Tyson's Foods, Inc.

TYSON'S FOODS, INC. Tyson's Foods, Inc., and Food Handlers Local 425, AFL-CIO, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO Tyson's Poultry Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases 26-CA-2500 and 26-CA-2546 December 30, 1970 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 10, 1968, the National Labor Relations Board issued its Decision and Order in the above-entitled consolidated proceeding, finding that Respondent had not engaged in and was not engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, and ordering that the complaint be dismissed in its entirety.' Thereafter, on October 17, 1969, the United States Court of Appeals for the District of Columbia handed down its opinion, in which it held that "at least some of the evidence offered by the union was relevant to the good faith of the employer's June 6 increase," including "the evidence offered by the union of the course of the negotiations from the time the decertifi- cation movement was initiated in May of 1966 to the giving of further wage increases in September of that year." Therefore, the court remanded the proceeding to the Board for further consideration in the light of this evidence.2 On November 25, 1969, the Board ordered that the record be reopened for the purpose of permitting the parties to adduce evidence and to litigate the issues relevant to Respondent's good faith and motivation in granting the June 6 increases or bearing on the general bad faith of Respondent contingent on the General Counsel's clarification of the complaint, and that the Trial Examiner prepare a Supplemental Decision based on the entire record, including the aforesaid evidence. Subsequently, on May 27, 1970, Trial Examiner Owsley Vose issued his Supplemental Decision in the proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Supplemental Decision. He also found that Respondent had not committed certain other unfair labor practices alleged in the complaint. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party 187 NLRB No. 69 525 filed cross-exceptions, a supporting brief, and an answering brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions, cross-exceptions, briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,3 and recommendations of the Trial Examiner, as modified herein.4 The Charging Party seeks a compensatory remedy requiring payment to employees for probable losses resulting from the unlawful refusal to bargain. In Ex- Cello-O Corporatton,5 the Board set forth fully its reasons for concluding in that case that a reimburse- ment remedy such as is sought in the instant proceeding was not warranted. Accordingly, we shall not order such a remedy herein, but shall adopt the Remedy recommended by 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 Respondents, Tyson's Foods, Inc., and its subsidiaries Tyson's Poultry Company, and Arkansas Animal Foods, Inc., Springdale, Arkansas, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.6 i 172 NLRB No 224 2 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, and Food Handlers Local 425 [Tyson's Foods] v N LR B, 420 F 2d 148 (CADC) 3 We do not adopt the Trial Examiner's conclusion that Respondent's refusal to continue bargaining after July 13, 1966, because of the filing of the decertification petition violated Sec 8(a)(5) Such matter was not alleged in the complaint nor was it fully litigated 4 The Charging Party has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3) 5 185 NLRB No 20, Members McCulloch and Brown dissenting 6 In footnote 12 of the Trial Examiner's Decision substitute "20" for "10" days TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: This case was heard by me at Fayetteville, Arkansas, on February 18 and 19, 1970, pursuant to an order of the Board dated November 25, 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1969, remanding the proceeding for further hearing. All parties were represented by counsel and fully participated in the hearing. At the opening of the hearing counsel for the Union moved to receive in evidence certain testimony of Jasper Rose which, after having been excluded by me at the original hearing because of the objections of the General Counsel and the Respondents, was permitted to be spread of record as an offer of proof in question and answer form. The Union's motion in this regard is granted and the testimony of Jasper Rose which was allowed as an offer of proof only is hereby received in evidence.i Briefs, duly filed by all parties on or before April 27, 1970, have been fully considered. The Prior Proceedings After a hearing before me on January 30 and 31, 1968, I issued my decision on May 4, 1968, finding that Tyson's Foods, Inc. and its subsidiaries, Tyson's Poultry, Inc. and Arkansas Animal Foods, Inc. (herein referred to jointly as the Company), were engaged in an integrated poultry business, and that the Company's action on June 6, 1966, "in instituting plant-wide increases to maintain previously existing wage differentials was a deliberate effort . . . to discredit the Union in the eyes of the employees and to give encouragement and support to the movement to secure revocation of the Union's bargaining authority " On September 10, 1968, the Board issued its decision (172 NLRB No. 224) in which it disagreed with the conclusion stated above, holding that the increase in the base rate was motivated by a desire to halt the high turnover in its labor force, that the issue of the plantwide increase (the increase for employees receiving a premium above the base rates paid male and female employees) had not been litigated in the proceeding, and that in any event the increases for employees receiving premium pay above the base rates were given merely to maintain the existing pay differentials. The Board accordingly concluded that the Company had not violated Section 8(a)(5) and (1) of the Act and ordered the complaint dismissed in its entirety Thereafter the Union filed a petition to review the Board's Order dismissing the complaint in the United States Court of Appeals for the District of Columbia. That court on October 17, 1969, rendered its opinion remanding the case to the Board for further consideration (420 F.2d 148) In its opinion the court stated in part as follows (420 F.2d, at 149-150): . . . we think that at least some of the evidence i Due to Rose's death in an auto accident in 1968, he was not available for cross-examination However, in my opinion it is within my discretion to receive Rose's testimony The exclusion of Rose's testimony resulted not from any fault on the part of the Union which offered it but rather was the result of the objections of the General Counsel and the Respondents to its admissibility See Inland Bonding Co v Mainland National Bank, 3 F R D 438 (D C NJ), 5 Wigmore, Evidence, 3rd Ed 1390, p 110, Waterman Steamship Corp v Gay Cottons, 414 F 2d 724, 727-728 and fn 5 (C A 9) 2 The General Counsel in proceedings preliminary to the reopened hearing and in a statement made at the outset of the reopened hearing made clear his position that the complaint did not raise any issue as to the Company's "general bad faith" in the negotiations 3 The Union takes the position that there is also in issue in this proceeding the question whether the wage increases granted by the Company to its employees in September 1966 and October 1967 without consultation with the Union and during the pendency of a decertification offered by the union was relevant to the good faith of the employer's June 6 increase . Central to our concern in this regard is the evidence offered by the union of the course of negotiations from the time the decertification movement was initiated in May of 1966 to the giving of further wage increases in September of that year. We think that the proof offered by the union in this regard should have been admitted as relevant to the employer's purposes in respect of the June 6 increase, wholly apart from whether a general bad faith issue was regarded as in the case The Board's remand order of November 25, 1969, followed. In it the Board, after citing the court's language quoted above, directed the reopening of the record "for the purpose of permitting the parties to adduce evidence and to litigate the issues relevant to the Employer's good faith in granting the June 6 increases or bearing on the general bad faith of the Employer contingent on the General Counsel's clarification of the complaint."2 Issues Involved I Was the Company's course of conduct culminating in the June 6, 1966, wage increase announcement motivated by a desire to undermine the Union's representative status and therefore violative of Section 8(a)(5) and (1) of the Act. 2. Was the Company's refusal, because of the filing of the decertification petition, to reduce to writing and to sign the agreement tentatively reached at the July 6 meeting violative of Section 8(a)(5) and (1) of the Act.3 A. The Company's Conduct Culminating in its Announcement of New Base Rates on June 6 I Events prior to June 6 a. The Company's failure to comply with the Union's request for job and wage data Although the Union and the Company adduced evidence at the original hearing concerning the bargaining meetings on April 26 and May 5, 16-17, and 27, 1966, at the second hearing they sought to cover these bargaining meetings in greater detail. For the most part, in my opinion, this additional evidence does not cast significant light on the Company's conduct here in question. Consequently, I will not treat the evidence in detail, but will confine myself to setting forth the salient facts adduced at both hearings petition violated Section 8(a)(5) and (I) of the Act However, in view of the fact that the Regional Director refused to issue a complaint based upon the Amalgamated's charge specifically alleging the September 19, 1966, wage increase as an unfair labor practice and that the General Counsel's office on appeal did not reverse the Regional Director's action in this regard, I conclude that the issue of the September 1966 and October 1967 wage increases is not properly before me I do consider the facts relating to these wage increases in passing upon the issues stated above In any event, in view of my conclusion herein that the Company's course of conduct culminating in its June 6 wage increase announcement and its action in breaking off the negotiations after the July 6 meeting because of the filing of the decertification petition violated Section 8(a)(5) and (1) of the Act it is of no great significance that I do not also consider whether the Company's September 1966 and October 1967 wage increases constituted additional independent violations of Section 8(a)(5) and (1) of the Act TYSON'S FOODS, INC. which I believe tend to illuminate the Company's motives in engaging in the conduct which is in issue in this case. One of the issues at the original hearing which was further litigated at the second hearing was the question whether the Company had complied with the Union's request for wage and job classification information. As found in my original decision, from the beginning of the negotiations the Union had sought detailed information concerning the pay scales and job classifications of the Company's employees, and on April 6 had requested in writing that the Company furnish it with (1) a list of employees in the bargaining unit setting forth the grades and job classification of each employee and (2) information concerning "the elements, conditions, requirements, duties and/or functions of employees for eachjob classification." Apparently the Company's original response to this letter dated April 16, 1966, went astray for it was never received by the Union. Consequently, the Company, when it was advised at the May 17, 1966, meeting that the Union had not received its earlier letter, mailed to the Union two copies of the material enclosed in its earlier letter. The material consisted of a list of the employees with an indication whether they were in grade 1, grade 2, grade 3 or were probationary employees. No wage information was included in the material sent and no explanation was given as to the meaning of the terms grade 1, grade 2, and grade 3. It now appears that the Company uses, or at that time used, grade I to refer to female employees, grade 2 to refer to male employees, and grade 3 to refer to employees in premium pay jobs, of which there were six However, these facts were not made known to the Union at the time this information was sent to the Union and the union representatives were unaware of it at that time At the second hearing the Company offered into evidence for the first time two additional documents containing wage and classification information which it asserts were received by the Union "prior to, or around the time of" the Union's April 6, 1966, request. Regarding the first document, Respondent's Exhibit 18, a list of 182 employees in order of their seniority, giving their rate of pay, date of hire, and job title as of March 3, 1966 (the date of hire of the last two employees hired was March 3, 1966), Personnel Manager Knight testified that he transmitted this informa- tion to the Union. However, when asked when he submitted this information to the Union, Knight answered, "I don't recall." After counsel directed Knight's attention to the date of hire of the last man on the list, March 3, 1966, Knight testified as follows: Q. Can you tell us approximately when you transmitted this to Mr. Parker and when, or how rather, you did it? A. Evidently it must have been transmitted to him in March of 1966. The second document, Respondent's Exhibit 19, consists of a list of 47 job titles, giving a beef description of the job duties, the number of such jobs at the plant, and the pay scale for each job. The pay scales shown in the document are those in effect prior to the institution of the $1.41 base rate on June 6, 1966. It thus appears that this document was prepared prior to June 6, 1966. At the time this document was offered in evidence, I asked whether the Respondent 527 had established when this document was furnished to the Union. Counsel for the Respondent replied that this would be done later through other witnesses. I have been unable to find any such testimony in the record. In view of the Company's contention that these two documents, Respondent's Exhibits 18 and 19, were furnished to the Union at about the time of the Union's April 6 request for job and wage data, and since the information contained on these two documents appears fully to comply with the Union's request for such data, it is essential that I determine whether these documents were in fact given to the Union as claimed. With respect to Respondent's Exhibit 19, as indicated above, there is no evidence that it was furnished to the Union at any time. In view of this fact and the further facts and circumstances discussed below, I conclude that Respondent's Exhibit 19, although in existence prior to June 6, was not furnished to the Union prior to that date. Regarding Respondent's Exhibit 18, the only evidence suggesting that this document was given to the Union is the wholly conclusionary testimony of Personnel Manager Knight, based upon the date the document was apparently prepared, that "it must have been ... in March 1966." That Knight's testimony is in error is indicated by the following circumstances. In refusing to agree to the Company's request at the May 16-17, 1966, bargaining meeting that it be allowed to institute a $1.41 base rate immediately, Union Secretary-Treasurer Parker explained, among other things, that the Union had not been furnished with the information which it had previously sought concerning the duties and classifications of employees and as to premium jobs. At the May 27, 1966, bargaining meeting Parker again stated that he was not satisfied with the employee data furnished by the Company by letter dated May 17 (the grade 1, grade 2, grade 3 list). There is no evidence of any communication sent by the Company to the Union between the May 27 meeting and June 6, 1966, when the Respondent announced the new $1.41 base rate. Although the question of the Respondent's refusal to furnish the requested job and wage data was much in issue at the first hearing in January 1968, Respondent's Exhibits 18 and 19 were not offered in evidence at that time. Only at the second hearing, almost 4 years after the event, at a time when recollections were naturally dim, were these docu- ments produced. Under all the circumstances I conclude that these documents, which would have materially assisted the Union in making more precise wage proposals, were not furnished to the Union at any time prior to the Company's institution of the $1.41 base rate on June 6, 1966. b. The May 16-26 period It will be recalled that the certification of the Union as the bargaining representative of the Company's production and maintenance employees was issued on May 14, 1965. Consequently, the certification year expired on May 13, 1966. At the first bargaining meeting held after this date, on May 16-17, 1966, the Company for the first time asserted that it wanted to put into effect immediately its proposed $1.41 base rate for all employees. Under the Company's proposal, the base rate was applicable after the employees had completed a 60-day probationary period. The Union 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused, giving the reasons stated in my original decision. At this time Attorney James Gilker, the Company's principal spokesman in the negotiations, threatened to post a notice stating that the Union was refusing to allow the Company to put into effect a 9-cent-per-hour increase for the female employees and a 5-cent-per-hour increase for the men.4 As indicated in my original decision, the Company on May 17 sent the Union a letter in which it attributed the employees' failure to receive a wage increase months earlier to the Union's objections. The full text of the letter is as follows: At the conclusion of our negotiating session today, when you indicated that it was apparent that we weren't going to reach an agreement on a contract, I advised you that Tyson Foods, Inc. and Arkansas Animal Foods, Inc. felt that it was only fair and equitable to put into effect this payroll week, the increase in the base rate of pay which we have offered. As you know, this would increase our base rate for all employees who have completed their probationary period to $1.41 per hour. Many months ago, the Company offered a lesser increase which was rejected by your Union and, since you indicated that you did not wish it placed in effect at that time, and since bargaining was actively continuing in an effort to reach an agreement, such an increase in wages was not placed in effect. We feel that the increase proposed is fair and equitable and that the employees are deserving of it at this time. It is our hope that you will take no action which might put in question the Company's right to install this wage adjustment immediately. Please let me hear from you on this matter as soon as possible. In response to this letter, as found in my original decision, the Union on May 19, 1966, wrote the Company requesting that it defer putting the wage increase into effect pending the outcome of a bargaining meeting scheduled for May 26, 1966, at Kansas City. In a letter sent to the Union the next day, May 20, Attorney Gilker replied as follows: I have your letter of May 19, 1966, in which you request that we not install the new base rate of $1.41 per hour at this time. We feel that your position is unreasonable and not in keeping with your professed interest in the employees. The Company feels quite strongly that our employees are entitled to this increase at this time and cannot understand your objections to installing the increase immediately. For your further information, we do not at this time have any meeting scheduled with your Union for May 26, 1966. Anyone who gave you this information has done so erroneously I found in my original decision that about this time the Company posted on its bulletin board the letter of May 17, 4 This is the testimony of Jasper Rose, an International Vice President of the Union. Rose was in error as to the 5-cent-per-hour increase for the men, as the Company's proposal contemplated raising the men from $1 37 to $1 41 per hour, a 4-cent increase 5 The Company president, Don Tyson, testified that one of the main reasons he attended the April 26, 1966, meeting in Chicago without his first above quoted. The Union contends in its brief that it is not clear in the record which of the two letters, the letter dated May 17 or the letter dated May 20, was posted by the Company. While the matter is not free of all doubt, in my opinion the evidence is sufficient to justify my original finding and I adhere to it. In any event it is immaterial whether the Company posted the first or the second letter in view of the fact that the record clearly shows that one letter or the other was posted before Employee Douthit commenced circulating the Union renunciation petition discussed below and the further fact that the Company blamed the Union for the failure of the employees to receive a wage increase in both letters. A few days after the posting of the letter employees Edith Douthit, Barbara Sparks, and two other female employees commenced soliciting signatures on the Union renunciation petition, which was the forerunner of the decertification petition later filed by Douthit. As Duce Smith credibly testified, Sparks "said she wanted us to sign this petition to bring the Union, vote it in or vote it out so we could get a raise." The great bulk of the signatures were obtained on May 25 and 26. Personnel Manager Knight was informed that a petition "to get rid of the Union" was being circulated among the employees at least by the time the circulation of the petition was completed on May 30, 1966. c. The May 27 meeting One aspect of the May 27 meeting merits discussion for the light which it throws on the Company's motives in dealing with the Union during this period. It relates to the parties' wage proposals at this meeting and the economic factors affecting the Company's position. At this time the Company was experiencing a very high rate turnover among its employees. In the 6-month period prior to June 6, 120 employees out of a workforce of 190 to 200 quit the Company's employ, without notice. During all of 1966 the Company hired, or at least issued W-2 forms to, 675 employees in order to maintain a workforce of about 200 employees.5 Throughout the negotiations the Company's base rate for female employees had been $1.32 per hour and for male employees, $1.37 per hour. Except for six premiumjobs the Company paid no wages in excess of the base rate. At the May 27 meeting the Company renewed the offers which it had made at the April 26 and May 5 and 16-17 meetings of a base rate of $1.41 per hour, to be increased as follows: to $1.44 on February 1, 1967, to $1.52 on August 1, 1967, to $1.63 on February 1, 1968, and to $1.67 on August 1, 1968. During this May 27 meeting the Company's general manager in charge of processing informed President Tyson that he had heard that Ralston Purina, one of the Company's competitors in Springdale, was "going $1.60 nationwide, June 1 " Tyson passed a note to this effect to attorney, who was unable to be present, was to attempt to do something about the high rate of turnover of employees which was giving him difficulty in keeping the plant staffed A higher base rate to be applicable after the employee's first 60 days of employment was essential , according to Tyson TYSON'S FOODS, INC Attorney Gilker who was the Company's principal spokesman at this meeting.6 During lunch that day the parties reconsidered their positions. After lunch Company adhered to its previously stated position, offering a $1.41 base rate immediately with periodic increases as stated above. The Union countered with a proposal for a $1.44 base rate immediately, to remain the same on February 1, 1967 (the Company had proposed $1.44 on February 1, 1967), to be increased to $1.52 in August 1967 (the same as the Company's proposal), and to be increased to $1.68 per hour in August 1968 (1 cent more per hour than the Company's proposal). Although the only difference of any substance between the two proposals on May 27 was 3 cents per hour for the 8-month period between June 1 and February 1, 1967, the parties failed to reach agreement on this subject. The Company again asked for the Union's agreement on putting its proposed $1 41 base rate into effect immediately. The Union refused to agree, pointing out, as found above, that other matters relating to the employees' pay were still to be resolved and that the information furnished by the Company with its May 17 letter (the grade 1, grade 2, grade 3 list) was inadequate. 2. Events on June 6 and thereafter a. The announcement of the increase in the starting and base rates For the convenience of all concerned I am again setting forth the text of the notice issued by the Company on June 6, after the Company received the consent of International Vice President Rose. Effective Monday, June 6, 1966, the following base rate will be in effect- Starting rate . . . .... . . . $1.35 per hour After 30 working days ....... $1.41 per hour All present premium rates will be increased to maintain their present differential above base rate. Many other increases and improvements in company benefits have been proposed to the Union and would have been already placed into effect except for their delays and stalling tactics. Tyson's, in line with our past policies, will always be the poultry plant with the greatest take-home pay, steadiest work and best job security. You will be pleased to see further announcements which will be made as soon as possible. b The July 6 meeting This meeting was held at Kansas City. Although Local 425 Secretary-Treasurer Parker was present at this meeting 6 At the second trial the Company introduced into evidence copies of supplemental agreements between the Union and both Wilson & Co, Inc, and Ralston Purina Company, in which, effective as of June 6 and May 30, 1966, respectively, the parties agreed to a $1 60 base rate This was an increase in the base rate at the Wilson plant of 18 cents to 20 cents per hour 7 The Local Union was the certified bargaining agent Since the Company did not raise any objection to continuing the negotiations with the International and since the question of the authority of the International to take over the negotiations from the Local Union was not litigated in this proceeding, I am assuming, as apparently all the parties to 529 as an observer, he had previously relinquished responsibili- ty for the conduct of the negotiations to the International. International Vice Presidents Jasper Rose and Steven Coyle represented the International at this meeting. Rose was the International's spokesman. It was explained to the Company at the outset that any contract negotiated would be with the International and that the Local Union would not be a signatory to the contract.7 Rose further stated that he had been instructed by International President Lloyd to make every effort that day to reach an agreement and to terminate the strike which had been in progress since August 1965. Rose and Gilker, the Company spokesman, each proceeded separately to list in two columns the various provisions in the Union's proposed contract that the parties were agreed upon and those which had not been agreed upon. Then a discussion of the unresolved provisions followed. Both parties made concessions and a number of the open questions were resolved. After a recess the discussion of the open issues resumed, and most of these were resolved. Among these were the provisions dealing with subcontracting and supervisors working, which had been the subject of considerable disagreement. After the recess the Union accepted the Company suggestion that its proposals regarding these subjects would be embodied in a "side letter" which would be signed by both parties, and would not be included in the contract itself. At this point Rose said, according to Parker's credited testimony, "give us a checkoff and you've got a contract." The Company requested a recess. Upon returning from the recess Tyson stated that he personally was no longer opposed to a checkoff, but in view of the fact that he had previously taken the position with others in management and with his father, the majority stockholder in the Company, that he would never agree to a checkoff, he wanted an opportunity to gain their acquiescence in a checkoff provision before he committed himself finally. Tyson indicated at the same time that since the parties had reached an understanding that the Company "could live with" he would have no difficulty in bringing the others around to his point of view regarding a checkoff.8 The parties agreed that Gilker would commence drafting an agreement embodying the understandings reached at the meeting on the following day, Thursday, July 7, would discuss it with Parker on Friday, July 8, before putting it into final form, and would mail it to Rose for signature on Friday night. The Union then brought up the question of reinstating the strikers. The Company agreed to reinstate any remaining strikers who still desired reinstatement , dating their service back to their date of original hire. Their the proceeding do, that the takeover of the negotiations by the International does not raise any question in this case s I base this latter finding on the fact, discussed below, that the parties agreed at this meeting that Gilker should immediately start drafting a contract setting forth the understandings reached At the time the agreement was reached the checkoff provision was pivotal as far as the Union was concerned, without it the parties had no agreement I find it difficult to believe that the Company would have had Gilker spend time drafting the contract if there was any possibility of a disagreement over a checkoff rendering his work fruitless 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement was to take effect when the contract was signed. The July 6 meeting ended with the parties congratulating themselves on having reached an agreement. On the following day, July 7, Gilker encountered difficulty in articulating some of the understandings reached and tried to reach Parker by telephone. When Parker finally called Gilker back, he was in Little Rock, and said he would try to stop by Gilker's office on the following day on his way back from Little Rock. However, Parker did not visit Gilker's office that Friday or at any other time regarding this matter.9 Gilker did not finish his drafting of the contract by Friday night, July 8, and consequently did not mail it to Rose. When Rose failed to receive the contract on Monday, July 11, as planned, he first called Parker and then called Gilker. Gilker told Rose that he had been busy, that there were matters about which he wanted to consult Tyson, and that he would complete the contract that day and send it on to Rose. On Tuesday, July 12, Gilker was advised by a representa- tive of the Board's Memphis Regional Office, in the course of a conversation about another case, that a decertification petition covering the Company's employees had been filed in the Regional Office. Rose finally reached Gilker by telephone, after several unsuccessful attempts, on July 13. When he did so, Gilker apologized for not completing the contract, but at the same time informed Rose of the filing of the decertification petition. In a telephone call on the following day, Gilker told Rose that the filing of the decertification petition raised a question concerning representation and precluded the Company from taking any further action with respect to the contract. In support of this position, Gilker cited to Rose the Appalachian Shale case (121 NLRB 1160), a contract-bar decision. Gilker did not, so far as the record shows, mention the Union's majority status during this conversation. c. The reinstatement of strikers As found above, at the July 6 meeting, the Company agreed to reinstate the strikers as soon as the contract was signed. No contract having been signed by July 15, the Union on that date sent the Company a telegram in which it made an unconditional offer to return to work on behalf of 10 named employees. Four of these 10 employees-Lorena Perryman, Rose Carender, Betty Lansdowne, and Robert Bowers-were reinstated by the Company later in July. The three female employees were given more arduous or more unpleasant operations on the chicken lines than they had previously had. Bowers was given night shift work as a maintenance man rather than the day shift work he had previously performed. The jobs these four employees had previously 9 The above findings are based on Gilker's credited testimony According to Parker's testimony he toed to reach Gilker two or three times by telephone on Friday, July 8, but did not succeed in reaching him Gilker's version appears to be more in accord with the logic of the situation Gilker, all parties agree , was instructed to draft the contract Having difficulties doing so, he sought Parker's help Parker was wholly opposed to entering into this contract in his words, the understanding occupied were all filled at the time of their reinstatement. Carender testified that when she was reinstated she was told by a company official that she would be put on her old job, pinning, when an opening became available. Despite the fact that pinning jobs thereafter became available, Carender was not transferred to such jobs. The Union contends that the assignment of reinstated strikers to more arduous tasks shows that it was attempting to demonstrate the futility of supporting the Union and urges that the Company's conduct in this regard further evidences the Company's intention to undermine the Union. The only evidence of any discriminatory treatment, where the employee's old jobs were available, is that relating to Carender. This evidence, in my opinion, is not sufficient to warrant the inference which the Union seeks to have me draw. d The Company's September 1966 and October 1967 wage increase On September 12, the Company increased its base rate from $1.41 per hour for regular employees with less than 1 year of service to $1.46 per hour, and to $1.51 per hour for those employees with more than 1 year of service. Previously the Company had not had any difference in wage rates based on length of service. On October 16, 1967, the Company increased the hourly rate of all employees 7 cents per hour and put into effect an additional night premium of 5 cents per hour at this time. Both the September 1966 and October 1967 wage increases were granted without notice to or bargaining with the Union. B. Summary; Conclusions 1. The June 6 announcement concerning the new base rate Although, as found in my original decision, International Vice President Rose had consented over the telephone to the Company's putting into effect the new $1.41 base rate on June 6, I conclude that the Company announced its new base rate on June 6 in the manner in which it did as but another step in a deliberate plan to discredit the Union and undermine its support among the employees. The adoption of this strategy was foreshadowed by Gilker's threat at the May 16-17 meeting to post a notice blaming the Union for the failure of the employees to receive a substantial wage increase. The first overt move to effectuate this strategy was the posting of the Company's May 17 letter to the Union attributing the employees' failure to receive increases in wages and other benefits to the objections of the Union. The action of Douthit and Sparks and the others commencing on May 25 in seeking signatures on the union renunciation petition was the predictable response to the Company's posting of its May between the parties "stunk " in these circumstances, it is reasonable to infer that he would not put himself out to help the Company's attorney draft a contract setting forth such an understanding I conclude that in the more than 3-1/2 years which elapsed between the incident and the second trial of the case Parker's memory failed him As indicated above, Gilker's version is credited TYSON'S FOODS, INC. 531 17 letter. Despite the fact that Rose had agreed to the institution of the $1.41 base rate on June 6, the Company in making its announcement of the new base rate did not inform the employees of this fact, but instead utilized the occasion of the announcement to accuse the Union of blocking other increases in wages and improvements in company benefits. There was no occasion for such a slur upon the Union. The negotiations were still in progress The Union had been seeking in good faith throughout the negotiations to find a satisfactory basis for agreement regarding wages and other benefits. On the other hand, the Company had been stalling for months with regard to furnishing the Union with the wage and job data to which the Union was entitled, and had acted in bad faith in withholding from the Union wage and job data which the Company already had in its possession, Respondent's Exhibits 18 and 19. The negotiations continued and the parties reached a tentative agreement on July 6. Gilker commenced writing up the contract containing the oral understanding the next day. Before completing this task, however, Gilker was informed that a decertification petition had been filed in the Board's Memphis Regional Office. Gilker then raised the decertification petition as a bar to completing the negotiations. As found below, the Company was not legally justified in taking this position in the circumstances of this case. The Company's action in seizing upon the filing of the decertification petition as an excuse for breaking off the negotiations-without legal justification therefor-further evidences, in my opinion, that the Company's earlier actions had been part of a scheme to get rid of the Union as the bargaining agent of its employees. Then the Company in September, without consultation with the Union, put into effect a new schedule of wage rates. At all levels, these rates were higher than those which the Company had offered to the Union and, in the case of employees having more than a year's service with the Company, the rates were substantially higher. The Company contends that this wage increase was necessary in order to meet the competition of its competitors which had put into effect both a spring and a summer increase . However, this contention, in my opinion, is not credible in view of the fact that even after hearing at the May 27 meeting that Ralston-Purina intended to put a $1.60 base rate into effect on June 1 the Company could not be moved to increase its $1.41 base rate proposal to the $1.44 level which the Union was seeking. And, as late as July 6, after operating for a month in competition with the $1.60 base rates paid by Ralston-Purina and Wilson, the Company still held out for a $1.41 base rate, to be raised to $1.44 on February 1, 1967. See General Electric Co, 163 NLRB 198, 211, enfd. in pertinent part 400 F.2d 713, 719 (C.A. 5). The Company's disparate action regarding wages-its insistence upon a low base rate in its dealings with the Union and its more generous action when, in its view, the Union was out of the picture-I believe, tends to confirm the conclusion that the Company's earlier actions were motivated by a desire to discredit the Union in the eyes of the employees. To recapitulate, I conclude that the Company by the course of conduct culminating in its June 6 announcement of a new base rate was motivated by a desire to undermine the Union and to spur the efforts of the circulators of the antiunion petition into taking further action to get rid of the Union. By engaging in such conduct the Company has violated its duty to bargain collectively with the Union in good faith and has interfered with, restrained and coerced its employees in the exercise of their statutory rights, in violation of Section 8(a)(5) and (1) of the Act. 2. The refusal to continue bargaining after July 13 because of the filing of the decertification petition The Union contends that the Company further violated Section 8(a)(5) and (1) of the Act when, because of the filing of the decertification petition, it refused to complete the drafting of the agreement embodying the understand- ings reached at the July 6 meeting and to sign such agreement. While I am convinced that both parties believed that they had reached a complete understanding at the July 6 meeting, in my opinion the parties had not reached such an agreement as would warrant a finding that a refusal to sign by either party, standing alone, would constitute a refusal to bargain. Cf. Bradenton Coca-Cola Bottling Co, 162 NLRB 38, 45. In the first place, the Company had reserved for itself a technical loophole by refusing finally to agree to a checkoff until discussions had been had with others in management. Secondly, in a number of instances the oral understandings reached represented compromises between the opposing positions of the parties, compromises which would be difficult to articulate to the satisfaction of both parties, and in this kind of a situation, in my opinion, the parties must have contemplated further discussion and consideration of the draft prepared by the Company, before the draft contract could be deemed ready for signing. Consequently I conclude that the failure of the Company to sign a contract embodying the understandings reached at the July 6 meeting standing alone, cannot be regarded as an unfair labor practice. However, I am persuaded that Gilker's refusal to continue the negotiations because of the filing of the decertification petition was not justified, particularly in view of the Company's unfair labor practices discussed in part I hereof. As in Bradenton Coca-Cola Bottling Co., 162 NLRB 38, 39 fn. 1, enfd. 402 F.2d 84 (C.A. 5), such unfair labor practices "may well have precipitated the filing of that [decertification] petition." The authorities do not support the Company's contention that the filing of the decertification petition justified it in discontinuing the negotiations. Even in the absence of earlier unfair labor practices an employer is required to continue bargaining with the certified bargaining agent of his employees, absent a good-faith doubt of the agent's representative status, even if a decertification petition has been filed. Boren Clay Products Company v. N.L.R.B., 419 F.2d 385, 386 (C.A. 4); Bradenton Coca-Cola Bottling Co., 162 NLRB 38, 46-47, enfd. 402 F.2d 84 (C.A. 5); Universal Gear Service Corporation, 157 NLRB 1169, enfd. 394 F.2d 396 (C.A. 6); Montgomery Ward & Co, 162 NLRB 294, enfd. 399 F.2d 409 (C.A. 7). No claim is made herein that any such assertion of good-faith doubt of the Union's 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority status was made in this case . Hence, the Company was not warranted in abandoning the negotiations as it did, and its conduct violated Section 8(a)(5) and (1) of the Act. Cf. N. L. R. B. v. Frick Co., 423 F.2d 1327 (CA. 3). The Appalachian Shale case (121 NLRB 1160), relied on by Gilker in his conversation with Rose , deals, among other things, with the question whether understandings reached, but not reduced to writing and signed before a representa- tion petition is filed, are available as a bar to the petition. Such a decision has no application to a bargaining situation like the one involved in this case. CONCLUSIONS OF LAW 1. Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., are subsidiaries of Tyson's Foods, Inc., and are engaged in an integrated poultry business. 2. Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., administer a common labor policy. 3. All production and maintenance employees of Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., employed at the adjoining plants at Springdale, Arkansas, excluding office clerical employees, professional employ- ees, truckdrivers, salesmen, buyers, routemen, 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. At all times since May 14, 1965, Food Handlers Local 425, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, has been the exclusive certified bargaining representative of the employees in the appropriate bargaining unit stated above. 5. By their course of conduct culminating in the posting of their announcement of a new base rate of pay for all employees on June 6, 1966, and by their action in breaking off the negotiations with the Union on July 13, 1966, because of the filing of the decertification petition, Tyson's Foods, Inc., and its subsidiaries, Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., have refused to bargain collectively in good faith with the Union and have interfered with, restrained, and coerced their employees in the exercise of their Section 7 rights, thereby engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company violated Section 8(a)(5) and (1) of the Act by its conduct during the negotiations with the Union, my recommended Order will direct that the Company cease and desist from such conduct and from like and related forms of interference, restraint, and coercion. Affirmatively, my recommended Order will provide that the Company, upon request, bargain collectively with the Union as the exclusive representative of all employees in the aforesaid appropriate bargaining unit. In view of my 10 In the event no exceptions are filed to this Recommended Order as provided in Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and Recommended Order herein shall, as provided in Section 10(c) of the Act and to Section finding that at the time the negotiations were broken off in July by the Company the parties had not reached the stage where only the signing of the contract remained, it is inappropriate to grant the Union's request that the Company be ordered to sign a written contract embodying the understandings reached on July 6. The Union, relying on International Union of Electrical, etc., Workers v. N. L. R. B.; N. L. R. B. v. Tiidee Products, Inc., 426 F.2d 1243 (C.A. D.C.) and two Trial Examiner's decisions which are pending before the Board, Zinke's Foods, Inc., TXD-662-66 and Ex-Cell-O Corp., TXD-80-67, requests that the Company be ordered to make its employees whole for any loss or damage they may have suffered as a result of the Company's refusal to bargain. As my decision in the Ex-Cell-O case indicates, I am in sympathy with the argument that the Board's conventional remedial orders are inadequate in refusal to bargain cases and am of the view that the formulation of some form of monetary remedy in such cases, if a practical one can be devised, is a desirable goal. However, the Board has thus far failed to approve the kind of remedy sought by the Union in this case, although the question has been pending before the Board for several years. In these circumstances it may be appropriate for Trial Examiners to adhere to the conventional remedy in refusal to bargain cases until the Board has clarified the situation. The Union's request for a make-whole order for the employees to remedy the refusal to bargain is therefore denied. The Union also seeks a remedial provision which will reimburse it for attorney's fees for litigating this case through the General Counsel, the Board and the court and for the damages suffered as a result of the loss of union dues, fees, and income. As far as damages are concerned, again I hesitate to pioneer in this area until the Board has spoken in the Zinke case. The Union's request for attorney's fees, has some appeal and I would not rule out in an appropriate case considering the propriety of such a remedial provision. However, in view of the fact that the Union's expenses for attorney' s fees were caused by the actions of the General Counsel, the Trial Examiner and the Board, I doubt that it would be equitable to saddle the Company with all such expenses. The Union's request for attorney's fees and damages is denied. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER10 The Respondent, Tyson's Foods, Inc., and its subsidiar- ies, Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., their officers , agents, successors, and assigns, shall: I Cease and desist from: (a) Posting notices or announcements to employees tending to discredit Food Handlers Local 425, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. (b) Refusing to bargain collectively in good faith with 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 TYSON'S FOODS, INC. Food Handlers Local 425, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees in the appropriate unit stated above. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named labor organization as the exclusive representative of all employees in the appropriate unit stated below with respect to wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agree- ment: All production and maintenance employees of Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., employed at the adjoining plants at Springdale, Arkansas, excluding office clerical employees, profes- sional employees, truckdrivers, salesmen, buyers, route- men, guards and supervisors as defined in the Act. (b) Post at their places of business in Springdale, Arkansas, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Tyson's Foods, Inc., Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., shall be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted at the Springdale plant. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. i i (c) Notify said Regional Director for Region 26, in writing, within 20 days from the date of this Decision, what steps they have taken to comply herewith.12 11 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 " 12 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of the 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 533 WE WILL NOT seek to discredit Food Handlers Local 425, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, the certified bargaining agent of our employees, in notices or announcements to our employees. WE WILL NOT refuse to bargain collectively in good faith with Food Handlers Local 425, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representa- tive of the employees in the unit stated below: All production and maintenance employees of Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., employed at the adjoining plants at Springdale, Arkansas, excluding office clerical employees, professional employees, truckdrivers, salesmen, buyers, routemen, guards, and supervi- sors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL upon request bargain collectively in good faith with the Union as the exclusive bargaining representative of the employees in the appropriate unit, and if an understanding is reached WE WILL sign a contract with the Union. Dated By TYSON'S FOODS, INC., TYSON'S POULTRY INC., AND ARKANSAS ANIMAL FOODS, INC. (Employer) (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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.