George Braun Packing Co.

GEORGE BRAUN PACKING CO. 745 George Braun Packing Co. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 171, AFL-CIO. Cases 23-CA-3467 and 23-CA-3497 November 24, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 21, 1970, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs; the Respondent filed an answering brief to the exceptions of the General Counsel. 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 proceeding 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 and briefs, and the entire record in this proceeding 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 adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, George Braun Packing Co., San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner on April 7 and 8, 1970, at San Antonio, Texas, on complaint of the General Counsel against George Braun Packing Co., herein called the Respondent or the Company. The issues are whether the Respondent violated Section 8(a)(1), (3), and (5) of the Act. The ultimate complaint rests on two charges, one filed on November 6 and one on December 15, 1969. Briefs were filed by the General Counsel and the Respondent after the close of the hearing. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT George Braun Packing Co., a Texas corporation, has its principal office and plant in San Antonio, Texas, where it is engaged in the operation of a slaughterhouse. During the preceding 12 months, a representative period, the Respon- dent from this location sold products valued in excess of $50,000 to companies in the State of Texas themselves engaged in the business of processing food products, each annually making direct sales of its products in excess of $50,000 to customers located outside the State of Texas. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 171, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Picture of the Case This is essentially a refusal-to-bargain case. Following a Board-conducted election the Union was certified as exclusive representative of the Company's employees on August 5, 1968. After 10 or 12 fruitless collective-bargain- ing sessions negotiations between the parties were discon- tinued in May 1969. In September a number of employees signed an antiunion petition aimed at decertification proceedings, and it is alleged the move was instigated by the Respondent on promise of wage increases if the Union were removed from the picture, a form of coercion in violation of Section 8(a)(1) of the Act. While the initial charge supporting this allegation was being investigated by the Board, the Respondent, concededly acting unilaterally, in November granted a wage increase to all the employees. The Union then demanded that the Company resume bargaining with it, but the Company refused. This refusal is said to constitute unlawful refusal to bargain and a violation of Section 8(a)(5). The complaint also alleges that the discharge, in December, of one Augustine Flores was aimed at discouraging his union or concerted activities, and therefore prohibited by Section 8(a)(3). The Respondent denies that it had anything to do with the certification petition. As to the refusal to bargain it defends on the ground that it had reasonable basis for doubting the Union's continuing majority status and that it acted in good faith. Flores was released, according to the 186 NLRB No. 103 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, as part of a general economic reduction-in- force and not in consequence of any improper motive. B. The Decertification Petition In the very beginning of August 1969, if not earlier, there took place two meetings in the office of Dwaine Harral, the manager of the plant and one of the owners. Because nothing definitive resulted, the employee witnesses did not recall exact dates, but there is a document (G. C. Exh. 7), prepared by Harral himself at the time, and now received in evidence, which establishes that the second meeting was on August 4, or at most a day or two later. At any rate, the first meeting definitely took place before August 4, because Harral prepared the document in consequence of what was said at the first. Everyone in the department was hourly paid. The subject discussed at each meeting was the possibility of changing to piecework rates, so much per cow killed and processed, -the amount to be shared on some basis by the participating workmen. The declared object of the talks was to find a way to increase the employees' earnings. I find that the idea came from management, and not from the employees. Between the two meetings the employees met separately, as suggested by Harral himself, in a cantina to consider what price per cow they might think proper, and in consequence there were phrases from employee witnesses tending to indicate it was they who were urging the changeover to piecework. But considering all the testimony, the contrary is true. Thus Augustine Flores said that at the second meeting Harral said "he wanted for us to get more money." David Flores said Chavez, foreman of the kill room, told him about the first meeting: "Chavez told us to go talk to Mr. Harral.. . . That Mr. Harral wanted to know from us if we would like to work it out on a piece rate." Abelardo Flores: "Well, Chavez had told us before you all go home, go to the office, the boss wants to talk to you all in his office." Harral's story of how all this came about corroborates the clear implication arising from the above testimony of the employees. He said he had had more experience with boning operations, conducted on a piecework basis in this plant, and therefore thought it might be advisable to put the system in effect in his kill room also. His testimony is as follows: Well, when we started, I hadn't been involved in a killing plant before, and been mostly in the boning business prior to getting the plant. It was my thinking that these rates would work on the killing as they had done for us in the boning rooms. And I had done some work and I had indicated to some of the men that, and also indicated that some of the, oh, meetings that we had, that I thought it would be a good idea. And the meeting that I recall, I am kind of vague on it because I prefer to call it a discussion. We had some men come into the plant, to my office. Augustine Flores, the best I remember, was there. But I can't tell you who was there, it was a group of kill floor people. Came in. And we talked about the piece rate. And they were interested in knowing what kind of figure I had in mind. And I told them that I didn't have any figure in mind other than just would it work. I was concerned whether they thought they could make a piece rate system work." On this subject Robert Elliott, the production superin- tendent, started by saying he was never at any meetings where piecework was discussed, he had never mentioned the subject to any employees. Asked has he talked about it with Foreman Chavez, he equivocated, and tried to belittle the matter: "Might have mentioned in passing, or conversation, but no direct discussion how we would do it, or this is the way it should be done, or what." Pressed to be more precise, he finally admitted he did discuss it with Chavez. Foreman Chavez, in turn, denied having talked to anybody about piece rates for his department, and even denied there was ever any mention of it between him and either Elliott or Harral. Chavez lied and his purpose must have been to foster the illusion it was the employees who first turned to the Company for raises in earnings instead of management first broaching the possibility to them. Although many of the employee witnesses were imprecise as to details-due largely to their unfamiliarity with the English language-the major facts are clear. Their first suggestion was $5 per cow piecework, but Harral told them at the first meeting to discuss it among themselves, to try to arrange a workable system, and see if they could agree on a more modest amount. Harral himself studied the production records and prepared a chart to show what past labor costs had been. This is the exhibit dated August 4. The men did talk it over among themselves. If there is one fact that emerges clearly from all this record it is that in this kill room and among these employees there is absolutely no inhibition against open and loud talk. It would be beyond reason to believe everybody-rank-and-file and management-did not know in detail all that was going on. At the second meeting Harral suggested a piecework rate of $3.25 to $3.75 per cow, and showed the men his study chart to support the position. The employees thought this too little and the subject died. But there were other things said during these meetings, as the employees recalled, that are more significant so far as the issues of this proceeding are concerned. According to Abelardo Flores, while Harral was talking to them about the possibility of a changeover to piecework, he also told them: "Well, you all, the union, it depends on you all, if you sign some kind of a paper, you know, we have sign it, costs, you know, not union this company no more." Asked to repeat what Harral had said: "Mr. Harral said he want to, you know, us to work for piecework if we sign some kind of a papers he has to retreat the Union." Allejandro Hernandez remembered that Leonard, the company president, was at one of the meetings, and "he said something about probably, if we got that contract about killing cows by piecework, probably we might make more money or something like that. We don't supposed to put the union there inside of something like that solike Mr. Hernandez want us to do is what he say." Leonard did not testify. Harral did not exactly deny reference to the Union during these early meeting, but the tenor of his story as a whole is that he never asked the men to sign anything of any kind, nor especially to reject the Union. I credit Flores and Hernandez, in part on the basis of the demeanor of the GEORGE BRAUN PACKING CO. 747 witnesses, the employees were straightforward while Harral was evasive at many points, and in part because the words they attributed to the manager then are more consonant with the activities of management in subsequent events. The attempt at increased earnings via piecework rates having failed, the employees started to ask for outright raises. As Harral related, he told them he could do nothing about raises because "the way I understood the law and everything that the union had to, was their bargaining agents and I couldn't discuss a raise with them unless-there was one or two that had changed positions that we had done something about-but as a raise for the same job, my hands were tied. The union was the agency they would have to talk to." Augustine Flores told it differently. He said others sent him in to ask for the raise, and that Harral's response was: "He said he could not give a raise because he would be violating the law.... He said if they would sign a paper, then he might be able to get a raise. We would talk about a raise." The next incident came shortly later, apparently some- time in August, and presents again a direct conflict in testimony. Augustine Flores testified Foreman Chavez told him Harral wanted to see him, and that then, in the manager's office, Harral "said he had the papers, the paper for the employees to sign . . . he just told me that he had the papers, to get the paper and take it to the employees to see if they wanted to sign to get a raise." Flores added that Elliott was also present then and told him what to put in "the papers." Flores continued that as directed he went to Elliott's office, copied "two papers," and was told by Elliott he could take it "to the boys and see if they wanted to sign." The witnesses's recollection of what was written on these documents, as to one: "To L and H Packing Company, Braun Division. We no longer want to be represented by the, by the-I don't know what they said, I don't know what that meant, Butchers of America, Local 171," and as to the other: "To the Amalgamated, or something, Butchers of America, Local 171. We no longer wanted to be represented by the Local 171." Flores went on that he then proceeded back to the kill room where Chavez gave him permission to talk to all the employees. "He [Chavez] told the boys, he says, `Boys, Flores wants to talk to you about something.' " Flores then told them they could get a raise if they signed these papers but that he thought they should not because there was no assurance there would be raises. No one signed. Chavez then, still according to Flores, told him to go to the tankroom, or the engineroom, to inquire if those employees would sign . Flores ended by saying he refused and placed the papers in Chavez' lockerroom at the foreman's instructions, where he last saw them the day he was discharged on December 5. Augustine Flores' testimony is supported by that of two other employees. David Flores recalled the incident, and said Chavez told the men "Augustine had something to talk to us about. Something on paper, something like that," and that Augustine then explained it was "for us to get a more rate or more benefits, we had those papers that he had" Hernandez also testified that Chavez told the entire group "that Augustine have something to say to us concerning about something from the office or from Mr. Harral, something like that." Hernandez recalled Augustine telling the men "Mr. Harral wanted us to sign that paper, we can have the same, I mean what you say, profit or-I don't know. . . . He said probably we have the same thing that San Antonio Packing Company have like rags [sic], vacation, overtime and everything." Harral, Elliott, and Chavez all denied this entire incident; according to them it was pure fabrication by the employee witnesses. Continuing with his testimony , Flores said he reported the employees' refusal to sign to Harral and asked why didn't the manager just grant raises, and that Harral answered "He said he couldn't because he would be violating the law. He had to get something." With this Flores had a notary public prepare a written agreement between employees and Company , detailing raises and other increased benefits, and asked Harral to sign it. The document is dated August 23. Now Flores told Harral "that I had that contract if he wanted to sign it, well then he could sign that and we can give him the signature if he signed that contract for us. And then so we could get a raise." Harral answered he would think about it . Back in the kill room Chavez asked what had happened , and when Flores reported Harral would give him an answer that evening, Chavez, according to Flores, said : "Well, like I tell you, if you don't want union here, don't bring union in here. The boss, '. . . that is Mr. Leonard . . . `told me he can go as high as 5 cents over the wages of San Antonio Packing Company." San Antonio Packing is a local unionized plant competitor of the Respondent and Leonard is the president of the Respondent. In the evening, when Flores went back to Harral to learn what his decision was, the manager said, always according to the witness : ". . . he couldn't sign it because he would be violating the law... . He said if we could get the signature , then we could talk about a raise." On this incident, Harrel's testimony is that Flores offered to "get rid of the union" if he would sign the notary's agreement, and that he answered he could not bargain with the employees, "I had to do one or the other, and the union was the duly elected bargaining agent." Chavez' position stands on his general denial that he ever told anyone to sign antiunion petitions to get raises. There is no dispute as to the last incident in the plant. On September 22 Gustave Klein wrote to the Board's Regional Office requesting a decertification election . In response he received a prepared petition for employee signatures. It read : "We the undersigned employees of the George Braun Packing Co, San Antonio, Tex., hereby allege that the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 171 is no longer the exclusive bargaining representative of employees of the above company, and we authorize Gustave Klein and Jacob Escobedo to represent us in petitioning the National Labor Relations Board to decertify said union as our representative." Jacob Escobedo, assistant foreman of the kill room, then asked Superintendent Elliott for permission to solicit signatures to this petition and explained it was a "petition we had, you know, if it was for us, you know,just in case we wanted a union or not in there ." Elliott admitted giving his 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permission. Did he know what it was about? "A: I recall they boys there on the kill floor signing a petition or paper or whatever to, something to do with their wanting decertification of the union , or not having a union, or something of this sort." Escobedo then went to Chavez and said he had permission. Chavez told him to go to the basement and then sent every one of the kill room employees , all 38 of them, I or 2 at a time, downstairs to be solicited . All this during working time . In fact, in addition to the kill room, all the rest of the plant employees-the overall total then about 120 persons-from all departments, were then sent down by their respective foreman , a few at a time , to be solicited. At the hearing Chavez testified Escobedo told him that day the petition was concerned with "an election, but I don't know what kind of an election it was going to be.. . . So I don't know what it was that was discussion over there, what they telling to each other, what kind of paper they write or whatever." Some employees signed for Escobedo , some did not. With it Klein filed a decertification petition on October 22, and the Respondent was advised. The Regional Director scheduled a hearing on the petition but on November 7 postponed it indefinitely because the first of the charges here involved had been filed. On November 14 the Company granted all employees a substantial raise in pay. C. Violations of Section 8(a)(1) The foregoing evidence warrants the finding , which I make, that the Respondent , acting primarily through the kill room group, implanted the idea in the minds of its employees that if they took affirmative steps to evidence their rejection of the Union as bargaining agent the Company would raise their wages. The intention to accomplish this design appears as a coherent plan one step at a time. Owner Harral testified that when Augustine Flores came to his office during August on behalf of the kill room men to ask outright for raises , he sent word back he could not bargain with them because there was a certified union in the picture . But this is precisely what he set out to do when on or about the first of August he had the butchers called to his office in order to discuss with them how to increase their wages, and sent them out again to give serious thought to whatever it was he was suggesting. If the question of the Union as an impediment to granting wage increases was in his mind in mid-August, it could not have been less a concern a few weeks earlier . Still before reaching the matter of the demeanor of the witnesses and the way they told their stories-directly and clearly against evasively and indirectly-Harral's own words indicate he was giving the employees to understand the question of wage increase was tied to a choice that had to be made between having a union and not having a union . This was his clear implication when he placed the Union between himself and the wage increase demands with the words "I had to do one or the other." He made much of the fact there had been no overt action, nor indeed any talk whatever about the Union by the employees during that period. Yet he would have it that Flores , out of a clear sky, offered to "get rid" of the Union if the Company would sign the notary's contract. No plausible explanation was offered, and the entire record suggests no reason why Flores would do this, absent some provocation from some quarter. The next month Escobedo obtained a formal signature sheet for rejection of the Union and the Company's assistance to him is unreserved . Harral admittedly knows what is going on, and gives his permission for the solicitation by Escobedo during working hours . Escobedo, assistant foreman , is the highest paid butcher in the kill room. "I can be just the same as the other guy, like Chavez. I can say anything I want, you know, to the guys working over there. If they don't want to so what I am going to tell them, well, I got the responsibility to fire anybody there." He fills in for the foreman when the latter leaves the floor for any appreciable length of time , and ordinarily "He might have one particular section to help push through a little bit" (from Elliott's testimony). Escobedo also substitutes completely for Chavez in the foreman's absence from the plant, when "I stay over there, you know, telling the people what do do, what not to do, what was right, what was wrong. That was what I was supposed to tell them guys." Chavez sends Escobedo to the basement with his petition and then in a stream asks each and every employee to go downstairs to listen to him. At the hearing Chavez says he knew it meant an election of some kind but he had no idea what it was about. From him, in the circumstances, this was pure lying. He had already falsified once when denying there had ever been talk of piecework , only to have Superintendent Elliott follow him to the stand and say he had discussed piece rates with the foreman . With all this, I also credit Augustine Flores' testimony that after he left the notary's contract with Harral and Chavez asked what the manager's reaction had been , the foreman told him , in clear effect, that with the Union out of the picture the president of the Respondent would give raises higher than those of the competitor unionized company. Leonard, the president, did not testify; there is no reason for not believing Chavez was passing on what higher management had said to him. Indeed, the statement, attributed to Leonard by his supervisor, fits logically into the total picture of events. Now, with the decertification petition filed, albeit with knowledge there is going to be an election , the Respondent gives everybody a raise. The Union is no longer an impediment to the plant manager. But this is exactly what, sometimes obliquely and sometimes directly, he has been telling the employees-first there had to be positive evidence of removal of the Union , and only then would the raises follow. It is not necessary here to decide whether Escobedo is a supervisor within the technical meaning of the Act ; his at least quasisupervisory status, considering the position of relative importance given him by the Company in the kill room, coupled with the direct evidence of cooperative effort between him on one hand and Harral and Chavez on the other , points strongly to the conclusion that he was acting as agent of management in soliciting the employees to signify their rejection of the Union . In part on the basis of the not too subtle suggestions of management and in part on their assistance to Escobedo , I find the ultimate formal decertification steps instituted by Klein and Escobedo resulted from the Respondent 's activities. I also credit Augustine Flores' further testimony, denied by GEORGE BRAUN PACKING CO. 749 Chavez, that after hearing about the raises he asked the foreman exactly how much they would be, would it be as much as $2.30 for him, and that Chavez answered: "Yeah, that's what you all going to get. . . . I told you you don't need no union here. Don't quote me, but I'm going to tell you, the boss told me he could go as much as 5 cents over the wages at San Antonio Packing Company" I find that by Manager Harral's statement to the employees in his office that raises depended on their signing a document repudiating the Union; by his suggestion to Flores that he solicit signatures to an antiunion petition; by his statement to Flores that the Company would discuss raises with the employees only if they first obtained antiunion signatures; by Foreman Chavez' instructions to the employees to listen to Flores' invitation to sign an antiunion petition; by his statement to Flores that the president of the Company could pay wages in excess of those paid by a competitor in return for antiunion signatures; and by his directions to the kill room employees to leave their work and listen to Escobedo's invitation to sign a decertification petition, the Respondent violated Section 8(a)(l) of the Act. D. Refusal To Bargain; 8(a)(5) Violation By October the Respondent was aware that Escobedo and Klein had utilized their antiunion signature petition to support a formal request for an election and that the Regional Director was taking procedural steps to hold the election. On November 14 it raised everybody's pay as though a union had never existed in the plant. A week later the Union demanded a bargaining conference and the Respondent rejected the request out of hand. The complaint alleges the Board must hold the Union still represented a majority in November, and that the unilateral act of radically changing conditions of employment constituted rejection of the statutory duty to bargain with an exclusive bargaining agent and therefore a violation of Section 8(a)(5) of the Act. And of course the ultimate refusal to bargain is said to have perfected the Respon- dent's denial of collective-bargaining rights to its employ- ees The defense is many-faceted. It is argued that the General Counsel has failed to prove an element essential to any refusal-to-bargain case-the fact of majority status in November, when the Company dealt directly with the employees. In support of this position the question is asked: How could there have existed an exclusive majority representative at the same time that an employee petition for an election was pending, and at the same time that the Regional Director had himself recognized there existed a question concerning representation by issuing a notice of hearing on the decertification petition? Affirmatively, the Respondent asserts that even assuming, on some theory or other, that the Union still represented a majority at the time, the Company had objective and reasonable basis for doubting any such majority status, that it in fact did entertain such an honest doubt, and that therefore in no circumstances can its conduct be deemed unlawful. To bolster this position the Respondent advances the further justificatnn that competitive conditions in the market were such that as a matter of economics it had no choice but to increase all the wages , and could not fairly be obligated to await the outcome of an election , or of the Board's investigation of the merits of the charge filed against it. I find that the Respondent violated Section 8(a)(5), as alleged in the complaint, when it granted raises to the employees on November 14, and again on December 15 when it advised the Union it had rejected its request for negotiation meetings . The reasoning starts with a presump- tion, honored again and again in the courts, that majority status once established-as here on August 5 , 1968, by the union certification-it continues to exist, virtually conclu- sive during the first year and only rebuttable thereafter. N L.R.B. v. Ray Brooks, 348 U .S. 96, 104. Thus in the case at bar the requisite fact of majority status rests on the presumption, and continues to suffice pending evaluation of countervailing evidence, if any, and the obligation to come forth with such evidence rests as a burden upon the employer . In its brief the Respondent separates the interrelated pertinent facts and makes diverse arguments, as though each could be viewed in isolation . If the record showed only the filing of the decertification petition, supported by any fair employee signature list requesting removal of the Union as their bargaining agent , a different issue would be presented and there might be a different answer to the further question whether the presumption has been rebutted. In urging it would be unfair to expect the employer to abide the event of an extended Board proceeding, and to suffer economic disadvantage in the interval , the Respon- dent conveniently ignores, for the moment , its own conduct in provoking the very decertification petition . But "this is to make situations that are different appear the same ," as the Court said in Ray Brooks. And this is equally true of the further argument that the filing of the original charge, on November 6, promised such a further time passage in the investigation of the allegations of misconduct, as to afford greater license to the Company to ignore the Union, majority or no majority . The fact of the matter is, and this is the determinative element in this case , that it was the representatives of management who, by their clear message to the employees conditioning any raises upon their taking steps to remove the Union from the picture, themselves supplied the motivating force which prompted the petition, and the charge in the first place. The situation as it now appears fits precisely into the Supreme Court's holding in N.L.R.B. v. Exchange Parts, 375 U.S. 405, where the employer conferred new benefits upon the employees while a petition for an election was pending. "The action of employees with respect to the choice of their bargaining agents may be induced by favors bestowed by the employer as well as by his threats of domination.... We have no doubt that it [Section 8(a)(1) of the statute] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." No need for speculation here as to the "danger inherent" in "well-timed increases in benefits;" the evidence is direct that Manager Harral told the employees 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there would be no raises without the necessary "signatures." All this applies with equal force to the Respondent's related, but not really different argument that it had reasonable and objective basis for an honest doubt as to the Union's continuing majority status in November. There had been a turnover in the employee complement, and the total had increased greatly. And it may well be that had the Respondent refrained from improper interference in the matter of the employees' attitude towards bargaining through a union, a fairly conducted election in the fall of 1969 might have resulted in rejection of the Union. Indeed, had the Respondent entertained a sincere doubt on the question it would have been a simple matter for itself to have requested a Board election. The statute provides for such steps by an employer. It chose instead to assure rejection of any union by its own violations of Section 8(a)(1), thereby precluding any possibility of an untram- melled expression of choice by the employees. Cf. N.L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575. This last fact, too, turnover and unit expansion, could, in other circumstances, supply affirmative objective evidence sufficient to rebut the presumption of continuing majority. The fact remains, however, and it cannot be ignored, that it was the Respondent's indirect, but nevertheless coercive promises of benefit, that explain the ostensible question concerning representation now advanced as support for the claimed "honest doubt" by the Company. In the end, the test must be found in the lead case enunciating the basic principle of law applicable to this case. The employer may not raise the question of majority status "in a context of illegal antiunion activities."' I find that by granting the November raises and by rejecting the Union's bargaining request the Respondent refused to bargain within the meaning of the Act and thereby violated Section 8(a)(5). E. Discharge of Augustine Flores Flores, a very competent butcher, was hired on August 7, 1969, by Foreman Chavez and discharged the following December 5, when a normal and seasonal decline in work made necessary a general reduction-in-force. Within a 3- week period, of the approximately 120 overall complement, 24 employees were released; of these 17 came from the kill room. It is a contention of the General Counsel that Flores was deliberately selected for dismissal because of his "union" or concerted activities. The record evidence does not prove unlawful discrimination in the discharge of this man and I shall therefore recommend dismissal of the complaint as to him. Most of the men sent home from the kill room were helpers, or less skilled butchers. One man, Manuel Guzman, was as experienced as Flores, as well paid, and of much longer seniority. The affirmative defense assertion Celanese Corporation of America, 95 NLRB 664: By its very nature, the issue of whether an employer has questioned a union's majority in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of totality of all the circumstances involved in a particular case. But among such circumstances, two factors would seem to be essential prerequisites to any finding that the employer raised the majority issue in good faith in cases in which a union has been certified. There must, first of all, have that people had to be released for economic reasons, as least some butchers among them, is not disputed , as indeed on the record evidence it could not be. The notion that Flores' doings during the 4 months he spent in the kill room could be called "union activities" is virtually abandoned in the General Counsel's brief. The fact of the matter is there simply is no evidence worth mentioning that he had made any effort to advance the interests of Butcher Local 171, or of any labor organization. Chavez had something to do with the choice of persons who went home, for Superintendent Elliott admitted he consulted the foreman in making the selection . It is this touchstone, where Augustine Flores and Andres Chavez brushed against one another in the Respondent's kill room, that is said to reveal where the butcher chose to exercise the statutory rights guaranteed him by Congress and the foreman to deny him his lawful prerogatives. Appreciation of the friction that developed between them requires an understanding of the personalities and predilections of both. The two have long been friends and have worked as butchers together over the years. Flores has a flair about him, he likes mankind, wants to help his fellow man, and loves to sing. "Everytime I go in there I go singing or whistling, or something. Everybody hollers at me, Flores-I'm pretty popular around there. I mean everybody knows me." He did not think Chavez was behaving properly toward the help, and time and again without end told him so, advised the foreman in no uncertain terms how to promote this man or that, how to give the younger men at least opportunity to advance themselves, how to have some feeling for a nephew or a godson. Apache was a leg breaker, and one day Assistant Foreman Escobedo told him to drop hides instead. Apache mentioned this to Flores, who advised him: "No, you tell him no, you are not getting paid for that." To Escobedo, he said: "No, he is not going because he is not getting paid for that." With this, Escobedo restored Apache to gutting, but resented being told what to do. Now Apache became a little unhappy, what with the assistant foreman displeased toward him. More advice from Flores: ". . . you go over and tell Chavez that Escobedo is amusing you because you didn't want to do a job. . . . And this way Chavez will tell Escobedo, you know, which is right.... in a case like this, that's what you should do...." The upshot of all this was that Chavez threatened to discharge Apache and "whoever was putting him up to that." To Flores the next day before work he said "don't interfere with peoples telling them what to say and showing them how to work and all this. This might cost you your job." Flores' position was then, as always, that his sole purpose was to improve the quality of the work in the interests of the Company. "I don't believe it will cost me my job because I'm not doing nothing that would be against the Company, been some reasonable grounds for believing that the union had lost its majority status since its certification. And, secondly, the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the Union. GEORGE BRAUN PACKING CO. you know, just telling the boys how to work. I think that was very good because I show them how to work, you know, tell them what was right." With an air of bravado Flores enjoyed telling of other such incidents. It seems there is work with a broom and work "in the paunch," whatever this last means . One day Chavez switched two boys back and forth between these chores, and Flores thought "that was not right." One of the boys was a nephew and one a godson, with the foreman and his friend the butcher holding the correlative positions of social responsibility, but again with the record not quite clear as to which elder related to which youth. In any event, Flores told his boy "You stay on the broom" and found himself in dispute with Chavez. "Chavez started getting mad. I went and said, `What is wrong, Chavez? Why are you getting mad?' He said, `Oh, they want to tell me what to do here, and they going to do here what I tell them to do.' I said, `But that's not right. You know he is not getting paid for that. Why don't you put my God-son in the paunch? He's getting 10 cents an hour more than him. Leave him on the broom. He's doing a good job on the broom anyway.' Or, `if you bring him up, then pay my God-son what he is getting any pay him the 10 cents He's been working here longer than my God-son.' " This matter too closed with Chavez insisting "He wanted to do it his way. He was running the kill floor." There were other relatives. "Oh, I always talked to him about employees. . . . That boy was pretty good with a knife. Coming up pretty good... He was really coming on good. . . . Chavez, why don't you give him a chance. The foreman was reluctant. "Well, he is your cousin's son• in-law." "Yeah, but I don't like him." Back came Flores: "You don't have to like him. Perhaps you have a butcher in there...." This time Chavez yielded and tried the boy on other work, only to have the son-in-law of the cousin think little of the new assignment, work at it only one shift, and then quit. Now Chavez had it over Flores, and showed him the poor performance the boy had delivered before leaving. Undaunted, Flores came back with the charge that the foreman had not known how to give the correct instructions. When Chavez protested "I don't have to tell him," his fnend lectured him: "You have to dedicate [sic ] a man." Flores related quite a few such stones. One more will do to round out the picture. Rodriguez, a helper, punched his timecard before washing up, a cold violation of the rules; Chavez caught him redhanded and told him to go home. The boy was downcast when Flores saw him: "Tell him you didn't do it." "I already told him but he didn't believe me " "Well, tell him this is foolish.. . You go talk to Mr. Hank [Elliott ] or somebody in the office. . . You know what? I will go with you... . Let's you and I go." They boy did not want to go in. "I said, `Aw come on in.' He said, `No, I will wait for you here.' I said, 'OK.' " In the superintendent's office Chavez insisted he was nght, and to Flores: "Listen, Flores, you keep out of this." If this was "concert," as the General Counsel calls it in his brief, it was surely discordant concert. Chavez always "hollered." "Why do you do this?", Flores used to tell him, "You remember when we used to work together that we didn't want the boss to holler at us." By 751 this time Chavez had changed status: "Oh, but these guys don't know how to work. I am getting over $200 a week; I've got to take care of my job." Flores was getting only $2.18 an hour. There was no spirit lacking in Chavez. As for Flores' singing habits, I rather think Chavez found more fault with his friend's musical taste than the timber of his voice. He even spoke of it with an element of pride. "He is a very good singer. . . . You want a serendade someday, he give you one. . . . Him and Hernandez used to sing a lot on the killing floor. Whenever a fellow got to singing, you know, Augustine, all of the people watching to see what kind of a song. That kill time too, you know, if you want to know one thing . . . but once in a while I told them to sing one, pep song, something that make them peppy; not like a funeral." And achievement of supervisory status brought out a pronounced sense of the executive function-an independ- ent soul. "Well, when I hire a man, even if he is top butcher, even if I put him to sweep, he'll be there sweeping. Oh, he don't like to do it. That's different, you know. But if a man I hired is top butcher, even if I put him to go to the restroom and do some cleaning, he would go there and do it." Countermanding the orders of such a foreman, fnend or no friend, even if motivated toward advancing the interests of the Company, was bound to offend the sensibilities of Chavez. "Well, the way he asked sometimes, go talk to this man and this other one, and I don't like the way he was doing. So that's why. Sometimes I don't like nobody to give me orders when I got the orders to tell them what to do. I don't [want] nobody to interfere with my job." "In a case like this," as Flores would say, profound analysis of what Congress intended as concerted activities is not warranted. A lot of people had to be let go that day, he had not been there long, besides Guzman two other butchers with greater seniority than he in the kill room were also sent home, and they are tenuous questions at best, whether Flores' desire to see justice according to his individual light in the department was an attempt at collective bargaining or pure mtermeddling, and whether Chavez recommended economic hurt against his friend for that reason. The burden of proof has not been carried. Perhaps in his next job Augustine Flores will be recognized as rough gold and be rewarded with promotion to foreman himself. THE REMEDY Having found that the Respondent has engaged in an unlawful refusal to bargain with the Union in good faith, I shall recommend that it be ordered to do so on request and to cease and desist from further such unfair labor practices. In the light of the nature of the unfair labor practices found, I shall also order that the Respondent cease and desist from in any other manner interfering with the rights of its employees to enjoy the statutory guarantee of self-organiza- tion. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, includ- ing truckdrivers, at the Respondent's plant located at 675 Steves Avenue, San Antonio, Texas, excluding all office employees, salesmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union was on November 14, 1969, and at all times thereafter has been the exclusive collective-bargain- ing representative of the Respondent's employees in the appropriate unit, within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the above-named labor organization in good faith on November 14, 1969, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5). 6. By the foregoing conduct, by promising raises to the employees on condition that they sign antiunion petitions, by conditioning raises upon rejection of the Union, by encouraging and instigating a decertification petition, and by instructing, employees in the plant to listen to solicitations to sign antiunion petitions, the Respondent has coerced and is coercing its employees in violation of Section 8(a)(1) of the Act. 7. The aforementioned unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that George Braun Packing Co., San Antonio, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with the Union as the exclusive representative of all employees in the bargaining unit. (b) Promising raises to employees on conditions that they sign antiunion petitions, conditioning raises upon rejection of the Union, encouraging or instigating a decertification petition, or instructing employees to listen to solicitations to sign antiunion petitions. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its place of business in San Antonio, Texas, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.3 IT IS HEREBY RECOMMENDED that the complaint be dismissed insofar as it alleges unlawful discrimination in the discharge of Augustine Flores. 2 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board" 3 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 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 171, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL bargain collectively, upon request, with this Union as the exclusive representative of our employees in the bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit: All production and maintenance employees, including truckdrivers, at our plant at 675 Steves Avenue, San Antonio, Texas, excluding all office GEORGE BRAUN PACKING CO. employees, salesmen, guards, and supervisors as defined in the Act. WE WILL NOT promise raises to our employees on condition that they sign antiunion petitions, condition raises upon rejection of the Union, encourage or instigate a decertification petition, or instruct our employees to listen to solicitations to sign antiunion petitions. WE WILL NOT in any other manner interfere, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. GEORGE BRAUN PACKING Co. (Employer) Dated By 753 (Representative) (Title) THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002 Telephone 713-226-4296.