Good Foods Manufacturing & Processing Corp.

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Good Foods Manufacturing & Processing Corpora- tion, Chicago Lamb Packers, Inc.-Division and Lo- cal Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Case 13-CA-9994 February 16, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND JENKINS On May 26, 1971, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recom- mending 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 General Counsel filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. Respondent filed neither exceptions nor a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer'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 to the extent consistent herewith. 1. The Trial Examiner found, and we agree, that Respondent is a successor-employer of employees cov- ered by a valid collective-bargaining agreement in an appropriate unit,' and that its refusal to bargain with the Union violated Section 8(a) (5) and (1) of the Act. We note that Respondent does not except to these findings. In fashioning his remedy for this violation, however, the Trial Examiner reasoned that the "special circum- stances" of this case warranted withholding both the usual bargaining order, and an order that Respondent honor, adopt, and enforce the contract between Re- spondent's predecessor and the Union. We find merit in the exceptions of the Union and the General Coun- sel, and disavow the rationale upon which the Trial Examiner bases his conclusion that our usual remedy is not warranted. The record amply demonstrates that Respondent's decision to refuse to bargain with the ' All production and maintenance employees, but excluding office cleri- cal employees, professional employees, guards and supervisors as defined in the Act Union was based on rejection of the collective-bargain- ing principle. Respondent's defense was to assert its religious conviction that obedience to the Act was tan- tamount to disobedience of the spiritual law of Islam. Employers in other proceedings before the Board have also based their refusal to comply with the Act on religious grounds, and in each case the Board, with court approval, has rejected this defense.2 The require- ment that an employer bargain in good faith with the chosen representative of his employees is directed at "conduct" and not "belief," and it is well settled that the First Amendment's protection of religious liberty does not preclude civil regulation of religious conduct which contravenes the law of the land.' We see no reason why this well-settled rationale should not also apply in this case. We shall order Respondent to honor, adopt, and enforce the collective-bargaining agreement for the du- ration of its term,4 to bargain collectively with the Un- ion upon request, for a succeeding agreement, and, if an understanding is reached, to embody such understand- ing in a signed agreement. 2. The complaint alleged, and the General Counsel proved, but the Trial Examiner did not find, that Re- spondent made certain unilateral changes in the terms and conditions of employment of the unit employees at the plant, in violation of Section 8(a) (5) and (1) of the Act. Specifically, Respondent eliminated the existing vacation and pension plans, reduced the number of paid holidays, altered the coverage under the insurance program and sought to replace it with another, set its own wage rates for new hires, and after August 28, 1970, changed the method of remuneration for butch- ers. We do not agree with the Trial Examiner's failure to make findings with respect to these unilateral changes. While it may be argued that these violations of the Act are an integral part of Respondent's religious convictions, we must find, for the reasons set forth above, that they are separate violations of the Act, and also require separate unfair labor practice findings, and an appropriate remedy.' Therefore, we find that Re- spondent's unilateral changes with respect to holidays, vacations, pensions and insurance plan coverage, wage rates, and method of remuneration constitute viola- ' Cap Sante Vue, Inc. v N..LR.B., 424 F 2d 883 (C.A D.C, 1970), enfg 172 NLRB No 176; Western Meat Packers, Inc., 148 NLRB 444, enforce- ment denied on other grounds 350 F.2d 804 (C A 10, 1965) ' Braunfeld v. Brown, 366 U S. 599, Cantwell v Connecticut, 310 U S 296, Church of the Latter Day Saints of Jesus Christ v U.S., 136 U S 1, Reynolds v U.S., 98 U S 145 Ranch-Way, Inc., 183 NLRB No 116, enfd. 445 F 2d 625 (C.A 10, 1971); The William J. Burns International Detective Agency, Inc., 182 NLRB 348, enforcement denied in part 441 F.2d 911 (C A 2, 1971), cert. granted 404 U S. 822 Member Jenkins, consistent with his position in William J. Burns, would not order Respondent to adopt its predecessor's collective-bargaining agree- ment ' Cf Soloman Johnsky d/b/a Avenue Meat Center, 184 NLRB No. 94 195 NLRB No. 83 GOOD FOODS MANUFACTURING & PROCESSING CORP 419 tions of Section 8(a)(5) and (1) of the Act. Accordingly, we shall order it to make all employees whole both for all benefits which they may have lost by virtue of these unilateral changes, and also for all contractual benefits unlawfully withheld from them by virtue of its failure to abide by the provisions of the collective-bargaining agreement. 3. The Trial Examiner found, and we agree, that on August 24, 1970, Respondent discharged Nathan Brown, Anthony DiVizio, Hugh Franklin, Wardell Ol- lie, Quincy Totten, and Alonzo Woodson in violation of Section 8(a)(3) and (1) of the Act. We note that Respondent does not except to these findings. The Trial Examiner further found, however, that only Woodson was entitled to an offer of reinstatement, on the ground that on August 28, 1970, Respondent unequivocally offered the other dischargees reinstate- ment to their former jobs, and this offer satisfied Re- spondent's duty to them. We do not agree with these findings. The inference is clear that the reinstatement offered to the dischargees was not to their former jobs, but to jobs which included the unlawful unilateral changes in conditions of employment found above (elimination of existing vacation and pension plans, reduction of the number of paid holidays, alteration of the insurance program, and change in the method of remuneration). As for DiVizio, the only dischargee who accepted the offer of reinstatement and returned to work, the record shows that Respondent changed him from piecework to a weekly salary and also assigned him additional duties (giving on-the-job training to the newly hired laborers in the slaughtering operation). As for Willie Echols, who quit in July before the dis- criminatory discharge of the others, the record suggests that, like DiVizio, Respondent may not have accorded him the full terms and conditions of employment to which he was entitled. Accordingly, he is to be included in our backpay orders where appropriate, infra. Back- pay is to be computed in the conventional and estab- lished manner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Good Foods Manufacturing & Processing Corporation, Chicago Lamb Packers, Inc.-Division , Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concern- ing their union activities and threatening to close its plant in retaliation for its employees' union activities. (b) Discouraging membership in Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor or- ganization, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or other condition of employment. (c) Refusing to bargain with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, with respect to rates of pay, hours of employment, and other terms and condi- tions of employment. (d) Failing or refusing, as successor to Chicago Lamb Packers, a partnership, to honor, adopt, and enforce the collective-bargaining agreement with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. (e) Unilaterally changing the wages or other terms and conditions of employment of employees in the ap- propriate unit without prior consultation with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Nathan Brown, Anthony DiVizio, Hugh Franklin, Wardell Ollie, Quincy Totten, and Alonzo Woodson immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon applica- tion after discharge from the Armed Forces, in accord- ance with the Selective Service Act and the Universal Military Training and Service Act. (c) Make whole Nathan Brown, Anthony DiVizio, Hugh Franklin, Wardell Ollie, Quincy Totten, and Alonzo Woodson in the manner set forth herein and in the section of the Trial Examiner's Decision entitled "The Remedy," for any loss of pay or other benefits they may have suffered by reason of Respondent's dis- crimination against them. (d) Honor, adopt, and enforce Chicago Lamb Pack- ers' collective-bargaining agreement with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, and make whole all employees (including Willie Echols) for con- tractual benefits which Respondent may have unlaw- fully withheld by virtue of its failure to abide by the provisions of the collective-bargaining agreement since 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its acquisition of the employing enterprise involved herein. (e) Bargain collectively, upon request, with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, for a succeeding agreement, and, if an understanding is reached, embody such understanding in a signed agree- ment. (f) Make whole all employees (including Willie Echols) for any benefits which Respondent may have unlawfully withheld by virtue of any unilateral changes Respondent may have instituted in the terms and con- ditions of employment. (g) Pay to the Union any amounts due for health, welfare, and pension payments earned by these em- ployees during the period of their employment with the Respondent. (h) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (i) Post at its place of business in Chicago, Illinois, copies of the attached notice marked "Appendix." Co- pies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (j) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with.' HOWARD JENKINS, JR., concurring: I concur in the findings and conclusions of my col- leagues. Concerning Respondent's offer to reinstate the un- lawfully discharged employees on August 28, 1970, the offer included the condition that "the Union is out." Such a condition is itself unlawful. Thus the offer of reinstatement, not comporting with the Act as well as not being unconditional, cannot satisfy Respondent's ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." obligation to the employees so as to cut off its backpay liability. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees about their union membership, activities, or sym- pathies. WE WILL WILL NOT threaten employees with closure of our plant to discourage employee mem- bership in, or support of, Local Union No. 87, Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, or any other labor organization. WE WILL NOT discharge or otherwise discrimi- nate against employees because they join, assist, or give support to Local Union No. 87, Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. WE WILL adopt, honor, and enforce the collec- tive-bargaining agreement between Chicago Lamb Packers and Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, for the duration of its term. WE WILL bargain, upon request, with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, for a succeeding agreement, and if an understand- ing is reached, embody such understanding in a signed agreement. WE WILL make restitution of all contractual benefits which we may have unlawfully withheld by virtue of the failure to abide by the collective- bargaining agreement in effect at the time we ac- quired the business of Chicago Lamb Packers. WE WILL NOT make unilateral changes with re- spect to wages, hours, and terms and conditions of employment of the employees in the bargaining unit without consultation with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization which may represent them in the future. WE WILL make the employees whole for any benefits which may have been lost by virtue of any unilateral changes we may have instituted in the terms and conditions of employment without con- sultation with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. GOOD FOODS MANUFACTURING & PROCESSING CORP 421 WE WILL pay to the Union any amounts due for health, welfare, and pension payments earned by these employees during the period of their em- ployment with the Respondent. WE WILL offer to Nathan Brown, Anthony Di- Vizio, Hugh Franklin, Wardell Ollie, Quincy Tot- ten, and Alonzo Woodson immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights to self- organization, to form, join, or assist labor organi- zations, to bargain collectively through represent- atives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities. GooD FOODS MANUFACTURING PROCESSING CORPORATION, CHICAGO LAMB PACKERS INC -DIVISION (Employer) Dated By (Representative) (Title) We will notify immediately Alonzo Woodson, if pres- ently 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, Room 881, Everett Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly desig- nated Trial Examiner on various dates between Januray 26 and February 12, 1971, at Chicago, Illinois, on complaint of the General Counsel against Good Foods Manufacturing & Processing Corporation, Chicago Lamb Packers, Inc.-Divi- sion, herein called the Respondent or the Company. The principal issue of the case is whether the Respondent refused to bargain with Local Union No. 87, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, herein called the Union, in violation of Section 8(a)(5) of the Act.The complaint also alleges that the Respondent violated Section 8(a)(3) in the discharge of six employees on August 24, 1970. The Respondent denies commission of any unfair labor practices. Briefs were filed by the General Coun- sel and the Union. Upon the entire record and from my observation of the witnesses, I make the following:' FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT This proceeding arises out of the operation of a lamb pro- cessing plant located at 3907 South Halsted Street in Chicago. For some years prior to March 28, 1970, it was owned and operated by a partnership called Chicago Lamb Packers, whose individual partners were Anthony Chiappetti, Sal- vatore (Sam) Musillami, Saverio (Benny) Musillami, and Al- bert Crocetti. This partnership sold the business to a corpora- tion named Good Foods Manufacturing & Processing Corporation, herein called Good Foods, which on April 1, 1970, continued doing the same business previously carried on by the seller. There exists another corporation called Chicago Lamb Packers, Inc., which joins with the Good Foods company in doing the business in question. The two designate themselves jointly, and in this fashion carry on the commercial enterprises, as Good Foods Manufacturing & Porcessing Corporation, Chicago Lamb Packers, Inc.-Divi- sion. The complaint uses this last combined name to identify the Respondent in the case. The following facts, alleged in the complaint, are admitted in the answer. Good Foods and Chicago Lamb Packers, Inc., are corporations organized and existing by virtue of the laws of the State of Illinois; they constitute an affiliated business with common ownership, officers, directors, and operators; their directors and officers formulate and administer a com- mon labor policy affecting the employees of the companies; and they constitute a single-integrated business enterprise. Since its purchase of the plant in question the Respondent has been engaged in manufacture, processing and sale of food, food products, and related commodities. In the course of this business it annually sells and ships finished products valued in excess of $50,000 in interstate commerce , annually pur- chases goods and materials valued in excess of $50,000 di- rectly in interstate commerce, and annually purchases goods and materials valued in excess of $50,000 from enterprises which receive said goods directly in interstate commerce. The Respondent contends that it is not engaged in com- merce within the meaning of the Act and that therefore the Board is without jurisdiction over any of its affairs, related or unrelated to its employees' right to engage in collective bar- gaining. The predicate for this argument are the following ' A motion by the General Counsel to correct certain typographical errors in the transcript, unopposed, is hereby granted 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further facts established in the record. The stock of these two corporations-Good Foods and Chicago Lamb Packers-is owned by a third corporation called Your Supermarkets. Your Supermarkets operates a retail food store. In turn the stock of Your Supermarkets is owned by a religious corpora- tion called "Muhammed's Temple # 2 of the Holy Temple of Islam." Most of the officers and directors of the two immedi- ately involved corporations are officers of Your Supermarkets and of the Temple organization, as well as active officials of other related companies. The attack upon jurisdiction is based essentially on religious grounds. It is said that the ultimate purpose of these various corporations, viewed in the aggregate, is to further a religious objective, and that there- fore the principle which would exclude a group of Imans, for example, engaged in a direct religious function of the Temple itself-here the twice-removed owner of the stock of the two corporations constituting the Respondent-removes as well from the Board's jurisdiction the business operated by Good Foods and Chicago Lamb Packers at the Halsted Street meat processing plant. For reasons set out below I find no merit in the contention. I find that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED I find that Local Union No. 87, Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the em- ployees from a sudden change in the employer relationship." And more recently the Board established the further rule of law that the successor in such cases is not only obligated to recognize and bargain with the established union, but must also honor the substantive terms of the collective-bargaining agreement that is in effect. Burns Detective Agency, 182 NLRB No. 80. In the light of the clear admissions by the Respondent's agents that it consciously ignored both these rules of established law, the real question to be decided in this case is whether there are presented such pertinent facts as to distinguish this situation from that of the cited precedent and permit this particular Respondent to operate its commercial enterprise outside the ambit of, and insulated from the statu- tory obligations resting upon all other employers? There is a further and separate allegation in the complaint that the Respondent discharged six employees, i.e., all who remained of the original seven who came with the "employing enterprise," because they persisted in being represented by the Union, this in violation of Section 8(a)(3) of the Act. In defense it is contended that the men were not discharged, but only temporarily laid off, and that the reason for the action was not any unlawful motive, but only the fact the Respond- ent believed at the time it was losing money, an economic condition which it sought to remedy. A final issue, disputed by the parties, arises from the Respondent's contention that all six of these employees were recalled to duty shortly after the discharge and that all but one, who did return, refused the recall invitation. III THE UNFAIR LABOR PRACTICES This is a successorship case. The Respondent bought and paid for the business of the predecessor, lock, stock, and barrel, including the building in which it is carried on. On Friday, March 28, 1970, the selling partnership ceased doing business; the following Monday morning, April 1, the Re- spondent continued doing the same business, with substan- tially the same employees, the same diversified commercial customers buying the product, and the same suppliers send- ing it the livestock and materials. The Union had long been the bargaining agent for the employees, certified by the Board in 1965. Its last contract, executed in 1968, by its terms was to remain in effect until the fall of 1971. The Respondent's officers knew there was a union in the plant, as well as a contract in effect. Days of testimony were offered by the General Counsel to prove that the Respondent refused to bargain with the Union, that it rejected the contract, that it made all kinds of unilateral changes in conditions of employ- ment, as though the Union did not exist. Much of this evi- dence proved unnecessary, for the Respondent's own wit- nesses, managing agents, candidly admitted the refusal in every respect. At the hearing counsel for the Respondent hinted at a number of defenses but did not articulate any one with specificity. One assertion, advanced clearly, is that in the purchase agreement the Respondent stipulated it would not be bound by any agreement the predecessor may have made. The law is clear. "The duty of an employer who has taken over an `employing industry' to honor the employees' choice of a bargaining agent is not one that derives from a private contract, nor is it one that necessarily turns upon the acquisi- tion of assets or assumption of other obligations usually inci- dent to a sale, lease, or other arrangement between employ- ers. It is a public obligation arising by operation of the Act." Maintenance, Inc., 148 NLRB 1299. See also John Wiley & Sons v. Livingston, 376 U.S. 543: "The objectives of national labor policy, reflected in established principles of federal law, A. The Evidence 1. Continuity of the employing enterprise The partnership which sold the business bought live lambs, slaughtered, cleaned, and sectioned them, and sold cut meats to all kinds of purchasers, mostly retail outlets, such as chain food stores. Its employees were butchers. The products were delivered in trucks, driven not by employees but by several of the individual partners. One of them, Anthony Chiappetti, an experienced butcher himself, also acted as inside manager, and supervised the production employees. Good Foods con- tinued the business the day it took over on April 1 exactly as it had been going on before, the same building, the same equipment, the same kind of work in processing live lambs to final cutting and sale, the same employees, the same custom- ers, and the same suppliers. Anthony Chiappetti was hired to continue, from the first day, as manager and supervisor of the butchers, precisely the same work he did before. Good Foods also hired, on the first week of its operations, two laborers who had never worked there before, their duties were de- scribed on the record as the usual cleaning up, plus some help to the butchers in their regular work. Another one or two of the former partner-owners also did some work for Good Foods, but not in the production process. Always, from that first week to the end of the year, and perhaps even to the time of the hearing in February 1971, the Respondent chose to establish an independent contractor relationship with what- ever persons made its deliveries in trucks. Whether the vehi- cles belong to the drivers or to the Respondent the record does not show, nor is it clear how the independent contractor status is arranged. But there is no question, in view of the testimony of the company witnesses, that no one who drove, or now drives trucks for this Respondent, was ever or is now an employee. require that the rightful prerogative of owners independently ' Cf Emerald Maintenance. Inc., 188 NLRB No 139 GOOD FOODS MANUFACTURING & PROCESSING CORP 423 2. Union representation Local 87 of the Amalgamated Meat Cutters was the bar- gaining agent of the predecessor's employees from 1965 to the time of the change of ownership; its agency status rested upon a 1965 Board certification following an election . The unit was described as "all production and maintenance employees .. excluding office clericals employees, professional em- ployees ...." The last contract between the partnership and the Union was executed on December 10, 1968, by its terms to continue in effect to October 1 , 1971. That the Union was in fact the majority representative of the predecessor's production and maintenance employees , and that its contract was in effect and valid with respect to the predecessor, is not disputed by the Respondent. At the hearing two officials of Good Foods tried to create the impression that the Respondent knew nothing about the union conditions in the plant , or any contract , until 3 or 4 months after April 1, but the evidence proves otherwise. Chiappeti, now a managing agent of the Respondent, testified without contradiction that he mentioned the fact of the Un- ion in the shop to Raymond Sharieff, the president of Good Foods Corporation, as early as 5 months before the sale, when explaining the various leases and documents related to the business. Thereafter, still long before the turnover, he explained all details again to a Mr. Oscar Brown , a lawyer whom the Respondent had sent to look further into the con- templated sale. Chiappetti showed Brown the union contract, and the company books and financial statements. To John Ali, general secretary of the Temple and predecessor to Abass Rassoull, who later was in charge of all the records of Good Foods and the other related corporations , Chiappetti showed how his records reflected cash payment to the Union for health and welfare, as well as pension amounts due under the collective-bargaining agreement . He also showed the Re- spondent's representatives, before the sale, how dues were withheld from the employees' wages and forwarded to the Union . I find the Respondent was fully apprised of the fact the employees were represented by the Union and that there was this contract in effect when it bought the business. For a period after the Respondent started business it de- ducted dues from the wages of the butchers and forwarded the money to the Union . The parties stipulated that for the month of May the Respondent withheld $9 from the wages of each of five butchers , for June $9 from the wages of six butchers, for July $15 from the wages of six butchers, and forwarded all this money to the Union. 3. Refusal to bargain No useful purpose would be served by detailing here the diversified evidentiary matters proving the Respondent's refusal to bargain with the Union as requested , for in the end, indirection and evasion may have appeared in the conduct of whatever the Respondent 's agents between April and July, became open admission by them that they not only rejected any idea that they were legally obligated to bargain with this Union for this plant, but indeed that they reject any duty under any law to recognize and deal with any collective- bargaining agent selected by any of its employees From the testimony of Raymond Sharieff, the president of the Re- spondent: "And the decision we arrived at was to the fact that we could not allow our shop to be'run and governed by a union .... And I don't believe that any other union should dictate to a religious body as to how they should conduct their affairs .... And this is something we just will not com- ply with ...... Sharieff also conceded that among the reasons why he rejected any union was the fact that otherwise the Respondent "would have to consult the union about setting wage rates ... [and] various working conditions of the em- ployees." From the testimony of Abass Rassoull: "And I remember telling them [the employees] ... that we had no intention of signing a contract with the union ... we didn't feel that we needed an overseer. . Clarence Greene, president of the Local Union, spoke to Chiappetti several times after April 1 in an effort to communi- cate with the new owners. Chiappetti put him off once or twice, and finally, sometime in June, Greene did meet with Rassoull. Greene had received dues payments from the Re- spondent but not the health and welfare and pension money due under the contract . He asked what the Respondent in- tended doing about this, as well as about holiday pay. Ras- soull asked for time to consider the matter and to consult his superiors . Greene also met with Sharieff towards the end of June, with the same inconclusive results in his request that the Respondent treat the employees in keeping with the con- tract. Finally, on about July 28, representatives of both par- ties conferred in Rassoull's office. Greene was accompanied by a union lawyer, Mr. Charles Orlove, and by Nathan Brown, one of the butchers and the Union 's steward in the plant; Sharieff and Rassoull were with another company agent. The variances in the recollections of the witnesses as td what words were used are of little moment . According to Greene, Rassoull said : "We want absolutely nothing to do with your Union . We want no part of your Union " "... if you came here expecting me to sign a contract, you are wast- ing your time." Orlove testified he explained Board law to everybody , with chapter and verse, and that Rassoull then said : "We are not going to have anything to do with the union. We are not going to deal with the union . We are not bound by your laws." Both Orlove, the lawyer, and Brown, the steward, related how Rassoull then tried to ask whether the employees really wanted the Union, with Brown stating the men were "willing to go out on a strike to save what we already getting." With this, according to Brown, Rassoull said : "Before I sign a contract, I'll close it up." Neither Rassoull nor Shaneff contradicted this testimony, which is completely credible if only because consistent with the later admissions of the two company officials. There was talk after the July 28 conference of meeting again, Rassoull telling both Greene and Orlove he might have spoken out too openly . The union representatives were will- ing to discuss the matter again , but no meeting was held. In the end, Orlove spoke to Rassoull on the telephone about August 14, saying he had filed Board charges against the Respondent and time was running out. Rassoull told him again, as the lawyer testified without contradiction. " .. we have decided now to return to our original position, and we are not going to deal with the union. We are not going to have anything to do with the union " 4. Unilateral action Consistent with its announced intention the Respondent fixed employee conditions of employment as in its judgment it thought proper; in some respects its actions paralleled the contract terms-piece rates to the butchers and dues-checkoff payments up the month of July-and in others its actions conflicted with the contract provisions. At a first meeting with the butchers sometime in mid-July, Rassoull was asked whether the Company intended to pay the insurance premiums for them and their families-medical and hospitalization-as the contract required . He told them the Company was thinking of obtaining some insurance but only for the employees themselves , not for their families. The employees demanded that the Respondent continue contribu- tions to their pension fund , also in keeping with the union contract. Rassoull told them they had better look for work elsewhere, for the Respondent had no intention of paying 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them that benefit. It was stipulated that throughout the entire period-from the April takeover to the time of the hearing -the Company made no contributions to the Union's health and welfare fund or pension fund. The contract called for overtime pay. The Respondent added several employees to the payroll-mostly persons hired as laborers working by the week, as distinguished from the butchers who continued on piece work; these were black men, Muslim members of the Temple of Islam. The laborers worked overtime but were not, and are not being, paid for such work. The contract also contains specific provisions for vacation pay, with rather complex and refined details. The predecessor company paid some vacation money to the employees before the end of March. The butchers who then constituted the production staff worked for the Respondent from April through August 24, when all of them were discharged. The General Counsel and the Charging Party contend that the Respondent's failure to pay further vacation money to at least some of the butchers prove a further unilateral change in conditions of employ- ment and therefore cumulative evidence of illegal refusal to bargain. The record in its entirety, particularly the fact the contract received in evidence does not explicitly show what, if any, vacation payments were due from the Respondent during the 5 months the butchers were in its employ, does not permit a definitive finding that in fact the Respondent failed to comply with the vacation clause of the contract. 5. "Substantially the Same Employees" The underlying bargaining unit with which this case is concerned defines a production and maintenance grouping of employees. When the selling partnership gave up the business at the end of March there were seven employees in the unit, all skilled butchers. The contract in effect sets out an hourly wage rate for a laborer classification, but that employer hired none; what cleaning up was required after the butchers finished their work each day was performed by the butchers themselves. Their piecework pay rate was so set as to take into consideration this additional work. As already explained, the delivery of the products to customers was done by the partners themselves; in fact Chicago Lamb Packers, the part- nership, was then bound by a collective-bargaining agreement with a Teamsters local to cover this very work by its in- dividual partners. Thus the question whether the purchasing corporation continued business with "substantially the same employees" as its predecessor is to be tested against the seven butchers as a starting point. There is oral testimony about what persons were hired by the Respondent, and there are two exhibits on the subject. Of these, one-G.C. Exh. 21-is a list of names with certain statements and figures. It was prepared by the Respondent assertedly from its records for use at the hearing and handed to the General Counsel. During the hearing counsel for the Respondent argued that the information there set out is tan- tamount to its original records, and that it faithfully indicates all the persons who worked after April 1, 1970, for the Re- spondent at this plant. The General Counsel did not so stipu- late and contends instead that the document is secondary evidence at best, that absent the original records themselves it may not be used as true proof of the facts asserted thereon An important witness for the Respondent, Mr. Rassoull, nev- ertheless used it as ready reference as a reminder to himself while giving oral testimony. The other exhibit-C.P. Exh. 3(a) to (f)--consists of the original payroll records of the Respondent for the weeks ending April 10, 1970, through May 15, 1970. All parties stipulated as to the authenticity of these records. There is some confusion in parts of the testimony, and I take the Company's payroll records as the most reliable source of facts for this aspect of the case. Of the seven original butchers, six worked without interruption with the Respond- ent up to August 24; the seventh, Willie Echols, worked continuously to the last week of July, when he left voluntarily for another job elsewhere. The names of all seven butchers appear on the payroll records for each one of the 6 weeks beginning April 10. The April 10 payroll has 17 names. Seven are the old butchers. Two are laborers- Willie Hollins and Edward Hin- ton. The Respondent hired unskilled people to clean and help around the place, and, as will appear below, with an intent that they might also learn to be butchers. David Wilson was hired when the Respondent took over as trainee to become the manager; Anthony Chiapetti took him under his wing. That Wilson acted as manager is also shown by other oral testimony. Benny (Saverio) Musillami, another of the old partners, was a retail salesman . Leonard Danelson was a livestock buyer. From Rassoull's testimony concerning Da- nelson: "[Danelson] went and brought sheep at the farms and around the countryside under Mr. Chiappetti's direction, bought the sheep for us." Four others-Jarriott McLemore, Bob Coleman, I. J. Ellis, and Victor Peps-were independent contractors. They are so identified on the payroll, although they also have separate titles, and Rassoull made their inde- pendent contractor status very explicit in his testimony.' The last name is Joseph Roe, designated driver. I find that for the workweek ending April 10 there were at most 10 employees in the bargaining unit: 7 old butchers, 2 new laborers, and Roe, a driver, of whom more below. The April 17 payroll has 18 names ; 16 continue as the previous week, Peps disappears and 2 are new: Jerrely Scott and Daniel Chaney. Scott was a bookkeeper and Chaney is designated driver. I find that for the week ending April 17 there were at most 11 employees in the bargaining unit: the 7 butchers, the 2 laborers, and 2 drivers, about both of whom more below. The April 24 payroll shows 20 names; 18 are exactly as appeared for the previous week, and 2 are added: Anthony Chiappetti, the manager and Tommy Young, whose name appears with no identification at all. The record otherwise shows only, as Rassoull said, that Young "worked in the cooler." I find that for the week ending April 24 there were at most 12 employees working in the bargaining unit: the old 7 butchers, the 2 laborers, 2 drivers, and Young. The May 1 payroll shows the same 20 names as the previ- ous week. The only variance is that both Hollins and Hinton, previously called laborers, are designated "cooler," and Sav- erio Musillami is now also called "cooler." The May 8 payroll shows 19 names, all also appearing on the previous week's payroll. The only variance is that Young disappears, and Hollins, Hinton, and Saverio Musillami are now called "freezer," instead of "cooler." The May 15 payroll shows the same 19 names appearing on the previous week's payroll, with no change whatever. He thus testified A As indicated here, there were certain individuals that were work- ing with Chicago Lamb as independents For example, listed here there is a Jarriott McLemore, who was a driver, and he had a contract to deliver lambs for Chicago Lamb as an independent, and which meant that we did not consider him an employee of Chicago Lamb, conse- quently we did not make any deductions from his pay for Federal Income Tax Q Now, who else is it true of) A Jarriott McLemore, Bob Coleman, I J Ellis, Victor Peps GOOD FOODS MANUFACTURING & PROCESSING CORP Apart from this precise data proved directly in the only records of the Respondent produced at the hearing by any- one, there is some vague, generalized, inconsistent, and vacil- lating oral testimony by Rassoull, who seemed to be the representative of the Respondent most cognizant of its affairs with respect to this meat processing plant, and by Sharieff, the company president. If the disputed oral testimony be ignored for the moment, and the 6 weeks payroll records be deemed correct on their face, it must be found that the ratio between old and newly hired employees was as follows for the succes- sive weeks: April 10, seven old (butchers), plus three new (two laborers and one driver); April 17, seven old plus four new (two drivers and two laborers); April 24, seven old plus five new (two laborers, two drivers, and Young in the cooler); May 1, seven old plus five new (two laborers, two drivers and Young); May 8, seven old plus four new (two laborers and two drivers), and May 15, seven old plus four new (two laborers and two driver). Accordingly, it is clear that even counting the one or two "drivers" for various weeks, the original group of seven skilled butchers continued to consti- tute the majority of the production and maintenance em- ployee complement throughout the first 6 weeks of operation by the new Company. All were union members and all were having their union dues checked off from their wages. And there is no reliable evidence to indicate this ratio changed until one butcher, Echols, left in July, and the remaining six were discharged on August 24. Moreover, a fair reading of the record as a whole also requires a finding that on this question of whether or not "substantially the same employees" continued to work, the "drivers," indicated in the original payroll records, may not be counted. The contention voiced by the General Counsel and the Union, both at the hearing and again in their respective briefs, that truckdrivers were "excluded" from the bargaining unit, is literally incorrect. The original consent election agreement in 1965 and the certification of representatives which fol- lowed it are silent with respect to drivers, in or out It is a fact, however, that drivers were covered by separate contract with the Teamsters Union while the predecessor ran the business, and that they were independent contractors when driving for the Respondent. They were never included in the bargaining unit. Both Rassoull and Sharieff, for the Respondent, showed clearly in their testimony that any question of the limits of any bargaining unit was a complete irrelevancy for them, for they fundamentally rejected any concept of collective bar- gaining as envisaged by the law. Sharieff used the word "we" with regard to which of the various corporations associated with his religious group he was talking about. The testimony of Rassoull, who said he is in personal charge of the records of all the corporations mentioned at the hearing, gave tes- timony that is essentially of no definitive value on this point. He used General Counsel's Exhibit 21-the list of names the Respondent had extracted from certain records which it did not offer in evidence. Referring to the various persons there named Rassoull said, among other things: "All of those [listed names] who are part owners, members of the Temple of one time or another may go to 26th Street [a location other than the Lamb Processing Plant] to help out there." Q. I will ask you again, do they go to any other stores, factories, owned by the Muslims or Good Foods to help out? A. Well, there is a possibility that they would. I couldn't say offhand, sir, I wouldn't be able to tell. Q. And to what other locations might they go? A. Wherever they would be needed for the temple. 425 Q. So can you tell us how much time the employees listed on General Counsel's Exhibit 21 spend working at the Halsted Street location? A. No, sir, not now I can't, not at this moment. Q. Well, I am trying to understand General Counsel's Exhibit 21. The names that you put under the terms "Position Held," those, then, are not the names of the positions held at the time of hire; are they? A. I would say not necessarily .... * * * * Q. So there is no way, by looking at General Counsel's Exhibit 21, that we can tell whether that position was the position at the time of hire or the position sometime later after hired; is there? A. No, Sir. * * * * * Q. All right. In respect to Daniel Chaney, from the time he was hired, where did he spend the majority of his time, if you can recall? A. I can't recall Q. Would any records show that, reflect that, Mr. Rassoull? A. No, no they wouldn't. Somewhat confusing, there was received in evidence a one- sheet exhibit listing a number of names, each followed by a date; at the top appears the phrase "Good Foods." The par- ties agreed it reflects the date of hiring of those individuals. Close examination shows that in a number of respects it cannot be reconciled with the dates appearing on the payroll records. For the most part, however, it seems to reflect the names of persons hired about the time of the mass layoff on August 24, and thereafter, as late as towards the end of the year. By that time the refusal to bargain had effectively been consumated, and the union butchers discharged. I hold it a fair finding that at no time during the first 6 weeks of operation by the Respondent, at least, were there ever at any given time more than four newly hired employees on its payroll besides the continuing original seven butchers who worked throughout the period. B. Violation of Section 8(a)(5); Violation of Section 8(a)(1) I find that all production and maintenance employees of the Respondent at its 3907 South Halsted Street plant, ex- cluding truckdrivers and all 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. I also find that at the time of the events, starting on April 1, 1970, and continuing through the month of August 1970, the Union was the representative for purposes of collective bar- gaining of the employees in this unit, and by virtue of Section 9(a) of the Act was the exclusive representative of all such employees for the purpose of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment. I find that Good Foods Manufacturing & Processing Cor- poration, doing business in its own name and as a division of Chicago Lamb Packers, Inc., is the successor to Chicago Lamb Packers, a partnership, within the meaning of the Board's decisional precedents.' Immediately upon taking over the business of the predecessor, it started and continued 4 Tom-A-Hawk Transit, 174 NLRB No 24 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to do the same kind of work, in the same location, with the same equipment , and using substantially the same employees; it purchased its necessary stock from the same suppliers and sold its finished products to the same customers; it even uti- lized essentially the same immediate supervision as did the predecessor As the successor to the employing enterprise the Respondent was obligated in law to bargain with the estab- lished and recognized exclusive majority representative of the employees. John Wiley & Sons v. Livingston, supra. Respond- ent knew, both before purchasing the business and after tak- ing it over, that the Union represented the employees and that there was a collective-bargaining agreement then in effect. I do not credit the testimony of Rassoull, at one point, that he first learned of the Union's existence in this plant in July. There is no contradiction of Anthony Chiappetti's story of how he explained these facts to the Respondent's representa- tive when they first looked into the matter, even showing a copy of the contract and his financial record of payments of dues and insurance and pension contributions to the Union. For several months the Respondent deducted union dues from the wages of the butchers and forwarded them to the Union. Rassoull's attempt to disassociate himself from this most revealing fact, on the ground that it was not he but the office girl of the Temple of Islam who did this without his knowledge, is a weak reed indeed. Elsewhere in his testimony the principal thrust of the Respondent's defense rests upon the persistent assertion that the religious body, called the Temple, and the Respondent meat packing company are one and the same, inseparable. I also find that the Respondent refused to bargain with the Union on request and thereby violated Section 8(a)(5) and (1) of the Act. This was no technical violation of the statute; it was explicit denial of any duty to comply with the require- ments of law, of the employee's rights to engage in self- organization and collective bargaining, and of the applicabil- ity to the Respondent of established court precedent. Consistent with the expressed position of the Respondent also articulated by himself, Rassoull did not deny the detailed testimony of one employee after another about unlawful and coercive statements made by management agents. In mid- July he gathered the butchers to suggest holding their pay back a week to facilitate the Company's bookkeeping proce- dures. In the discussion some butchers asked whether the Respondent intended to continue paying the hospital and welfare benefits; Rassoull told them it planned to do so only for the employees themselves, but no longer for the benefit of their families also. Asked about pension payments to the Union, he told one man he could look for a job elsewhere if that was what he wanted, because the Respondent was not going to pay for any pension. At this point, according to Wardell Ollie, Rassoull told the men, in the presence of all, " ... if we was thinking about the union, the union was out. He said before he'd sign a contract, he'd close up the place." Ollie's testimony is substantially corroborated by Nathan Brown, Echols, and Quincy Totten, others of the butchers. Rassoull again gathered the butchers a day or two after meeting with the union agent and the Union's lawyer, when, on July 28, he had directly rejected the request to bargain. Shaneff was also present that day. Rassoull told the men he had just met with the union representatives and that "before they'd have a union in there, they'd close the place down." With this he then asked the assembled employees to vote on whether or not they wished to be represented by the Union; he left them alone for about 5 minutes to decide and then returned to ask what they thought. They told him they did not care to vote; they wanted to wait until Brown, the union steward butcher, returned. There is no reason to reject here exactly what Rassoull said and did that day was consistently reported by others: Hugh Franklin, Ollie, Brown, Echols, Alonzo Woodson, and Totten. Rassoull recalled that at this meeting he reported his union conference to the men and told them: " ... that we had no intention of signing a contract with the union ... that the Nation of Islam had a policy of dealing with justice and , you know, dealing justly with all of our employees. Consequently, we didn't feel that we needed an overseer ...." He continued to testify he then asked the men "who was interested in the union remaining in, you know, in the shop itself." Rassoull did not deny telling the men then and there that the Respondent would close the shop before having anything to do with any union. Coupled with the simultaneous threat to shut down the business, the interrogation of the employees concerning their union sympathies was a direct violation of Section 8(a)(1) of the statute chargeable to the Respondent, as I so find.' I also find that the threat, twice expressed, to close the plant if the employees persisted in their union resolve , was a violation of Section 8(a)(1). C. The Ultimate Defense During the hearing many defense contentions were made by implication, some subtly and some in broad generalities intended to include the particular, but not quite precise enough to be coherently quotable. Some of these came from Rassoull and Sharieff, the principal defense witnesses, but the greater number were voiced by Respondent's counsel, either while objecting to the form of the entire proceeding, or in his examination of witnesses. Thus it is suggested that the Com- pany did bargain with the Union on some negotiable matters, that it did not in fact refuse to recognize and deal with the Union, that the six old butchers released on August 24 were not selected for discharge because of the prounion sentiment, and, in total, that the Respondent corporation is not a succes- sor to the selling partnership. Respondent's counsel referred to constitutional rights, to the first amendment, but the pass- ing observations remained on record as general comments without clarification of position, and without supporting legal arguments. No posthearing brief was filed, such as would have shed light upon the Respondent's real defense. A fair reading of the evidence in its totality, particularly the combined testimony of Sharieff and Rassoull, leaves no doubt that the Respondent's ultimate defense-not just to one allegation of wrongdoing or another, but to the entire complaint-is that because of these witnesses' religious be- liefs, or because of the religious beliefs of their associates, any and all conduct on their part must be excused. There is no reason for not believing the Union's lawyer, Mr. Orlove, and I therefore credit his testimony that when he explained to Rassoull and others of the Company exactly what Board law holds, even offering them the printed decisional precedents to read, the Respondent's officer answered him; "We are not bound by your laws " This means, and the record could not be clearer, that the ultimate defense in this case is that this Respondent is free to refuse to bargain with this Union or any union, to discharge its employees because they choose to engage in collective bargaining, to threaten them with plant closure in order to assure that they not attempt self-organiza- tion, and to run its commercial enterprise without regard to the laws of the land applicable to all other business undertak- ings, including, of necessity, any competing meat processing merchants. the word-by-word testimony of all the employees; that this is ' Struksnes Construction Co, Inc., 148 NLRB 1368. GOOD FOODS MANUFACTURING & PROCESSING CORP. As to the reasoning whereby such a defense should be sustained here, there are only the words that came from the mouths of Sharieff and Rassoull. These two men are in charge of the business-a straight meat slaughtering and wholesaling plant; it was they who were placed in authority by the the corporate interests, regardless of who the individual financial backers may be; it was they who committed the unfair labor practices alleged in the complaint . Shorn of inflammatory phrases, all they said is that they can run a business in total violation of the proscriptions and obligations imposed by the Taft-Hartley Act because their religion teaches them that unions are a bad thing, or because others-including their spiritual leaders-tell them unions are to be shunned. It will be recalled that after telling the Union's representatives he would have nothing to do with them, Rassoull had second thoughts and suggested another meeting, only to say once again-after conferring with his religious superior-that his religious organization chose to ignore the civil law of the land. I find no merit in the overall defense based on religious grounds. The Respondent proved that Muhammed Temple # 2 of the Holy Temple of Isalm was incorporated under the Illinois statute pertaining to religious corporations . There is no occasion here for expressing any opinion on whether or not that organization in fact exists to further a purely reli- gious objective, for the Board has long held that a commercial enterprise, corporate in structure and distinct in operations, is subject to the jurisdiction of this statute albeit it may be ultimately owned by a religious group.' The Good Foods Corporation was organized and exists as a legal entity directly by virtue of other Illinois statutes that govern business enter- prises. It buys and sells meat, for a profit, without discrimina- tion on any basis as to the character or religious beliefs of its customers. Indeed, part of its business is carried on in a special way so as to accomodate the religious precepts of another religious group , the Jewish Kosher meat retailers. It is twice removed from Muhammad's Temple # 2, for its stock is first owned by Your Supermarkets, itself a retailing business corporation , and only then again indirectly under the control of the Temple, which owns the stock of Your Supermarkets. To the extent that Rassoull and Sharieff tied the objectives of the Temple with those of the Respondent corporation, the testimony of these witnesses as to the pur- pose of the Temple warrants some consideration. Sharieff said the reason why this meat plant was bought by the larger group of Muslims was: " ... to help to create more employ- ment for the members ... to create more jobs for them." . . in racially segregated neighborhoods such as I live in and others of our people live in, it is very difficult to get quality meat .... So, to eliminate this we bought the meat plant so that we could assure ourselves of getting quality meats without going all over the city to look for it." Throughout his testimony Rassoull referred to the Temple, and all of its Muslim members, as a concept interchangeable with "Nation." Again and again he spoke of the "Nation of Islam," "Mr. Muhammad [Elijah Muhammad] is building a nation." Asked why the Respondent, following the teachings of Rassoull's religious leader, does not pay its Muslim mem- ber employees for overtime work performed, he said: "What- ever the Nation acquires, being a part of the Nation, whatever gross the Nation has, whatever benefits that are-whatever benefits that can be construed by or that can be garnered by being a part of the Nation, this is what they benefit, sir." These words echo a more temporal than spiritual message. Rassoull did not contradict the credible testimony of the 6 Western Meat Packers, Inc, 148 NLRB 444, reversed on unrelated grounds 350 F.2d 804 (C A 10) 427 lawyer, Orlove, that at his early conference with Rassoull the Respondent's the Respondent's agent said : "Our organiza- tion is for the purpose of upraising the black man, bringing justice to the black man, bringing pride to the black man." It would appear from these words that the purpose of the Temple, and therefore of Good Foods also, is as much a social and political objective as it is religious . Indeed, coupling the foregoing evidence with the company agents' further state- ments at the hearing, it can also be said that both groups, Temple and Good Foods, are as well concerned with matters of economics. Rassoull explained he sets wages according to a man's needs, no more-no less, and that there is no need to pay the employee for extra hours worked. He said this is his religious belief. He justified his total rejection of all unions on the ground that the Respondent deals "justly with all of our employees." No less candidly Sharieff said at the hearing: " ... we could not allow our shop to be run and governed by a union ... I don't believe that any other union [other than the Temple] should dictate to a religious body as to how they should conduct their affairs ... our businesses are inter- twined in our religious beliefs." It is nowhere suggested, and there is no evidence in the least indicating, that those agents of the Respondent who appeared as witnesses, or any others who did not but of whom much was said , are anything but sincere and honest in their convictions, be their ultimate aims political, economic, or religious. Of no less good conscience have many other em- ployers been over the years when questioning the value and contribution of labor organizations to American social and industrial life. That such views, in good earnest held but in conflict with congressional enactment, have never constituted adequate defense to the commission of unfair labor practices, is now so well established in law as to justify no citation of authority. A comparable defense failed in Cap Santa Vue v. N.L.R.B., 424 F.2d 883 (C.A.D.C.), where the court had occasion to consider a respondent's defense that "it was the teaching of the Church and the religious belief of the Employers that it was wrong to have anything to do with a labor union." See also Cantrell v Connecticut, 310 U.S 296. D. Violations of Section 8(a)(3) On August 25 the Respondent laid off 6 men-all of the original seven butchers who were still at work. The complaint calls this unlawful discharge in violation of Section 8(a)(3) of the Act. The defense is an assertion that the Company was losing money, or believed it was losing money. The evidence strongly supports the allegation of the com- plaint. The fact of antiunion animus could not be clearer and need not be repeated. These butchers were the unionmen and all others then at work were not. While the record does not make clear exactly how many other persons were then at work, or otherwise cooperating with the Respondent, it is conceded no one else was dismissed. At the start of that same month, shortly after August 1, Rassoull had gathered the butchers, and only the butchers, to pass on to them what he had just told the union representatives, that in no circum- stances would the Respondent have anything to do with their union. He also told them he would close the plant if he had to in order to avoid any collective bargaining. With this his message, he then told them to vote on the question; he wanted to know then and there what their position was going to be. They give him to understand they were determined to remain "union " The economic defense vacillates, once saying the Respond- ent was losing money, then again only that the records were mixed up, that certain unspecified credit invoices had been mislaid and that the company officers were mistaken about 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their own business. No records were produced to support any one of the generalities so voiced offhand. Sharieff, who gave orders to Rassoull, was asked at the hearing how it came about that only the butchers, the men who really produced for the Company, were selected for release, and none of the other employees, who did only cleaning and tidying up around the the place. Sharieff answered on the record: " ... those that remained were part owners of the place be- cause they helped to buy it ... they contributed money to the Temple, and the Temple bought it ... every Muslim is part owner of the business ...." "Q. What was the policy deter- mined upon which people would be laid off in respect to your discussions with Mr. Rassoull? A. As near as I can recall, it would be to the fact that we were not accustomed to dealing with unions, laborers, and prior to us buying the plant, we didn't know that this union contract existed. So the union laborers had to go first. That's the only thing I can say." August 24 was a Monday. The previous Thursday, August 20, Greene, president of the Union Local, had written a letter to the Respondent, again calling attention to the existing contract, reminding the Company that newly hired em- ployees must join the Union in 30 days to stay on the job, and warning that the Union would otherwise demand their dis- charge. Greene wanted to know the names and dates of hiring of the Muslims then at work. The discharges came the very first workday after the Respondent received this letter. There is also indication that the idea of avoiding the Union al- together by simply getting rid of all union members lurked in the mind of management a month earlier. When the union lawyer explained the Board's law in the case of a successor- ship, Rassoull asked: " . . . if they had bought a company and discharged all the employees, then hired their own em- ployees, would he have to deal with the union." On this evidence a conclusion that the Respondent dis- charged the six butchers on August 24 in order to remove from the plant all union members or adherents is inescapable. And the inference of illegal motivation is not effectively weak- ened by the conclusionary statements of the company wit- nesses that their motivation was economic. Rassoull told the butchers that morning he was laying them off because the Company was losing money. He told Franklin, one of the men, that the Respondent would recall them "if they found a cheaper way to operate the plant." Anthony Chiappetti, who had long himself been an owner and from April 1 had continued to work for the Respondent as a manager, testified that Rassoull's complaint came as a surprise to him that morning. Rassoull showed him some records but Chiappetti could not understand them; he said "it [the records Rassoull showed him] showed a fantastic loss, I mean, for that period that he had had with them." He told Rassoull there must be papers missing from what he had in his hands, and that what Rassoull was saying was "impossible" in the light of the work that had been going on . As he continued his testimony Ras- soull ended with saying the losses "weren't as great as we first thought it to be." The testimony of the two company witnesses cannot be believed on this point. It was left on the record as no more than their unsupported conclusionary assertions. All they had to do to give their story substance was to produce some records, be it income, sales, inventory-any kind of direct records, but something other than their own general state- ments. Nothing in support was produced. I find that on August 24, 1970, the Respondent discharged Nathan Brown, Anthony DiVizio, Hugh Franklin, Wardell Ollie, Quincy Totten, and Alonzo Woodson because they refused to abandon their prounion attitude, and therefore violated Section 8(a)(3) and (1) of the Act, as alleged in the complaint. IV THE REMEDY There must be a fair and conscionable relationship between illegal acts committed and remedial steps ordered for undoing the consequent coercion. The Respondent threatened to deny employment to its employees by saying it would close the plant to avoid dealing with a union, it illegally interrogated them about their views, and it gave them to understand that regardless of their desires they would never have the benefits of collective bargaining with this Respondent. Dispassionate discussion of the pros and cons of unionism, be it in the shop, in the home, or even in a religious temple, are one thing, and there is no suggestion here that such talk must be curtailed. So far as employees are concerned, there is no duty to join or assist a union; the matter is a privilege to be exercised or ignored . It is no sin to dislike labor organizations, regardless of a man's reason. But threats of economic retaliation by employers, hurt in people's employment, are something else again, and are enjoined by law. The Respondent must be ordered to stop making such threats to any of its employees who might choose to exercise the rights guaranteed by the statute. The Company also illegally refused to bargain with the Union at a time when it was the statutory, established exclu- sive representative of its employees. It must be ordered to cease and desist from such conduct in the future. It dis- charged the butchers because of their union activities; this too the Respondent must be enjoined from doing again. Effectuation of the policies of the Act normally requires reinstatement of illegally discharged workmen. Within a day or two of the Monday discharges a number of the men had found comparable employment at a nearby meat processing plant called Chiappetti Packing Company; it is owned by other members of the Chiappetti family. The Respondent contended at the hearing that it had recalled all six of the men. Sharieff testified he told Anthony Chiappetti "to call them back," and Rassoull that "all of the employees that had been laid off ... were recalled or at least that was the report that we received." But they themselves did not speak to the employees. They sent Anthony Chiappetti, who, concededly, as a member of management had for months been running the kill floor and directly supervising these men. Chiappetti testified that he was told, during the week, to resume operations with butchers. He recalled DiVizio, who accepted and started work on Friday, August 28. Chiappetti also said that he sent a message to Ollie and Franklin inviting them to the plant to resume work, that they came on Friday, but that they refused to accept reinstatement. Both Franklin and Ollie gave like testimony; they admitted they were invited to work, that they came on Friday for their paychecks, but that they refused to work and left. They are not entitled to a second offer. On Thursday Chiappetti also went to the Chiapetti Pack- ing Company plant, where Brown and Totten were working. He spoke to Brown, and there is a conflict in testimony between their two versions as to what Chiappetti said. Ac- cording to Brown, the manager simply informed the butcher he was not asking them to return to work, because they were "all set," and wanted to know only who was "next in line," as he was recalling the butchers. Brown denied having been invited back, or refusing to return. Chiappetti testified he told Brown he was recalling "a couple of butchers" and asked "Do you want to come back?" Brown answered, still accord- ing to Chiappetti: "Me and Totten have a piece of a job. I think we'll stay here." Chiappetti continued that only then did he ask who was next in line. Brown was the union steward at the Respondent's plant, and he testified he repeated Chiap- petti's conversation to Totten that day. GOOD FOODS MANUFACTURING & PROCESSING CORP. 429 I credit Chiappetti. He had long worked with the butchers; it is unlikely he went to the other plant solely to ask Brown for the order of seniority covering only seven men. Still work- ing as manager for Good Foods 5 months after the event, and called as an adverse witness by the General Counsel on the first day of the hearing, he did not hesitate to offer facts that tended to prejudice the interests of the Respondent in this proceeding. More significant on this credibility issue is the testimony of Clarence Greene, the president of the Union Local, who said he had a conversation with Brown on the subject of reinstatement offers. He visited Brown at the new place of work; on first being asked by Respondent's counsel when this talk took place, Greene answered: "It was during the period of the close down." This would place the incident during the very week that Chiappetti said he went to ask Brown and Totten to come back. As he continued to testify Greene changed the time to "approximately two weeks past the period." Con- fronted with his earlier affidavit, he admitted being told by Brown that day that there had been a request to return, but hedged as to the words Brown had used. Finally, without equivocation, he testified Brown "says we don't want to go back over there with those bastards " His affidavit, dated only 2 days before Greene appeared on the stand, and which he did not reject, gives the reliable version of his talk with Brown: One day I went down to Chiappetti Brothers and Nate Brown was working there. I talked to him in the plant. We were talking about DiVizio working there but he was working in violation of union rules. Nate said, Tony wanted us to go back over there. He said, we don't want to go back over there with those bastards. Tony is Anthony Chiappetti. In his brief the General Counsel indirectly but unmistaka- bly limits his request for reinstatement order to Franklin, Ollie, and Woodson. The credited testimony is that Anthony Chiappetti invited both Brown and Totten back to work. Brown admitted he passed the message on to Totten. When he told Greene "we" did not want to return, he spoke for both men, for Totten, knowledge of those words, did not go back. Neither Brown nor Totten is entitled to reinstatement now. No effort was made to recall Woodson; the Respondent must offer him his old job or its equivalent. On August 28 the Respondent resumed the slaughtering of lambs; DiVizio worked for some weeks, quit, and then re- turned again. More laborers were hired, as yet unskilled, but with time they used knives more and more and learned the butcher's craft. There is no question but that while changing its mind about using the old butchers, the Respondent never deviated from the resolve to have nothing to do with the Union and to do business without regard to any of the old contract terms. When Franklin and Ollie were at the plant on Friday, that August 28, vacillating on whether or not they should accept reinstatement, Wilson, a Muslim, and the new manager being trained by Chiappetti, told them "the Union is out." Chiappetti recalled that when Brown refused to re- turn it was with the comment: "They don't want to pay the health and welfare and pension." It is argued that because the Respondent was unwilling to abandon its earlier determina- tion not to recognize the Union, as collective-bargaining agent, and/or because it intended to continue to violate the terms of the predecessor's contract with the Union, its em- ployees had a right to withhold their services and impose the financial burden of backpay upon the Company until such time as it agreed to comply with the law, and the contract, in full. This reasoning would require a like holding that the butchers could have quit work at any time between April 1 and August 24 and place themselves in a position comparable to constructive discharges . It means all workmen whose em- ployer refuses to bargain with their exclusive representative could withhold their services and be entitled to retroactive pay for unearned wages regardless of the employer's desire to continue their employment. I do not understand this to be established law, and I find the argument to be without merit. Woodson must be made whole for any loss of earnings he may have suffered until such time as he is recalled to work. DiVizio must be made whole for any of his losses until the Friday, August 28, when he started work again. As to the other four men, Brown and Totten must be made whole for any loss of earnings from Monday, August 24, through Thursday, August 27, and Franklin and Ollie through Fri- day, August 28. The Respondent's refusal to pay to the Union the health and welfare insurance costs on behalf of the butchers, as well as to make the pension contributions , can also be viewed as violations of Section 8(a)(5) of the Act entirely apart from the fact it failed to honor the contract as such. The failure to make these payments was substantial unilateral change in conditions of employment without consulting the established bargaining agent. This is equally true of the Respondent's refusal to pay for certain holiday benefits which had long been established conditions on the job-a man's birthday, for ex- ample. The exact details of what further improper changes of employment conditions were made-involving money mat- ters-do not all appear on the record because precise investi- gation of these matters more appropriately takes place at the compliance stage of the proceeding. Whatever moneys were improperly withheld, however, must be paid, to the Union or to the employees, as the case may be, including Willie Echols. A final element of the remedial order in the usual succes- sorship case is that the purchasing employer must bargain with the union on request. But like every other corrective step directed by the Board, this command, too, is or is not justified depending upon whether it serves, in the given case, to effec- tuate the policies of the Act. However variously it may have been stated over the years, the ultimate goal, of the original Wagner Act as well as of the Taft-Hartley Act now, is achievement of industrial stability, removal of obstacles to the flow of commerce, uninterrupted fruitful employment, and economic peace. If these objectives be kept in mind a serious question arises as to the wisdom, in this case, of ordering Goods Foods to bargain with the Union when this Decision issues. No union members are at work now. DiVizio chose to leave with finality before Christmas. Woodson must be offered a job, but he may, like his former associates, elect not to return to that hotbed of disagreement. The remaining four butchers made their position clear, they are finished with this com- pany. By February of 1971 the Muslims were at work; labor- ers only at the start, they had by that time acquired a certain skill, they were slaughtering and sectioning the lambs, and business was progressing. And this was no more than fulfill- ment of what Sharieff said, that the Temple and its associated companies undertook the entire venture "to create more em- ployment" for the Muslim members. There is no reason to doubt Rassoull's statement that the plant was purchased "for the purpose of upraising the black man, bringing justice . [and] ... pride to the black man." In the process the Respondent, in this fundamental objective joined with the Temple and other integrated companies, ran afoul of the law. One can disagree with the methods pursued by the Muslims -indeed five of the six discharged butchers are black men and they disagreed. But there is no gainsaying the moral soundness of their ultimate social, economic-or even reli- gious-purpose. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these special circumstances, one wonders: what are the chances that an affirmative order to bargain-pitting men at work in such a commendable frame of mind against an out- side union holding to a narrow, legalistic view-will achieve industrial stability? What likelihood is there instead that such a directive will disrupt the plant and fan the fires of social discontent? In short, what are the probabilities that a conven- tional order will effectuate the policies of the Act? When Brown referred to the Muslims as "those bastards," was he disagreeing with their concept of abstract unionism or was he quarreling with their hopes and programs as to how the black man should approach the racial problems of the day? Among the remedial elements requested by the Union is cash payment by the Respondent for costs to be incurred by the Union for "reorganization" of the present, or future em- ployee complement. But clearly all employees, present and future, will be Muslims. This means the Respondent, driven by a desire to rearrange and correct the balance of social values-real or fancied on the merits and legal or extra legal in procedures-must be ordered, by the fiat of Government, to finance possible obstruction of its design. In a case, applied to a different set of facts, its argument would not lack appeal. Rassoull was wrong in telling the Union "we are not bound by your laws." He, as well as his associates, is bound. But this is not the moment in history for rubbing people's faces into the dirt and exacting the full measure of judicial retribution. The best minds of the nation are hard at work in search of a reasonable and peaceful resolution of the ills that plague society. Their chances for success are better served if in this relatively small case, involving so few employees, the hand of justice deal lightly rather than harshly. If withholding the usual bargaining order here is seen as an exception to the rule, there is supporting example, both recent and very current, for exceptions made in the firm application of law-firing blacks instead of bullets. Departure in this case from the usual remedial order in successorship cases, is not to be taken as precedent for any other case, any different set of facts. Were a substantial num- ber of the discharged employees entitled to reinstatement becuase of the Respondent's unlawful discrimination against them, the question would appear in a different light, and the final answer might well be another one. Were the chances of ultimate accord between the Union and Muslims more per- suasively and immediately apparent, again encouragement of, or even a directive towards, compulsory collective bargaining might be appropriate. The record of this case, taken as a whole, invites what seems to be the adage of the day: take it easy.' V 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 as de- scribed in section 1, above, have a close, intimate, and a substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, and is 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 refusing to bargain with Local Union No. 87, Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of its production and maintenance employees the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 4. By discharging Nathan Brown, Anthony DiVizio, Hugh Franklin, Wardell Ollie, Quincy Totten, and Alonzo Wood- son because of their determination to engage in union activi- ties, the Respondent has interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices proscribed by Section 8(a)(3). 5. By the foregoing conduct, by coercively interrogating its employees concerning their union sympathies, and by threat- ening to close its plant in retaliation for its employees' union activities, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] ' "But whenever the offense inspires less horror than the punishment, the rigour of penal law is obliged to give way to the common feelings of man- kind " Edward Gibbon, Decline and Fall of the Roman Empire, chapter XIV