Geo. A. Hormel & Co.

GEO. A. HORMEL & CO. Geo. A. Hormel & Co. and Meat Cutters Local 551, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO I and International Union of Operating Engineers, Local No. 501, AFL-CIO and Sausage Makers' Union, Local No. 203, Amalgamated Meat Cutters & Butcher Work- men of North America, AFL-CIO .2 Cases 21-CA- 13170,21-CA-13431, and 21-CA-13941 September 20, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On April 19, 1976, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and Charging Parties MC 551 and MC 203 filed answering briefs. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,3 and conclusions 4 of the Administative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Geo. A. Hormel & Co., La Mirada, and San Francisco, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order. i Hereafter called MC 551. 2 Hereafter called MC-203. 3 In sec II , A of his Decision, the Administrative Law Judge found that Teamsters Locals 626, 856, and 85 executed documents acknowledging Respondents right to exclude employees from participation in the Joint Earnings Plan if they engaged in strike activity, and that thereafter the employees represented by these three locals received payments from the plan for the fiscal year ending October 27, 1974. While the record shows that employees represented by Local 626 did participate in the plan, the record also shows that employees represented by Locals 856 and 85 did not participate in the plan, and there is no evidence that those locals executed such a document. - 4 There were no exceptions to the Administrative Law Judge's refusal to defer this proceeding to arbitration. - DECISION STATEMENT OF THE CASE 55 GEORGE CHRISTENSEN, Administrative Law Judge: On Oc- tober 30-31 and November 6, 1975, I conducted a hearing at Los Angeles, California, on issues raised against Geo. A. Hormel & Co.' The original charge in Case 21-CA-13941 was filed by Sausage Makers' Union, Local No. 203, Amal- gamated Meat Cutters & Butcher Workmen of North America, AFL-CIO,2 on November 14, 1974,3 in Region 20 and assigned to Case 20-CA-9715. MC 203 later filed a first amended charge (on December 11) and a second amended charge (on February 3, 1975). Region 20 issued a complaint based upon those charges on February 13, 1975. Meat Cutters Local 551, Amalgamated Meat Cutter & Butcher Workmen of North America, AFL-CIO,4 filed the original charge in Case 21-CA-13170 with Region 21 on November 20, and a first amended charge on December 30. Region 21 issued a complaint based upon those charges on January 3, 1975. International Union of Operating En- gineers, Local No. 501, AFL-CIO,5 filed an original charge in Case 21-CA-13431 with Region 21 on March 3, 1975, and Region 21 issued a complaint based upon that charge on March 31, 1975. On March 31, 1975, Region 21 issued an order consolidating Cases 21-CA-13170 and 21-CA- 13431 for purposes of hearing, inasmuch as common issues were involved. On September 30, 1975, the General Coun- sel issued an order renumbering Case 20-CA-9715 as Case 21-CA-13941 and transferring that case to Region 21. On October 9, 1975, Region 21 issued an order consolidating Case 21-CA-13941 with Cases 21-CA-13170 and 21-CA- 13431 for purposes of hearing in view of the common is- sues in all three cases. The three complaints allege the Company violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereafter called the Act) by excluding employees represented by the three Unions from participation in the Company's Joint Earnings Plan for the fiscal year ending October 27, 1974, because they engaged in a strike against the Company during that fiscal year. The three complaints also alleged the Company violated Section 8(a)(1) and (5) of the Act by deciding upon that, exclusion without prior consultation with the Unions. The Company denied it excluded the affected employees because of their participation in the strike, denied it failed to consult with the Unions prior to its decision to exclude them, and affirmatively alleged the Board should defer to the grievance-arbitration provisions of the contracts be- tween it and the three Unions for determination of the disputes. The Company also affirmatively, alleged its em- ployees represented by MC 203 struck in violation of a Company-MC 203 contract, and therefore should be de- med any protection under the Act. The issues before me for decision are: 1 Hereafter called the Company 2 Hereafter called MC 203 3 Read 1974 after all further date references omitting the year 4 Hereafter called MC 551 5 Hereafter called OE 501 226 NLRB No. 16 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Whether the Board should defer to the grievance-ar- bitration provision of the contracts between the Company and the three Unions for determination of the issues here in dispute. 2. Whether the Company excluded its employees repre- sented by the three Unions from participation in the Joint Earnings Plan because they engaged in a strike against the Company and thereby violated the Act. 3. Whether the Company consulted with MC 551, MC 203, and OE 501 prior to excluding its employees repre- sented by those Unions from participating in the Joint Earnings Plan and, if not, whether it thereby violated the Act. 4. Whether the Company's employees represented by MC 203 struck unlawfully and therefore should be denied protection under the Act. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel, each of the three Unions, and the Company. Based upon my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The Company admitted that at times material it was en- gaged in the manufacture, processing, and wholesale distri- bution of meat products at La Mirada and San Francisco, California, and that, in the 12 months preceding the is- suance of the complaints in the three cases, it purchased and received at each of those locations goods and products valued in excess of $50,000 from suppliers located outside the State of California. The Company further admitted that at times material it was an employer engaged in com- merce in a business affecting commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. The Company further admitted that MC 203, MC 551, and OE 501 at times material were labor organizations within the meaning of Section 2(5) of the Act. Based upon the complaint allegations in each of the three complaints set out above and the Company's admis- sion thereof, I find and conclude that at times pertinent the Company was an employer engaged in commerce in a business affecting commerce and the three Unions were labor organizations within the meaning of Section 2(2), (5), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Company and MC 551 and OE 501 were parties to separate contracts expiring October 1, 1973,6 covering two 6 The Company was also party to a contract with Local 626 of the Inter- national Brotherhood of Teamsters covering a unit of the Company's em- ployees at La Mirada at times pertinent. The record does not disclose the duration provision of the Company-IBT 626 agreement units of employees at the Company's La Mirada plant. The Company, MC 551, and OE 501 commenced negotiations in September 1973 for new contracts to succeed their agreements expiring October 1, 1973. The negotiations continued through October, November, and early Decem- ber 1973 without settlement. On December 1, 1973, an agreement between the Com- pany and MC 203 covering employees represented by MC 203 and employed at the Company's San Francisco plant expired. In negotiations between the Company and MC 203 prior and subsequent to that date, the parties from one negotiating session to the next agreed that all terms and conditions of the prior agreement would continue in effect during such interim periods with the understanding any agreement reached would be retroactive to December 1, 1973. On December 9, 1973, MC 551 called a strike against the Company at the La Mirada plant. When MC 551's pickets appeared at the plant, all the union-represented employees ceased to work, including employees represented- by MC 551, OE 501, and IBT 626. On the same date, MC 551 picketed the Company's San Francisco plant. The Company's San Francisco employees represented by MC 203- respected MC 551's picket lines and ceased to work. Not long thereafter, the Company's San Francisco office clerical, warehouse, and trucking em- ployees represented by Locals, 85 and 856 of the Interna- tional Brotherhood of Teamsters also ceased to work. MC 551's strike and picketing of Company' s premises at La Mirada and San Francisco continued from December 9, 1973, through January 12, when a tentative settlement was reached and ratified by MC 551's membership. The Company's employees represented by MC 551, OE 501, MC 203, IBT 626, IBT 856, and IBT 85 began returning to work the next day.7 Shortly after the Company reached agreement with MC 551 on the terms of a new contract covering its La Mirada employees represented by that organization (for a term ex- tending from October 1, 1973, through September 30, 1976), the Company reached agreement with OE 501 on a new contract for the same duration, and a contract with MC 203 for a term extending from December 2, 1973, to December 1, 1976. The record does not indicate whether the Company's contracts with IBT 626, 856, and 85 were open at the time nor whether new contracts were executed between the Company and those organizations. In the course of the negotiations between the Company and MC 551 and OE 501 for contracts for the 1973-76 period, no mention was made by either party of the Company's unilaterally administered Joint Earnings Plan nor was any language concerning that plan inserted in either agreement. In the course of the negotiations between the Company and MC 203 for the 1973-76 agreement, Stan Kerber, the Company's San Francisco manager, and Rob- ert Gill, the Company's vice president in charge of industri- al relations,8 informed Costa Vennarucci, secretary of MC 7 Not all employees were restored to work immediately, the Company recalled them as and when it resumed operations requiring their services. 8 It was admitted and I find that Kerber and Gill at times pertinent were supervisors and agents of the Company acting on its behalf. GEO. A. HORMEL & CO. 203 and the leading negotiator on behalf of the MC 203, that the strike might affect payments under the plan for the fiscal year ending October 27. Neither company official nor MC 203 made any proposals concerning ,the eligibility of MC 203's members employed by the Company to par- ticipate in the plan for the fiscal year ending October 27. Prior to the scheduled meeting of the Company's board of directors for review of the Company's performance dur- ing the fiscal year ending October 27, Kerber and Clarence Pouncey, the manager of the Company's La Mirada plant, met with Gill and I. J. Holton, the Company's president, at Austin, Minnesota, the Company's headquarters.' Both Pouncey and Kerber, aware that the Company suffered losses at its plants for the fiscal year due to the strike"' recommended that the board of directors exclude the Company's employees at La Mirada and San Francisco who engaged in the strike from participation in any distri- butions under the Company's Joint Earnings Plan." On October 29, 1974, the Company's board of directors met and adopted the recommendation, directing that em- ployees at La Mirada and San Francisco who engaged in the strike be excluded from participation in distributions under the plan 12 on the ground their strike conduct had "a negative impact on the earnings which other people had generated." On October 30-31, Gill sent telegrams to Kerber and Pouncey stating, inter alit, "the employees who absented themselves from work during the work interruption last winter will not be eligible. Terms of the Plan . . . require active employment for the entire fiscal year." Kerber and Pouncey immediately notified MC 203 and MC 554 of the board of directors' decision. In mid-November Pouncey notified OE 501 13 of the board of directors' decision. The record does not reflect when IBT Locals 626, 856, and 85 were notified (they were named in the telegrams). In late November, Pouncey contacted OE 501 and 'of- fered to extend the benefits of the Joint Earnings Plan for 1974 to the Company's employees represented by OE 501 provided OE 501 execute a document acknowledging the Company's right to exclude those employees from partici- pation in the Joint Earnings Plan if they engaged in strike activity. A similar proposal was made by the Company to IBT 626, 856, and 85. OE 501 refused to execute the docu- ment in question, while IBT 626, 856, and 85 executed it. Upon that execution, company employees represented by IBT 626, 856, and 85 received distributions from the plan.i4 9 It was admitted and I find that Pouncey and Holton were supervisors and agents of the Company acting on its behalf at all times pertinent. 10 The Company estimated its losses at La Mirada as $800,000 and at San Francisco as $80,000. - 11 The Company had a highly profitable year in its overall operations with the highest sales volume it ever achieved and a higher return per dollar of sales than its competitors. 12 Had they participated in distribution of joint earnings, the employees represented by MC 551 and OE 501 would have received $69,000 and those repiresented by MC 203,$11,000. 3 The Unions protested and informed the Company its action was illegal. The charges in this action followed 14 All company employees at all 31 plants other than La Mirada and San Francisco, the nonumon and supervisory employees of the Company at La Mirada and San Francisco, and the La Mirada and San Francisco employ- B. Deferral to Arbitration 57 The Company has requested deferral to the grievance- arbitration provisions of its agreements with the three Unions here involved for resolutions of the issues in this case, citing Collyer Insulated Wire, a Gulf and Western Sys- tems Co. 192,NLRB 837 (1971) (and subsequent cases ap- plying the teaching of that decision). The General Counsel and the three Unions oppose deferral on the ground the contracts between the Company and the three Unions do not encompass the issues before me. The arbitration provisions of all three agreements are limited to disputes concerning the meaning and application of the provisions of the respective agreements. The issues before me are whether the Company violated Section 8(a)(1) and (3) of the Act by excluding the Company's employees represented by the three Unions from participation in the Company's joint earnings pro- gram for fiscal 1974 because they engaged in a strike against the Company and whether the Company violated Section 8(a)(1) and (5) of the Act by failing to consult with the Unions prior to such exclusion. None of the three contracts contains any language man- dating payment by the Company of any joint earnings ben- efits to the employees represented by the three Unions for fiscal 1974 or any other year. While the Company has a provision in its agreements with unions other than those involved in this proceeding concerning joint earnings, the provision in question specifically excludes from arbitration any dispute between the Company and those unions con- cerning the Company's administration of the Joint Earning Plan-including questions concerning eligibility to partici- pate, the amounts of any benefit, etc.ls In addition, Gill unequivocally testified it- is the Company's position that decisions of the Company's board of directors concerning exclusion from, or inclusion in, the plan for any fiscal year are not reviewable before any arbi- trator under any company-union agreement or practice. The Company nevertheless argues that its disputes with all three Unions over the discrimination issue (Section 8(a)(1) and (3)) should be deferred to arbitration, inas- much as its agreements with MC 551 and MC 203 provide none of the employees covered thereby shall be ,discrimi- nated against for activities on behalf of the two Unions, and its agreements with all three Unions provide employ- ees covered thereby shall not be disciplined without good cause. With reference to the failure-to-consult issue (Section 8(a)(1) and (5) ), the Company failed to point to any con- tract provision which the Unions could claim was violat- ees represented by IBT 626, 856, 85'thus participated in the plan and re- ceived payments from it for the fiscal year ending October 27, 1974. The La Mirada and San Francisco employees had participated in distributions from the plan for the preceding 30 years 15 The Company contends the provision in question is in effect under the current MC 551 and OE 501 agreements on the ground it was contained in the 1964 agreements between the Company and predecessor unions at an- other location (MC 274 and OE 63 at Los Angeles) and, despite its elimina- tion in subsequent agreements between the Company and MC 551 and OE 501, remains in effect as a "past practice." 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed,16 but contends this issue should likewise be deferred to three arbitrators under the respective agreements because it believes it has a good defense against the arbitrator ruling on the merits of the issue; i.e., that the former existence of a provision in the 1964 agreements between the Company and predecessor unions to MC 551 and OE 501 at another location and MC 203's previously expressed awareness of, and alleged acquiescence to; the Company's unilateral ad- ministration of the plan constitutes a "past practice" which the arbitrators must perforce recognize. The purposes' the Board had in mind when it evolved the Collyer doctrine would not be 'served by deferral in this case; it-is highly questionable the three arbitrators before whom these cases would have to be brought would have sufficient authority under the limitations contained in the three contracts to decide the issues before me; the antidis- crimination provision is contained in only two of the three contracts, the disciplinary provision is of doubtful applica- tion, the recognition provision is of doubtful application, etc. The basic thrust of the Company's argument is that it might do better before three arbitrators in arguing they either had no power to decide the issues in dispute or that they were bound under the language of the plan, the con- tracts, and alleged past practice to dismiss the three cases. All parties are before me here in a single proceeding; serious charges of violation of public policy embodied in a public statute are involved; the parties have had ample opportunity to present evidence and argument on the merits of the dispute, which is common to all of them,• considerable delay in bringing the dispute to hearing on the merits has already ensued; the Board is not prevented from full con- sideration of the issues by the language of the three agree- ments, the plan, and past practice; and the public policy issues involved herein warrant decision by the public agen- cy `charged with their administration. For the above reasons, I deny the Company's request to defer to the arbitration process for resolution of the dis- putes before me. C. The Discrimination Issue 1. Motivation The Company argues it was not discriminatorily moti- vated in excluding its employees represented by the three Unions from participation in the plan for 1974. Pouncey and Kerber testified they were embarrassed and resentful over the poor financial showing at their locations for fiscal 1974 due to ,the strike and for that reason recommended the strikers be excluded from any distributions under the plan because their strike caused that poor showing; Gill testified that reasoning was adopted by the Company's board of directors in ordering such exclusion; and the tele- grams Gill sent to Pouncey and Kerber, announcing the board's decision for transmission to the three Unions, com- municated to them that the employees they represented were excluded from participation in distributions under the plan for fiscal 1974 because they engaged in 'a strike 16 Though therms a controversial theory that a change in a benefit not set out in the contract without prior union consultation may be a claimed viola- against the Company within-the fiscal year. I therefore find and conclude that on or, about October 29, 1974, the Company excluded its employees represented by.MC 551, MC,203, OE 501, IBT 626, IBT 856, and IBT 85 from participation in distributions under the Company's Joint Earnings Plan for the fiscal year ending October 27, 1974, because they engaged in a strike against the Compa- ny between December 1973 and January 12, 1974. 2. Balancing of interests Citing Gre:z_ Dane Trailers 17 and allegedly related cases, the Company argues that, even assuming -it excluded the strikers from participation in the, plan because of their strike activity, the, Company's interest in preserving its sole and unilateral discretion under the plan to grant or deny participation therein to any employee who engages in strike activity outweighs any incidental invasion of such employees' rights under the Act. Instead of anticipated contributions to profits for fiscal 1974 from the La Mirada-and San Francisco plants .in ex- cess of $300,000, the Company suffered losses in excess of $500,000. Had it made a normal distribution from the over- all profits of the Company under the plan to the employees represented by the three Unions, they would have received approximately $80,000. The Company seeks to recoup its alleged shortfall in anticipated profits by excluding some 18 of the strikers from participation in distributions under the plan for fiscal 1974. The Board. has generally rejected attempts at such, re- coupment.19 Every strike causes losses to both sides-the employees in lost wages, and, the ,employer-in lost profits and liability for fixed costs during the strike-but our pub- lic policy is to require absorption of such losses by each side as the price for preserving our system of free collective bargaining. Both the discriminatory nature of the Company's con- duct and its impact on the Company's employees are evi- dent.,, Not, only, did the Company discriminate between strikers in this instance (granting benefits to IBT-repre- sented, strikers upon their agents' accession to company demands that they accept the Company's position it may grant or deny benefits to strikers as it chooses and denying benefits to strikers represented by the three Unions here involved who refused to accept such terms), it conveyed the clear message to all its employees, including those rep- 17 N L R.B v Great Dane Trailers, Inc, 388 US 26 (1967). 18 As earlier noted, the Company reversed its earlier decision to exclude IBT-represented employees at the two struck locations from participation in distributions under the plan when-the three IBTclocals signed a document acknowledging the Company's right to exclude strikers from future distribu- tions. In the course of the proceeding, the parties stipulated the Company ordered distributions under the plan to strikers at its Fort Dodge, Iowa, plant for the fiscal year ending October 27, 1972, despite'their participation in a strike against the Company between September 9 and October 5, 1972, and to employees at plants which had net losses in prior years" The plan provides for pro rata reduction in benefits paid under the plan of U52 for each week of excused or unexcused (including strike-caused), absence; the Fort Dodge and IBT-represented strikers received payments in accordance with this formula - 19 Cf. Jemco,.Inc, .190 NLRB 166 (1971), enfd 465 F.2d, 1148 (C A. 6, 1972); Electro Vector, Inc., 220 NLRB 445 (1975), Ramona's Mexican Food tion of the recognition provision of most agreements Products, Inc, 203 NLRB 663 (1973) GEO. A. HORMEL & CO., resented by the Unions, that any future strike might cause a similar exclusion, at the Company's pleasure. 0 I therefore find and conclude, on balance, that the im- mediate and potential impact of the company conduct de- scribed herein on employees' exercise of rights under the Act outweighs the Company's interest in preserving its dis- cretion to grant or deny participation in the plan to strik- ers, rather than the contrary. I therefore find and conclude that the Company violated Section 8(a)(1) and (3) of the :Act by excluding its employ- ees represented by MC 551, MC 203, and OE 501 from participation in its Joint Earnings Plan for the fiscal year ending 'October 27, 1974, because they participated in a strike against the Company within that fiscal year. D. Denial of the Act's Protection to Employees Represented by MC 203 It is undisputed that the Company and MC 203 extend- ed their agreement beyond its December 1, 1973, expira- tion date to and including the,period MC 203s members employed by the Company respected, picket lines estab- lished by MC 551 at the Company's San Francisco plant. That agreement, -inter alia, provided "There, shall be no strikes, lockopts or other form of work stoppage while any minor-dispute or grievance is under process of adjustment or arbitration as provided for herein;" and "it shall not be a violation of this agreement for any person covered by this agreement to refuse to cross a legal picket hire for lawful union purposes,, approved by the Union, or to refuse to work- behind such a picket line." It is clear the no-strike prohibition contained in the for- mer provision is limited in coverage to disputes between the Company and the Union over questions of interpreta- tion or application of the agreement; it does not apply to the situation at hand. In the absence of a broad no-strike provision, the cases relied upon by the Company are inapplicable-they stand solely for the principle that employees subject to a valid no-strike provision who strike in defiance thereof lose their protection under the Act,21 a doctrine which is inapplicable under the facts of this case. Vennarucci testified without contradiction that the pick- et line established by MC 551 at the San Francisco plant of the Company was duly authorized by the International Union, and I so find. It is clear,MC 551 stationed its pick- ets at San Francisco in order to bring pressure upon the Company to reach a new contractual agreement with that Union covering the rates of-pay, wages, hours, and working conditions, of the Company's employees represented by that organization. It therefore appears clear that the Company's employees represented by MC 203, IBT 85, and IBT 686 were refusing to cross a legal picket line estab- lished for a lawful union purpose approved by a union. The Company contends, however, that employees repre- 20 Thus inhibiting the exercise of their rights under the Act to engage in concerted activities for mutual aid and protection 21 Mastro Plastics Corp, and French-American Reeds Mfg Co Inc v N.L R B, 350 U.S 270 (1956); N L R B v Rockaway News Supply Company, Inc, 345 US 71 (1953) 59 sented by MC 203 were only protected under the contract as individuals, and that undisputed evidence produced by it establishes that Vennarucci urged his'menibers not to cross the picket line rendering such activity unprotected. Even adopting the Company's interpretation of the pro- vision, it appears the Company's redress, if any, lies in grievance and arbitration against the Union or a lawsuit for damages against the Union based on-Vennarucci's ac- tion rather than a deprivation of the employees' protection under the Act. I therefore find and conclude that the Company's em- ployees represented by MC 203 are not barred from pro- tection under the Act because they respected MC 551's picket lines between December 1973-January 1974. E. Refusal To Bargain Robert Lane, president and business representative of MC 551, and Coy Black, business representative for OE 501, testified without contradiction That no representative of the Company at any time prior to their receipt of the Company's; telegram informed them the Company's em- ployees represented by their organizations, would not participate in the Joint Earnings Plan for the fiscal year ending October 27, 1974. Kerber, Pouncey, and Gill corroborated their testimony that they were not informed or consulted with concerning the Company's decision to exclude the employees they represented from participation in the plan for fiscal 19,74 at any time prior to such deci- sion, including the time they negotiated with the Company for their respective contracts, for the period October 1, 1973-September, 30, 1976. Vennarucci of MC 203 testified the only notice he had prior to the decision was a,casual remark by Kerber and Gill during the negotiations be- tween the Company and. MC 20^ for the contract extend- mg from December 2, 1973, to December 1, 1976, to the effect the stake might affect joint earnings for the fiscal year ending October 27, 1974.22 It is clear, neither Kerber nor Gill had authority to exclude the company employees represented by Local MC 203 from participation in Joint earnings as that power is reserved solely and exclusively to the Company's board of directors, and the, board of direc- tors did not consider such exclusion until its deliberations in late October 1974. The record indicates the decision exclude the Company's employees, represented by the three Unions from participation from the Joint Earnings Plan for the fiscal year ending October 27, 1974, was made unilaterally by the Company's board of ,directors, after consultation with the managers of its San Francisco and La Mirada plants, without prior notice to, or consultation with, any representatives of the three Unions. I therefore find and conclude that the Company at no time prior to October 1974 notified or consulted with the three Unions concerning its decision to exclude its employ- ees represented by the three Unions from the Joint Earn- ings Plan for the fiscal year ending October 27, 1974. 22 The remark might reasonably be construed as an expression of fear the strike would cause such losses no profits would be made overall to generate payments under the plan 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company contends that the fact that the three Unions did not seek to bargain with the Company con- cerning its decision between the date they were notified thereof and the date they filed charges with the Regional Office bars any finding of violation of Section 8(a)(5) of the Act. The Company additionally contends that, inas- much as there- is no provision in the collective-bargaining agreement requiring the Company to include the employ- ees represented by the three Unions in its Joint Earnings Plan, it had no obligation to bargain concerning exclusion therefrom. In its descriptive material concerning the Joint Earnings Plan, the Company-describes it as part of the annual earn- ings of its employees; it was a benefit which the employees received without interruption over many years prior to 1974 and which both the Company and they considered a part of their overall wages for the year. A benefit continued over such a long period requires bargaining prior to its discontinuance, particularly when its discontinuance is dis- criminatorily motivated 23 I therefore find and conclude that the Company violated Section 8(a)(1) and (5) of the Act by excluding its employ- ees represented by MC 551, MC 203, and OE 501 from its Joint Earnings Plan without prior consultation with those organizations. - - CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce in a business affecting commerce and MC 551,-MC 203; •OE 501, IBT 626, IBT 85, and IBT 856 were labor organizations, as those terms are defined in Section 2(2), (5), (6), and (7)`' of the Act. 2. At all times pertinent Holton, Gill, Kerber, and Poun- cey were supervisors and agents of the Company acting on its behalf. 3. The Company violated Section 8(a)(1) and (3) of the Act by excluding its employees -represented- by MC 551, MC 203, and OE 501 from participation in the Company's Joint Earnings Plan for the fiscal year ending October 27, 1974, because -they participated in a strike against the Company during that- fiscal year., 4. The Company' violated -Section 8(a)(1) and (5) of the Act by such exclusion without prior consultation with MC 551, MC 203, and OE 501. 5. It would not effectuate the purposes of the Act to defer,to the grievance-arbitration provision of the contracts between the Company and MC 551, MC 203, and OE 501 for determination of the issues in this proceeding. 6. The Company's employees represented . by MC 203 are not barred from receiving an appropriate remedy in this case by virtue of their respecting picket lines estab- lished by MC 551 at the Company's plant between Decem- ber 1973-January 1974. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.- THE REMEDY Having found the Company engaged in unfair labor practices mviolation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend the Company be ordered to cease and desist from excluding from participation in its Joint Earnings Plan for any fiscal year those employees who en- gage in a strike or other protected concerted activities against the Company during the fiscal year and from de- ciding to so exclude without prior consultation with the Unions representing the employees affected by such a deci- sion. I shall further recommend the Company be directed to distribute to'its employees represented by MC 551, MC 203, and OE 501 the sums of money they would have re- ceived-in distributions under the Company's Joint Earn- ings Plan for the fiscal year ending October 27, 1974, but for the Company's decision to exclude them from partici- pation in such distributions for that fiscal year,'with inter- est upon the -sums paid at the rate of 6 percent per annum, for a period extending from the date such distributions would normally have been-made to the date they are made. Pro rata reductions in such distributions, in accordance with `normal practice in 'excused or unexcused absences (1 /52 for- each ' week of absence), shall be made. ' Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the 'following recommended: ORDER24 The Respondent, Geo. A. Hormel & Co., La Mirada and San Francisco, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Excluding from participation in its Joint Earnings Plan for any fiscal year those employees who engage' in a strike or other protected concerted activity during that fis- cal year. (b) Ordering such exclusions affecting employees repre- sented by MC 551, MC 203, OE 501 or any other labor organizations duly authorized to represent units of its em- ployees without prior consultation with such union or unions. 23 Toffenetti Restaurant Company, Inc, 136 NLRB 1156 (1962), enfd 311 F.2d 219 (C.A. 2, 1962), cert. denied 372 U S. 977, rehearing denied 373 U.S. 919. Nor does the fact the Unions chose to file unfair labor practice charges without a prior request for bargaining constitute a bar, the decision to ex- clude preceded notice to the Unions. Gas Machinery Company, 221 NLRB 862 (1975). 24 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. GEO. A. HORMEL & CO. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Pay to each of its employees represented by MC 551, MC 203, and OE 501 the money they would have received in distributions under the Joint Earnings Plan for the fiscal year ending October 27, 1974, but for the Company's deci- sion to discriminatorily exclude them from such distribu- tion, with interest at 6 percent per annum for the period dating from the date such distributions would have nor- mally been made to the date such distributions are actually made, with appropriate reductions based upon the length of any excused or unexcused absences during the fiscal year. (b) Post at its premises copies of the attached notice marked "Appendix." 25 Copies of said notice on forms pro- vided by the Regional Director for Region 21, after being duly signed by an authorized representative of the Compa- ny, shall be posted by it immediately upon receipt thereof and maintained by it for at least 60 consecutive days there- after, in conspicious places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps the Company has taken to comply herewith. 25 In the event the Board's 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX 61 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT exclude from participation in our Joint Earnings Plan for any fiscal year those employees who engage in a strike or other concerted activity for their mutual aid or protection during that fiscal year. WE WILL NOT exclude our employees represented by Meat Cutters Local 551, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO; Sausage Makers' Union, Local No. 203, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO; International Union of Operating Engi- neers, Local 501, AFL-CIO; or any other labor orga- nization duly authorized to represent any units of our employees, from participation in our Joint Earnings Plan for any fiscal year because they engage in a strike or other protected, concerted activity during that fis- cal year without prior consultation with the Union representing the employees affected by such exclusion. WE WILL pay to our employees represented by the three Unions named above the moneys they would normally have received in distributions from our Joint Earnings Plan for the fiscal year ending October 27, 1974, but for our decision to exclude them from parti- cipation in such distribution because they engaged in a strike against the Company between December 1973-January 1974, together with interest on the amounts distributed for the period dating from the date such moneys would normally have been distrib- uted to the date they are actually distributed. GEO. A. HORMEL & CO.