P & B Packers, Inc.

P & B PACKERS, INC. 121 P & B Packers, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 340. Case 17-CA-4534 July 19, 1971 DECISION AND ORDER BY MEMBERS FANNINGS, JENKINS, AND KENNEDY advocate, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The Company did not call any defense witnesses. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the General Counsel's closing arguments, and the Compa- ny's brief, I make the following: FINDINGS OF FACT 1. JURISDICTION' On May 25, 1971 Trial Examiner Marion C. Ladwig 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. Thereafter, the Respondent filed exceptions to the Trial, Examiner's Decision and a brief in support thereof. 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, the brief, and the entire record in the case, and hereby adopts the findings,, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the TrialExaminer and hereby orders that the Respondent, P & B Packers, Inc., Hays, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This case was tried at Hays, Kansas, on. March 30,1971 .1 The charge was filed by the Union on January 8, and the complaint was issued on March 4. The primary issues are whether the Company, the Respondent,2 (a), coercively interrogated employees, withdrew benefits in reprisal for union activities, and otherwise interfered with its employees' union activities, and (b) discriminatorily discharged the leading union 1 All dates are from December 1970 until March 1971 unless otherwise stated. The Company, a Kansas corporation, is engaged in the slaughter, processing, and wholesaling of hogs and cattle and in the retail sale of meats and ,groceries at its plant in Hays, . Kansas, where it annually purchases goods or services valued in excess of $50,000 directly from suppliers located outside the State, and annually sells goods and products and performs services valued in excess of $500,000. The Company admits and I find that it is engaged in commerce within the meaning of Section 2(6) and(7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. U. ALLEGED UNFAIR LABOR PRACTICES A. Alleged Interference - 1. Interrogation Early in December, employee Fred Tholen, with the assistance of two other employees, began orgainzing the Company's 25 meat plant and market employees. Tholen talked to employees about the Union at coffeebreaks and at lunch, passed out authorization cards, and invited employ- ees to attend a union meeting on December 10. In that meeting, in front of other employees, Tholen turned over 11 signed union cards (8 of which he had personally solicited at the plant) to the Union's International representative. Thereafter, he continued the organizational efforts. On December 19, Company President Cecil "Pete" Brackney called meatcutter Lawrence Hoffman into the office. As credibly testified by Hoffman, Brackney "asked me what I knew about the Union." Although Hoffman had attended the December 10 meeting, he responded, "What union?" Brackney asked, "Have you ever been approached by a union man?" Hoffman answered, "Well, not that I know of." Brackney continued, "Don't he to me, Larry." Hoffman responded, "Why should I he to you? When is this all supposed to have taken place?" Brackney said he did not know, and Hoffman said, "Well, you know just about as much as I do." A "few days before" December 23, Officer Manager Schumacher (who the Company admitted in its answer is a company agent d/or supervisor) asked truckdriver David Befort, "Have you heard anything about the Union?" Befort denied it, although he knew about the December 10 meeting. As disct,„ed later, employee organizer Tholen was discharged on December 23. On January 5, President Brackney called meatcutter 2 The name of the Respondent was corrected at the trial. 192 NLRB No. 32 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .Marvin Kreutzer into the office, showed him a letter from the Union, and (as Kreutzer credibly testified) commented, "I got my summons from the Union." Brackney asked Kreuter what he knew about the letter, , and. Kreutzer answered that he did , not know, much about it. Brackney asked whether they had,had a union meeting, and where the meeting was held. Kreutzer answered yes, there hadbeen a union meeting, but "I don't give no names or places." Thereafter Brackney stated somebody had called and had a list of names. Kreutzer protested, "That's kind of blackmail." Brackney then- denied buying the list. (Although Kreutzer conceded on cross-examination that "In a way, yes;" Brackney did give him the impression that Brackney resented the telephone call, the Company does not offer any noncoercive reason for Brackney , in the first place,- having mentioned the list of names after Kreutzer refused to give details about the union meeting.) - Later that week, on January 8, Kreutzer was again in the office and President Brackney asked "what I thought of the Union."' Kreutzer answered, "I am just 50-50, half and half, but if the majority of the workers go with, it, I am going to go along with it all the way." Later in the conversation, Kreutzer asked what guarantee Brackney would give the employees "if we did not go union,,Jrom getting fired." Brackney' answered, "I can't guarantee you anything." (This was the second week after Union Organizer Tholen had been discharged.) Another employee, Gilbert Rohr, then came into the office and Brackney told Rohr and Kreutzer, "Why don't you go out and see what the boys want." Brackney suggested that they have a meeting with the employees, find out what the employees wanted from the Union, what demands they had, and come back and let him know. Particularly in view of Union Organizer Tholen's summary, discharge (which would tend to arouse a fear that the Company was seeking information for a discriminatory purpose), and in view of the employees' denials and hesitancy- to reveal facts about the union activities, I find that the foregoing undisputed interrogation 'by President Brackney and Office Manager Schumacher was coercive and violated Section '8(a)(1) of the Act. I further find, under the circumstances, that Brackney s' inducement of employ- ees Rohr and Kreutzer' on January 8 to meet With the other employees and report back their demands was an implied promise of benefits if the employees would abandon their support of the' Union, and therefore also violated Section 8(a)(1) of the Act. . , Reprisals On January 10, upon the invitation of one of the employees, Office Manager Schumacher attended 'a union meeting. Meatcutter Alfred Koerner w in attendance. The next morning, January 11, Koerner followed the usual procedure of going to , the retail outlet to get cream and sugar for the breakroom. After Koerne; returned and was opening ' the sugar cubes, President lleackney asked, "Did you pay for that sugar?" Koerner answered no, and Brackney stated, "That's Violation No. i." Prior to this, as stipulated by the parties, "employees did not pay for coffee, cream, and sugar to be used for coffee breaks, but after January l 1th, they have been required to pay for, the coffee, sugar, and cream." Two days later, on January 13, the Company posted a sign near the telephone in the workroom where most of the employees worked, and one near the telephone in the retail market, reading "This telephone for P & B business calls only, others, by Pete's permission only." .The evidence shows that "Pete" (President Brackney) is at the plant only 1 or 2 hours a, day. As stipulated by the parties, for about 5 years before this, the Company - "did not place any restrictions on the employees making personal, outgoing calls, using the company telephones." The Company did not introduce evidence of any necessity for withdrawing this additional employee benefit 3 days after the union"meeting attended by Office Manager Schumacher. ' ' 1' After considering all the circumstances, I find that President ^ Brackney's statement to Koerner-,' "That's Violation No. 1," on the morning after.the January 10 union meeting, interfered with „the, employees'. union activities,,, and that the, withdrawal of the benefits,-on January 11 and 13 was in reprisal forthe,,union activities. I therefore find that this conduct by, the Company, violated Section 8(a)(1) of the Act, as alleged. B. Discharge of Fred Tholen` 1. Company knowledge of union activity Tholen was hired as .a truckdriver on December_1,_ 1969. After several months,'he was assigned to work on,the kill floor, ' then as a bull boner, and Pater the shipping department. He was working m- the processing department at the time of his discharge on December 23. As previously indicated, ` Tholen became the leading union advocate at the plant, and at the December 10 union meeting, in open view of other employees present, turned over 11 authorization cards to the union representative. Before introducing evidence ' on company knowledge of the union activity, the General Counsel called President Brackney as an adverse witness and asked him when he first learned "that a union organization campaign was going on at your plant." Brackney impressed me as being less than candid. He first answered, "The first real notice I had was ,when I had a registered letter from the Meat Cutters Union" early in January. Thereafter he testified,thathe had heard rumors. ,When asked what , rumors, he, testified, "Well, just-I had received a'telephone call from aifri'end of mine that had told me." He testified that this was in the "latter part of December,", and positively testified that this was the first he knew that there was some union activity going on in the plant. Still later, he testified that this was not his first information or rumor about the Union, and testified that on Christmas Day, his 'son told him that somebody had called their home and'reported it. (Up to this point, Brackney had'not admitted knowing anything about the Union's organizing drive°on December 23, the date of Tholen's discharge.)- Finally, when asked again about his first information or rumor, he answered, "Well, I would have to say it was in the middle of December I heard a rumor to that effect." (Emphasis supplied.) ` As found above, a few days before December 23, Office Manager 'Schumacher asked truckdriver Befort if he had P & B PACKERS, INC. 123 heard anything about the Union, and on December 19, President Brackney himself had called meatcutter Hoffman into the office' and interrogated him about it. Although there, is no direct evidence that the Company was aware of Tholen's open- union activities, the following, overheard conversation between Brackney and Schumacher and Tholen's' summary discharge indicate that the Company had'been notified. Truckdriver Befort's credited testimony is undisputed that either on the evening of December 22 or "the morning that Tholen was fired," Befort was in the office when President Brackney came in'and said something, he did not know what, "pertaining{ to the Union." Office Manager Schumacher asked Brackney, "Who did you hear this from?" Brackney responded, "A friend of yours and mine." 2. The discharge it, was in this context that on December 23, during the christtas rush of the plant, President Brackney summarily discharged Union Organizer Tholen. (i'holen and the other processing department employees had worked late the evening before, and the .heavy workload was to, continue until New Year.) About 7:30 that morning, before Tholen could clock in, President Brackney had him come to the office. As Tholen credibly'testified,,_Brackney "said that he was-laying me off, that he was cutting expenses and there was going to be a lot more expenses cut .the first of the year. He told me I could wait in-the office for my check." (Thus, Tholen's final paycheck had ' not been prepared. This would seem to indicate, that. no decision, to discharge him had, been made at the time- Office Manager -Schumacher asked Brackney, "Nyho did you hear this-from?") Tholen went back upstairs and began telling other employees at the timeclock what had happned."Brackney came up and sand, `Tholen, I told you to wait in the office for your check."'Tholen was paid for the, full .day. (Brackney was not recalled as a defense witness. Therefore, Tholen's version of what was said on December 23 is undisputed.), Although submitting a lengthy brief, the Company offers no explanation why the Company, if it were not discriminatorily motivated, would suddenly discharge this union organizer before work one morning, and pay him for the day, while telling him that it was "cutting expenses." Of course, if the real reason for Tholen's summary discharge was a desire on the part of the Company to cut expenses, the discharge would be lawful.-"Management can discharge for good cause, or bad cause, or no cause at all ... [unles's J the real motivating purpose is to do what Section 8(aj(3) forbids." N.L.R.B. v. McGahey, 233 F.2d 406, 413 (C.A. 5). However, after considering all the circumstances, I find that this purported reason was a mere pretext. The work was there to be done on December 23, and the Company's sudden decision to discharge Tholen resulted in its paying double for Tholen's work that day. I also find to be mere pretexts the purported reasons given by President Brackney at the trial, when he was called as an adverse witness. He first testified that he terminated Tholen 'because "I had warned Mr. Tholen quite a few times about fooling around in the place of business and not helping the boys do their work." Brackney said nothing at, the time of the discharge about this, and I find it to be an afterthought. At no time in December had Brackney criticized Tholen in any way about his work, or given him any indication that his work or conduct was not then satisfactory. Relying on the testimony of employees Tholen and Koerner, and discounting the apparently exaggerated testimony of Brackney, I find that Brackney belatedly made this contention in an effort to conceal the true motive for his sudden decision to discharge Tholen. President Brackney also testified, "I had two other boys that was left over that I didn't have no employment for." If this were true, the Company undoubtedly would have notified Tholen ahead of time, in order not to pay double for work done on December 23, or have waited until after the Christmas rush was over. Furthermore, ,the Company hired a new truckdriver in early January without offering the job to Tholen, who was originally hired as.a truckdriver. After considering all the evidence and :circumstances, including the Company's shifting positions, the timing and suddenness of the discharge decision, the overheard conversation between President Brackney and the office manager, near the time of discharge, the interrogation concerning union activity, and Brackney's - apparent reluctance as a witness to reveal his knowledge of the organizing efforts, as well as the Company's later effort to undercut the Union, I find that the reasons given for the discharge were pretextual and that the real reason was Tholen's activity as the Union's leading advocate in the plant. I therefore find that the. Company discriminatorily discharged Tholen, in violation of Section 8(a)(3) and (1) of the Act. - CONCLUSIONS OF, LAW 1. By discharging Fred Tholen on December 23, and failing to reinstate him, because of his support of the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By coercively interrogating employees, and by reprimanding an employee and withdrawing employee benefits because of the employees' union activities, the Company violated Section 8(a)(1) of the Act. 3. By soliciting employees to report on employee demands and thereby implying a promise of benefits, if employees would abandon their union support, the Company also violated Section 8(a)(1) of the Act. REMEDY In order to effectuate the policies of the Act, I find it necessary that the Respondent be, ordered to cease and desist from the unfair labor practices found and from like or related invasions of'the-employees' Section 7 rights, and to take certain affirmative action. The Respondent having discriminatorily discharged Fred Tholen, I find it necessary that it be ordered to offer him full reinstatement, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis 'Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date reinstatement is offered. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 3 ORDER Respondent, P & B Packers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Amalgamated Meat Cutters and Butcher Workmen of North American AFL-CIO, Local 340, or any other union. (b) Coercively interrogating any employee about union support or union activities. (c) Reprimanding any employee or withdrawing any employee benefits because of union activities. (d) Promising employees benefits if they abandon their union support. (e) In any like or , related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: - (a) Offer Fred Tholen immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "Remedy." -, (b) Restore the employees' benefits of free coffee, sugar, and cream for their coffeebreaks, and the reasonable use of company telephones for personal calls at the plant. (c) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full, reinstatement, upon application after discharge from the, Armed Forces, in accordance with the Selective Service Act' and the Universal Training and Service Act. (d) 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 records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plant in Hays, Kansas, copies of the attached notice marked "Appendix." 4 Copies of the notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized representative of the' Respondent, shall be posted by the Respondent immediately upon receipt thereof,, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employe'es,are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) 'Notify the Regional Director, in writing, within, 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event no exceptions are, filed as provided by Sec. 102.46 of the Rules and_ Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be'adopted by the Board and become its findings, conclusions, and Order,` and all objections ' thereto shall be deemed waived for all purposes. 4 In the event that the Board's' Order is enforced by a Judgment of,the United States Court of Appeals, the words in the notice reading "Posted'by Order of the National Labor Relations Board" shall be changed 'to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing.an Order of the National Labor Relations Board" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial,, that we violated- Federal law by discharging an employee for supporting a union, by withdrawing, benefits, and by otherwise interfering with our employees''right° to join and support a union: WE WILL offer full reinstatement to Mr. Fred Tholen, with backpay plus 6-percent interest. WE WILL NOT discharge or discriminate' against any of you for supporting Amalgamated Meat-Cutters' and Butcher Workmen of North America AFL-CIO,-Local 340, or any other union. WE WILL restore your, benefits for free coffee, sugar, 'and cream for your-coffeebreaks,'and your reasonable use of company telephones for personal cans. - WE WILL NOT reprimand any of you or withdraw 'any of your benefits because of your union activities. WE WILL NOT promise you benefits,for dropping your union-support. WE ' WILL NOT coercively question you about union support or union activities. WE WILL NOT unlawfully interfere withyour'union activities. P- & B PACKERS, INC. (Employer) Dated , By - (Representative) (Title) We will notify immediately the above -named individual if presently serving in the Armed Forces of the United States, of the, right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military'; training and Service Act. This is an official notice and must not, be defaced by anyone. This notice must remain posted for 60 consecutive, days from the date of posting and must' not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to .the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64,106, Telephone 816-374-5181.