which they have submitted to us is another glaring example of their stalling procedures because all the language of the new agreement aside from the economic items have been agreed to by the committee, and I am positive that they were not turned down by the membership at large because they never were explained to them. I am perfectly willing today to take under consideration their counter proposal in the economic phase of the agreement and to look it over and come back with an absolute final proposal by this Company. Before we do that I want it definitely understood that this Company realizes exactly what this Union is trying to do. And when I say that I mean Mr. Krueger and the representatives of the Wisconsin Locals and possibly the International Teamsters Union. I am equally sure that the employees as a whole do not understand exactly what they are trying to do. I want it fully understood by every one that Stokely-Van Camp, Inc. owns this Division and that Stokely-Van Camp, Inc. is offering this money raise to these employees. And I want it fully understood that this Company in view of these facts intends to resist with every means possible this effort of the Union to tie in the expiration date of this agreement to those of Wisconsin and Michigan and several other of our plants that the Teamsters represent the employees. And the first step in that resistance is- if an agreement is reached today or tomorrow by the Negotiating Committee for the Union and the Compa- ny and is presented not later than Sunday night, March 3, 1968, and ratified by the employees, operations will continue as they have in the past. If this agreement is turned down by the employees during that period or if an agreement is not reached by the two negotiating committees and an absolute impasse is reached these plants will be closed and locked up at the close of business Monday, March 4, 1968. Your counter proposal is rejected.