American Beef Packers, Inc.

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Beef Packers, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 641, AFL-CIO and A. L. Morgan Union, Local No. 3, Party In Interest American Beef Packers, Inc. and International Union of Operating Engineers, Local No. 1, AFL-CIO and A. L. Morgan Union, Local No . 3, Party in Interest. Case 27-CA-2534 and 27-CA-2534-2 June 3, 1969 DECISION AND ORDER Bti' MEMBERS FANNING, BROWN, AND ZAGORIA On January 22, 1969, Trial Examiner George H. O'Brien issued his Decision in the above -entitled proceeding, 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 Respondent and the Party in Interest filed exceptions to the Decision and supporting briefs, and the General Counsel and one of the Charging Parties, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, filed cross-exceptions to the 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 this case 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 the case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner , with the following modification.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein , and orders that the Respondent, American Beef Packers, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: ,in ordering that the Respondent reunburse employees for monies withheld pursuant to checkoff authorizations , we find it unnessary to consider the Trial Examiner's additional reason that the Respondent is prohibited by sec. 302 from honoring checkoff authorizations which are by their terms irrevocable. absent a valid collective-bargaining agreement. Delete the words "or to permit" from paragraph l(c) of the Trial Examiner's Recommended Order.' e wo ids "or permit" also appear in the second paragraph of the Remedy section of the Trial Examiner 's Decision , and are unnecessary, as we find no reason in this case to depart from our customary language. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. 0 BRIEN, Trial Examiner: On October 29, 1968, a hearing was held in the above entitled matter in the Morgan County Courthouse, Fort Morgan, Colorado, at which all parties appeared and participated. The consolidated complaint issued by the Regional Director, Region 27 of the National Labor Relations Board on August 14, 1968,' is based upon a charge filed by Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 641, AFL-CIO on July 9, 1968, and upon a charge filed by International Union of Operating Engineers, Local No. 1, AFL-CIO on July 10, 1968, alleges violations of Section 8(a)(1) and (2) of the National Labor Relations Act, as amended. The gravamen of the complaint is that Respondent accorded exclusive recognition to and entered into a collective-bargaining agreement with A. L. Morgan Union Local No. 3 at a time when A. L. Morgan Union Local No. 3 did not represent an uncoerced majority of Respondent's employees in an appropriate unit. Upon the entire record in this case, including my observation of the witnesses while testifying under oath, and after due consideration of the briefs' filed by counsel for the General Counsel, and counsel for the Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT American Beef Packers, Inc., herein called Respondent, is an Iowa corporation engaged in the business of the slaughter, processing, and sale of meat and meat products. It maintains its principal office and place of business at Oakland, Iowa and also operates plants in Omaha, Nebraska and Fort Morgan, Colorado. (This proceeding concerns only the Fort Morgan plant.) Its annual direct out-of-State shipments and its annual direct purchases from out of State each exceeds $100,000 in value. Respondent is now, and at all times material herein has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting 'All dates are 1968. 'I am precluded by Sec. 102.42 of the Board's rules from giving consideration to the brief tardily filed by counsel for Amalgamated. On October 29 1 announced on the record that briefs were due in San Francisco on Monday, December 2 . On Wednesday, November 27, the Associate Chief Trial Examiner received Mr . King's telegraphic request for a l week extension and issued a telegraphic order extending time for filing briefs to Monday, December 9. Following a telegraphic protest by Mr. Tate, the Associate Chief Trial Examiner, on December 4, ordered: Inasmuch as it appears from Respondents telegram of December 4, that Respondent was not served with your request for an extension of time for filing briefs in the subject case, in fairness to all parties I have reviewed the entire matter and with particular reference to section 102.114 the Board's Rules and Regulations , find that your request dated November 27 as untimely fled due to the intervening Thursday, a holiday. Saturday and Sunday. Regretfully because of my initial oversight and any inconvenience thereby caused the parties, I must therefore rescind my Order granting your request for an extension. 176 NLRB No. 42 AMERICAN BEEF PACKERS 339 commerce within the meaning of Section 2(6) and (7) of the Act. To: Date 11. THE LABOR ORGANIZATIONS INVOLVED Amalgamated Meat Cutters , and Butcher Workmen of North America, Local Union No. 641, AFL-CIO, herein called Amalgamated ; International Union of Operating Engineers, Local No. 1, AFL-CIO, herein called Engineers; and A . L. Morgan Union , Local No. 3, herein called Morgan Union , are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principle and controlling issue in this case is one of fact. The date and time when Respondent recognized the Morgan Union and the fact that a majority of employees in an appropriate unit had signed checkoff authorizations in favor of Arthur L. Morgan before recognition was accorded are firmly established. The prime question to be decided is whether Respondent, by directing an employee, Donald Kroshus, to obtain employee signatures on checkoff cards destroyed its right to rely on such cards as evidence that the Morgan Union represented an uncoerced majority of its employees . The factual issue in its simplest form is: On what date did employee Larry Johnson hand blank check-off cards to Donald Kroshus and request Kroshus to obtain signatures, and did this transaction take place in the office of and in the presence of the plant superintendent, John Stefanich? B. Uncontroverted Facts Respondent began operations, i.e., had its first "kill" at the Fort Morgan plant on Monday, June 10. For some time prior thereto it had been hiring employees, and some had been doing preparatory work in the plant since at least May 16. John Stefanich, who had been employed in a supervisory capacity by Respondent in Oakland was appointed superintendent and assumed his new title and responsibilities on Monday, May 27. Arthur L. Morgan founded the Morgan Union in 1955 and holds the office of president. The Morgan Union represents employees in 14 plants in four states, including all three of Respondent's plants. Shortly before June 10 Morgan told Thomas Sparks, Respondent's general manager in charge of labor relations at all plants, that he intended to organize the employees at Respondent's new plant in Fort Morgan. Sparks replied that the plant while under previous ownership had operated nonunion, and that Respondent expected to operate it the same way. Sparks told Stefanich about Morgan's announcement, and asked Stefanich to keep him posted on any kind of union activity around the plant. At a casual encounter in a Fort Morgan restaurant on Sunday, June 9, Morgan told Stefanich he was in town to organize the plant. Morgan entered the plant on Monday morning, June 10, and told Stefanich, whom he had known in Oakland, that he wished to see an employee, Larry Johnson. Stefanich escorted Johnson to the parking lot, introduced him to Morgan and left. Johnson accepted Morgan's invitation to act as steward and received from Morgan checkoff authorization forms which read: I authorize and direct you to check off from my pay union dues and remit same to our labor organization representative, Arthur L. Morgan, and authorize said dues to be spent for wages, expenses, office and clerical, steward expense, rent of halls and other such expenses. Withdrawal of this otherwise irrevocable authorization and membership may be by notifying the company and union in writing not less than sixty days before the anniversary date of the contract or expiration date but not more than seventy-five days before the anniversary or expiration date of said contract. Signed Later the same day Stefanich asked Johnson whether he was steward of the Morgan Union and Johnson replied in the affirmative. By 9 a.m. on Wednesday, June 12, a majority of the 43 employees then working had signed cards in blank, and these cards had either been handed to Stefanich by Johnson, or left on the desk of Stefanich's secretary, Charlotte J. Lapp. The name of Respondent and the date were written on the cards (after they were signed), by either Johnson, Sparks, Stefanich or Charlotte Lapp. Between 8 and 9 a.m. on Wednesday, June 12 (starting time of production workers was 7:30 a.m.), Morgan called at the plant and presented to Sparks a typewritten list comprising at least 25 names, stated that all of these had signed checkoff cards, that they constituted a majority, and demanded recognition. Sparks compared the names on Morgan's list with the cards3 in his possession, ascertained that a majority of the production and maintenance employees had signed cards, and agreed to recognize the Morgan Union. Sparks had in his valise, copies of Respondent's contracts with the Morgan Union covering operations in Oakland and in Omaha. Using these as a guide, additions and deletions were made and, after negotiating for about I hour Morgan and Sparks reached complete agreement. Morgan stated that his signing was contingent upon the agreement being approved by Johnson. After a clean copy of the Fort Morgan contract was typed, Johnson went over it with Sparks and affixed his signature. The contract, which bears the date June 12, 1968, does not make union membership a condition of employment. On June 28 Morgan dispatched to Respondent the following letter: Manager American Beef Ft. Morgan, Colorado Re: Union Contract Violations Dear Sir: We fully understand that with a brand new operation starting out as fast as your doing, you will make mistakes. We understand this. We do not understand your apparent disregard of our contract terms and conditions. See that the total terms are complied with or we shall seek our remedy in the courts under Section 301 of the Act. Sincerely Arthur L. Morgan 'Appends A attached is a list of all the cards identified by Sparks, showing the words and figures written on each 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 10, 1968, Charlotte J. Lapp acknowledged receipt of two registered envelopes. Both were from the Denver office of the National Labor Relations Board. Each contained a copy of the charge filed by Amalgamated. One was addressed to Respondent and one was addressed to the Morgan Union. On the evening of July 10, at the Farmers Union Hall in Fort Morgan, the Morgan Union had its first meeting. There were 37 members in attendance. (Membership in the Morgan Union is achieved by signing a checkoff card.) Prior to the meeting Kroshus had written out in longhand and given to Morgan a statement reading: I wanted Arthur L. Morgans Union. I signed up everyone accept the ones Larry Johnson signed up the company didnt talk to anyone about the union. We gave the cards to the company and demanded they recognize the Union July 10 1968 DONALD KROSHUS On July It , Morgan met with Stefanich and Mr. Garness, another of Respondent' s officials, and presented 30 grievances, based on complaints made by members at the meeting the night before. As of June 12, there were 43 employees in the contract unit . As of the date of the hearing , October 29, there were 85 to 90 employees in the unit . Between June 10, and October 29 a total of at least 70 signed cards had been received by Respondent . Some of these cards had been solicited by Kroshus. C. Testimony Tending to Establish the Date On Which and the Circumstances Under Which Kroshus Received Checkoff Cards in Blank from Johnson 1. The testimony of Larry Johnson Larry Johnson, who had worked at the plant while it was under prior ownership was hired by Respondent on May 16, 1968, at $2 per hour. Leland Drake, who hired Johnson, stated that new rates would be established after a manager was transferred to Fort Morgan. On the morning of June 10 or June It: John Stefanich come back to the rendering room where I was working and said there was a man out in the car that would like to meet me, and we walked out to the parking lot there, and he introduced me to Arthur Morgan, and then John left.... It was in the morning time . I'd say between nine and ten o'clock that I remember . And he said he was a union man and asked me what I thought about the union . And he explained the union to me and asked me if I wouldn't like to be a stewardess for him, and I said I would and he gave me some grievance forms and some cards to assign to each man and told me how to go about signing the men up, and how to use the grievance forms, and just generally explain the union to me, and that was about the size of it.... Well, we didn't have nothing at the time. There wasn't no union in there, and he explained this hospital plan that we would have which I thought was real good, and the benefits that this contract would have. I thought they were real good. Johnson spent from half an hour to forty minutes of working time talking to Morgan. During this and the succeeding two days Johnson obtained six signatures on checkoff cards. Between the time of his meeting with Morgan and the date of the hearing (October 29) he obtained from 25 to 30 signatures. There were about 43 plant workers on June 12, and 85 to 90 on October 29. In soliciting signatures, Johnson told employees that the Union would deduct $4 per month from their salary for union dues, that it was Arthur L. Morgan's Union, that they belonged to the Union, once they signed the card. Johnson told employees that they should only sign their names and should not fill in either the date or the name of Respondent. He told each employee to whom he spoke that the employee could either sign the card or tear it up, that if he signed the card he should either return it to Johnson or give it to John Stefanich. Acting on instructions from Stefanich, every card which was returned to Johnson was handed by him to Stefanich in person. A few days after his meeting with Morgan, Stefanich asked Johnson how the signing was coming. Johnson replied that he did not have too many. The reason was that he did not work on the kill floor with the men there. There followed a meeting in Stefanich's office as to which Johnson testified: Q. (By Mr. McCabe) Where did the meeting with Mr. Stefanich take place? A. In his office. Q. What time of day? A. I am pretty sure it was in the morning time, between nine and ten o'clock. Q. Who else was present, if anyone? A. I think Tom Sparks was present, but I wouldn't say definite if he was or wasn't, but I'm pretty sure he was. Q. Tell us what took place at that meeting, who said what? A. Yes. I know Tom Sparks was present. They asked me how I was doing with those cards, if I was getting anyone signed up, and I told them I had a few signed up, and I asked for some help at that time. I asked for Don Kroshus' assistance. Q. You asked who for help? A. Either John or Tom. I was probably talking to both of them when I said it. I asked for some help, somebody to work with me on the kill floor, if I couldn't have one of them for assistance to get the cards signed up. * * * A. I am pretty sure John Stefanich went down and got him.... Q. Tell us what conversation you had after Mr. Kroshus came into the office. A. Well, we talked about the union, and then I told Don that I needed some help in signing these cards, and how to, more or less, go about it, and try to explain the union to these guys that they wanted to sign these cards and that they would be deducted this amount from their pay and I gave them some cards. * * * * * Q. (By Mr. Tate) (After Johnson has testified that the meeting could have been ten days to two weeks after June 10). . . can you tell me whether or not Mr. Sparks or Mr. Stefanich discussed the cards at all with Mr. Kroshus, or did you do that? AMERICAN BEEF PACKERS 341 A. Well that's kind of confusing because I think we all discussed it with him. I know I did personally. I just don't remember if they did or didn't but that's what I wanted him up there for and Q. Did you give him some grievance forms to fill out for grievances on the kill floor? A. I am pretty definite I gave them to them after the meeting was over when we went into the locker room but I won't say if I did or didn't. Q. You gave them to him but you are not sure of exactly when? A. Right. But I know I give them cards but the grievance forms I am not definite on that whether I give them or not. I might have told him that if he needed them to come to see me but if I gave them I don't remember. * Q. (By Mr . McCabe) I believe that your original testimony was that your meeting with Mr . Stefanich was about five days after he introduced you to Mr. Morgan , is that right? A. Yes. Q. And then on cross-examination you said it could have been ten days or two weeks? A. I'll tell you what . You get me fouled up with two meetings. There was one meeting just after Mr. Morgan was introduced to me. That's when I asked about this other steward , and then there was another one when I signed the contract about ten days to two weeks later , and I am getting confused. Q. Tell us when each of these two meetings occurred. A. Well, this one after I met Morgan the first time was five days or seven days or three days , I don't really remember . That's when they asked me how I was doing with my work with the union, and that 's when I told them I wanted another steward, and then this other meeting came up about ten days to two weeks later when I signed the contract. A week or 10 days after he first met Mr . Morgan, and after the meeting with Stefanich and Kroshus , a contract was presented to Johnson by Mr. Sparks. Johnson read the entire contract, told Sparks and Stefanich that there were two job ratings in the contract that he did not think were right and called their attention to a place where a.m. and p .m. were transposed through typographical error. The typographic error was corrected in pen and initialed by Sparks and Johnson, and Johnson then signed the contract . Sparks and Stefanich agreed that the pay inequities to which their attention had been called by Johnson would be corrected, but no change was made on the face of the contract . In answer to the question: Q. (By Mr . McCabe) Do you know if anyone signed the contract before that? A. Yes, almost definitely the men signed - I wouldn' t say if it - if they had or hadn 't, but I am pretty sure the other signatures were on there, but I don't know if they were or weren't. Johnson was not asked whether he observed or noted any date anywhere on the contract which he signed. The contract which was received in evidence bore the signatures of Sparks , Morgan and Johnson and the date June 12, 1968, in bold ink . Johnson honestly conceded, "I sure don't remember dates." 2. The testimony of Thomas F. Sparks At some time between 8 and 9 a.m. on Wednesday, June 12, Morgan presented to Sparks a typewritten list of names of employees, stating that all these had signed checkoff cards and were members of A. L. Morgan Union. Sparks compared the names on this list with the signatures on checkoff cards which had been filed and recorded by the office girl (Charlotte Lapp). There were at least 25 cards on file. Some of these cards had been left on her desk, some had been handed to her by Stefanich, by Sparks, or by Johnson. Sparks identified 30 cards as including all those which he had in his possession at the time of Morgan's call. The bulk of the cards had been dated by the girl in the office. As of June 12 there were 45 employees in the bargaining unit. Upon ascertaining that Morgan represented a majority of Respondent's employees, Sparks agreed to recognize the Morgan Union. He and Morgan reviewed their Oakland and Omaha contracts and, after 1 hour of negotiations arrived at a complete agreement. Sparks caused a clean copy to be typed. Sparks testified: A. That afternoon after it had been typed I asked John [Stefanich) to bring Larry Johnson up to the office and Larry Johnson and myself and John sat down and I related what had happened that morning with Larry Johnson and told him that Arthur Morgan had agreed that if he reviewed the contract and if it was - if he was agreeable to the terms then Arthur Morgan would sign it after he did. Now, John wasn't there through the entire discussion. I don't remember exactly the incident but something did happen in the plant where he had to leave. * * * * * A. There were no changes that were made in the contract. There were typographical errors that Larry Johnson and myself both noted and initialed on the night premium, and the "A.M." and "P.M." were reversed. The conference with Johnson lasted about I hour. Johnson signed the contract at the end of the conference on the afternoon of Wednesday, June 12, in the presence of Sparks. Sparks signed immediately thereafter in the presence of Johnson. Sparks took the contract back to Oakland with him and on Saturday, June 15, Arthur L. Morgan signed the contract. Sparks had only one meeting with Kroshus pertaining to the Morgan Union. This was after Morgan had met on July 11 with Stefanich and Garness concering the Union's many grievances. It was in the hallway, in the general office just coming into the office. Q. (By Mr. Dowd) Now, would you please relate to the best of your recollection what was said by you or John Stefanich or Larry Johnson or Don Kroshus at this meeting? A. Well, Larry had requested through John and John approached me about it needing more help in resolving some of these problems as a result of this union meeting, the numerous grievances, and they would like to have Don Kroshu* So I told John to go ahead and proceed to get Don and bring him up, which I did. Q. Don Kroshus was brought up at that time? A. Yes. Q. And when Don Kroshus arrived, what if any conversation took place that you recall? 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, the bulk of the conversation was my concern over these grievances. I related that Larry Johnson had requested more help in resolving these things and getting the problems handled and I expressed my desire to agree to letting Johnson have Kroshus in order to resolve these problems because they were concerning to me. Q. Was anything said during this meeting about obtaining a union check off card for the A. L. Morgan union? A. Yes. Q. What was the context in which that conversation took place? A. Larry Johnson related he would also like to have him help him sign cards out. Q. And what if anything did you say to this? A. I told him if that's what he wanted it would be all right. Q. Now, at any time during this meeting did John Stefanich make any statements to your recollection? A. No, he didn't. Q. Have you ever had possession of any blank union check off cards? A. No. Q. Did you observe whether Larry Johnson gave Don Kroshus any union check-off cards at this meeting? A. No, I didn't. Q. Was this the only time that you did talk to Don Kroshus pertaining to the union? A. Yes. Q. Did you at any time approach Mr. Kroshus or any other employee relative to signing an A . L. Morgan Union check-off card? A. No. Q. Did you have any other occasions to meet with Larry Johnson pertaining to the union other than this occasion in the early part of July? A. No, no. Q. Is it your testimony then that you signed the union contract in the presence of Larry Johnson? A. Yes. Q. And other than that meeting and the meeting as you related in July, you had no further meetings with him? A. No meetings as such. I was in and out of the plant in my travels and if we passed or my going through the plant I would ask them how things were going and that was about - there were no meetings. 3. The testimony of Donald Keith Kroshus Q. (By Mr. McCabe) What day did you start working there? A. I think it was the 6th, if I recall right, a day or two one way or the other. Q. Do you remember when the kill started then? A. The 10th, 6th or 10th. I know we killed one or two head and then we started in. Q. But you were working a few days before the kill started? A. I think I worked a week before the kill started or four days or something like that. Q. Did you sign a card for the A. L. Morgan Union? A. Yes. Q. How did you first learn about the union? A. Larry Johnson got a hold of me well, first, I think it was right after the kill that day John told me to come up to the office. Q. John who? A. Stefanich. I went up to the office and he introduced me to Sparks and, of course, I knew Larry and they started talking about the union - Q. Mr. Kroshus, speak up. A. And then they started talking about the union, and Larry give me those cards and asked me to get them signed. I got them signed and I either give them to John or laid them on the desk. Q. What was said about the union? A. Just said that it was the same union was in Oakland, Iowa, and they would like to have it out here. Q. Who said they would like to have it here? A. John Stefanich and Mr. Sparks. Q. In Mr. Stefanich's office? A. Yes. Q. And who was present? A. John and Sparks and Larry. I don't know if Garness was there or not, Bill Garness. Q. I am not sure that I understood your testimony, so I ask you this question: When with relation to when the kill started did this kill take place? Was it on the first day of the kill or second or later or before or what? A. It was not that day we killed. I think we killed one or six heads but it was the following day when we killed 50 or something. It was that first week when we opened up on the kill, when we were called up to the office. It was right after we got through killing. I think it was the day we killed that 50 head. Q. Was it during working hours? A. Yes. Q. Did you hold any position with this union? A. Not until they told me. They just said that I would work under Larry and help him with the stewards. Q. Who said you would work under Larry? A. John and Sparks. Q. Who told you that you were an assistant steward? A. Larry. Q. Were you told by anyone else? A. I don't know if John mentioned it or not. He might have, but all he told me was to help Larry with the union, if that's an answer, that he said I was a steward. Q. Did you get the cards signed after that? A. Yeah, Larry give me a bunch of them and I got them signed and I told those guys to either give them to me or lay them on John's desk when they got off work. Q. Did you get any cards back signed? A. Yes. Q. Do you recall how many? A. I don't know, probably 15, 20. I don't know. Q. Now, during what period of time did you get 15 or 20? A. Within the first ten days of when we started the kill. Q. What did you tell the people about the cards when you gave them the cards? A. All I told them was it was the same union they had in Oakland , Iowa, and they wanted to have it out AMERICAN BEEF PACKERS here, if they could sign if they wanted to; they didn't have to. Q. Did anybody refuse to sign a card? A. Albert Trujillo said he wouldn 't sign it. Q. Where were you when you gave Albert Trujillo the card? A. Up in the locker room. Q. Was anyone else present? A. Yes, Felix Franco and I don't know how many guys were there. * * * Q. Did you tell anyone about the refusal of Albert Trujillo to sign a card? A. John Stefanich asked me when I went down in the basement and I told him he didn't want to sign it and he told me to tell him to go home, and I said that was his job. * * * * * Q. Did you have any conversation with Mr. Stefanich about signing cards after this first meeting? A. No. You mean - Q. Did he ever pass you and ask about the card signing? A. He asked me if I had any signed and I said I would give them - I didn't know if they would give them back to me or whether they turned them into the office or what they done with them. * * * * * Q. (By Mr. King) What did you do with the cards after they were returned to you? A. I laid them on John Stefanich's desk. Q. Now, do you recall at this time how many cards you had gotten signed, if any, by the 12th of June? A. No, I don't recall how many I got signed within the first week. Altogether I probably got 15 or 20 of them signed, maybe more, maybe less. Q. When you say altogether, you mean over the entire period that you were having cards signed? A. Yes. Q. And that extended for how long? A. Probably a couple of weeks, after that I never got any signed. If I did, I didn't get them back. They laid them on John's desk. Under cross-examination Kroshus freely admitted that he had quit his job because he was dissatisfied with the treatment he had received from Respondent and that he did not get along with his foreman, O'Del. Kroshus on July 10 wrote out the statement set forth in full, supra, and told Morgan that he had not intimidated any employee. He prepared this statement for Morgan because he thought the Union was "a good deal." 4. The testimony of John Stefanich In the morning of June 10, Morgan entered the door of the kill floor, encountered Stefanich and told him that he wanted to see Larry Johnson. Stefanich replied that when Johnson went on his break or lunch period, Stefanich would bring him out to the parking lot. Stefanich went back to the rendering works where Johnson was working and told Johnson that Morgan wanted to see him in the parking lot, and that Johnson could go see him on his noon break. At noon Stefanich returned to the rendering 343 works, escorted Johnson to the parking lot and introduced him to Morgan. When Stefanich next visited the rendering works about 1-1/2 to 2 hours later, Johnson was on the job. On June 10 some Morgan Union check-off cards were handed to Stefanich by Johnson and some were left on his desk. Stefanich did not have any conversation with Johnson when the cards were handed to him. The same was true of the next day, Tuesday, June 11. Some cards were undated, and Stefanich inserted the date that he received them. He kept the cards in the personnel desk and did not mention them to his secretary. On neither Monday nor Tuesday did Stefanich have any conversation with Larry Johnson nor with any other employee concerning the Morgan Union. On the afternoon of Wednesday, June 12, Stefanich went down to the rendering room, got Larry Johnson, brought him to the office where Sparks was waiting and the three of them went over the contract together. When they were about one-third of the way through, Stefanich was called away to take care of a breakdown, or some other thing. When he returned to the office Johnson had left. Stefanich looked at the signature page of the contract and noted the signatures of Johnson and Sparks and also noted that Morgan had not signed. To this moment Johnson had had no conversation with any employee pertaining to the Union or to union check-off cards. Stefanich knew that Johnson was the steward for the Morgan Union because, on the afternoon of Monday, June 10, Stefanich asked Johnson if he was the steward and Johnson replied that he was a steward. A couple of times in July, at Johnson's work station Stefanich, inquired of Johnson how he was coming along with the union cards. On July 11, Stefanich met with Morgan and Garness in Garness' office for at least 3 hours discussing around 30 grievances. Many were adjusted, resulting in backpay for some employees and results were posted on the bulletin board. Around the middle of July, Stefanich encountered Johnson in the hallway. Johnson said that being in the rendering works was kind of remote to the plant and he could use more help. He asked if he could have Don Kroshus as a kill floor steward. Johnson went down to the kill floor, asked Kroshus to follow him to the office where Sparks and Johnson were waiting . There followed a discussion of grievances. Union cards were not mentioned. Prior to this meeting with Sparks in the office Stefanich had never discussed grievances with Johnson. Johnson never had any discussion with Kroshus about union cards. 5. Testimony of card signers Jess Pierce was hired and started work on June 10. In the locker room after he finished work for the day Don Kroshus handed him a card stating that he wanted Pierce to sign it and that if Pierce did not sign it he would probably be dismissed. Pierce signed and inserted the date in his own handwriting, "6-12-68." Vigorous cross-examination demonstrated that Pierce's recollection of the number of hours he worked on each of his first 3 days was unreliable. William C. Baughman was hired and started work on June 10. While working in the offal room and during his own working time he signed a card in blank at Johnson's request. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Albert Trujillo was hired and started to work on June 10. The next day in the locker room with a number of other employees present Kroshus handed him a card. "We was talking about the union , Local No. 3, 1 guess, and we was talking about it . And we had words. And finally he told me that anybody that didn't sign it they would fire them . And I told him I didn' t think much of it." This was at the noon lunch break , after the kill was completed about 1 p.m. With the half hour, and while Trujillo was still eating lunch his foreman , O'Del, told him to clean up and go home, stating , "Anybody that didn't sign that card was fired." Trujillo then signed the card and handed it to O'Del and asked if he should come in the next morning. O'Del said Trujillo would have to ask Stefanich. On the date of the hearing Trujillo was still employed and had been elected steward of the Morgan Union at a meeting held in September . Vigorous cross-examination demonstrated that Trujillo, like Pierce could not remember accurately how many hours he worked on June 10 or June 11. The cross-examination also developed one very material fact. Respondent's time records show that Trujillo worked 9 hours on June 10, and only 5-1/4 hours on June 11. Felix Franco was hired about May 18. At lunchtime on June 12 in the presence of other employees Kroshus handed Franco a card stating that if Franco did not sign the card he wasn't going to have a job too long . Franco took the card home with him and next day, the 13th, he signed the card , wrote in the date and put the card on the desk of Stefanich's secretary . He too, under cross-examination demonstrated that his recollection of dates was not reliable. William O'Neil, a foreman, signed a card at the request of Johnson. D. Evaluation of Testimony I credit the testimony of Sparks in full . On June 12, at 9 a.m., Sparks had in his possession 29 of the 30 cards which were received in evidence and none other . Sparks reviewed the contract with Johnson on the afternoon of June 12, and Johnson signed the contract in Sparks' presence on June 12. Sparks had only one meeting with Kroshus concerning the Morgan Union . This meeting was after July 11. In all respects other than dates (and the presence of Sparks at, and the time of the meeting with , Stefanich and Kroshus before the contract was signed ), I credit the testimony of Johnson . Johnson was at the time of the hearing employed by Respondent , held the position of steward in the Morgan Union and was obviously loyal to both his employer and his union . He gave every impression of testifying honestly to the very best of, his recollection . Based on demeanor alone I would not discredit a single word spoken by Johnson . I find, however, that he was mistaken as to the date and time of his conference with Kroshus in Stefanich 's office, was mistaken as to the date on which he signed the contract and mistaken as to the presence of Sparks on the former occasion. I place no reliance on the testimony of Stefanich. He appeared - to be under tremendous emotional strain and may not have been well . His too obvious attempts to give the "right" answers to his counsel's frequently leading questions resulted in glaring contradictions and inconsistencies , and his defensive attitude under cross-examination involved him in two impossible assertions . Further his testimony is contradicted in material matters by the testimony of Sparks , of Johnson and of Kroshus. Stefanich testified categorically that no cards had been solicited by Kroshus before June 12, and made the positive assertion that prior to June 12, Stefanich counted exactly 30 checkoff cards which had been signed by employees . Stefanich ' s assertion that checkoff cards were not mentioned at a meeting with Kroshus in July is directly contradicted by Sparks. Stefanich 's testimony that he did not talk to any employee about the Morgan Union before June 12 is contradicted by his testimony that he asked Johnson about his stewardship and implausible in view of his testimony that cards were handed to him by Johnson on both June 10 and June 11 . Stefanich's testimony that he did not speak to his secretary about the cards that were left on her desk is hardly to be reconciled with his testimony that the secretary prepared a typewritten list of the names on those cards and that Sparks handed this list to Morgan. Here to, Stefanich is contradicted by Sparks, who testified that he did not know where or how Morgan obtained the typewritten list of names. I credit Kroshus in full as to the date, time and content of his conference with Johnson in the office of Stefanich. The substance and circumstances are confirmed by Johnson . Further confirmation is supplied by the date on Franco's card , 6-10 and Franco 's testimony that he received the card from Kroshus, as well as by the date on Kroshus' own card , 6-10. Kroshus' testimony that he obtained a total of 15 to 20 signatures receives inferential confirmation from the fact that 18 of the cards received in evidence bear clock numbers preceded by the character "t-" and that at least five of the signers of such cards worked on the kill floor. Kroshus' testimony as to the Trujillo incident is fully corroborated by Trujillo, and inferentially by Franco (for whom English is difficult) The date of the Trujillo incident is firmly fixed by the date on Trujillo's card, 6-11, and receives further confirmation from Trujillo ' s time record , which shows that he was sent home early on June 11. I was favorably impressed by Kroshus' demeanor on the stand and am thoroughly convinced that he gave honest answers to every question . He was mistaken about the presence of Sparks in Stefanich 's office on June 10 , having confused this with the meeting of mid-July, as to which he was not questioned. Trujillo' s testimony that O' Del (admitted by Respondent's answer to be a supervisor ) stated : "Anybody that didn 't sign that card was fired " is uncontradicted and unimpeached . The date of the incident is established by Trujillo's checkoff card and confirmed by his timecard I credit Trujillo on this point and I also credit his testimony that Kroshus stated on the same date (June 1 1 ) "Anybody that didn't sign it, they would fire them ." This is consistent with statements attributed to Kroshus by Franco and by Pierce , and is not specifically denied by Kroshus. I credit the testimony of Pierce in full , including his testimony that he signed and dated his checkoff card on the evening of June 12. Pierce ' s card was not in the possession of Mr . Sparks when he recognized the Morgan Union. E. Concluding Findings, On Monday, June 10, 1968, about 9 a.m. Stefanich took Johnson from his work , escorted him to the parking lot and introduced him to Morgan . Stefanich knew that AMERICAN BEEF PACKERS 345 Morgan's purpose was to organize the Respondent's plant. Johnson was paid by Respondent for the 30 to 40 minutes that Morgan required to persuade Johnson to act as steward. At about noon, Stefanich inquired of Johnson whether he had accepted the position of steward, and how he was coming with signatures on checkoff cards. Johnson replied that his remote work station made it difficult for him to obtain many signatures. Stefanich then took Kroshus from his work on the kill floor to the office where Johnson told Kroshus about the Morgan Union, gave him blank checkoff cards and told him how to get them signed. Stefanich told Johnson that when the cards were signed they should be delivered personally to him, or left on his secretary's desk. Stefanich told Kroshus that this was the Union that Respondent had in Oakland, Iowa and they wanted it in Fort Morgan. Kroshus returned to the locker room where the men were cleaning up and eating lunch after the kill, told employees that this was the Union Respondent had in Oakland, Iowa, that Respondent wanted it in Fort Morgan and that anybody who did not sign a card would not be working there very long. On Monday evening, 11 cards were turned in to Stefanich, all signed by persons whose clock number was preceded by the characters "l-." On Tuesday, June 11, in the locker room while employees were eating lunch Kroshus had a heated argument with Trujillo in the course of which Kroshus stated: "Anybody that didn't sign it they would fire them." Shortly thereafter Foreman O'Del told Trujillo: "Anybody that didn' t sign that card was fired," whereupon Trujillo signed the checkoff card, which he had received from Kroshus, and handed it to O'Del. Tuesday evening eight cards were turned in. One was the card of Trujillo. One was turned in by Johnson, and six were turned in by persons unknown. Three of the six were signed by persons whose clock numbers were preceded by the characters "l-." On Wednesday, June 12, before 9 a.m. six cards were turned in by Johnson and four cards were turned in by persons unknown. Two of the four were signed by persons whose clock numbers were preceded by the characters ,{ 1-.,, On Monday morning, June 12 , when he recognized the A. L. Morgan Union, Sparks placed his sole and entire reliance on the 29 cards herein described. These cards, because of the statements and conduct of Stefanich and Kroshus are not reliable indicia of the desire of the respective signers to be represented by Morgan Union. I find that Morgan Union did not represent an uncoerced majority of Respondent's employees at the time recognition was accorded by Respondent or at the time the contract was signed on June 12 and 15. As held by the Supreme Court in International Association of Machinists v. N.L.R.B., 311 U.S. 72, 80: We are dealing here not with private rights nor with technical concepts pertinent to an employer 's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible . Thus, where the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and on behalf of the management, the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates. Morgan Union was unlawfully accorded recognition by Respondent on June 12. It is immaterial that Morgan and Sparks may have believed in good faith that the Union did represent an uncoerced majority. The following words of the Supreme Court in International Ladies Garment Workers v. N.L.R.B., 366 U.S. 731, 738, are particularly apt: To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act - that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives. We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices here involved. The act made unlawful by Section 8(a)(2) is employer support of a minority union. Here that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees' rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith. W. THE EFFECT Of THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above, occurring in connection with the operations of Respondent described above have a close, intimate, and substantial relation 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the collective-bargaining agreement of June 12, 1968 has been found to have been entered into and subsequently maintained under the conditions described above, and at a time when Morgan Union did not represent the free choice of a majority of the employees in the unit described in the agreement, it will be recommended that Respondent be required to set aside said agreement and cease giving effect to it or any supplement, extension or renewal thereof. The setting aside of said agreement shall not require or permit Respondent to vary or abandon any existing term or condition of employment. It will also be recommended that Respondent be required to withdraw and withhold all recognition from Morgan Union unless and until said labor organization shall have been certified by the Board as the collective-bargaining representative of Respondent's employees in an appropriate unit. In view of the foregoing, and for the additional reason that Respondent is prohibited by Section 302 of the Act from honoring checkoff authorizations which are by their terms (in the absence of a valid collective-bargaining agreement) irrevocable, it will be recommended that Respondent be required to reimburse all present and former employees for union dues withheld from their wages and remitted to Arthur L. Morgan. In accordance with the Board's decision in Isis Plumbing and Heating 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Co., 138 NLRB 716, and Quality Coal Corporation, 139 NLRB 492, interest should be included on such dues reimbursement, such interest to be computed in the manner set forth in Seafarers International Union, 138 NLRB 1142. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated, Engineers, and Morgan Union are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing Morgan Union at a time when it did not represent a valid uncoerced majority of its employees as the exclusive collective-bargaining representative of its employees, Respondent violated Section 8(a)(2) and (1) of the Act. 4. By entering into a collective -bargaining agreement containing dues checkoff provisions with Morgan Union at a time when Morgan Union did not represent a valid uncoerced majority of its employees, and by giving effect to said agreement , Respondent violated Section 8(aX2) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce 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 upon the entire record in this proceeding, I recommend that Respondent, American Beef Packers, Inc., its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving unlawful assistance or support to A. L. Morgan Union, Local No. 3, or to any other labor organization, by recognizing or entering into a contract with it as an exclusive bargaining agent at a time when it does not represent a validly designated majority of Respondent's employees in an appropriate unit. (b) Recognizing A. L. Morgan Union, Local No. 3, or any successor thereto, as the representative of any of its employees for the purposes of collective bargaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees. (c) Giving effect to, performing, or in any way enforcing its contract dated June 12, 1968, or any modifications, extensions, or renewals thereof, or any other contract, agreement, arrangement, or understanding entered into with A. L. Morgan Union, Local No. 3, or any successor, relating to grievances , labor disputes, wages, rates of pay, hours of employment, or other conditions of employment , unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive representative of Respondent's employees; provided, however, that nothing in this Decision shall be construed to require or to permit Respondent to vary or abandon any wages, hours, seniority, or other substantive feature of its relations with its employees which Respondent has established in the performance of said contract, or to prejudice the assertion by employees of any rights they may have thereunder. (d) In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Reimburse each of its former and present employees for all wages withheld under authorization to check off and remit union dues to Arthur P. Morgan, together with interest at the rate of 6 percent per annum from the date of each withholding. (b) Withdraw and withhold all recognition from A. L. Morgan Union, Local No. 3, or any successor labor organization , as the representative of Respondent's employees for the purposes of collective bargaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Post at its plant in Fort Morgan, Colorado, copies of the attached notice marked "Appendix B."d Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.' 4th t e 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." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 27, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX A Name of Co. Date Ea # Name Clock # Inserted By Date Inserted By 4-A Larry Smethy Johnson June 12 Johnson 1968 4-B Johif Franco 1-9 6-10 4-C Victor Franco 1-10 6-11-68 4-D Andres Rios Jr. 9-4502 6-11-68 4-E Albert Trujillo 1-22 6-11-68 AMERICAN BEEF PACKERS 347 4-F Jose M. Jiminez 9-4501 6-11-68 4-G Larry L. Jamison 1-IS 6-11-68 4 H Roger E. Johnson 6--3003 Johnson June II Johnson 1968 4 1 Joe Martinez 1-17 6-11 4 1 Hen Oherharg 6- 1 4 K F. G. Kunke 1-14 6 10 4 I. Don K roshus 1--14 6 10 4 M Alex Luna Jr. 6 10 4 N Manuel Garcia 1--31 6 10 4 0 Ramiro Mares 1-21 6-10 4 P Alex Luna 1-40 name line blank 6 10 4 0 Donald P ra\ Ior I - 18 6-10 4 R Clarv Harrison I -20 6 10 4 S Alfred Huadeckv 123 6 10 4 T I clix Franco I 6 10 4 11 Jess Pierce 129 6 12 69 Pierce 4 V Roger Dale Sheppard 2-1005 6 12, 4-W Clifford Barnts 4-4005 6 12 68 4 X Richard M. Soto 1-28 Johnson June 12 Johnson !968 4 -Y Larry B. Johnson 6- 3002 Johnson June 12 Johnson 1968 4 L William C. Baughman 2 1004 Johnson June 12 Johnson 1968 4 AA Chauncey V. Anderson 4 2014 Johnson June 12 Johnson 1968 4 138 Dale L. Nichols I 12 6 I. 4 CC Floyd Nichols 127 6 12 4 1)D 4lickcv Dion John,4In Jun: 12 Johnson APPENDIX B 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 NOT give unlawful assistance or support to A. L. Morgan Union, Local No. 3, or any other labor organization, by recognizing or entering into a contract with it as exclusive bargaining agent at a time when it does not represent a validly designated majority of the employees in an appropriate unit. WE WILL NOT enforce or give effect to our collective-bargaining agreement with A. L. Morgan Union, Local No. 3 dated June 12, 1968, or to any extension, renewal, modification or supplement thereof, or to any superseding agreement , or give effect to any dues checkoff authorizations heretofore executed by our employees in favor of Arthur P. Morgan. 1968 WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL withdraw and withhold all recognition from A. L. Morgan Union, Local No. 3 as the collective-bargaining representative of our employees and WE WILL NOT deal with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until such labor organization has been certified by the Board, following a Board-conducted election, as the exclusive bargaining agent of our employees in an appropriate unit. WE WILL reimburse all present and former employees by paying to them all wages withheld under authorizations to pay union dues to Arthur P. Morgan, together with interest at 6 percent per annum from the date of each withholding. All our employees are free to become, remain, or to refrain from becoming or remaining members of A. L. Morgan Union, Local No. 3, or any other labor organization. Dated By AMERICAN BEEF PACKERS, INC. (Employer) (Representative ) (Title) 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days or compliance with its provisions, they may communicate from the date of posting and must not be altered , defaced, directly with the Board's Regional Office , 260 New or covered by any other material. Custom House, 721 19th Street, Denver , Colorado 80202, If employees have any question concerning this notice Telephone 297-3551.