Vernon Calhoun Packing Co., Inc.

VERNON CALHOUN PACKING CO., INC Vernon Calhoun Packing Company, Inc. and Allied Food Workers , District Union No. 103, Amalga- mated Meat Cutters and Butcher Workmen of North America , AFL-CIO Vernon Calhoun Packing Company , Inc. and Trans- Continent Packing Company and Allied Food Workers, District Union No . 103, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases 16-CA-2970 and 16-CA-3160 November 12, 1968 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On July 16, 1968, Trial Examiner Herbert Silber- man issued his Decision in the above-entitled consol- idated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the consolidated complaint and recommended that such allegations be dismissed. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner 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, brief, and the entire record in these cases, 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 Recom- mended Order of the Trial Examiner, and hereby orders that the Respondents, Vernon Calhoun Pack- ing Company, Inc., and Trans-Continent Packing Company, Palestine, Texas, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i The Trial Examiner found that Respondent Packing Company "refused to discuss the adjustments in wage rates which it was planning 753 to make in order to comply with the Fair Labor Standards Act " We do not interpret this as a finding that Respondent violated Section 8(a)(5) by refusing to discuss application of the Fair Labor Standards Act Rather, we find, in agreement with the Trial Examiner , that Respondent refused to discuss the economic package , and wages in particular, including any increase or planned increase which would maintain a spread or differential in rates on or after February 1, 1967 , the time the minimum wage was increased according to law In addition , the Respondent excepted to the Trial Examiner's computation of General Durham's working hours as reflected in footnote 29 of the Trial Examiner's Decision However , even if we accept Respondent 's computations (which in all respects do not conform to our own) as correct , it would not affect our agreement with the Trial Examiner that the payroll records tend to support his ultimate conclusions TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner Upon a charge filed on April 20, 1967, by the above-named Union, a complaint and a superseding amended complaint, respectively dated June 22, 1967, and July 18, 1967, were issued in Case 16-CA-2970. The amended complaint alleges that the Respondent, Vernon Calhoun Packing Company, Inc., herein- after sometimes referred to as Packing Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Said amended complaint, as further amended at the hearing, in substance, alleges that (a) Packing Company on February 15, 1967, discharged Sherman Nixon because he joined or assisted the Union or engaged in other concerted activities protected by the Act, (b) following an election held on October 20, 1966, the National Labor Relations Board on November 29, 1966, certified the Union as the collective-bargaining representative of all production and maintenance employees at the plant of Packing Company, and commencing on or about November 30, 1966, Packing Company has refused to bargain collectively with the Union because (1) it engaged in negotiations with no intention of reaching an agreement, (2) it bargained directly and individually with employees in the unit, (3) it solicited employees engaged in a strike to return to work and to abandon the Union thereby undermining the Umon,1 and (4) it has refused to permit the Union to make a job study, (c) employees engaged in a strike against Packing Company during the period from April 17 to July 6, 1967, which strike was caused and prolonged by Packing Company's unfair labor practices,2 and (d) since August 1, 1967, Packing Company unlawfully has refused to reinstate General Durham, one of the striking employees, to his former job. Packing Company's answer generally denies that it has engaged in the alleged unfair labor practices 1 In his brief General Counsel does not refer to Packing Company's alleged direct bargaining with employees or to Packing Company's alleged solicitation of strikers to return to work as among the issues "presented by the facts " The only evidence offered in support of these allegations was the testimony of A. D . Smith. Smith's testimony was self-contradictory, confused , and unconvincing and was disputed by the testimony of Leonard Scroggins I do not credit A D Smith and I find these allegations of the complaint were not proved 2 No specific evidence was offered in support of this allegation General Counsel appears to have abandoned the contention that the strike was an unfair labor practice strike because in his brief it is not included among the "issues presented by the facts " 173 NLRB No. 112 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The hearing in Case 16-CA-2970, which began on August 23, 1967, was held on said date, on August 24 and also on December 6, 1967, when a further adjournment was ordered. Before the date on which the hearing resumed, upon a charge and an amended charge filed by the Union on November 17, 1967, and January 15, 1968, respectively, a complaint, dated January 31, 1968, was issued in Case 16-CA-3160 alleging that the Respondents therein named, Vernon Calhoun Packing Company, Inc. and Trans-Continent Packing Company (herein- after sometimes referred to as Trans-Continent), have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. In substance, said complaint alleges that Respondents constitute a single-integrated enterprise, that about November 1, 1967, Respondents refused to recall to work John D Gaston, who had been laid off by Packing Company on July 27, 1967, because Gaston was named in charges filed under the Act by the Union against Packing Company on October 18, 1967, and because Gaston gave testimony in a Board proceeding on October 26, 1967, and that Respondents since October 20, 1967, have refused to bargain collectively with the Union in that they engaged in negotiations with no intention of reaching an agreement and about October 20, 1967, unilaterally changed rates of pay and job descriptions of their employees in the unit represented by the Union.3 Respondents in their separate answers to the complaint generally deny the allega- tions of the complaint and specifically aver that the allegations in the complaint in Case 16-CA-3160 relating to the alleged refusals to bargain should be dismissed because the charges, upon which the complaint is founded do not assert any violation of Section 8(a)(5) of the Act. A motion, dated February 5, 1968, was filed with me by counsel for the General Counsel requesting that Case 16-CA- 3160 be consolidated with Case 16-CA-2970 for hearing and all other purposes. The hearing in Case 16-CA-2970 was resumed and the hearing in Case 16-CA-3160 was begun before me on February 13, 1968. The motion to consolidate the two cases was granted and the hearing in the consolidated cases was held on February 13 and 14, 1968. At the opening of the hearing on February 13, 1968, Respondents moved to dismiss certain allegations of the complaint in Case 16-CA-3160 which set forth facts purpor- ting to constitute violations of Section 8(a)(5) of the Act on the ground that such allegations are not based upon any charge filed against Respondents in the case. Decision on said motion was reserved at the hearing. For the reasons stated below the motion is granted. The charges filed in Case 16-CA-3160 allege violations of Section 8(a)(1), (3), and (4) of the Act. The charges state as their basis that Respondents refused to recall John D. Gaston to work because of his membership in and his activities on behalf of the Union and because he filed charges and gave testimony in another proceeding against Packing Company, Case 16-CA-3130, and that by such conduct and "by other acts and conduct" Respondents have interfered with, re- strained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. These charges make no reference to any violation of Section 8(a)(5) of the Act. A charge is not a pleading but "merely sets in motion the machinery of an inquiry ."4 Thus, in framing a complaint General Counsel is not limited to the precise matters set forth in the charge However, General Counsel does not have a license to disregard the charges and allege in a complaint any violation of the Act that his investigation may uncover "[T] he courts in sustaining the General Counsel's power to extend his complaint beyond the allegations of the charge have insisted that the new violations be `closely related to the violations named in the charge.' "5 The charges filed in Case 16-CA-3160 do not in any manner accuse Respondents of a refusal to bargain Neither the specific averments concerning the purported discrimination against Gaston nor the "catch- all" paragraph have a sufficiently clear connection with the refusal-to-bargain allegations in the complaint to meet and to satisfy the requirement of a relationship between the contents of the charge and the allegations of the complaint based thereon. Accordingly, I grant Respondents' motion and strike paragraphs numbered 11, 12, 13, 14, 15, and 17 from the complaint in Case 16-CA-3160. This ruling does not serve as a limitation upon the issues in these consolidated cases During the hearing I ruled that certain alleged conduct on the part of Packing Company and Trans-Continent, which occurred after the filing of the charge and the issuance of the complaints in Case 16-CA-2970, was within the scope of the issues framed by the pleadings in said case I further observed that if it is proved-and I find for the reasons stated below that it has been proved-that Trans-Continent together with Packing Company constitute a single employer then any remedial order which may issue in said case could be made applicable to Trans- Continent as well as to Packing Company.6 Accordingly, while I grant Respondents' motion to strike certain allegations from the complaint in Case 16-CA-3160, the matters sought to be raised thereby were litigated fully at the hearing, are within the ambit of the pleadings in Case 16-CA-2970, and are properly before me for decision. Subsequent to the hearing, General Counsel and Respond- ents filed briefs which have been carefully considered. Upon the entire record in the cases, and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESSES OF RESPONDENTS, THE SINGLE EMPLOYER ISSUE Vernon Calhoun Packing Company, Inc , a Texas corpora- tion, is engaged in slaughtering mature cows and bulls and processing meat and other animal products in its plant located in Palestine, Texas. In the course of its business operations, the annual purchases and receipts by Packing Company of goods and materials from sources outside the State of Texas is in excess of $50,000. I find that Packing Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. General Counsel does not contend that the operations of Trans-Continent Packing Company, which is also a Texas corporation, considered alone meet the Board's jurisdictional standards but asserts that the Board will exercise jurisdiction 3 The Complaint in Case 16-CA-3160 repeats the matters set forth 4 N L R B v. Indiana & Michigan Electric Company, 318 U S 9, 18 in the amended complaint in Case 16-CA-2970 relating to the status 5 Champion Pneumatic Machinery Co., 152 NLRB 300, 303. of the Union as the collective-bargaining representative of the unit of 6 See United Mineral & Chemical Corporation, 155 NLRB 1390, production and maintenance employees here involved 1401, affd in this respect 391 F 2d 829, 67LRRM 2343, 2344 (C A. 2). VERNON CALHOUN PACKING CO., INC. over Trans-Continent because Trans-Continent and Packing Company together constitute a single-integrated enterprise. Packing Company, which has been in existence for a substantial period of time, is a family owed and managed business. Vernon Calhoun and his wife, Sue Calhoun, own 75 percent of the outstanding shares of capital stock of Packing Company and the remaining 25 percent of said shares are owned by their son, Mike Calhoun. The same three share- holders are the directors of the Company and also are its officers. Vernon Calhoun is president of the Company, Mike Calhoun is vice president and Sue Calhoun is secretary- treasurer. Packing Company employs from 170 to 200 persons. Tians-Continent, which employs about 17 persons, is a much smaller enterprise It began its business operations about October 31, 1967, and is engaged in slaughtering horses and mules. Trans-Continent does not process the by-products of the animals it kills and to the extent that there is such processing it is done by Packing Company. All the outstanding shares of capital stock of Trans-Continent are owned by Mike Calhoun The directors of the corporation are Mike Calhoun, his wife, Tony Calhoun, and Danny Hughes. The officers of Trans-Continent are Mike Calhoun-president, Tony Cal- houn-vice president, and Danny Hughes-secretary-treasurer. Danny Hughes, who does not appear to have any family relationship with the Calhouns, is employed as bookkeeper and accountant for Packing Company. He performs similar work for Trans-Continent after his normal working hours. The plants of both corporations are located within the same triangular parcel of property the longest side of which is approximately one-fourth mile. The property and all the structures erected on it are owned or leased by Packing Company." The largest structure on the grounds is occupied by the plant of the Packing Company. Behind this building is an office structure. There are three additional buildings on the grounds including a canning plant and the premises occupied by Trans-Continent. One end of a pen for the confinement of animals abuts the plant of Packing Company and the opposite side of the pen reaches to the plant of Trans-Continent. Parking lots are provided on the grounds for the use of employees. All the buildings on the grounds, including Trans-Continent's plant, obtain steam from a central source and are connected to a common sewerage disposal system. Trans-Continent and Packing Company share common administrative offices. Vernon Calhoun and Mike Calhoun have separate desks in one large room which is also occupied by Danny Hughes and the cattle buyer. In addition, each of the Calhouns has a small individual private office in the same building. A central switchboard operated by an employee of Packing Company serves both corporations. Both firms use the same post office box. All mail, including mail addressed to Trans- Continent, is first delivered to Vernon Calhoun who after sorting the letters gives Mike Calhoun his mail. Danny Hughes in doing work for Trans-Continent uses bookkeeping machines and other office equipment which belongs to Packing Company. There is substantial use of common facilities and services by both companies in the performance of their normal production work. Both companies obtain the animals which they slaughter from the same source which is V.C. Cattle Company, a corporation that has the same officers, directors, and share- 7 A portion of the property is owned by Vernon Calhoun individually and is leased from him by Packing Company. 755 holders as Packing Company. V.C. Cattle Company obtains cattle exclusively for Packing Company and Trans-Continent. The animals which are slaughtered by both Companies are customarily delivered to the pens after working hours. Packing Company operates a guard house and employs two individuals as night receivers who accept cattle and horses for both Packing Company and Trans-Continent, oversee the unloading of the animals, and the herding of the animals into the various pens. These employees also function as watchmen. The horse meat which is packaged at Trans-Continent's plant is trans- ported to and stored in the cooler of Packing Company by employees of Packing Company, and is later shipped for Trans-Continent by employees of Packing Company. Animals, whether cattle or horses, which die in the pens or otherwise are unfit for slaughter into edible products are processed in a dead room by employees of Packing Company. Trans-Continent does not have any separate dead room. Employees of Packing Company pick up hides and offal at the plant of Trans- Continent and remove them to the plant of Packing Company where these products are processed. Employees of both companies use common showers and use common parking lots. Trans-Continent is to a very large degree financially dependent upon Packing Company. The capitalization of Trans-Continent is $2,000. The business in which it is engaged is a cash business. Horses and mules are purchased for cash. However, Trans-Continent which purchases about $7,500 worth of horses each week is extended credit by V C. Cattle Company although that company is required to pay within 2 days for the animals which it obtains. The plant occupied by Trans-Continent was recently constructed by Packing Compa- ny and Packing Company has provided the equipment neces- sary for Trans-Continent's operations at a cost to Packing Company from $10,000 to $15,000. The plant and equipment are rented from Packing Company pursuant to an alleged lease agreement.8 Mike Calhoun testified that the lease was pro- bably for a term of 20 years, although he was not certain of the fact, and that no security of any kind was given by Trans-Continent to the lessor guaranteeing performance of the agreement by the leasee. A lease under such terms probably would not be available to a business concern with Trans- Continent's small capitalization if it were truly independent of Packing Company and of the latter's principal owners, Vernon and Sue Calhoun. Mike Calhoun testified that he alone determines the terms and conditions of employment for the employees of Trans- Continent while Vernon Calhoun makes such decisions for Packing Company. However, Mike Calhoun participates on behalf of management in labor relations matters for Packing Company This is evidenced by the fact that he, and not his father, attended the collective-bargaining negotiations between Packing Company and the Union. A further connection between the Companies in their employment practices is reflected by the fact that many persons hired to work for Trans-Continent had previously been employed by Packing Company. In addition, Trans-Continent regularly offers employees of Packing Company temporary work either when Packing Company has no work for such employees or after such employees have finished their normal working day at Packing Company. It is common for supervisors of Trans- Continent to go to the plant of Packing Company, and with 8 Respondents did not offer in evidence a copy of the lease 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the approval and cooperation of supervisors of said plant, approach employees working for Packing Company and inquire whether they wish to do temporary extra work for Trans-Continent. The uncontroverted evidence demonstrates that Trans- Continent has no independent viability separate and apart from Packing Company. Trans-Continent is dependent upon Packing Company for its plant, equipment, and much of its services. Equally important Trans-Continent is dependent upon Packing Company for financial support in the form of credit for the purchase of horses and mules and credit for the rental of the premises occupied by it. In addition, the ammals used by the companies are obtained through a common source and are penned in a common enclosure. The meat packed by each firm is stored in a common cooler and is shipped to Respondents' respective customers by the same employees who work for Packing Company. Also, the by-products of Trans-Continent's slaughtering activities such as hides and offal are handled by Packing Company and its employees. Thus, except for the slaughtering of the cattle and horses in separate buildings, the operations of the two Companies are effectively one. Not without significance in explaining the situation is the fact that the regulations of the United States Department of Agriculture require that the slaughter of horses and the preparation and handling of the meat and the meat food products obtained from horses shall be conducted in establish- ments separate and apart from any establishment m which cattle are slaughtered. Furthermore, there are significant interrelationships between the employees of the two compa- nies. Trans-Continent has obtained many of its regular employ- ees from Packing Company and also uses other employees of Packing Company on a part-time basis. The employees of both Companies share some common facilities such as showers and parking lots. Mike Calhoun, who testified that he is responsible for the labor and employment policies of Trans-Continent participated in the collective-bargaining negotiations for Pack- ing Company. Although Packing Company and Trans- Continent are separately incorporated,' I find, in agreement with General Counsel, that the relationship between Packing Company and Trans-Continent is such that they function to a substantial degree as a single enterprise and therefore consti- tute a single employer under the Act.' 0 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Refusal to Bargain 1. The designation of the Union as bargaining representative Pursuant to a representation petition filed by the Union in accordance with Section 9 of the Act, an election was 9 See N L R. B v Deena Artware , Inc, 361 U S. 398, 403, where the court observed in connection with a "single enterprise " contention "The several companies may be represented as one Apart from that is the question whether in fact the economic enterprise is one, the corporate forms being largely paper arrangements that do not reflect the business realities One company may in fact be operated as a division of another, one may be only a shell , inadequately financed , the affairs of conducted by the Board in Case 16-RC-4391 on October 20, 1966, in a voting unit composed of all production and maintenance employees at Packing Company's Palestine, Texas, plant, excluding office clerical employees, guards, watchmen and supervisors as defined by the Act. The Union won the election by a vote of 90 to 49." During the campaign period which preceded the election Packing Company distributed literature to its employees which reflect its unequivocal opposition to the organization of its employees Portions of such circulars can be construed as hinting or suggesting to the employees that the Company was determined that no benefits will accrue to them should the Union be successful in the election Thus, one circular, in part, states. UNION PROMISES VS. FACTS THE LAW DOES NOT PREVENT A UNION FROM MAKING PROMISES IT CANNOT KEEP' UNIONS MAY PROMISE. HIGHER WAGES PAID VACATIONS GUARANTEED WORKWEEK JOB SECURITY PAID HOLIDAYS SENIORITY THESE ARE THE FACTS UNIONS CANNOT GUARANTEE TO KEEP ONE SINGLE PROMISE! Increases in wages and benefits are determined by Business Economics NOT by a Union. Job Security and Seniority under Union contracts require that employees possess ability and qualifications to keep their jobs or get promotion to better lobs A Union CANNOT protect an employee who does not do his job. Another circular which is headed "Facts You Should Know," in part, states- 7 WE BELIEVE THAT A UNION AT THIS PLANT COULD NOT BENEFIT ANY EMPLOYEE. 8. WE BELIEVE THAT A UNION AT THIS PLANT COULD HURT OUR EMPLOYEES It is your decision. Make your own decision. Make your decision based on facts, not promises. The facts are that Unions have helped employees of other companies in other places It is a fact that a Union did not help employees of this company when the Union won the last election If you believe that a Union can help you and if you are wilting to be loyal to the Union, then vote for it BUT If you believe that facts are facts and that prorruses are just words, then you should VOTE NO the group may be so intermingled that no distinct corporate lines are maintained These are some, though by no means all, of the relevant considerations , as the authorities recognize." 10 Cowles Communications, Inc, 170 NLRB No. 177, Welcome- American Fertilizer Co, 169 NLRB No 104, Springfield Electrotype Service, Inc , 166 NLRB No 43, Overton Markets, Inc, 142 NLRB 615 11 There were 145 eligible voters and 13 challenged ballots. VERNON CALHOUN PACKING CO., INC. YOU must decide whether a Union can help you or hurt you VOTE NO! Following the election, Packing Company filed objections which were overruled and on November 29, 1966, the Union was certified as the exclusive collective-bargaining representa- tive for said unit of employees. 2. The bargaining sessions At the request of the Union, representatives of Packing Company and the Union entered upon negotiations. In all, five meetings were held on November 4 and 16, December 12, or 13, 1966, and on January 10 and 17, 1967, but no agreement was reached General Counsel contends that Packing Company approached negotiations with the Union in bad faith in that while it sought to create the impression that it was bargaining with the Union, in fact, it had no intention of arriving at an agreement Pointing to statements made by Packing Company in its preelection campaign propaganda, General Counsel further argues, in effect, that the Company's purpose was to undermine the Union and to disparage the Union in the eyes of the employees by demonstrating to the employees that the Umon was unable to secure any meaningful benefits for them or effectively represent them in any dealings with their employer. The principal spokesmen for the respective parties at the negotiations were A D. Downer, secretary-treasurer and busi- ness manager of the Union, and Franklin R Sears, attorney for Packing Company' 2 In lieu of oral testimony describing what transpired at the bargaining sessions two affidavits, one quite lengthy, executed by Downer and an extensive narrative summary of each meeting dictated by Sears, was received in evidence There is little direct conflict between Sears' and Downer's versions of what transpired at the meetings. But, as would be expected, there are substantial differences in emphasis, particularly as reflected by the omissions from the respective versions. My conclusions regarding what transpired at the bargaining sessions and with respect to the other transactions between the parties and as to the presence or absence of good faith on the part of the Respondents and the Union in their dealings with each other are based upon my study of the documentary evidence in this case and the oral testimony adduced at the hearing, including my evaluation of the credibility of the witnesses and of their testimony. My findings set forth herein reflect my resolution of the conflicts and inconsistencies in the evidence I have omitted from the summary of events certain evidence, which although not irrelevant, I do not consider necessary to the explication of my decision. The fact that I have not in this Decision summarized such evidence does not mean that I have overlooked, or have failed to give consideration or "weight" to such evidence To set forth in detail all the testimony that was adduced at the hearing and to include an analysis in detail of each document received in evidence would unduly encumber this Decision without, in my opinion, providing sufficient compensating benefits to the parties in understanding the principal factual and legal bases for my conclusions. 12 Vernon Calhoun attended none of the bargaining sessions However, Mike Calhoun was present at all the meetings 757 The first meeting was held on November 4, 1966, while Packing Company's objections to the election were still pending. Downer presented a written proposal consisting of three introductory paragraphs and 28 numbered articles. The proposal was modeled upon other union agreements with employers in the meat packing industry in the State of Texas. Sears was generally familiar with the terms of the proposal because he represents employers in the industry and has negotiated collective-bargaining agreements on their behalf with the Umon. At the suggestion of Sears discussion of the economic provisions of the Union's proposal was deferred. Downer pointed out that the Union's proposal contained no formal wage demand or schedule. He explained that the reason for this omission was that Packing Company had installed new equipment on the kill floor and in the boning room with which he and other union officials were not familiar. Because of this Downer requested permission for the Union's timestudy engineer, John Powderly, to inspect the Company's operations and to make a study of the jobs Downer proposed sometime between December 1 and 10 for this task Sears stated that he would have to speak to Vernon Calhoun about the matter, but that the time suggested was not representative. Downer requested permission to inspect the plant himself but this was not agreed to. Downer also asked for a list of the employees in the bargaining unit, their job classifications, their current wages, and a description of their work. Sears agreed to furnish such information During the meeting the parties agreed upon several clauses contained in the Union's proposal. The agreed-upon provisions were mostly of a formal nature There was some discussion of other noneconomic clauses, but there was almost no discussion of any subject involving, whether directly or indirectly, cost items. The second bargaining session was held on November 16, 1966. Prior to the meeting Downer mailed to Sears copies of certain contracts which the Union had entered into with other employers and Sears mailed to Downer a list containing the names of Packing Company's employees by departments, their job classifications, and their respective hourly wage rates. However, for employees who were paid on a piece-rate basis the list merely indicated that fact without describing the piece rates. Downer advised Sears that he considered the list which had been furnished to him inadequate because there was no description of the piece rates or of the jobs performed by the employees. Sears promised to send to Downer an explanation of the Company's piece rates. The Union renewed its request for permission to make a job study in the plant. The Company's response was negative and two reasons for its position were advanced: namely, that the Company did not believe December was representative of its production and, second, that the Company did not believe it was necessary for the Union to make a job study unless some question arose concerning a particular job or jobs. Downer took issue with this second point contending that the Union could not bargain intelligently without observing the jobs being performed in the plant. Downer suggested that, if the Company would not permit an inspection to be made by the Union's timestudy engineer, Downer himself should be allowed to go into the plant and observe its operation. Downer stated he did not believe that the Union could submit any wage proposals unless it first had an opportunity to study the jobs. Sears responded that he had discussed this question with Vernon Calhoun. He 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advised Downer that he did not believe a job study was necessary, and that the Union's committee, which was com- posed of representatives of the various plant departments, could tell Downer all he wanted to know about the plant Downer insisted that he would not withdraw his demand for permission to make a timestudy.l 3 The parties reviewed the Union's proposal Agreement was reached on various sections. However, none of the matters agreed to involved any direct improvement in the conditions of employment of the employees represented by the Union. Nor was there agreement on any proposal which would permit the Union effectively to intercede with Packing Company on behalf of the employees it represented Thus, while there was discussion about a grievance procedure and the Company did not reject a grievance procedure it did not come to any agreement on the matter with the Union at this meeting Furthermore, the Company's position was that it did not desire an arbitration clause. The Company objected to any agency shop clause and also objected to any voluntary dues-deduction clause. In the latter respect the Company's reasons for its opposition were that it did not want to know which of its employees were supporting the Union and it did not desire to perform administrative work for the Union. The Company offered to permit the Union to set up a table in the plant on paydays and collect dues from the employees as they 13 In connection with this discussion Downer accused Sears of not bargaining in good faith and said that he was considering filing charges with the Board Similar statements and threats were made by Downer several times during the various meetings 14 The Union' s proposal is in evidence as Joint Exhibit 1. With reference to the various articles and the introductory paragraphs of this exhibit the following took place at the November 16 meeting Parties to the agreement Accepted Intent and Purpose Accepted Maintenance of Standards Accepted Article 1 Recognition and Bargaining Rights With minor modifications accepted Article 2 Authorized Dues Deductions Discussion deferred at suggestion of Sears. Article 3 Agency Shop. Union suggested a modification but the Company rejected the suggestion Article 4 Hours of Work Of the 20 sections in this article agreement was reached as to the following Sec 2 Certain premium payments for abnormal hours of work Sec 7 Split shifts . (According to Sears agreement was reached at the second meeting, while according to Downer agreement was reached at the third meeting Sec 8 Definition of the workweek Sec 9 Employees to be paid for attendance at compulsory meetings called by Company Sec 10 Two 15-minute rest periods This represented current Company practice Sec 11 Equitable distribution of overtime Sec 17. Specific pay period weekly and employees to be furnished a descriptive receipt for earnings Sec. 19 Posting of work schedule Sec 20 Overtime shall be voluntary (The specific agreement between the parties as to this section and several other sections in Article 4 was reached only after modification of the terms set forth in the Union's proposal ) Article 5 . Wages Of the six sections in this Article agreement was reached as to Section 4 only which provides that employees performing work of a higher classification shall receive the rate for such classification. Article 6 Discharge and Suspension The Company indicated as to Section 1 that it would accept a provision similar to the one which appears in a contract between other employers and the Union which was ieferred to from time to time in the record as the Texas were leaving the plant. Downer explained that such method was impractical. Sears agreed to article 23 of the Union's proposal which provided that a committee composed of union and company representatives should be established as a health and safety committee However, Sears insisted that the following sentence be eliminated. "The purpose of this committee shall be to set up reasonable safety rules, weight limitations , sanitation requirements , ventilation requirements, etc " In effect the Company was agreeing to the establishment of a committee but was insisting that the committee have no function. Nevertheless the Union agreed to the modification, proposed by the Company. With only minor exceptions there was no discussion of any economic items. Sears advised the Union that the Company did not feel that it could add to its costs. He said if the Company decided that it could afford to increase its operating costs it would inform the Union of the amount and it would permit the Union to apply such increase to whatever items the Union wished. Sears did not leave open for discussion the circumstances under which the Company might decide to increase its operating costs 14 The third bargaining session was held either on December 12 or 13, 1966. Sears provided the piece rates which had been omitted from the schedule previously given to the Union The Union's proposal was again reviewed in its entirety and the Meat contract The Company voiced a couple of objections to Section 2 and the Union agreed to submit a substitute proposal. Article 7 Holidays No agreement Article 8 Union visitation Sears suggested using language similar to the corresponding provision in the Texas Meat contiact Article 9 Leave of Absence Generally agreed to with modifica- tions Article 10 Vacations No agreement. Article 11. Health and Welfare No agreement (The Company had in effect a health and welfare plan to which it made no contribution According to Downer, he advised the Company that the Union can substitute a plan which would be no more expensive and would offer greater benefits, but the Company would not agree to accept the proposed substitution According to Sears , the Union at first proposed a contributory plan and Downer never successfully demonstrated that the Union's plan was superior to the Company's plan As no evidence was offered comparing the benefits of the two plans there is no basis on the record before me to determine whether the Union was in a position to offer a better olan for the same premium contribution ) Article 12 Jury Duty No agreement Article 13. Funeral Leave No agreement Article 14 Cooperation. The Union agreed to strike all sections of this Article except the last sentence . The Company rejected even that portion of the Article Article 16 Laundry, Uniforms and Tools No agreement. Article 17 Change of Ownership No agreement. Article 18 Severance Pay No agreement Article 19 Pensions Union agreed to withdraw this provison Article 20 Non-discrimination and Intimidation No agreement Sears stated he would make a counterproposal Article 21. Sick Pay No agreement Article 22 Examinations No agreement Article 23 Health & Safety Committee No agreement (Subse- quently agreement was reached after elimination of language giving the committee authority to establish safety and health rules ) Article 24 Seniority No agreement Sears stated he would make a counterproposal Article 25 Grievance procedure . No agreement Article 26 Arbitration No agreement. Article 27 Miscellaneous Provisions Agreement with modifica- tions. Article 28 Term of Contract. No agreement. VERNON CALHOUN PACKING CO., INC. agreements reached at the prior meeting were reaffirmed. At this meeting Packing Company made some counterproposals and agreement was reached as to some 15 The Union again requested permission to conduct a job study Downer stated that he could not offer any wage proposals until the study was completed, and that in order for the Union to bargain intelligently about wages it would be necessary to evaluate the jobs. Downer also called attention to the fact that employees in the same job classification were being paid varying rates with differences as much as 40 cents per hour. Sears still declined to approve such study, among other things, stating that the plant might not be open during the first 10 days of January when the Union's timestudy engineer had said he again would be available. Downer called attention to the fact that while agreement had been reached on quite a few noneconomic subjects no agreements had been reached on economic items Sears stated that the Company was making a study of the effect the increase in minimum wages required by the Wage-Hour Law would have upon the Company's operations He advised that he would submit an economic package to the Union for consideration which would reflect Packing Company's obliga- tions under the Fair Labor Standards Act. (On February 1, 1967, the applicable minimum wage was increased from $1 25 per hour to $1.40 per hour.) Sears emphasized that the proposal would contain no provision guaranteeing any employ- ees a minimum number of hours of work per week Beyond this they would not discuss economic terms. The promised wage proposal was never made to the Union During the meeting Sears asked the union representatives if a provision for checkoff of dues was deemed by the Union as an absolute must. He received an affirmative reply There was again discussion about the Company's willingness to provide the Union with a table to collect dues and the Union's explanation of the practical difficulties such procedure presented. Sears explained that the Company's objection to checkoff stemmed from the fact that it was not interested in knowing who contributed support to the Union and it saw no reason why it should perform any administrative duties for the Union.16 Following the meeting, on December 21, 1966, Sears wrote a letter to Downer which, in pertinent part, is as follows. Since our last meeting on December 13, 1966, in Palestine, Texas, I have had the opportunity to discuss our negotiations with my client I advised Mr. Calhoun that both you and Mr. Sam Twedell emphatically stated that the Union would not enter into any collective bargaining 15 The actions taken with respect to the Company's counterpro- posals were as follows Article 4, Section 3 Oral counterproposal by Company-No agreement Article 4, Section 4 Oral counterproposal by Company-No agreement Article 6 Company submitted written counterproposal-Union requested time to study Company's counterproposal Article 8 Union visitation Company submitted written counter- proposal-Union accepted Company's proposal Article 15 Management Rights Company's written proposal accepted. Article 17 Change of Ownership. Company submitted written counterproposal as to section 1 Agreement on this section was reached . There was no agreement as to section 2 Article 20. No Discrimination Company presented written counterproposal Agreement reached. 759 agreement unless we agree to a provision in a contract providing for the deduction of dues from the wages of our employees I further advised Mr. Calhoun that you had specifically rejected our proposal which would permit the Union, through a designated representative, to collect dues on Company time and property. It is our position that we do not feel obligated to perform an administrative function for the benefit of the Union and we do not desire to know the identity of our employees who are members of and/or are supporting your labor organization. Your adamant position in respect to insistence upon inclusion of a check-off clause in whatever agreement may be reached between the parties frustrates the purpose of collective bargaining. Therefore, we believe that it would be fruitless to continue negotiations under the conditions which you impose upon final execution of an agreement. Downer replied to Sears' letter on January 3, as follows- I acknowledge receipt of your letter of December 21, 1966 which was written following our last negotiation session of December 12, 1966. My immediate reaction is "Let's not try to kid one another," especially the National Labor Relations Board. You have done a masterful job in lifting words out of context and twisting the meanings of expressions in addition to making outright untruthful statements It is obvious that you are attempting to protect yourself from what obviously will be charges before the National Labor Relations Board by writing such a letter. Neither Mr. Sam Twedell nor I stated that we would not enter into a collective bargaining agreement unless the Company agreed to a provision providing for deduction of dues from the wages of the Company's employees. You are attempting, with this statement, to twist our words You also state that we had specifically rejected your proposal to allow a Union Representative to collect dues on Company time and property We did not say this but merely stated to you that we had attempted to use this system in the past and that it has proven through our experience to be impracticable for the Company and the Union because of the necessity of carrying such large sums of cash in order to cash the employees' payroll checks You further assert that we have taken an adamant position in respect to insistence of the inclusion of a check-off clause in the contract This is completely untrue We have requested that you bargain on all of the elements of Union Security. The only adamant position taken by anyone m these negotiations have been those adamant positions taken Article 22 Physical Examinations Modification suggested by Company accepted by the Union Article 24. Seniority This proposal contains nine sections Union agreed to accept Section 2. Downer pointed out that the Company's proposal was, in part, unreasonable because, under the proposal, qualification to perform work is an ingredient in the determination of layoff, reemployment , promotion and transfer and the employer reserved to itself the exclusive right to determine an employee's ability to perform work Furthermore , because there is no adequate grievance procedure , in effect, the operation of the seniority system would be within the sole control of the Company Downer further pointed out that with respect to Section 3, which provides for a 6-month probationary period, the length of such probationary period is unduly long 16 The Company withholds from employees ' wages contributions to the Company 's health and welfare plan and also amounts necessary to effect repayment of loans made to employees. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by you and the Company. At each session you have completely refused to discuss any proposals which were economic in nature and which would result in increased cost to the employer. You, however, did agree at the meeting of December 13, 1966, to submit to the Union a written wage proposal before Christmas. Then, instead of following your pledge and submitting a wage proposal, we received your letter which is being answered here The conclusions that must be drawn from these tactics is that you tend to bait the negotiating committee of the Union with wage offers on one hand while you use the other hand to compose and write down the fantasies [sic] of your mind in hopes that you can convince the National Labor Relations Board that you have bargained in good faith The Union has imposed no conditions upon the final execution of an agreement which would render negotiations fruitless. We demand that the Company and the Union resume negotiations immediately and, more especially, that upon receipt of this letter, you contact me stating that we will still have our previously agreed to negotiating session on Monday, January 9, 1967, at the Union Hall, 408 West Oak Street, Palestine, Texas. The next day Sears responded by letter which, in pertinent part, is as follows I completely disagree with your comments and charac- terizations in respect to my letter of December 21, 1966. I will accept your letter as a statement of the Union's position in respect to dues deductions and disregard my understanding of comments made by you and Mr. Twedell in our last meeting. Therefore, I will consider it to be your present position that dues deductions remain as a bargarn- able issue and that you are not insisting upon our agreement to your proposal on this subject as a condition precedent to executing whatever agreement we may reach on other subjects of bargaining. Further, you may recall that on December 13th, 1966, I advised you that the Company was undertaking a review of its wage structure and that I believed that it would be com- pleted sometime the following week and upon completion I would submit it to you as our proposal even though you had not submitted any proposal whatsoever concerning wages to the Company. This is to advise you that the Com- pany has reviewed its wage structure and we do not consider it to be a necessity to change wage rates of em- ployees except in such instances which may be required by the Fair Labor Standards Act on February 1, 1967. If it is your desire to meet and negotiate for the purpose of reaching an agreement I suggest that we agree to meet immediately following the conclusion of the unfair labor 17 The Union proposed certain fringe benefits and across-the-board increases of 20 cents per hour effective by February i, 1967, an additional 7 cents per hour on October 1, 1967, and further increases of 13 cents per hour on February 1, 1968, and of 5 cents per hour on February 1, 1969. It is to be noted that, pursuant to the 1966 amendments of the Fair Labor Standards Act, on February 1, 1967, the minimum wage rate required by law was increased from $1.25 per hour to $ 1 40 per hour and effective February 1, 1968 , the minimum wage under the Act increased to $ 1.60 per hour As of November 1966, according to a list submitted by the Company to the Union , the wages being paid by Packing Company to its employees in the unit represented by the Union were as follows Wage Rate No. of Employees at said Wage Rate $ 1.25 41 $1 30 10 practice trial which is set for January 10, 1967. If a fantasy exists in anyone's mind, let it be resolved by face to face confrontation in everyone's presence. I hope that you will keep in mind that as a bargaining representative of our employees it is your duty to negotiate and not your prerog- ative to dictate to the employer as to terms and conditions of employment, A fourth meeting was held on January 10, 1967 At this meeting the Union proposed an economic package.' 7 Sears stated he would submit the proposal to Vernon Calhoun, but if pressed for an immediate answer it would be no Sears advised that in his opinion the Union's proposal was exorbitant Downer argued that most of the increase was required under the Wage-Hour Law Sears denied this. The fifth and final meeting between Packing Company and the Union was held on January 17, 1967. Sears advised that the Union's wage proposal had been reviewed and Packing Company was of the opinion that it would add approximately $383,599.99 to its labor costs Downer disagreed but asked Sears if there was any economic item to which he would agree. Sears said none at the present time. Sears requested a period of 30 days following February 1, 1967, when adjustments in minimum wage rates would be required under the Fair Labor Standards Act, during which the Company would be able to review its operations and the effect of the wage rate changes on its operations Sears stated that increases above the minimum required under the Wage-Hour Law would be given to some employees in order to maintain to some extent the existing spread in rates and the Company wished to concen- trate on this problem area first. Downer asked whether there were any fringe benefits upon which agreement could be reached Sears replied that he considered fringe benefits secondary cost items and that wage rates was the primary cost item which should be handled first The Company insisted upon an opportunity to check its experience under the higher minimum rates before the Company would consider secondary cost items. Downer asked if the Company would enter into a contract limited to the noneconomic subjects upon which tentative agreement already had been reached plus only one (any one selected by the Company) economic item, such as a single paid holiday After being pressed for an answer Sears replied that Company would not agree to anything which would result in any increase in its costs He said that the Company would be willing to talk about economic items subsequent to March 1, 1967, after the Company will have had an opportunity to determine the effect of the increases required by the Wage-Hour Law upon its overall costs Downer requested a meeting in February Sears replied that there was no reason to meet in February since they were not basically apart on noneconomic items, but on economic items $1 35 *28 $1 40 15 $1 45 1 $1 50 26 $1 55 $1.60 9 $1.65 3 $1 70 3 $1 75 4 $1.85 1 $2 00 4 $2 50 4 Piece Work *(including 2 night receivers) 22 VERNON CALHOUN PACKING CO., INC. the Company desired 30 days' operating experience under the higher minimum wage rates to "determine our views " On March 3, Sears wrote to Downer advising that he had appeared for a meeting on March 1, but the Union's representatives were not present. Downer replied on March 17,18 explaining that he did not understand any meeting had been arranged for March 1 Then on March 29, Sears wrote the following letter to Downer I was unable to reach Mr. Calhoun until late yesterday afternoon. I advised him of your telephone call and your request to meet this week. Mr. Calhoun advised me that current business conditions do not justify any change in our position on economic items at this time. In view of these circumstances, it does not seem to be realistic to schedule a meeting this week. It is my understanding that you will not be available next week and I have been informed by Mr Calhoun that he will not be available until after the 21st of April Please advise me as to your thinking in regard to this matter. It does not appear that there were any further communica- tions of consequence between the parties prior to the commencement of the strike which began on April 17, 1967. On June 1, Sears wrote the following letter to Downer In response to your letter to me of May 29, 1967, attaching a copy of your letter of same date to Mr. Calhoun, please be advised as follows I have discussed your letter with Mr. Calhoun and the terms of your proposal which you made in negotiations on January 17, 1967. Mr. Calhoun advised me that there had been no material change in business conditions which would justify any change in the terms and conditions of employment of the employees at his company. In view of this fact, it appears to me that it would serve no purpose to meet at this time since we would not have any reason to change our position on the economic matters which are in dispute. On June 5, Downer again wrote to Sears pressing for a meeting, as follows: This will acknowledge receipt of your letter of June 1, 1967 in response to my request to meet and negotiate. I note the last sentence in your letter "In view of this fact, it appears to me that it would serve no purpose to meet at this time since we would not have any reason to change our position on the economic matters which are in dispute." May I point out that not only are economic matters in dispute but there are basic contractual terminologies cover- ing working conditions which are still in dispute and which have not been tentatively agreed to in addition to economic matters. I request again that we meet for contract negotiations at the earliest possible time. Sears replied by letter dated June 8, 1967, which, in pertinent part, reads: I have discussed your letter of June 5, 1967, with Mr. Calhoun in respect to a possible meeting to negotiate on the non-economic contractual matters which have not been tentatively agreed upon. We would be agreeable to a meeting if such would be productive in bringing this matter to a successful conclu- 18 There had been a prior telephone conversation on March 6, 1967 19 The letter does not indicate that Downer then knew of the organization of Trans-Continent as a separate corporate entity, but 761 sion However, we see no point in engaging in lengthy bargaining sessions concerning the non-economic issues if your position in regard to the economic issues remains the same. As I have previously stated to you, on a number of occasions, our position regarding the economic matters in dispute remains the same and we see no justification for changing this position You have taken the equally consist- ent position that there has to be changes concerning the economic matters. Since you apparently intend to remain steadfast on the economic matters, we can see no point in engaging in lengthy and extensive bargaining sessions. We could agree to all of the non-economic terms of the contract and still be apart on the economic matters Under such circumstances, it would be impossible to reach a contract. At such time that you intend to change your position in regard to the economic matters we will arrange to meet with you to resolve whatever issues that are outstanding There is no evidence in the record of any further efforts by the Union or the Respondents to meet again. 3. The accretion issue About October 31, 1967, Trans-Continent commenced its operations. On December 1, 1967, Downer wrote to Packing Company and Sears advising that he had recently learned about the new operation' 9 and that the Union considered the operation to be an expansion of Packing Company's existing business and the employees engaged in the operation to be part of the certified bargaining unit. The letter therefore demanded that Packing Company recognize the Union as the bargaining agent for "all the employees in the Company's expanded horse kill unit " The letter further protested individual and unilateral negotiations with such employees, and requested a meeting for the purpose of collective bargaining at the earliest possible time Sears replied by letter on December 12, 1967, in which he advised the Union that the horse kill abattoir was a separate and independent business operation and therefore not an accretion to the bargaining unit, and that the employees working in the horse kill abattoir were employed by Mike Calhoun .20 He advised that "[w] e respectfully decline to recognize your claim as the representative of present or future employees of ... the horse kill abattoir " No reference was made in the letter to the Union's demand for a meeting General Counsel's position is that Trans-Continent's opera- tion is merely an expansion of the existing business of Packing Company and that Trans-Continent's employees are accretions to the certified bargaining unit for which the Union is representative. Respondents acknowledge that the Union was not given notice of the establishment of the horse kill abattoir nor was the Union consulted regarding the establishment of wage rates and other conditions of employment for the employees of Trans-Continent. Respondents' position is, first, that Trans-Continent is a business enterprise separate and independent of Packing Company. However, for reasons explicated above, I have found, contrary to Respondents, that Trans-Continent together with Packing Company constitute a indicates rather that Downer believed that the horse kill abattoir was being operated by Packing Company. 20 Significantly Sears did not mention the existence of Trans- Continent 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD single employer under the Act Respondents' next argument is that the operation of Trans-Continent is not an accretion to Packing Company's business and that the certification covering Packing Company's employees does not extend to the employ- ees of Trans-Continent. There is no simple formula which can be mechanically applied to determine the accretion question. Whether or not a particular operation constitutes an accretion or a separate unit turns, of course, on the entire congeries of facts in each case In determining that a newly established facility or operation is an accretion to an existing unit, the Board has given weight to a variety of factors, such as integration of the operations, centralization of managerial and administrative control, geographic prox- imity, similarity of working conditions, skills and functions, common control over labor relations, collective-bargaining history, and interchangeability of employees. Obviously, cases in which all these, or only these, positive accretion factors are present are rare. For, the normal situation presents a vanety of elements, some militating toward and some against accretion, so that a balancing of factors is necessary.2 1 In this case an overwhelming number of the factors above referred to are present Trans-Continent's business is limited to the slaughter of horses and mules and packaging their meat. The butchering process involved in the slaughter of horses and mules is the same as is involved in the slaughter of cows and bulls. The differences which exist in the slaughtering operations of Trans-Continent and Packing Company develop only from the fact Packing Company has invested in certain new mechanical equipment which speeds its work. However, many of the manual operations in both slaughtering establishments are similar and for such operations the employees exercise the same techniques and skills This is emphasized by the fact that a large proportion of the employees of Trans-Continent formerly worked for Packing Company At every level Trans-Continent has been staffed by present or former employees of Packing Company. Starting at the top, Mike Calhoun, who is in immediate charge of Trans-Continent, is an officer, director, and substantial stockholder of Packing Company. Danny Hughes, who is the accountant and book- keeper for Packing Company, does similar work for Trans- Continent Of the 17 rank-and-file employees who work for Trans-Continent the following had previous employment ex- perience with Packing Company Sammy Lee Kurling, June Patterson, John Simmons, Charles Simmons, Clarence Boss, R.T Patterson, Floyd Rogers, Angel Vagar, and E.L. Hawkins. (On the other hand, the following employees of Packing Company had worked for some period of time for Trans- Continent- Elvin Green, Herbert Phillips, and Leo Lewis.) Moreover, as described above, Trans-Continent frequently hires regular employees of Packing Company to do temporary work for Trans-Continent The operations of the two corporations are closely linked. The two Companies share the same administrative offices. The management and administrative personnel of Trans-Continent, namely, Mike Calhoun and Danny Hughes, are also employed in similar capacities by Packing Company. Animals for both Companies are purchased by the same buyer and are kept, 21 The Great Atlantic and Pacific Tea Company (Family Savings Center), 140 NLRB 1011, 1021 prior to slaughter, in the same pens and are guarded by the same night receivers or watchmen The meat products packed by Trans-Continent are removed from Trans-Continent's plant by employees of Packing Company and are stored in the same refrigerators as are the products of Packing Company The products of both Companies are shipped by the same employees. Also, by-products of Trans-Continent's operations are handled and disposed of by employees of Packing Company and both Companies use the same dead room. Additional factors which tend to reflect the integration of the two operations are common use of a central switchboard, common use of a single post office box, common use of showers by employees, and the fact that Trans-Continent's plant is an indistinguishable part of the complex occupied by Packing Company Accordingly, in agreement with General Counsel, I find that the employees of Trans-Continent are accretions to the certified unit of Packing Company's employees represented by the Union and Respondents' refusal to recognize the Union and to bargain with the Union as the representative of such employees and Respondents' unilateral dealings with the employees of Trans-Continent about wages and other condi- tions of employment constitute, without more, violations of Section 8(a)(1) and (5) of the Act. 4 Conclusions as to the remaining refusal-to-bargain issues General Counsel argues that, despite the five meetings between Packing Company and the Union, Packing Company did not bargain with the Union in good faith. He contends that the Company from the outset had no intention of reaching any agreement with the Union but participated in the meetings in order to give the appearance of bargaining and in order to disguise its true purpose which was to frustrate its employees' self-organization aspirations and ultimately to cause them to repudiate the representative they had selected. In addition, General Counsel contends that certain conduct on the part of Respondents violated their statutory bargaining obligations regardless of Respondents' subjective attitude of good or bad faith. a The job-study request At the very start of the negotiations the Union requested permission for its timestudy engineer to inspect Packing Company's operations and to study the jobs of the employees in the unit which it represents. Downer explained that the Union was unfamiliar with some of the new machinery in Packing Company's plant and thus was unable to make comprehensive wage proposals without an opportunity to examine the Company's operations. He suggested some day between December 1 and 10 for the requested study and at another time early January was suggested. Packing Company refused such permission It even refused to let Downer inspect the premises alone. The reasons advanced by Sears for such refusals I find were sham. First, he took the position that the dates suggested for the job study would not be representative of Packing Com- pany's operations. However, no alternate date was at any time suggested. Secondly, Sears stated that the Union did not need such study because Downer could learn about the operations from Packing Company's employees on the Union's committee VERNON CALHOUN PACKING CO, INC. and until a question should arise concerning a specific job there was no need for such study. These latter reasons are also without substance. Respondents do not dispute the Union's assertion that Packing Company has installed new machinery with which the Union is unfamiliar nor Downer's statement made during the negotiations that he understood that employ- ees doing the same work were being paid different wage rates. Thus, Packing Company did not overcome, or even sincerely seek to overcome, the Union's assertions that it required the job study in order to inform itself about the work being done by the employees it represents and to inform itself about the reasons, if any, for the disparities in wage rates. The information which the Union sought to obtain through a job study was patently necessary in order for it to formulate sensible wage proposals Sears' contention that a job study would become relevant only if a question about a particular job should arise is without any ment The reason advanced by the Union for wishing to make a job study was in order to frame its initial wage proposals. Such proposals first had to be made before any dispute about them could arise. Likewise without validity was Sears' assertion that the Union could learn about the Company's operations from its membership First, the Union should not be compelled to resort to secondary, and more cumbersome and more difficult, ways of obtaining information when no good reason is given as to why information within the control of the employer should not be made available to it. The possibility that the Union might be able to obtain the information it requires through some alternate means does not excuse the employer from its obligation to furnish relevant collective-bargaining information to its employees' representative upon proper request having been made for such information. Second, employees' oral descriptions of their work, in addition to the inconvenience and excessive amount of time which would be required to obtain such descriptions, are considerably less authoritative and useful than an on-the-spot study by a competent profes- sional Packing Company did not assert that the job study proposed by the Union would disrupt its operations, would reveal trade secrets, or otherwise would impose any hardship upon it. Thus, on the one hand, no valid reason has been advanced by Packing Company for its refusal to permit the Union to make a job study or even for its refusal to permit Downer to inspect it operations, while on the other hand, the Union's assertion that it was unable adequately to formulate wage proposals without such study is undisputed.22 As the requested job study is directly related to wages and conditions of employment, Respondents' refusal to permit such study, in the circumstances here, constituted a patent disregard of their statutory obligations and constituted a violation of Section 8(a)(1) and (5) of the Act.2 3 22 Because of Packing Company's persistent refusals to authorize a job study and its reluctance to discuss wages and other economic issues, Downer ultimately felt compelled to propose an across-the-board increase in order to initiate some meaningful discussion about economic subjects This deference to Packing Company's intransigence on the part of the Union in an effort to give some momentum to the negotiations does not refute the Union's reasonable need for the job study 23 See Fafnir Bearing Company v. N L R B., 362 F 2d 716 (C A. 2), enfg 146 NLRB 1582. 24 Packing Company made a trivial concession by agreeing that if at any time in the future it were to impose a requirement-which it did not then have -for a physical examination of its employees it would pay the b The refusals to discuss economic issues 763 During the entire period of its negotiations with the Union, Packing Company avoided meaningful discussion of wages and other economic terms.24 Sears first insisted upon deferring discussion of any economic question until the noneconomic terms were agreed upon. When the Union finally made a wage proposal-with out any prior job study and without any significant discussion with Packing Company about fringe benefits-its proposal was categorically rejected as exorbitantly high. When Downer argued that a substantial part of the proposed increase was required under the terms of the Fair Labor Standards Act, Sears offered computations purporting to refute such assertion by implausibly assuming that no increases whatsoever would be given except as were required by the terms of the law.2 5 No sincere effort was made by Packing Company to explore the Union's proposal regarding wage adjustments in order to ascertain whether there might be any meeting of the minds. Similarly, Packing Company refused to discuss with the Union the adjustments of wage rates which it was required to make on February 1, 1967, in order to comply with the Fair Labor Standards Act. At the December 12, 1966, meeting Sears informed the Union that Packing Company was making a study of the effect that the increase in minimum wage rates would have on the Company's operations and that he would make a proposal which merely would reflect the Company's obligations under the Wage-Hour Law. No such proposal was made. Instead, on January 4, 1967, Sears wrote to Downer the following. "Further, you may recall that on December 13, 1966, 1 advised you that the Company was undertaking a review of its wage structure and that I believed that it would be completed some time the following week and upon completion I would submit it to you as our proposal even though you had not submitted any proposal whatsoever concerning wages to the Company This is to advise you that the Company has reviewed its wage structure and we do not consider it to he a necessity to change wage rates of employees except in such instances which may be required by the Fair Labor Standards Act on February 1, 1967." Packing Company thus categorically refused to discuss with the Union the adjustments in wage rates it was planning to make in order to comply with the Fair Labor Standards Act. This was a blatant refusal to bargain about wages in violation of Section 8(a)(1) and (5) of the Act c Respondents'refusal to continue negotiations All efforts by the Union to meet with Packing Company after the January 17, 1967, session, were to no avail. On March 29, 1967, Sears wrote to Downer. cost of such examinations The only other economic concessions that Packing Company made were to agree to continue its current practice of giving employees two 15-minute rest periods during each full working day, to agree to certain premium payments for abnormal hours of work, to pay for attendance at compulsory meetings called by the Company, and to agree that employees performing work of a higher classification should receive the rate for such classification 25 Significantly , Respondents offered no payroll or other evidence to show whether in connection with the February 1, 1967, and February 1, 1968, wage adjustments which were required to be made under the Wage-Hour Law they gave any increases other than those which were absolutely necessary to comply with the law 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I advised [Mr. Calhoun] of your telephone call and your request to meet this week. Mr. Calhoun advised me that current business conditions do not justify any change in our position on economic items at this time In view of these circumstances, it does not seem to be realistic to schedule a meeting this week. Subsequently, on June 1, 1967, Sears wrote to Downer Mr Calhoun advised me that there has been no material change in business conditions which would justify any change in the terms and conditions of employment of the employees at his company In view of this fact, it appears to me that it would serve no purpose to meet at this time since we would not have any reason to change our positions on the economic matters which are in dispute. This same attitude was repeated in another letter which Sears wrote to Downer on June 5, 1967 Thus, Packing Company after avoiding any meaningful discussion about wages and other economic terms during the negotiating sessions refused further meetings on the ground that its position-never adequately explained to the Union-had not changed. There was no impasse in negotiations on and after January 17, 1967 There was no reason for Packing Company to cut off further negotiations except that it had no wish to reach any agreement with the Union and had no desire to continue its pretense at bargaining Respondents' refusals to meet with the Union after January 17, 1967, I find, were of themselves in contravention of their statutory obligations and violations of Section 8(a)(1) and (5) of the Act 26 d Conclusions regarding Respondents'good faith In their brief Respondents mention three factors as demon- strating their good faith in their negotiations with the Umon First, they point to the fact that Packing Company began negotiations with the Union before the Union was formally certified While this shows that Packing Company did not take advantage of a technicality to delay the commencement of negotiations such fact has little bearing upon whether Re- spondents in the later conduct of their negotiations acted in good faith Respondents' second point is that they attended five negotiating sessions between November 4, 1966, and January 17, 1967, that there were "many" items agreed upon at these meetings and Packing Company "committed itself to agree- ment in principal to many of the concepts proposed by the union which required no more than the proper terminology to be mutually agreed to at a later date. In addition, Respondent Calhoun submitted counterproposals to the union in an effort to resolve language differences and the parties did, in fact, reach agreement on some matters as the result of this area of negotiations." Respondents anticipated that General Counsel might argue that "agreement was not reached on the Important items." Their answer is "This is a specious argu- ment for the reason that once an agreement is reached on any matter of bargaining, its degree of importance is submerged in its relevancy to those items which remain unsettled." I am not certain that I understand fully Respondents' answer just quoted. But it is not necessary to decide whether any of the 26 According to correspondence between Sears and Downer, Sears was prepared to meet on March 1, 1967, but there had been a misunderstanding about the appointment However, thereafter Sears rebuffed every effort by the Union to arrange another meeting. items which Packing Company and the Union agreed upon can be characterized as "important" because the question at issue is whether Respondents in good faith were seeking to reach an entire agreement if at all possible. The fact that Packing Company might have agreed to several "important" items is not inconsistent with the General Counsel's thesis that although Respondents were seeking on the surface to give the appearance of bargaining, they had no intention of entering into a contract with the Union. Of greater significance in evaluating Respondents' conduct than the matters agreed upon is the fact that every economic term proposed by the Union was rejected (with only trivial exceptions) and not a single counterproposal relating to any economic term was made. Respondents did not even propose to enter into an agreement which would continue in effect the economic terms and conditions which existed when the negotiations began. Con- trary to Respondents, I find that the matters to which Packing Company agreed during the negotiations do not demonstrate good faith when measured against the totality of Respondents' conduct in their dealings with the Union. Respondents' third point is that the Union did not intend to engage in good-faith negotiations "in view of Mr. Downer's expressed intention to establish a basis for filing an unfair labor practice charge against Respondent Calhoun to afford Mr Downer the opportunity to engage in an unfair labor practice strike against Respondent Calhoun and claim back pay " This argument is founded more upon counsel's specula- tions than upon fact. While the record shows that Downer accused Packing Company of refusing to bargain in good faith and threatened to file under labor practice charges, the evidence also shows that such threats were made in frustration at being unable to reach agreement on even a single meaningful economic term and that the Union was seeking to cajole Packing Company into more serious negotiations. There is no basis for inferring, as Respondents do, that the Union was anxiously planning a strike. Contrary to Respondents, and in agreement with General Counsel, I find that at no time since the Union made demand upon Packing Company to engage in collective-bargaining negotiations did the Respondents in good faith deal with the Umon with a sincere objective of seeking to reach an agreement with the Union if possible. The specific acts which I find above constituted violations of Respondents' statutory collective-bargaining obligations considered together lead to such conclusion. Buttressing this finding is the fact that Respondents terminated negotiations before there was any discussion of the economic issues (except of a most perfunc- tory nature) and after it had earlier sought to contrive a situation which would furnish an excuse for discontinuing negotiations. Thus, at the December 12 meeting Sears led the Union into taking a strong position regarding checkoff of dues and then during the following week attempted to terminate negotiations by characterizing the Union's position as being inflexible Ultimately, by letter written on June 8, 1967, Sears on behalf of Respondents flatly refused to meet with the Union asserting that "we see no point in engaging in lengthy bargaining sessions concerning non-economic issues if your position in regard to the economic issues remains the same. As I have previously stated to you, on a number of occasions, our position regarding the economic matters in dispute remains the same and we see no justification for changing this position. You have taken the equally consistent position that there has to be changes concerning the economic matters.... At such VERNON CALHOUN PACKING CO., INC. time that you intend to change your position in regard to the economic matters we will arrange to meet with you to resolve whatever issues that are outstanding " This last communication from the Respondents was nothing but an unconvincing, disingenuous effort to place upon the Union the onus for the failure to reach any productive results in the bargaining negotiations. Packing Company's position to which Sears refers in his letter and to which Packing Company was adhering was never described to the Union except other than that the Company refused to discuss with the Union any economic provisions of a contract whatsoever The Company even refused to discuss with the Union the increases in wage rates it was required to give in order to comply with the Fair Labor Standards Act, and did not later inform the Union regarding the action it took. In this respect the Company gave the Union contradictory advice. On January 4, 1967, Sears wrote to Downer that "we do not consider it to be a necessity to change wage rates of employees except in such instances which may be required by the Fair Labor Standards Act on February 1, 1967 " Inconsistently, at the January 17 meeting Sears informed the Union's delegation that additional increases would be given in order to maintain to some extent the existing wage differentials. On the other hand, contrary to Sears' assertion in his June 8 letter, the Union took no steadfast position on economic matters. So far as the record shows it merely sought to engage in some discussion on the subject which was cansistently rejected by Respondents. I find that Respondents during the period of their negotia- tions with the Union had no intention of reaching an agreement with the Union. Their dealings with the Union were characterized by the absence of cooperation, a lack of candor, an emphasis upon trivia during the bargaining sessions while avoiding discussion about meaningful subjects, and an impa- tience to terminate negotiations without adequate exploration of the collective-bargaining issues. Respondents' unlawful attitude in its dealing with the Union was of such an aggravated character as to justify an inference that they were not merely avoiding a collective-bargaining agreement but were pursuing a scheme designed to remove the Union as the representative of their employees by demonstrating to their employees that no benefits would be obtained through the Union. B. The Alleged Discriminations 1. Sherman Nixon Sherman Nixon was discharged by his supervisor, Clifford James, on March 10, 1967, after approximately 7 years of employment with Packing Company. James testified that he discharged Nixon "[f] or not showing up to work" after Nixon had previously been warned by James that he would be discharged if he was again absent from work.'' Nixon had been a member of the Union's organizing committee and had obtained signature cards from 15 to 20 employees during the organizing campaign. In addition, Nixon acted as a union observer at the election and served on the Union's negotiating committee. At the bargaining session which was held on November 16, 1966, Downer complained 765 about a disciplinary action which had been taken against Nixon and which he stated was an unfair labor practice. Downer explained to Packing Company's representatives at the meeting that the previous Monday Nixon had been absent from work because of a recurrence of an infirmity which was related to an injury that he had sustained on the job, that his supervisor's wife was informed of the fact and, nevertheless, when Nixon reported for work James laid him off for a couple of days because of such absence. At the same meeting Downer complained that Packing Company had transferred Nixon to a different job and as a result of the transfer Nixon's earnings were lowered. Sears promised Downer that he would look into these complaints. Nixon was confined in the Memorial Hospital of Palestine from February 10 to 17, 1967. Before he entered the hospital Downer telephoned Sears and complained that Packing Com- pany had failed to file a report, required by Texas statute, relating to an injury sustained by Nixon and threatened that he would take appropriate action unless the Company promptly filed the report. (The Texas statute provides that any employer willfully failing or refusing to make such report within the time provided shall be liable for a penalty of not more than $1,000 for each offense ) As set forth in his brief, "General Counsel contends that the reason for Nixon's discharge was because the Union, in behalf of Sherman Nixon, attempted to enforce the provisions of Section 8, Article 8303, of the Civil Statutes. This is supported by the fact that Mr. James told Nixon in January when he disciplined him, if he was ever off work again that he was going to fire him Nixon stayed off work for a week to go into the hospital and James did not fire him, but in the meantime, the Respondent was faced with the threat of the enforcement of the above-mentioned article of the Civil Statute which could very easily have cost Respondent a thousand dollars a day on account of Nixon Of course, the next time Nixon stayed off work, Nixon was fired. At first glance this may appear to be a strange analysis of the case . General Counsel's analysis I find contrived and uncon- vincing. However, Packing Company was opposed to the Union and in its negotiations with the Union demonstrated that it was not prepared to deal in good faith with the Union. On March 10, 1967, it discharged Nixon, who had been in its employ for 7 years and who had been active on behalf of the Union, because of an unexcused absence On the surface such offense does not appear to be serious. These circumstances accordingly raise a suspicion that Nixon's union activities were a motivating factor influencing the decision to discharge Nixon Such suspicion alone, however, is not adequate to overcome James' explanation that only 2 months earlier he had warned Nixon that if Nixon once again remained away from work he would be discharged. I find that General Counsel has not proved by a preponderance of the evidence that Nixon was discharged discriminatorily in violation of the Act. 2. General Durham The complaint alleges that since August 1, 1967, Packing Company unlawfully has refused to reinstate General Durham, one of the striking employees, to his job. On July 7, 1967, the 27 1 do not credit the testimony of Cora Lee Nixon that about 8 am on March 10, 1967, she informed James by telephone that Sherman Nixon was iii and would not be able to go to work 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union sent a telegram to Sears asking for the reinstatement of all the striking employees. On July 10, 1967, Sears responded by telegram in which he requested the names of the striking employees who desired to return to work. On July 12, 1967, Downer mailed such list, which included the name and address of General Durham, to Sears. Durham testified that upon the termination of the strike he was informed that the Company would notify him when to return to work. After a week had passed without having received any such notice, he went to the plant to inquire about his recall. There he spoke to Danny Hughes who told Durham that Durham had not been at work on the Friday preceding the strike28 and therefore Durham was not considered a striker. Leonard Scroggins, Durham's foreman, testified merely that Durham was not employed at the time of the strike. No additional-evidence was offered in support of Respondents' defense other than certain payroll records. These records show that Durham worked 18'% hours during the payroll period ending April 13, 1967.2 9 The rule applicable to this situation recently has been described by the Supreme Court as follows "[U] nless the employer who refuses to reinstate strikers can show that his action was due to `legitimate and substantial business justifica- tion,' he is guilty of an unfair labor practice . . The burden of proving justification is on the employer...." N.L R B. v Fleetwood Trailer Co., Inc, 389 U.S. 375, 378 In this case I find that Respondents have not sustained the burden of proving justification. Accordingly, I further find that Respond- ents have violated Section 8(a)(1) and (3) of the Act by their failure to reinstate General Durham. 3. John Gaston John Gaston worked for the Company intermittently over a period of 20 years . He was one of the employees who joined the strike called by the Union and was reinstated upon the termination of the strike . About 2 weeks after his reinstate- ment he was laid off because of lack of work. General Counsel does not contend that the layoff was discriminatory. About October 18 , 1967, the Union filed an unfair labor practice charge in which it alleged that Packing Company had discrrml- natorily discharged John D. Gaston on July 21, 1967. Such charge was subsequently withdrawn on November 17, 1967. General Counsel contends that when Trans-Continent began its operations about October 31 , 1967, it hired additional people and did not recall John Gaston to work. General Counsel's position , as stated in his brief, is as follows . ". . . the undisputed facts support a discriminatory motivation for not recalling Gaston This is based upon the fact that he was a striker who had been reinstated for only about two weeks. While we do not contend that the economic reason alleged for the layoff was a pretext but the promise to recall was not made in good faith . It is clear that the one outstanding factor which caused the Respondent not to recall Gaston was the fact that the Union had attempted to enforce his legal rights under the Act by filing charges . The Respond- ent offered no defense to Gaston 's discharge except that it takes the position that no accretion existed in this case." I find General Counsel's argument unpersuasive and further that General Counsel has not proved by a preponderance of the evidence that Respondents unlawfully have failed to recall Gaston to work. Accordingly , I shall recommend dismissal of 28 The strike began on Monday, April 17, 1967 29 Durham testified that in February 1966, he made an arrangement payroll records showing the hours worked by Durham and four other with his foreman , Leonard Scroggins , which permitted h,m to take days employees Presumably the purpose for introducing these records in off whenever Durham considered it necessary in order to farm some 22 evidence was to refute Durham 's testimony concerning the arrangement acres of land which he occupied . Scroggins denied the existence of any he had made with Scroggins However , the payroll records tend to such agreement I credit Durham Respondent introduced in evidence corroborate, rather than refute , Durham 's testimony The records show Hawkins Alford Chatman Angton Durham Total hours 2/3/66-4/13/67 2121 .25 2378 .25 1456 .25 1750.75 1004.50 Overtime (included in total) 65 00 167 50 31 00 17.25 8.25 Quarterly hours 2/3- 3/24/ 66 225 50 255 00 190.75 190 25 3/31- 6/23/66 414 25 511.75 33.25 421 50 415 25 6/29- 9/28/66 502 75 501.25 502 50 291 75 87.75 10/5-12 /27/66 490 50 579 50 462 . 50 427.50 1/5- 3/25 /67 398 25 435.00 382 00 342 75 251.00 3/30- 4,113/67 90.00 95.75 76 00 76 50 59.75 Monthly hours February 1966 99 75 116.00 84.75 95.50 March 1966 159.00 179 .00 135.50 127 50 April 1966 147 .75 193.00 148 .00 158 00 May 1966 114 .00 145.00 122 .75 11100 June 1966 161.75 183.50 82.25 121.25 116.00 July 1966 115 25 126 00 131.25 39.75 August 1966 196.50 158.25 187 .50 124.00 30.25 September 1966 148 50 166.75 134.75 128.00 57 50 October 1966 182.50 198 .00 166.00 163.00 November 1966 213.25 249.50 189.50 188.50 December 1966 94 75 132.00 107 .00 76.00 January 1967 140.25 142.00 125 00 111 00 76 25 February 1967 131.00 156.50 137 00 126 50 99 25 March 1967 156.50 164.25 147 00 130.50 91.25 April (to 4/ 13/67) 60.50 68.00 51.00 51.25 44.00 VERNON CALHOUN PACKING CO., INC. the complaint to the extent that it alleges that the Respond- ents have violated the Act by their failure to recall Gaston to work IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the Respondents' opera- tions described in section 1, 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 V THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act Having found that Respondents unlawfully refused to remstate General Durham on August 1, 1967, to his former or to a substantially equivalent position, I shall recommend that Respondents offer him immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned from August 1, 1967, to the date of Respondents' offer of reinstatement less his net earnings during such period The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W Woolworth Company, 90 NLRB 289 Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 Having found that Respondents have unlawfully refused to bargain collectively with the Union, I shall recommend that they be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other conditions of employment of the employees in the appropriate unit described below and, if an understanding is reached, embody such understanding in a signed agreement. I have found further that Respondents did not confer in good faith with the Union. Packing Company's attendance at the five meetings with the Union was a diversion, a mere pretense of engaging in negotiations with the Union. While seeking to give the appearance of bargaining, at no relevant time did Respondents have any intention of consummating an agreement with the Union. Respondents' purpose, I find, was to frustrate bargaining, to make the negotiations a fruitless waste of time, to convince their employees, as forecast in their preelection literature, that "a union at this plant could not benefit any employee," but "could hurt our employees," to denigrate the Union in the eyes of their employees as a useless empty vessel in which to place their hopes for job improve- ments, and ultimately to eliminate the Union as their employees' representative. The circumstances present here reveal a refusal by Respondents "to accept the procedure of collective bargaining."30 It can be anticipated from Respond- ents' conduct in the past that they will continue in the future 767 to follow the same unlawful course of action by seeking to avoid entering into any collective-bargaining agreement with the Union Thus, after the complaint in these proceedings was first issued Respondents instead of reappraising its dealings with the Union in a belated effort to comply with its statutory collective-bargaining obligations sought further to frustrate their employees' self-organizational aspirations by the device of splitting their operations artificially between two corpora- tions, one of which, so far as the record shows, was organized only to defeat the Union as an effective collective-bargaining agency. For the reasons set forth in M.FA Milling Company, 170 NLRB No. 111, I shall recommend that Respondents reim- burse the employee members of the Union's negotiating committee for wages lost, if any, while attending past negotiating sessions with interest thereon at the rate of 6 percent per annum. The record indicates that there is considerable fluctuation in the level of employment at Respondents' plants and there is a suggestion in the record that there is a relatively high degree of turnover among their employees. In these circumstances and particularly because of the aggravated nature of Respondents' unfair labor practices, I shall recommend that a copy of the notice attached to this Decision be mailed to each employee who worked for Respondents within the certified bargaining unit at any time between November 4, 1966, and the date of Respondents' compliance with the terms of this Recom- mended Order Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees employed at the Palestine, Texas, plants of Vernon Calhoun Packing Company, Inc., and Trans-Continent Packing Company, ex- cluding office clerical employees, guards, watchmen and supervisors as defined by the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2 Allied Food Workers, District Union No 103, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, since October 20, 1966, and at all times material herein, has been the exclusive collective-bargaining representa- tive within the meaning of Section 9(a) of the Act of the employees in the above-described unit 3. Since November 4, 1966, by failing and refusing to bargain in good faith with the Union as the collective-bargain- ing representative of Respondents' employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 4. By refusing and failing, since November 4, 1966, to permit the Union as the exclusive representative of the employees in the aforesaid collective-bargaining unit to make a study in Respondents' plants of the jobs being performed by the employees represented by the Union, Respondents further have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 30 National Labor Relations Act, Sec 1. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By establishing wage rates for newly hired employees and by granting wage increases to certain employees included in the above-described bargaining unit on and after February 1, 1967, without affording the Union an opportunity to bargain about such matters, Respondents further have engaged in and are engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By discriminating in regard to the reinstatement, tenure of employment, and conditions of employment of General Durham, who participated in the strike by the Union against the Respondents, which commenced on April 17, 1967, and continued until approximately July 7, 1967, thereby discour- aging membership in the Union, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(aX3) of the Act. 7. By the foregoing conduct, Respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, and have thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondents have not violated the Act by reason of the discharge of Sherman Nixon on March 10, 1967, or the failure to recall to work John Gaston who was laid off by Respond- ents in July 1967 RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that Vernon Calhoun Packing Company, Inc., and Trans-Continent Packing Com- pany, their officers, agents, successors, and assigns, shall 1. Cease and desist from. (a) Refusing to bargain collectively with Allied Food Workers, District Union No. 103, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive collective-bargaining representative of their employ- ees in the following appropriate unit. All production and maintenance employees employed by Vernon Calhoun Packing Company, Inc., and Trans-Continent Packing Company at their Palestine, Texas, plants excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. (b) Failing and refusing to permit the Union to make a study in their plants of the jobs being performed by the employees within the aforesaid collective-bargaining unit. (c) Making or effecting any changes in the wages, hours, or other terms and conditions of employment of employees in the aforesaid collective-bargaining unit without first giving notice to their collective-bargaining representative and afford- ing such representative an opportunity to engage in collective bargaining with respect to any such proposed change. (d) Discouraging membership in any labor organization of their employees by discriminating against any employees in regard to their lure, tenure of employment , or any term or condition of their employment. (e) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their right to self-organization , to form, join , or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment , and other terms and conditions of employment with Allied Food Workers, District Union No. 103, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above and , if an agreement is reached , embody it in a signed contract. (b) Upon request permit the Union reasonable access to their plants in order to study the jobs being performed by the employees in the above-described collective-bargaining unit (c) Make whole each employee member of the negotiating committee of the Union for earnings lost while attending past bargaining sessions with interest thereon at the rate of 6 percent per annum. (d) Offer to General Durham immediate and full reinstate- ment to his former or to his substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings he may have suffered by reason of Respondents' discrimina- tion against him. (e) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records , timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (f) Notify General Durham, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (g) Promptly mail to each person who was employed at their plants within the collective-bargaining unit described above at any time between November 4, 1966, and the date upon which Respondents shall have fully complied with the terms of this Decision and Recommended Order, a copy of the attached notice marked "Appendix." (h) Post at their plants in Palestine, Texas, copies of the attached notice marked "Appendix. ,31 Copies of said notice, on forms provided by the Regional Director for Region 16, shall be posted by Respondents , after being duly signed by their representatives, immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 31 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." VERNON CALHOUN PACKING CO., INC. employees are customarily posted Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (I) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 32 32 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 this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL, upon request, bargain collectively with Allied Food Workers, District Union No. 103, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, as the exclusive representative of all employees in the unit described below, with respect to wages, hours, and other working conditions and, if an understanding is reached, embody it in a signed contract. The appropriate unit is. All production and maintenance employees employed by Vernon Calhoun Packing Company, Inc., and Trans- Continent Packing Company at their Palestine , Texas, plants, excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. WE WILL, upon request, permit the above-named Union to make a study in our plants of the jobs being performed by the employees in the above-described collective -bargain- ing unit. WE WILL NOT make or effect any changes in the wages, hours, or other terms and conditions of employment of our employees in the above-described collective-bargaining unit without first giving notice to the above-named Union and affording such Union an opportunity to engage in collective bargaining with respect to any such proposed change 769 WE WILL NOT discourage membership in the above- named Union, or any other labor organization of our employees, by discriminating against any of our employees in regard to their hire, tenure of employment, or any term or condition of their employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer General Durham immediate and full reinstatement to the job he held before April 17, 1967, or to a substantially equivalent job, with all rights and privileges he previously held. If he should now be serving in the Armed Forces of the United States, WE WILL notify him of his right to full reinstatement after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. WE WILL reimburse General Durham for any loss of earnings caused by our failure to reinstate him with interest thereon at the rate of 6 percent per annum. WE WILL reimburse the employee members of the above-named Union's negotiating committee for wages lost while attending past negotiating sessions, with 6 percent interest per annum VERNON CALHOUN PACKING COMPANY,INC AND TRANS- CONTINENT PACKING COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921.