Stayer's Johnsonville Meats, Inc.

STAYER'S JOHNSONVILLE MEATS Stayer's Johnsonville Meats, Inc. and Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America. Cases 30-CA-834, and 30-RC-877 February 24, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 13, 1968, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. The Trial Examiner also found merit in certain objections to the election of June 27, 1968, and recommended that the election be set aside and that the petition in Case 30-RC-877 be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and the Respondent filed a brief in support of its exceptions. 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases,' and hereby adopts the findings,2 conclusions,3 and recommendations' of the Trial Examiner. The Respondent's request for oral argument is hereby denied, as the record, including the exceptions and briefs, adequately presents the issues and positions of the parties 'Many of the Respondent's exceptions were directed to the Trial Examiner's credibility resolutions It is the Board's established policy, however, not to overrule a Trial Examiner's resolutions as to credibility unless the preponderance of all the relevant evidence convinces us that they are incorrect. We find no such basis for disturbing the Trial Examiner's credibility findings in this case Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C.A 3) 'In agreeing with the Trial Examiner that the Respondent's announcement of the profit-sharing plan violated Section 8(a)(1) of the Act, we do not rely upon the timing of the announcement , since employees were already aware that a plan would be instituted . Rather, we find such announcement coercive because of the manner and language thereof, as set forth by the Trial Examiner in the text and fn 35 We find, further, that the interrogation of employee Champeau, in light of the Respondent's overall course of unlawful conduct, was not permissible questioning, was violative of Section 8(a)(l), and tended to interfere with the employees' free choice at the election Webb Tractor and Equipment Company, 167 ORDER 693 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Stayer's Johnsonville Meats, Inc., Johnsonville, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein: 1. Substitute the following for paragraph 1(a) of the Recommended Order: "(a) Putting into effect or promising economic benefits to discourage employees from joining or supporting Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, or any other labor organization, except that nothing herein contained should be construed as requiring the Respondent to revoke any profit-sharing plan, increases in wages or other benefits it has heretofore granted." 2. Renumber paragraph 1(e) as 1(f) and add the following as paragraph 1(e): "(e) Unilaterally instituting any changes in wages, rates of pay, or other terms and conditions of employment of its employees in the above-described appropriate unit without notice to, and an opportunity for bargaining by, the Union, except that nothing herein contained shall be construed as requiring the Respondent to revoke any wage increase it has heretofore granted." 3. Delete paragraph 2(d) of the Recommended Order. 4. Substitute the attached notice' for Appendix B of the Trial Examiner's Decision. NLRB No. 46. We note that the interrogation was not merely an isolated incident since there is a great likelihood that the coercive effects of such interrogation will not be limited to employees directly involved Intercontinental Manufacturing Company, Inc, 167 NLRB No 105. We note that the Trial Examiner's Decision in apparent inadvertent error states that Sprengel was hired on September 26, 1966, although it is clear from the record that he was hired on September 26, 1967 We find merit in the General Counsel's exception to that portion of the Trial Examiner's remedy providing that the Respondent, in order to restore the status quo ante, discontinue the profit-sharing plan, any wage increases, and other increases in benefits granted on May 20, 1968, or thereafter. The Board does not customarily require a respondent to revoke such increased benefits, although unlawfully granted. See, e.g., Architectural Fiberglass-Division of Architectural Pottery, 165 NLRB No 21 Accordingly, we do not adopt that portion of the recommended remedy. In addition, we shall delete from the Remedy and Order sections the requirement that the Respondent compensate its employees monetarily for losses and expenses incurred as a result of the Respondent's unlawful refusal to bargain. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving violations of Section 8(a)(5) and, therefore, do not adopt the Trial Examiner's Recommended Order in this respect. See Monroe Auto Equipment Company, 164 NLRB No 144. fn 1. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " 174 NLRB No. 94 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the petition in Case 30-RC-877 be, and it hereby is, dismissed , and all proceedings held in connection therewith be, and they hereby are, vacated. APPENDIX B and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. You and all our employees are free to become members of any labor organization, or to refrain from doing so. NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order 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: The National Labor Relations Board has found that we fired John Sprengel because he was for the Union and that this violated the law. WE WILL give John Sprengel back his job and seniority and backpay which he lost because we fired him. WE WILL NOT fire any employees for the same reason which the Trial Examiner found that we discharged John Sprengel. WE WILL NOT ask you about your union feelings or your union activities. WE WILL NOT promise to change or change economic benefits to discourage you from joining or supporting Meat & Allied Food Workers, Local 248, AFL-CIO affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, or any other labor organization. WE WILL bargain collectively in good faith with Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, as the exclusive bargaining representative of all our employees in the bargaining unit described below with respect to rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached WE WILL embody such understanding in a signed contract. The bargaining unit is: All production and maintenance employees, including truckdrivers employed at Stayer's Johnsonville Meats, Inc., Johnsonville, Wisconsin, location, but excluding all office clerical employees, salesmen, guards and supervisors as defined in the Act. WE WILL NOT institute any change in your wages, rates of pay, or other terms and conditions of employment without notice to, and an opportunity for bargaining by, the Union. WE WILL respect the rights of our employees to self-organization, to form, join or assist any labor organization, or to bargain collectively in respect to terms or conditions of employment through said Union, or any representative of their own choosing, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights, except insofar as these rights could be affected by any contract with a labor organization, if validly made in accordance with the National Labor Relations Act, as amended, whereby membership therein is a condition of employment after the 30th day following the date of such contract or the beginning of such employment, whichever is later. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act Dated By STAYER'S JOHNSONVILLE MEATS, INC. (Employer) (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, 2nd Floor, Commerce Building, 744 North 4th Street, Milwaukee, Wisconsin 53203, Telephone 414-272-3861. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: Pursuant to a petition duly filed by the Petitioner, Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, herein referred to as the Union, on May 20, 1968, and a stipulation for certification upon consent election executed by the Union and Stayer's Johnsonville Meats, Inc., the Employer and Respondent herein, and approved by the Regional Director for Region 30, on June 10, 1968, an election by secret ballot was conducted in Case 30-RC-877 under the direction and supervision of the Regional Director on June 27, 1968, among certain employees' of the Employer. Out of eight ballots, seven were cast against the participating labor organization. On July 2, 1968, the Petitioner filed timely objections to conduct affecting the results of the election, a copy of which was duly served on the Employer. Thereafter the Acting Regional Director for the National Labor Relations Board (herein called the Board), Region 30, investigated the issues raised by the objections and on August 1, 1968, entered his report on objections to conduct affecting the results of the election and entered an order directing hearing and order of consolidation Among other things, the Acting Regional Director ordered that Case 30-RC-877 be consolidated with Case 30-CA-834 for the purpose of hearing before a Trial Examiner at the time and place of the hearing in Case 30-CA-834 scheduled for August 21, 1968. The objections filed by the Union were as follows: 1. The Employer, on May 20, 1968, promised benefits to certain employees in order to discourage their membership in the Union and to obstruct and interfere with the employees' organizational activities 2. The Employer, on May 20, 1968, discharged employee John Sprengel in order to discourage membership in the Union and to thwart organizational activities. 'The unit, which was agreed to pursuant to the terms of the stipulation for certification upon consent election, consisted of all production and maintenance employees , including truckdrivers employed at the Employer's Johnsonville, Wisconsin, location, but excluding office clerical employees, salesmen, guards and supervisors as defined in the Act STAYER'S JOHNSONVILLE MEATS 695 3. The Employer, on June 21, 1968, directed a letter to each of its employees promising additional benefits including a profit-sharing plan in order to obstruct and interfere with the employees' organizational activities. 4. The Employer, on June 19, 1968, and again on June 25, 1968, held a meeting with all its employees on the company premises during working hours, at which times he promised the employees additional benefits, including a profit-sharing plan in order to obstruct and interfere with the employees' organizational activities. On July 31, 1968, pursuant to an original charge filed by the Union on May 24, 1968, an amended charge filed by the Union on July 2, 1968, and a second amended charge filed by the Union on July 9, 1968, a complaint and notice of hearing was issued in Case 30-CA-834 in which the Stayer's Johnsonville Meats, Inc., was named as the Respondent. It was alleged in the complaint that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed timely answer denying that it had engaged in or was engaging in the unfair labor practices alleged. The cases came on to be heard on August 21, 22, and 23 at Sheboygan Falls, Wisconsin. Each party was afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, to argue orally on the record, to propose findings of fact and conclusions of law, and to file briefs. All briefs have been reviewed and considered by the Trial Examiner. The General Counsel contends that the Respondent has violated Section 8(a)(1) and (5) of the Act by failing to recognize the Union as the collective-bargaining representative of its production and maintenance employees in that after the Union demanded recognition and offered to prove its majority status the Respondent demonstrated its lack of good-faith doubt of the Union's majority status by engaging in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. The General Counsel also contends that the Respondent violated Section 8(a)(3) of the Act by its discharge of John Sprengel on May 20, 1968. The alleged violations of Section 8(a)(1) of the Act involve the illegal questioning of employees,' the promising of certain benefits, the threatening of certain reprisals, and the unilateral granting of wage increases to employees on or about May 20, 1968, and thereafter to dissuade employees from joining in, or continuing, activities on behalf of the Union. Upon the whole record and upon his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT AND CONCLUSIONS L THE BUSINESS OF THE RESPONDENT The Trial Examiner finds, as is admitted by the Respondent, that at all times material herein Respondent is and has been an employer, as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES First: Stayer's Johnsonville Meats, Inc., was incorporated on January 2, 1968. Prior to that time it had operated as a family partnership. According to Ralph F. Stayer, its president, it was incorporated for "business reasons and the profit-sharing plan." Officers of the corporation, in addition to Ralph F. Stayer, are Ralph C. Stayer, vice president, the son of Ralph F. Stayer, and Alice B. Stayer, secretary, wife of Ralph F. Stayer. The stock is held jointly by Ralph F. Stayer and Alice B. Stayer. Respondent is engaged in both wholesale and retail selling at its Johnsonville establishment. One of its principal products is bratwurst 3 Johnsonville is a community of 35 inhabitants. Other than the Respondent's plant a tavern and a mill are located in Johnsonville. The tavern, known as Lock's bar, is a block and a half from the Respondent plant and is patronized by the Respondent's employees. The Respondent's plant occupies a small one-story building about 120 by 50 feet. The office of the plant is in the elder Stayer's home which is connected to the plant. Both the father and son are present daily in the plant and have day-to-day contact with other employees as they perform work in various areas of the plant. The son testified that he is learning the sausage business. On May 20, 1968, the Respondent had in its employment in the unit referred to above' seven employees and two part-time employees, to wit: John Bersch, Joseph Binder, John Cain, Ralph Champeau, James Gebler, Otto Wilke, John Sprengel, Harold Boldt, and Hubert Schneider. The latter two employees were part-time employees. In addition to the nine employees named above, Robert Van Pelt was employed by the Employer as a supervisor. The Respondent admits that Van Pelt is a supervisor within the meaning of the Act.5 All of the foregoing employees except John Bersch and Hubert Schneider signed unambiguous union authorization cards on May 18, 1968. These cards were authenticated by a signer or the testimony of a witness who observed the signing of the card. There was no credible evidence Respondent is a Wisconsin corporation and maintains a plant and offices in Johnsonville, Wisconsin, and is engaged in the business of processing and selling meat products. During the past calendar year, a representative period, the Employer purchased and received in interstate commerce goods valued in excess of $50,000 from points located outside the State of Wisconsin. 'An amendment was allowed as follows - "the conduct of Ralph C Stayer and Ralph F . Stayer, on or about June 20, 1968, in questioning an employee as to his union activity and sympathies " 'Ralph F . Stayer testified that Sheboygan , which is near Johnsonville, Wisconsin, is the bratwurst capital of the world. 'The parties were in agreement that "all production and maintenance employees, including truckdrivers employed at the Employer's Johnsonville, Wisconsin location, but excluding office clerical employees, salesmen, guards and supervisors as defined in the Act," constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 'While the General Counsel and the Charging Party contended that Van Pelt was not a supervisor within the meaning of the Act, the Trial Examiner considered the question at the hearing, and was of the opinion that sufficient evidence had been introduced to support a finding that Van Pelt was a supervisor within the meaning of the Act, and thus upon motion 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adduced which established that any of the cards were invalid for the purpose of determining the majority status of the Union. Thus the Trial Examiner finds that the seven cards signed by the foregoing named employees are valid for the purpose of establishing the majority status of the Union, and that on May 18, 1968, and at all times thereafter, the Union, by reason of valid union designation cards in its possession, represented a majority of the Employer's employees in the appropriate unit above described. Second: Union organizational effort commenced in 1966. Employees "wanted better insurance" and had not been "getting time-and-a-half." The union organizational effort "more or less went out the window" when employees were given better insurance and "the auditor went through the books and the law and said now they had to pay time- and- a-half.. ." At that time also there were rumors that there would be no building expansion if the employees wanted a union. Sometime after the union organizational effort had petered out John Sprengel, an inexperienced employee, was hired by the younger Stayer on September 26, 1966, at which time Sprengel asked Stayer whether it would be necessary for him to join the Union. Stayer mentioned "there was not an organization in the plant, that it had been attempted prior to this and that the men had rejected it.,, Sprengel learned from the employees that "they had signed cards and they accepted a company offer which ... gave them time-and-a-half over 40 . and some additional insurance benefits" but that there was dissatisfaction about adjustments made on insurance, and that the employees were getting "inadequate returns for things that were done." Sprengel suggested that they make a comparison with some company that had been organized and see how their "situation stood" and that "it would be proper" for the employees "to organize a union." Conversation of this character occurred in and about the plant and sometimes at Lock's bar where the employees played cards. Such conversations continued from the time Sprengel first became employed down to the time that the employees designated the Union as their bargaining representative. Sprengel had been a former steward in the Carpenters Union, a fact which was known to the employees, Van Pelt, and the Stayers. On May 11, 1968, Van Pelt and Sprengel went to Lock's bar during which time they discussed union matters. He told Van Pelt that he felt it was "the time to get this ball moving, to get into contact with the union representative, the business agent, and get the men together and get a union organized." Sprengel asked Van Pelt for the names of union representatives since he believed that some lived in Fond du Lac, the place of Van Pelt's residence. Van Pelt refused to give him names but suggested that he contact Ralph Champeau for such information in that Champeau had signed a card in the last union organizational campaign.' Sprengel called Champeau at his home and asked him for the names of the union representatives. Champeau of the Respondent struck from the complaint paragraphs 5(a), (c), (d), and (e). In his brief the General Counsel stated Although General Counsel was reluctant at the hearing to acknowledge that Van Pelt was a supervisor within the meaning of the Act without first having an opportunity to examine the entire record , it now appears after having made such an examination , that Van Pelt does possess sufficient mdicia of supervisory authority within the meaning of Section 2(11) of the Act to be found a supervisor responded that he had thrown his card away and did not have such information. The next week Sprengel was contacted by Victor Bobrowicz, business representative of the Union. Champeau had told Bobrowicz that Sprengel was interested in union organization. Sprengel supplied Bobrowicz with the names and addresses of the Respondent's other employees and mentioned to the other employees that he had been contacted by the union business agent and that they would hear from him. On the evening of May 15, 1968, Bobrowicz called Sprengel and said that he had been unable to contact some of the employees and asked if Sprengel would arrange a meeting. Sprengel said that he would mention it to the employees and they would meet about 11 o'clock at Lock's bar on May 18, 1968. Van Pelt was aware of this meeting and who attended. On May 18, 1968, Bobrowicz appeared at Lock's bar, at which time Sprengel, John Cain, James Gebler, and Joseph Binder signed cards. After all had left except Sprengel, Harold Boldt arrived and also signed a card. Thereafter, Bobrowicz visited the home of Ralph Champeau and Otto Wilke, each of whom signed union designation cards. Bobrowicz then journeyed to the home of Van Pelt in Fond du Lac. Among other things, Bobrowicz told Van Pelt that "other men had signed the cards." Van Pelt signed the card. Van Pelt testified that he had signed the union card because he wanted to "find out what the men were planning on doing and finding out what was going on with the men." He said, "when Bobrowicz came to me he had several other cards signed and I thought I would sign a card. I knew, or didn't know but assumed, that I wouldn't become a member of the union, but just out of my own curiosity or nosiness, I wanted to get involved." Sprengel was discharged on Monday, May 20, 1968, around 9:15 p.m. by a telephone communication from the younger Stayer. At 6:45 a.m. on May 20 Van Pelt had asked the younger Stayer "if he had heard any scuttlebutt about another union attempt to organize." Stayer answered in the negative. The younger Stayer testified that he "casually mentioned over breakfast" to his father the information which he had gained from Van Pelt. According to the elder Stayer, matters in connection with the discharge of Sprengel were also discussed. The younger Stayer confirmed that he had talked with his father about the discharge of Sprengel on Monday morning but he could not remember whether he talked to him about the discharge before or after he had talked to Van Pelt. At this time, according to young Stayer, the decision to fire Sprengel was "kind of up in the air." About 8:30 a.m., May 20, the elder Stayer approached employee Otto Wilke. Stayer asked him whether he was satisfied with his working conditions and his job. Wilke answered that he was "very disappointed" that he "had found out other people who had worked there a shorter `In making his findings of fact and conclusions of law the Trial Examiner has considered the demeanor of the various witnesses who appeared before him and has passed upon their credibility As to those witnesses who testified in contradiction to the Trial Examiner's findings, the Trial Examiner has discredited their testimony, either as having been in conflict with the testimony of credible witnesses or because it is in and of itself incredulous and unworthy of belief As to Van Pelt, the Trial Examiner is convinced that in his testimony he did not reveal all the information which was within his knowledge with respect to the information which was sought to be elicited from him The Trial Examiner was impressed that he was withholding information which well may have revealed the full purpose of his activities as well as the substance of the Respondent's pretextuous motives STAYER'S JOHNSONVILLE MEATS 697 time than [he] had were earning more money than [he] was." Stayer asked him how much he was earning. Wilke answered "$2 60." Stayer "seemed surprised" and said that Wilke was "going to get $2.80." It was the first time that Stayer had ever talked to Wilke about wages or had asked him whether he was dissatisfied with his job. Wilke received the increase in the following paycheck which was delivered on Tuesday, May 21. Around 9 or 9:15 a.m., May 20 the elder Stayer engaged Van Pelt in conversation. Stayer asked "what [he] had heard or seen around the plant." Van Pelt answered that he had "heard some talk." Stayer also asked "who was involved"; Van Pelt answered that as far as he knew "everybody was talking about it." Stayer walked away "shaking his head . . . in a negative attitude."' At the time the elder Stayer asked Van Pelt "who was involved," Van Pelt knew that "most of them [Respondent's employees]" had (including Sprengel) signed union cards.' Around 10 a.m., May 20, the younger Stayer "stopped" Van Pelt and according to Van Pelt said to him that "He and his Dad had decided to let Jack Sprengel go." Van Pelt asked him why and "he said it just was that he wasn't doing his job right, they were going to let him go." Stayer said, "They didn't need guys like him around the plant, he was too slow and not holding his end of the work up, or something to that effect." Van Pelt commented that he "hated to see experienced help go." Van Pelt further observed that he "thought it would be a mistake to let him go." Around 11:30 a m., May 20, the elder Stayer called Van Pelt up to the front end of the store. Stayer held a piece of paper with a list of classifications on it and wage rates which he said that he had secured from Herziger's Sausage Company in Sheboygan, a union employer. Stayer commented that "he felt the employee's at Johnsonville were getting very close to what Herziger's were and some of them were making more." During the conversation, according to Van Pelt, Stayer asked Van Pelt who started the Union. Van Pelt said that he did not know, to which Stayer replied "I think you do." This conversation lasted about 10 or 15 minutes. At 11:45 a.m., May 20, the elder Stayer called employee James Gebler "up front" where he showed him a list of the union scale from other Sheboygan County sausage companies. Stayer commented that he thought he was giving a fair wage in comparison. Gebbler responded that he did not think the scale was right because, at one time, he was thinking about leaving and going to Herziger's Sausage Company in Sheboygan and at that time the amount of money he was offered to start was about the same as he was getting now at Johnsonville, whereupon Stayer told him that he was going to give him a 20-cent raise "because he wanted [him] to stay there and he wanted to keep [him] happy out there, and he figured that [he] was doing a good job " Prior to this conversation, Gebler had never told Stayer that he had 'Van Pelt testified, "He asked me what I had heard or seen around the plant and I said I had heard talk and he wanted to know who was involved and I said as far as I knew everyone was." 'Van Pelt was asked whether he ever revealed the fact that he signed a union card to either one of the Stayers His answer was, "I don't think so Or did 19 Wait a minute I think I possibly did." On further questioning Van Pelt testified that his card signing was revealed to the Stayers within 2 weeks after May 20. Van Pelt said that he had never told the Stayers that he had not signed a union card Such testimony was contrary to that of the younger Stayer. intended quitting. Gebler added that he was thinking about going to Kohler's where he probably would have better benefits, to which Stayer responded that Gebler "should know they're working on a profit-sharing plan" and that "it would go into effect as of the first of the year." Gebler received the increase in the next paycheck. Shortly after "dinner" on May 20, 1968, the younger Stayer conversed with Ralph Champeau. Champeau was told that he was taking him off the chopper and that he was giving Jim Gebler the job because he was "more huskier" and that "he was going to give [him] a dime raise because he did not want to lose [him] and that there would be somebody in to talk about profit sharing." Champeau said that it had been over 2 years since he had mentioned that he might be leaving. At 2:30 p.m., May 20, the younger Stayer approached Van Pelt. Stayer informed Van Pelt that "Jack Sprengel was not going to be let go." He said, "We have decided not to let Jack Sprengel go." Van Pelt responded, "Well, good, we've got a busy season coming up and we can use all the help we can get." At 9:15 p.m,, May 20, the younger Stayer telephoned Sprengel and informed him of his discharge. After apologizing to him for calling, Stayer said that it would be unnecessary for him to come to work the following day. He mentioned that he was not satisfied with Sprengel's work and that "he had to make room for Bud Boldt." Apologizing again he said, "We'll pay you for the balance of the week. We would normally give you a week's notice." Sprengel told him that he knew why he was calling him. Stayer apologized again and said, "this is the way it would have to be." He said that he had not had time to talk to him about the discharge during the day. When Sprengel asked him why he was dissatisfied with him he said that "he had to make room for this old-time employee, that it would be necessary to let [him] go and he wouldn't be able to give [him] anymore money." On the morning of May 21; 1968, Van Pelt was informed by the younger Stayer that`Sprengel had been discharged. Van Pelt said it cameras "a surprise to [him] because the last [he] heard they were going to keep him." On the afternoon of May 21, 1968, the elder Stayer, without discussion on the subject,' informed Van Pelt that "Jim Gebler would be going on the chopper and would receive 15 cents or 20 cents an hour raise going on that job and after he had learned it he would receive another dime raise, after he learned how to do it." According to Van Pelt, Red Champeau, who was on the chopper, was given a dime raise "to kind of compensate him for taking him off." During the same conversation Stayer said that he "wasn't going to add to the plant on account of this thing."'" Approximately a week before the election employee Champeau was approached by the two Stayers. The younger Stayer asked "[w]hy [he] wanted the Union." Champeau said he "ignored him"; he "didn't want to be put on the spot." The elder Stayer, during the conversation, referred "to a fight for his job down at Milwaukee with a nigger for some reason. . . . a knife fight." Based upon the foregoing facts and an examination of the record as a whole," the Trial Examiner finds that the 'According to Van Pelt the normal practice had been for Stayer to have discussed wage raises with him before they were put into effect. "According to Van Pelt, some time prior to May 21 "Gebler's name had casually come up at that time as the man to put on there because we weren't too satisfied with the work of Ralph Champeau on the chopper " "There is no doubt in the Trial Examiner's mind that on May 20, 1968, 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following misconduct detailed above interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and was a violation of Section 8(a)(1) of the Act. 1. Ralph F. Stayer's inquiry of employee Otto Wilke on May 20, 1968, as to whether he was satisfied with his working conditions.' 2 2. Ralph F. Stayer's grant of a wage increase to employee Otto Wilke on May 20, 1968." 3. Ralph F. Stayer's grant of a wage increase to employee Gebler on May 20, 1968, and his representation to him in the context used that the profit-sharing plan would "go into effect as of the first of the year."" 4. Ralph F. Stayer's grant of a wage increase to employee Ralph Champeau on May 20, 1968.15 Third: In addition to the raises granted to employees Wilke, Gebler, and Champeau on May 20, 1968, other full-time employees, with the exception of Sprengel, received raises reflected in their paychecks delivered to them on May 21, 1968, for the pay period May 6, 1968, through May 18, 1968. Except for the three employees mentioned above the receipt of the checks was the first knowledge these employees had of the raise. The Respondent insists that it resolved upon the raises around May 6, 1968, after a discussion among the three Stayers. Van Pelt was not advised. In support of its assertion the Respondent produced Joan O. Mehak, an employee of Jung, Dippold and Cooper, who handled the Respondent's payroll account. Mehak testified that Monday, May 6, Mrs. Stayer informed her by telephone that "there would be a general round of increases." No specific employees were named. No record was made of the call. At that time Mehak had not computed the paychecks for a prior pay period which she did not compute until Tuesday morning. Thus, according to Mehak, she received a notification of pay increases which were not to be included in the paychecks which she was to prepare the next day. Specific wage increases were received by Mehak- on Tuesday morning, May 21, on a "sheet" together with the hours worked by each employee. Mehak explained that she remembered Mrs. Stayer's call "[b]ecause she just happened to call that day to tell me about the raises. She just doesn't ordinarily do that. She writes them on the sheet." The Trial Examiner is not impressed with Mehak' s explanation and is of the opinion that her memory was faulty on the subject. Her demeanor gave the impression of a confused witness. Moreover, Mrs. Stayer, who is alleged to have made the call, was not called by the Respondent for corroboration. The Trial the Respondent, including the Stayers, and Supervisor Van Pelt, knew the extent of the Union's organizational efforts. "The immediate granting of a wage increase in response to Wilke's answer to the question established the true purpose of Stayer's interrogation to have been the elicitation of information which would enable the Respondent to slip the velvet glove over the fist. See N.L R.B v. Exchange Parts Company, 375 U.S 405, 409. Such conduct was unlawful. See Phillips Industries, Incorporated, 172 NLRB No 232. "In N.L R. B. v. Bailey Company, 180 F.2d 278, 279 (C.A 6), the court said: "Interference is no less interference because it is accomplished through allurements rather than coercion." In N L.R.B. v. Douglas & Lomason Co., 333 F.2d 510, 514 (C.A 8), it was stated: " [I]nterference is, accomplished by allurements are as much as condemned by the Act as is coercion." See also NL.R.B. v Exchange Parts Company, supra. "The wage raise and the remarks of Stayer were clearly for the deliberate purpose of counteracting the Union's organizational campaign. "Such wage raise was also a deliberate attempt to induce Champeau to forego union affection. Examiner concludes that if the call were made at all, it was placed on Monday, May 20, rather than Monday, May 6. Such conclusion is buttressed by the elder Stayer's failure to mention a general wage raise in the offing when he raised the wages of Wilke, Gebler, and Champeau, and the fact that he registered "surprise" when Wilke told him he was making $2.60, which seems inconsistent with his claim that he had reviewed wages prior to May 6 for the purpose of granting raises. After giving raises to Wilke, Gebler, and Champeau, the purpose of which was to discourage union affection , it seems logical that the Respondent would have granted the additional wage increases for the same purpose and to offset any negative reaction on the part of other employees who would have received no raises. Moreover, the record is barren of any credible explanation as to why the general wage increase had not been discussed with Supervisor Van Pelt as in "other cases." Furthermore in comparing the Respondent's wage rates with Herziger's union wage rates the elder Stayer failed to mention any wage raises to Van Pelt at all; comparisons were made with current rates. Such facts further buttress the conclusion that the wage raise had not been determined prior to May 20, 1968. Indeed, if, as claimed by the Respondent, wage raises had already been instituted on May 6, 1968, and such wage increases had no reference to the current union campaign, the Respondent has shown no purpose in the elder Stayer's sudden interest in union wage rates. But the fact is that Stayer did manifest an interest in Herziger's union rates. Thus, it would appear that the wage raises by that time had not been determined and that Stayer's sudden interest in union rates was stimulated by his awareness of the employees' union activity. The Trial Examiner finds that these wage increases, initiated on May 20, 1968, and paid to employees on May 21, 1968, were for the purpose of counteracting the Union's organizational campaign and interfering with the right of employees to freely choose a bargaining representative and were calculated to discourage employees from further engaging in union activities. By such misconduct the Respondent violated Section 8(a)(1) of the Act. Fourth: The Respondent claims that employee Sprengel was discharged for cause and not in violation of Section 8(a)(3) of the Act. "It is true of course, that `Management can [still] discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: It may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids.' "'b As the cause or causes for Sprengel's discharge young Stayer told him, at the time of his discharge, that the Respondent was dissatisfied with his work and it "had to make room for Bud Boldt," and "old-time employee."" As to the latter cause, while part-time employee Harold Boldt did appear for work on May 21 full time, he was not scheduled to commence working full time until May "N L.R.B v Transport Clearings , Inc., 311 F.2d 519, 523 (C.A. 5). "The elder Stayer corroborated: Q. (By Mr. Kastrul) Mr. Stayer, there's no question in your mad that the chief reason your son let Mr Sprengel go was his work record, wasn't it) A. Yes, and the fact that we had another man coming in. STAYER'S JOHNSONVILLE MEATS 699 2718 and then he had not been scheduled to take Sprengel's place.]' In fact in its brief to the Trial Examiner the Respondent does not rely upon this cause at all but asserts at page 14, "Mr. Stayer's reason for termination was because Sprengel was not capable, and was not up to the work that was involved at the plant." And at page 2, "This employee was terminated because of several errors he had made during his employment and also because the company felt he was incapable of handling this type of work." Thus, there neither being a credible basis nor an argument advanced for the validity of the latter cause, the Trial Examiner must find that the use of such cause as a reason for the discharge of Sprengel was pretextuous. In respect to the first cause the Respondent states in its brief, "The termination was the result of a culmination of many things. Sprengel made a mistake in weighing some bologna. The mistake, if not caught, would have cost the Respondent money. The mistake involved putting the wrong weights on the scale. This was the `straw that broke the camel's back.' "2D Other specifications cited in the Respondent's brief were Sprengel's "incapability" with regard to stuffing summer-sausage properly in the stuffer2l and the fact that he "couldn't tie the sausage properly." States the Respondent, "This man was just plain incapable, which is surely sufficient reason to get rid of an employee." This claim is, of course, at odds with Van Pelt's remarks on May 20th made to the younger Stayer when Stayer informed Van Pelt he was going to discharge Sprengel because "they didn't need guys like him around the plant, he was too slow and not holding his end of the work up," i.e , "I hate to see experienced help go," and "I thought it would be a mistake to let him go," and Van Pelt's remarks when the younger Stayer later advised him that Sprengel was "not going to be let go," i.e., "Well, good, we've got a busy season coming up and we can use all the help we can get." Moreover, in October 1967 the younger Stayer commented to Van Pelt "for a man [Sprengel's] age he was doing a fairly good job." In late April or early May Van Pelt heard young Stayer telling his father that Sprengel was "doing O.K." Sprengel had been given two raises while working for the Respondent. However, even though the Respondent were to prove a justifiable ground for its discharge of Sprengel, a Q. But the real reason was his work record , wasn't it9 A Yes, and the fact that we had this replacement "The elder Stayer testified, Q And when you suddenly learned Mr. Sprengel was fired on the 20th you decided to have Boldt come sooner? A Yes. "Van Pelt testified. Q. Now, was Jack Sprengel replaced by anybody? A. No. Q. Did another man come to work right after Jack Sprengel was terminated? In other words, did Bud Boldt come to work full -time right after that'? A. Yes, but he was hired prior to that "Employee Champead was also involved in the bologna incident The credible record casts doubt as to whether the blame for such incident should have been attributed to Sprengel or Champeau or both While the incident was cited by the younger Stayer as "one of the basic or biggest reasons why [Sprengel] was fired," Champeau was retained and although on May 20, 1968 , he was removed from the chopper as an unsatisfactory employee he was given a raise "According to the younger Stayer for the "last month or two, " Sprengel did not pack the sausage "down tight enough" to "get the air out." "justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N.L.R.B v. Solo Cup Company, 237 F.2d 521, 524 (C.A. 8).22 The Trial Examiner is convinced that the "real motive"23 of the Respondent in discharging Sprengel on May 20, 1968, was to discourage membership in the Union and to interfere with employees' "right to self-organization" and "to form or assist labor organizations." Controlling factors in this regard are: (1) The coincidence of the Union's organizational activities and the Respondent's antiunion campaign. " (2) Respondent's knowledge of Sprengel's union advocacy.21 (3) The precipitous nature of Sprengel's dischage at the beginning of a new workweek.21 (4) The variance in the reasons given by each Stayer for Sprengel's discharge .21 (5) The termination occurred in the "The "mere existence of valid ground for discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity " N.L R B v Symons Manufacturing Co., 328 F.2d 835, 837 (C A 7). In the case of N L.R B. v. Whitin Machine Works, 204 F 2d 883, 885 (C A 1), it was said , "Although the discharge of an inefficient or insubordinate union member or organizer is lawful, it may become discriminatory if other circumstances reasonably indicate that the Union activity weighed more heavily in the decision to fire him than dissatisfaction with his performance Motivation is an elusive fact. ." "The Supreme Court has said in Local 357, International Brotherhood of Teamsters [Los Angeles Seattle Motor Express] v N.L R B , 365 U.S. 667, 675, "It is the `true purpose' or `real motive' in hiring or firing that consitutes the test " P4As noted above immediately upon the Respondent's learning of its employees' union affection it engaged in activities (by granting benefits), which had a tendency to interfere with the freedom of choice guaranteed to its employees by the Act "Both of the Stayers knew of Sprengel's prior association with a union as a steward Supervisor Van Pelt was aware of Sprengel's union interests and had informed the elder Stayer that "everyone" was involved Considering the size of the plant, Van Pelt's knowledge of the card signers, the elder Stayer's interrogation of Van Pelt, and the frequency of Stayers' presence in the plant , it is incongruous to conclude that Respondent did not have knowledge of Sprengel's union activities and affection As the Supreme Court said in N L R.B v Walton Mfg Co , 369 U.S. 404, 408. For the demeanor of a witness . may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance , or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies . Dyer v. McDougall, 201 F 2d 265, 269 [Emphasis supplied ] "Sprengel had not been warned of his discharge The elder Stayer testified that they knew of nothing that had occurred at work on May 20 which would have caused Respondent to have discharged Sprengel (The elder Stayer testified: Q. You know of no incident that happened on May 20 that prompted the firing that particular day? A No) The elder Stayer testified that it was "a little unusual" to have let Sprengel go after the first day of a new week. The younger Stayer told Sprengel that the Respondent "normally" gave a "week's notice ." The alleged "straw [the bologna incident] that broke the camel's back" did not occur on May 20, 1968 Moreover , the Respondent has advanced no credible explanation as to why Sprengel was discharged abruptly at 9:15 p.m. on May 20, 1968 , in contradiction to its usual practice. "The elder Stayer testified- Q. This was just a firing that took place, that your son decided to make based upon his past record? A. Right, plus the fact we were having a new man coming in and we didn' t have a new man available before. * * * * * This is one of the reasons, yes, I let [Sprengel] go, because he was a man [Boldt] who had worked for me 15 years and I felt he should be given an opportunity to work full time ..° [Emphasis supplied.] The younger Stayer testified: 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD midst of Respondent's busiest season although according to the elder Stayer it was "hard to get people to come out to work at Johnsville," and a replacement for Sprengel had not been secured.28 (6) The Respondent failed to provide Sprengel with any specifics as to why' Respondent was dissatisfied with his work. (7) The absence of any consultation with or recommendation by Spengel's immediate supervisor in respect to his discharge. (8) The indecision on the part of the younger Stayer.29 (9) Conflicts in the testimony of the two Stayers in respect to the discharge of Sprengel.'° (10) The elder Stayer's evasion of questions concerning the discharge of Spengel." The elder Stayer impliedly revealed the discriminatory purpose for which Sprengel was discharged when he testified, "He [Sprengel] just didn't fit in our picture." The Respondent's picture, as depicted by the credible evidence in the record, did not encompass union advocacy. The Trial Examiner finds that by the discharge of employee Sprengel the Respondent violated Section 8(a)(3) of the Act. Q (By Mr Bard) What was your reason for terminating Mr Sprengel' A He was incapable and he wasn't working up to our expectations Q Any other reason' A No '*Boldt, a part-time employee of Respondent , was scheduled to start work on May 27, 1968 His full-time employment was not contemplated to replace Sprengel's employment. "Stayer, on May 20, 1968, first told Van Pelt that Sprengel was discharged; later he said that Sprengel was not discharged ; still later in the same day he discharged Sprengel '"The younger Stayer testified that the bologna incident occurred May 15, 1968, the elder Stayer testified that it took place "sometime in March or possibly April " Both claim to have been present The elder Stayer testified. A It's up to Ralph; if you want to fire him, fire him Q. So you left the decision up to him9 A- Right Later Stayer testified. Q. . Would your son be better able to tell us about this thing9 A I don't think so Q Well, isn't he the one who made the decision to terminate him9 A We both made the decision The elder Stayer was asked whether Van Pelt had lodged complaints against Sprengel; he answered, "He said, he didn't perform his job, he wasn't - well, it hard for me to say exactly " TRIAL EXAMINER : What did Van Pelt say to you? THE WrrNESS . Van Pelt talked to my son more than he talked to me about it TRIAL EXAMINER : Did he ever talk to you about it? THE WITNESS . I can't say for sure " Q When did you first notice, Mr. Stayer , or first hear that Mr. Sprengel wasn't holding up his end of the job9 A. I couldn't answer that question. when * * * * * Q Did you leave knowing your son was going to fire him' A I don't recall * * * * * Q. (By Mr Kastrul) Your son made the decision mostly himself. Do you still stick to that' You still stick to that answer you gave previously, is that correct? A. Yes Q And when you left the morning of May 20 , actually you didn't know for sure whether your son was going to fire him? A I can' t answer that question * * * * * Q When you spoke with your son concerning the work record of Fifth: As noted above , one of the purposes of the incorporation of the Respondent was to make possible some type of profit-sharing plan for the Respondent's employees Some of the Respondent ' s employees had been informed, prior to May 20, 1968, that the Employer was thinking about a profit-sharing plan but neither the details of the plan nor date of its institution had been definitely revealed . 31 In fact, according to Respondent' s attorney Hayes, drafting of the plan had not been commenced until around the middle of August 1968." Prior to the election on June 27, 1968, the Respondent conducted three meetings of its employees, the last one 2 days before the election. At these meetings the elder Stayer informed the employees that it had a profit-sharing plan for its employees which would be retroactive to the first of the year 34 The profit-sharing plan was also mentioned by the elder Stayer in the Respondent's letter to its employees dated June 21, 1968 "I also told you about our profit sharing plan which has been in the works since the first of the year, and which I think would be worth much more to you than any pension plan the Union could come up with. In fact, the profit-sharing plan was practically set to go, but when this union matter came up it tied our hands."35 The letter ended "give me a chance to prove to you that I mean what I say and, of course, if I don't do these things [profit sharing among others] you can always get a union later. But remember, once a union gets in , it's almost impossible Sprengel, was Van Pelt present on that Monday morning' A. I can't recall A. Well I wasn't there when the firing took place. Q It took you by surprise' A I don't know if it took me by surprise or not . It didn't take me by surprise. I knew he was going to go "Such state of the profit-sharing plan appears to be corroborated by the elder Stayer's letter to Respondent's employees dated June 21, 1968, in which, after referring to the profit- sharing plan, the elder Stayer wrote. "You may wonder why I am telling you all this now. I admit I was wrong by not telling you about some of these things that were in process before . ." (Emphasis supplied ) "Hayes testified Early in the month of May of this year , I suggested we perhaps should get busy on the drafting of a document. The reasons given back in January at the inception of this corporation and again in May by me were not to be quite so impatient because they had to determine what their profit picture was going to be , bearing in mind that the predecessor was a partnership and it had been divided into two separate corporations We wanted to wait as long as possible within this first fiscal year to be able to determine what formula could be used for the profit-sharing plan So, no actual drafting of a document was commenced by me until most recently. 'Employee Gebler testified , "he said you all know that we have a profit-sharing plan for you that we've been working on for quite a while, and whenever we get it going, it will go into effect as of the first of the year " Employee Champeau testified, "It was mentioned that we were getting profit-sharing. . . It would go back to the first of the year " "The natural effect of the above language ("the profit-sharing plan was practically set to go, but when this union matter came up it tied our hands") was to convince employees that had it not been for the Union the profit-sharing plan would have been implemented and that the Union was unnecessary for employees to have received such benefits from the Respondent. Moreover, by shifting the onus for not implementing the profit-sharing plan, the Respondent sought to disparage and undermine the Union by carrying the impression that the Union stood in the way of the STAYER'S JOHNSONVILLE MEATS 701 to get it out. Again I am asking as I did in my talk with you, vote for yourself and the Company on the 27th. Vote No." That the Respondent intended its mention of profit sharing in the context used to be an inducement for employees to vote for "the Company on the 27th" and against the Union is clear cut from the language used in the letter. As bait the Respondent wrote that the profit-sharing plan "would be worth much more to [employees] than any pension plan the Union could come up with" and "if I don't do these things you can always get a union later." Thus it is trenchant that the Respondent seized upon a machinated tactic, unlawful in nature, to avoid its being confronted with the obligation to bargain with the Union as the majority representative of its employees and sought thereby to completely annihilate union sympathy among its employees. By timing the announcement in respect to the profit-sharing plan during an election campaign the Respondent interfered with, restrained, and coerced employees in respect to their rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. See N.L.R.B. v. Exchange Parts Co., supra. Such announcement was calculated to interfere with free choice of employees participating in a representation election. United States Railway Equipment Company, 172 NLRB No. 51. Sixth- The interrogation of employee Champeau approximately a week before the election as to "[W]hy he wanted the union," constituted coercive interrogation and was in violation of Section 8(a)(1) of the Act. Phillips Industries, Incorporated, 172 NLRB No. 232, Brandenburg Telephone Company, 164 NLRB No. 26. In a plant with a complement of nine employees, unlawful interrogation of a single employee can not be considered an isolated incident because the odds are prevailingly favorable that, in such a small establishment, the vote and influence of such employee may be a determinative factor in the election. Seventh: As noted above, on May 20, 1968, the Union had in its possession valid authorization cards signed by a substantial majority of the Respondent's employees in the appropriate unit. On May 20, 1968, this fact became known to the Respondent 16 whereupon the Respondent immediately commenced the commission of unfair labor practices which continued until the last employee meeting 2 days before the election. Indeed, by the day's end, out of a unit of nine, of the seven who had signed authorization cards, the Respondent had granted unlawful wage increases to three and discriminatorily discharged a fourth. If these tactics were as effective as their tendency would indicate, the Respondent, by its unfair labor practices, had already by the end of the day destroyed the Union's majority status. Thus if the Respondent harbored employees getting profit sharing Thus, the Respondent held out to the employees a benefit they would be receiving but for the Union and which would be received if the Union were rejected The foregoing coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and was in violation of Section 8(a)(1) of the Act . American Paper Supply Company, 159 NLRB 1243. a doubt as to the Union's majority status (which it did not express) when it responded to the Union's demand on May 23, 1968, it could not have been a good-faith doubt. A good-faith doubt as to the Union's majority status may not be bottomed upon a loss of majority which results from the unlawful activities of the employer. Cf. Medo Photo Supply Corporation v. N.L.R B., 321 U.S. 678, 687; Franks Bros. Co. v. N.L.R.B., 321 U.S. 702." The Board has said that the test for good-faith doubt is "whether the employer has engaged in substantial unfair labor practices calculated to dissipate union support." The Respondent unlawfully granted employee benefits,38 interrogated employees about union matters, instituted a profit-sharing plan and discharged an employee for the purpose of discouraging union activities.39 This misconduct was of a kind which must have necessarily had as its objective the destruction of the Union's majority. The discharge of a known union adherent, especially in a small plant, is a powerful deterrent against union affection. The Employer's misconduct detailed above, destroyed the atmosphere in which the Respondent's employees could register a free choice for a bargaining representative and was calculated to induce employees to forego union adherence and cast their ballots against the Union. Thus it is patent that the Respondent's failure to accord recognition to the Union was not inspired by a good-faith doubt" but was advanced in bad faith The Trial Examiner is persuaded that the Respondent had completely rejected the collective-bargaining principle by its direct dealing with its employees and that it refused to recognize the Union in order to utilize additional time in which to profit by its unfair labor practices and to undermine the Union, further dissipate its majority and deter it from gaining additional strength It is "idle to speak of good faith in an atmosphere of unlawfulness" Priced-Less Discount Foods, Inc., d/b/a Payless, 157 NLRB 1147. " . the Board may properly decline to consider good faith as a defense to a section 8(a)(5) "Supervisor Van Pelt who signed a card "to find out what the men were planning" testified that he knew "most or' the employees had signed authorization cards by May 20, 1968 The Trial Examiner cannot believe that this information had not been imparted to the elder Stayer who interrogated Van Pelt on the subject on May 20, 1968 Any testimony to the contrary is discredited. In reaching this conclusion , among other things, consideration has been given to the younger Stayer's testimony, "I'd heard some scuttlebutt that everybody except John Bersch signed a card," Van Pelt's admission that he had told the elder Stayer that "everyone" was involved and the demeanor of the witnesses "In no event can the employer discredit a duly designated bargaining agent by refusing to bargain with it and then avail himself of the bargaining agent's loss of majority which has thus been brought about by the employer's own conduct. N L.R B v George P Pilling & Son Co , 119 F.2d 32, 39 (C.A 3) ""The changes inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove Employees are not likely to miss the inference that the source of benefits now conferred must flow and may dry up if it's not obliged." N L R B v. Exchange Parts Co., supra. ""Obviously the discharge of a leading union advocate is a most effective method of undermining union organizational effect ." N L R B v Longhorn Transfer Service, 346 F.2d 1003 (C A 5). "Respondent contends : "Something else to raise doubt in the Respondent's mind is the fact that in 1966 a petition had been filed by the same union, but withdrawn before the election . If this happened once, it could happen again ." This contention does not take into account that the prior organizational campaign petered out when employees were given better insurance, and "the auditor went through the books and the law and said now they had to pay time-and-a half " At that time there were also rumors that there would be no building expansion if the employees wanted a union . This contention rather than supporting the Respondent's good faith emphasizes its lack of good faith 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge when the employer has exercised manifest bad faith in its other responses to the same attempt at unionization ." N.L.R.B. v Primrose Super Market of Salem , Inc., 353 F.2d 675, 676 (C.A. 1). In view of the Respondent' s unfair labor practices as found above , and its refusal to recognize and bargain with the Union motivated not by good -faith doubt of the Union' s majority but by a rejection of the collective-bargaining principle and by a desire to gain time in which to further destroy the Union ' s majority status, the Respondent violated Section 8 (a)(5) and ( 1) of the Act. Webb Tractor and Equipment Company, 167 NLRB No. 46; Hammond & Irving, Incorporated, 154 NLRB 1071; Fabricators, Incorporated , 168 NLRB No. 21. The General Counsel further maintains that "the imposition of a bargaining order in the case need not rest on the Respondent's 8(a)(5 ) conduct alone." The Trial Examiner agrees, for even had the Trial Examiner not found a violation of Section 8(a)(5) of the Act he would, nonetheless, find that a bargaining order is required to effectuate the statutory purpose in this case . The Union possessed a majority status of which the Respondent had knowledge and the Respondent engaged in unlawful conduct which prevented a fair election free of coercion. The Respondent thus evidenced an intent to delay recognition for the purpose of dissipating and undermining the Union's majority status and it employed its unfair labor practices for such purpose. Thus a bargaining order is necessary as a proper remedy to preserve the status quo ante, and to prevent Respondent from benefiting from its own unlawful conduct in violation of Section 8(a)(1) and (3) of the Act. See Oleson's Foods No. 4, Inc., 167 NLRB No. 69 ; Priced-Less Discount Foods, Inc., d/b/a Payless, supra. Cf. N.L.R.B. v. The Richman Brothers Company, 387 F.2d 309 (C.A. 7). Since "[c]onduct violative of Section 8(a)(1) is afortiori conduct which interferes with the exercise of a free and untrammeled choice in an election " (Dal-Tex Optical Company, Inc , 137 NLRB 1782, 1789), the representation election which was conducted on June 27, 1968, must be set aside and held for naught. Eight: A 10-cent wage increase was given to employee Gebler in July and according to the Respondent 's records Boldt, Champeau , and Wilke received additional wage increases after the month of May without prior notice to or bargaining with the Union . The General Counsel cites these actions as additional violations of Section 8(a)(1) and (5 ) of the Act. Since it has been found that on May 20, 1968, the Union was designated as the bargaining representative of the Respondent's employees within the meaning of the Act and that the Respondent thereafter became obligated to bargain with the Union on its demand , the Respondent's unilateral actions above described breached its obligation to bargain with the Union and was in violation of Section 8(a)(1) and (5) of the Act . Jefferson Wire and Cable Corp., 159 NLRB 1384. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations 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 RECOMMENDED REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully discharged John Sprengel on May 20, 1968, and thereby violated Section 8(a)(3) and (1) of the Act it is recommended that the Respondent remedy such unlawful conduct. It is recommended that Respondent offer to John Sprengel immediate and full reinstatement to his former or substantially equivalent position and without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to the amount he would have earned from the day of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716. It having been further found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act the Trial Examiner recommends that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement As noted above the Employer granted certain benefits to its employees for the purpose of discouraging their free participation in union activities protected by the Act, and to induce them to forego any union affection. This misconduct was further compounded by the failure of the Employer to bargain collectively with the Union in conformity with Section 8(a)(5) of the Act as it was required to do. For its impertinent and derelict conduct a remedy is in order, for as each day passes, the employees, recipients of benefits bestowed as a dissuassive union factor, are reminded of "the suggestion of the fist inside the velvet glove" and the palatableness of the rewards which will continue to flow if the employees persist in their rejection of the Union and the Employer is permitted to continue its rejection of the principles of collective bargaining. Under these circumstances if a realistic remedy is to be imposed the continuing coercive effect of this misconduct must be stopped and the practices and procedures of collective bargaining accomodated. It appears self-evident that this can only be accomplished by establishing the status quo ante Cf. Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 963; N.L R.B. v. Armco Drainage & Metal Products, Inc., 220 F.2d 573 (C.A. 6); Piasecki Aircraft Corporation v. N L.R B., 280 F 2d 575, 591 (C.A. 3). Thus the Trial Examiner recommends that the rates of pay, wages, hours of employment, and other conditions of employment as of May 20, 1968, for employees in the appropriate unit be restored as of the date that the Recommended Order herein becomes effective. Such restoration means the discontinuance of any changes in rates of pay, wages, hours of employment, and other conditions of employment which have taken place since May 20, 1968, and thereafter including the discontinuance of the Employer's profit-sharing plan. Such restored rates of pay, wages, STAYER'S JOHNSONVILLE MEATS 703 hours of employment, and other conditions of employment shall continue in effect for employees in the appropriate unit until such time as the Union and the Respondent have reached agreement thereto or until such time as a lawful impasse is reached. Thus the employees shall have returned to them their right to bargain through their designated representative in respect to those matters upon which the Employer unilaterally acted unlawfully and the Union shall have had an opportunity to bargain for benefits which were granted by the Employer not only as a Union deterrent but as a gambit for depriving the Union of any credit which would accrue to it through bargaining collectively for the employees . In this manner both the Union's prestige and its usefulness as a bargaining instrumentality which were diminished by the Employer's tactics may be in part compensated . Any inconvenience that may result is clearly the fault of the Respondent and not of the Union. The Trial Examiner is of the further opinion that the remedy proposed in Ex-Cell-O Corporation, Case 25-CA-2377, by Trial Examiner Owsley Vose is appropriate in this case as recommended by the Trial Examiner in The Boraca Corporation , Cases 24-CA-2306, 24-RC-2998 (Appendix A). The remedy herein recommended will effectuate the purposes of the Act and will dissipate , in part, the effects of the Employer's unfair labor practices and will deter a repetition thereof. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging John Sprengel on May 20, 1968, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. 5. By the commission of unfair labor practices the Respondent unlawfully interfered with the representation election conducted on June 27, 1966. 6. All production and maintenance employees, including truckdrivers employed at the Employer's Johnsonville, Wisconsin, location, but excluding office clerical employees, salesmen, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. 7. By refusing on and since May 20, 1968, to bargain with the Union as the exclusive bargaining agent of the employees in the appropriate unit the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the Respondent, Stayer's Johnsonville Meats, Inc , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Putting into effect or promising economic benefits to discourage employees from joining or supporting Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, or any other labor organization. (b) Discouraging membership in Meat & Allied Food Workers Union, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, or any other labor organization, by discriminatorily discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (c) Coercively interrogating employees in regard to their union membership and sympathies or activities. (d) Refusing to recognize and bargain collectively with Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, as the exclusive representative of the employees in the appropriate unit. (e) In any like or similar manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Meat & Allied Food Workers, Local 248, AFL-CIO, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, or any other labor organization to bargain collectively through representatives of their own choosing, and 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 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer John Sprengel immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Notify John Sprengel if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole John Sprengel for any loss of pay that he may have suffered by reason of Respondent's discrimination against him in accordance with the recommendations set forth in The Recommended Remedy" herein. (d) Comply fully with the recommendations set forth in the section of this decision entitled "The Recommended Remedy." (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) Upon request bargain collectively with the above-named Union as the exclusive representative of the employees in the unit set forth above with respect to rates 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of pay, wages, hours of employment, and other conditons of employment, and if an understanding is reached embody the same in an agreement. (g) Post at its Johnsonville, Wisconsin, plant copies of the attached notice marked "Appendix B "41 [Board's Appendix substituted for Trial Examiner's.] Copies of said notice,' on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by, it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.42 IT IS FURTHER RECOMMENDED that the election held on June 27, 1968, be vacated and set aside and that the petition in Case 30-RC-677 be dismissed. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in the Decision. APPENDIX A (The Boraca Corporation, Cases 24-CA-2306 and 24-RC-2998) V. THE RECOMMENDED REMEDY Having found that the Respondent hits engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, the Trial Examiner recommends that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and , if an understanding is reached, embody such understanding in a signed agreement. The natural and foreseeable consequences43 of the Respondent's misconduct detailed above was to deprive the Union of a free opportunity to increase and retain its membership by legitimate organizational activity and to participate in a free and uncoerced election; to reduce the Union's bargaining strength; to undermine its effectiveness as a bargaining agent; to imperil its prestige; and to deprive it of the fair fruits of collective bargaining which would have enured to the Respondent's employees except for the Respondent's misconduct These consequences are clearly of a kind which thwart the purposes of the Act. The Respondent ny its unfair labor practices has virtually nullified the collective strength generated through the employees' choice of collective action. The Respondent ' 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." 411n 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 " `1A] man is held to intend the foreseeable " consequences of his misconduct " Radio Officers' Union [A H. Bull Steamship Co f v. N L R B , 347 U.S. 17, 45. by its misconduct has dissipated bargaining power of the c ollective- bargain mg agent' which the Act anticipates will follow as a means of accommodating the "inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership associations" when they select an exclusive collective-bargaining agent Without the strength derived from employee support, a collective-bargaining agent's attempt to participate in collective bargaining is an exercise in futility, a-condition which the Employer herein sought to effect. Such impotent state was well illustrated by the testimony of witness Mario Enrique Vega when he was asked on cross-examination, "What did they tell you in school about unions?" He replied ". . . that it helps a laborer a lot - they gave us an example of a stick and they broke it and they put a lot together and tried to break them but they could not . . . ." An appropriate remedy contemplates that the sticks here broken be given a fair chance to be repaired and that their collective strength be restored. In International Union of Electrical, Radio and Machine Workers, Local 613, AFL-CIO [Erie Resistor Corp.] v. N L.R.B., 328 F.2d 723, 727 (C.A. 3), the court opined- An employer who pursues a course of conduct later determined to be an unfair labor practice does so at his peril . . . it would be inequitable to require them [the employees] to absorb pay losses ascribable to the unfair labor practice of the Company. Hence it is inequitable to require employees to absorb pay losses caused by the unlawful dissipation of the Union's bargaining strength and the loss of the Union's effectiveness as a bargaining agent resulting from the Employer's unfair labor practices. It follows, therefore, that the economnc advantage which enures to the employer by reason of unfair labor practices under these circumstances takes on the aspect of an unjustenrichment.d4 An appropriate remedy which will effectuate the policies of the Act is deemed to require the restoration of the status quo which the Union would have enjoyed except for the Employer's misconduct, for a failure to restore the status quo "allows the employer to retain the fruits of its unfair labor practices." Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 963. See also N.L.R. B. v. Arrnco Drainage & Metal Products, Inc., 220 F.2d 573 (C.A 6); Piasecki Aircraft Corporation v. N.L.R.B., 280 ]F.2d 575, 591 (C.A. 3), cert. denied 364 U.S. 933. The fruits or the economic advantage which the Employer has gained and will gain, if any, in the instant case through its misconduct are the fruits the employees would have reasonably gained through the Union as their bargaining agent. Thus if the recommended remedy is to obtain that which shall effectuate the policies of the Act, the recommended remedy must accomodate the employees for the fruits of collective bargaining which they have been denied. Where there had been a refusal to bargain Trial Examiner Owsley Vose in Ex-Cell-O Corporation (Case 25-CA-2377, TXD-80-67) recommended that the employer's employees be compensated "for the monetary "In Herrmann v. Gleason, 126 F 2d 936, 940 (C.A. 6), the court said "A person is enriched if he has received a benefit; and when he has been unjustly enriched at the expense of another, he is required to make restitution." TIIDEE PRODUCTS 705 value of the minimum additional benefits, if any, including wages, which is reasonable to conclude that the Union would have been able to obtain through collective bargaining with the Respondent, for the period commencing with the Respondent's fprmal refusal to bargain collectively . . . and continuing until paid." Such recommended remedy seems ultimately fair and reasonable under the circumstances of this case4' and is recommended by the Trial Examiner. The compensation shall be computed on a quarterly basis and shall bear interest at 6 percent per annum, computed quarterly. In that the Act envisions that industrial disputes may be best settled by collective bargaining in good faith between the parties and is dedicated to the encouragement of the practices and procedures of collective bargaining, and, since the minimum additional benefits, if any, which it is reasonable to conclude that the Union would have obtained through collective bargaining with the Respondent may be subject to future controversy, it is recommended that the subject matter relating to minimum additional benefits be referred to collective bargaining between the parties. In this connection the Respondent will be deemed to have complied with this recommended remedy when the Respondent, in good faith, makes a reasonable offer, in which due consideration is given to the minimum additional benefits, if any. If dispute arises as to the reasonableness of the offer, it is recommended that it be resolved in the compliance stage of this proceeding. Failing in such offer the Respondent shall be held to adhere to the strict terms of this recommended remedy. The purpose of the recommended remedy is to compensate for the loss of the individual worker's bargaining power which obtained to him by reason of his collective association and was rendered impotent by the Respondent's unfair labor practices. As noted above, collective bargaining after employee support has been unlawfully dissipated is an exercise in futility. Under such circumstances the remaining "sticks" if any are easily broken. By its unfair labor practices the Respondent deprived its employees of the means of dealing with their employer with a measure of equality, discouraged collective bargaining, and rendered impotent their resort to collective action. This was wrong for "the avowed and interrelated purposes of the Act are to encourage collective bargaining and to remedy the individual worker's inequality of bargaining power...." N.L.R.B. v. Hearst Publications, Incorporated, 322 U.S. 111, 126. The remedy herein recommended corrects in part that wrong and gives vitality to the right. It serves to effectuate the purposes of the Act which was the intent of Congress. Drawn to deal substantially with substantial things, the National Labor Relations Act has been from the beginning, it must continue to be, consistently with its avowed purpose and the language employed in the Act, broadly construed and as broadly given effect to cope with and prevent the mischiefs it was designed to meet and do away with. N.L.R B. v. Metallic Building Company, 204 F.2d 826, 828 (C.A. 5), cert. denied 347 U.S. 911. 'Of significance is the court's observation in N.L R B v Southbridge Sheet Metal Works, Inc.. 380 F 2d at 856. "the cynic may well observe that respondent's tactics have successfully held off collective bargaining for at least three years." Tiidee Products, Inc. and International Union of Electrical, Radio & Machine Workers, AFL-CIO-CIC.i Cases 9-CA-4440, 9-CA-4488, 9=CA-4536, and 9-CA-4563 February 24, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 28, 1968, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled cases, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Union and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, 2 as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent Tiidee Products, Inc., Dayton, Ohio, its officers, 'The Union has requested that the initials "CLC" be included in the designation of its affiliation . In the absence of objections, we grant its request 'The Respondent filed a motion to reopen and consolidate these cases with Cases 9-CA-4618, 9-CA-4639-2, and 9-CA-4710 We have considered the Respondent's motion and , finding no merit therein, hereby deny it. As for the Respondent's contention of bias and prejudice on the part of the Trial Examiner, we have reviewed the record and find the contention without merit. We find it unnecessary to pass upon the Charging Party's request that we make certain additional 8(aXl) findings Such findings, if made, would be cumulative in nature and would not affect the scope of our Order and Remedy herein because we have already provided a broad cease and desist order protecting all of the employees' Section 7 rights. 'The second paragraph of the "Appendix" attached to the Trial Examiner's Decision is hereby amended to read as follows "This notice is posted pursuant to an order of the National Labor Relations Board issued after a Trial in which both sides had an opportunity to present evidence and arguments. The Board found that we violated the National Labor Relations Act and has ordered us to inform our employees of their rights." 174 NLRB No. 103