Eastern Market Beef Processing

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eastern Market Beef Processing Corporation, Alfred 7, 1979; the amended charge in Case 7-CA-16680 on and Scott Street Divisions and United Food and August 22, 1979; and' the charge in Case 7-CA-17014 Commercial Workers International Union, on November 2, 1979. The order consolidating cases and Local 26, AFL-CIO-CLC and Industrial, Tech- the consolidated complaint in this matter was issued on nical, and Professional Employees, a Division of June 20, 1980. National Maritime Union, AFL-CIO, Party in The issues concern whether certain conduct of Re- Interest. Cases 7-CA-16527, 7-CA-16680, and spondent commencing in May 1979 constituted conduct 7-CA-17014 violative of Section 8(a)(1), (2), (3), and (5) of the Act. In major effect some of the issues concern whether Re- October 29, 1981 spondent's opening of a new plant, unilateral setting of wages and terms of employment, transfer of work, and decision to close its old plant and to terminate employees BY MEMBERS FANNING, JENKINS, AND constituted conduct of refusal to bargain in violation of ZIMMERMAN Section 8(a)(5) and (1) of the Act, and constituted con- duct of discrimination in employment in violation of Sec- On May 15, 1981, Administrative Law Judge tion 8(a)(3) and (1) of the Act. Further, some of the Jerry B. Stone issued the attached Decision in this issues concern whether Respondent unlawfully assisted a proceeding. Thereafter, the Respondent filed ex- union, the NMU, by granting agents access rights to its ceptions and a supporting brief, and the General plant, by recognition of NMU as bargaining agent, by Counsel filed an answering brief in support of the execution of a collective-bargaining contract, and by Administrative Law Judge. threats. Such issues concern whether Respondent has Pursuant to the provisions of Section 3(b) of the violated Section 8(a)(2) by acts of assistance to NMU, Purtsuant tabor thelprions ofts Smetond b the ,, a and has violated Section 8(a)(5) of the Act by the same conduct by refusing to bargain with the Charging Party, tional Labor Relations Board has delegated its au- Local 26.2 thority in this proceeding to a three-member panel. There are also issues raised concerning the General The Board has considered the record and the at- Counsel's reinstatement of charges filed in Case 7-CA- tached Decision in light of the exceptions and 16527 and concerning the receipt in evidence of pretrial briefs and has decided to affirm the rulings, find- statements of a deceased individual. ings,t and conclusions of the Administrative Law All parties were afforded full opportunity to partici- Judge and to adopt his recommended Order. pate in the proceeding. Briefs have been filed by the General Counsel and Respondent and have been consid- ORDER ered. Pursuant to Section 10(c) of the National Labor Upon the entire record in the case and from my obser- PuRelati ons Act, as amended, 10(c) of the National Labor Re- vation of witnesses, I hereby make the following: Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended FINDINGS OF FACT Order of the Administrative Law Judge and hereby orders that the Respondent, Eastern Market I. THE BUSINESS OF RESPONDENT Beef Processing Corporation, Alfred and Scott Eastern Market Beef Processing Corporation, Alfred Street Divisions, Detroit, Michigan, its officers, and Scott Street Divisions, Respondent, is, and has been agents, successors, and assigns, shall take the action at all times material herein, a corporation duly organized set forth in the said recommended Order. under, and existing by virtue of, the laws of the State of Michigan. At all times material herein until June 16, The Respondent has excepted to certain credibility findings made by 1979, Respondent maintained its principal office and the Administrative Law Judge. It is the Board's established policy not to place of business at 1545 Alfred in the city of Detroit, overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- State of Michigan. vinces us that the resolutions are incorrect. Standard Dry Wall Products. Commencing on or around June 16, 1979, Respondent Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have also maintained a plant in the State of Michigan at 1825 carefully examined the record and find no basis for reversing his findings. Scott Street, Detroit, and maintained and operated both said Alfred Street and said Scott Street plants until DECISION around November 26, 1979. At such time Respondent ceased operations at Alfred Street but continued oper- ations at Scott Street. At all times during the operations JERRY B. STONE, Administrative Law Judge: This pro- at both plants, Respondent engaged in the processing, ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard by me pursuant to due The amended charge in Case 7-CA-16680 was also served on Indus- notice on July 16, 17, 18, 22, and 23, 1980, in Detroit, trial, Technical, and Professional Employees, a Division of National ~~~~~~~~~~~~Michigan. ~Maritime Union, AFL-CIO, Party in Interest. herein NMU, on Septem- ber 27. 1979, The charge in Case 7-CA-16527 was filed on June 27, 2 The reference to Local 26 herein is to United Food and Commercial 1979; the original charge in Case 7-CA-16680 on August Workers International Union. Local 26, AFL-CIO-CLC. 259 NLRB No. 19 EASTERN MARKET BEEF PROCESSING 103 packing, sale, and distribution of meat and related prod- In the meantime, the Charging Party filed on August ucts. Both plants are the only facilities involved in this 7, 1979, a charge in Case 7-CA-16680, averring that Re- proceeding. spondent had violated Section 8(aX)(1) and (3) of the Act. During the fiscal year ending April 30, 1979, which Included in such charge were the usual general allega- period is representative of its operations during all times tions. Further, such charge specifically alleged the dis- material herein, Respondent, in the course and conduct criminatory discharges of J. C. Bonner and Elmer of its business operations, manufactured, sold, and distrib- Jordon. On August 21, 1979, the Charging Party filed an uted at its Michigan plants products valued in excess of amended charge in Case 7-CA-16680, averring that Re- $500,000, of which products valued in excess of S50,000 spondent had violated Section 8(a)(l) and (2) of the Act. were shipped from said plants directly to points located Included in such charges were the usual general allega- outside the State of Michigan. tions and certain specific allegations. On September 28, As conceded by Respondent and based on the forego- 1979, the General Counsel issued a complaint in Case 7- ing, it is concluded and found that Respondent is, and CA-16680. However, the complaint was to a more limit- has been at all times material herein, an employer en- ed effect than sought by the Charging Party. According- gaged in commerce within the meaning of Section 2(2), ly, on September 29, 1979, the General Counsel issued a (6), and (7) of the Act. letter setting forth that he was refusing to proceed with 11. THE LABOR ORGANIZATIONS INVOLVED3 allegations to the effect that Respondent had unlawfully assisted the National Maritime Union in obtaining its ma- United Food and Commercial Workers International jority support. Thereafter, the Charging Party, on Octo- Union, Local 26, AFL-CIO-CLC, is, and has been at all ber 10, 1979, appealed the Regional Director's refusal to times material herein, a labor organization within the issue complaint in such regard. meaning of Section 2(5) of the Act. On November I, 1979, the Charging Party filed a Industrial, Technical, and Professional Employees, a charge in Case 7-CA-17014 alleging conduct violative of Division of National Maritime Union, AFL-CIO, is, and Section 8(a)(1) and (5) of the Act. Included in such has been at all times material herein, a labor organization charge were the usual general allegations. Further such within the meaning of Section 2(5) of the Act. within the meaning of Section 2(5) of the Act. charge had specific averments including the following: 111. THE UNFAIR LABOR PRACTICES Since in or about June, 1979, the above-named Employer has refused and continues to refuse to bargain in good faith with the Charging Party as The Union filed the charge in Case 7-CA-16527 on the collective bargaining representative of an appro- June 27, 1979, averring that Respondent had engaged in priate unit of its employees, including its employees conduct violative of Section 8(a)(5) and (1) of the Act, at its Scott Street facility, Detroit, Michigan, by re- Included in such charge were the usual general allega- pudiating a collective bargaining agreement be- tions. Further, such charge specifically averred that: tween the Charging Party and the Employer, en- Since in and about May, 1979, the above-named tered into on December 15, 1977 and effective No- Employer has refused and continues to refuse to vember 22, 1976 to and including November 22, bargain in good faith with the Charging Party as 1979. the collective bargaining representative of an appro- On November 28 1979, the Regional Director for priate unit of its employees, by repudiating a collec- prtivate bani ng agreof its ements, between the Charging Region 7 apparently issued a letter advising the parties of tive bargaining agreement between the Charging his refusal to issue complaint in Case 7-CA-17014. Party and the Employer, entered into on December his refusal to issue complaint in Case 7-CA-704. 15, 1977 and effective November 22, 1976 to and in- Thereafter, on December 10, 1979, the Charging Party cluding November 22, 1979. appealed such decision. It appears that at some point of time before May 27, The Regional Director for Region 7 issued a letter on 1980, the General Counsel sustained the Charging August 2, 1979, in which the parties were advised that Party's appeals in Cases 7-CA-16680 and 7-CA-17014.' the Regional Director was refusing to issue a complaint On May 27, 1980, the General Counsel issued a letter re- in Case 7-CA-16527. The Regional Director referred the ferring to his sustaining of appeals in the two cases. Fur- parties to an enclosed form as to the procedure and ther, the General Counsel averred that it had decided, deadline for filing an appeal to his "dismissal action." sua sponte, to revoke his prior denial in Case 7-CA- Thereafter, the Charging Party on August 21, 1979, ap- 16527 and sustain the appeal therein. The General Coun- pealed the Regional Director's refusal to issue a com- sel averred that such decision was in view of the evi- plaint in Case 7-CA-16527. On October 9, 1979, the dence adduced in the investigation of Cases 7-CA-16680 General Counsel denied the Charging Party's appeal. 5 Counsel for the General Counsel avers in his brief that the General 'The facts are based on stipulations or admissions in the pleadings. Counsel on May 16, 1980, sustained the Charging Party's appeal in both Cases 7-CA-16680 and 7-CA-17014. Said brief refers to Resp. Exh. 29 as 'Sec. 0I(b) of the Act provides in part: the basis for such referred to evidence. I do not find a document setting Provided, That no complaint shall issue based upon any unfair labor forth such date of May 16, 1980. Perhaps, by inadvertence, the same has practice occurring more than six months prior to the filing of the been left out of the original formal exhibit file. Excepting for the date of charge with the Board and the service of a copy thereof upon the such action, a comparison of the complaints as issued and the other evi- person against whom such charge is made . .. dence as a whole would reveal no real issue on such contention. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 17014, and of the conduct as alleged in Case 7-CA- Jordon's affidavit bears the date of oath as May 29, 16527. 1979. Respondent did not dispute Howell's statement of Thereafter, a consolidated complaint alleging viola- facts. However, Respondent disputed whether Jordon's tions of Section 8(a)(1), (2), (3), and (5) of the Act was affidavit as furnished counsel complied with Rule 804 of issued on June 20, 1980. the Federal Rules of Civil Procedure. Thus, Respondent Respondent contends that only Case 7-CA-16527 is contended that the affidavit had not been expeditiously barred by Section 10(b) of the Act. In many respects, furnished nor was it complete. It is not disputed that a this issue may be said to be an exercise in academics. number of names had been deleted from the affidavit fur- Thus, the charge in Case 7-CA-16527 concerned itself nished Respondent prior to the hearing. with conduct violative of Section 8(a)(5) and (1) of the hed Responent pror to the hearing Act. The charge in Case 7-CA-17014 concerned itself The affidavit of Jordon, dated May 29, 1979, was ten- with conduct violative of Section 8(a)(1), (3), and (5) of tatively received into the record, and the parties were the Act. The averred 8(a)(5) conduct set forth in the advised to brief the question of such admissibility. At charge in Case 7-CA-16527 is essentially similar to some such time said affidavit, unedited and with all names of the allegations as averred in Case 7-CA-17014. In the therein, was made available to Respondent's counsel, charge in Case 7-CA-16527, the commencement date of who was advised that he would be given time at that the averred refusal to bargain was set forth as "Since in time or that he could have time at the end of the Gener- and about May, 1979 .... " In the charge in Case 7- al Counsel's case in connection with preparation for the CA-17014, the commencement date of the averred refus- issues raised by the substance of the affidavit. At such al to bargain was set forth as "Since in or about June, time, Respondent's counsel elected to take such time at 1979 .... " the end of the General Counsel's case. It appears that The complaint allegations in the amended complaint Respondent did not find it necessary to take time with avers the earliest conduct alleged to be violative of Sec- respect to such issues at the end of the General Counsel's tion 8(a)(5) and (1) of the Act, as occurring, "Since on or case. about the last week of May." The General Counsel in his brief alludes to Respond- Considering all of the foregoing, I am persuaded that ent's argument concerning Rule 804, appears to argue all of the conduct alleged in the amended complaint is that Respondent's counsel was not prejudiced by failure properly based upon the charge in Case 7-CA-17014. to furnish a complete affidavit prior to the hearing, and Thus, such charge was filed on November 1, 1979, and Thus, such charge was filed on November , 1979, and 9 argues that Board case law reveals that affidavits of de- would support complaint allegations of conduct on or ceased persons, even those with interests in the proceed- after May 1, 1979. It is clear that the alleged conduct of ing, are admissible. late May 1979 relating to the refusal-to-bargain issues is timely within the view of Section 10(b) of the Act. Thus, Respondent argues that the affidavit is not admissible, it would not appear necessary that the General Counsel that the requirements of Rule 804 for admissibility have use the charge in Case 7-CA-16527 as a basis for his not been made, that an affidavit of a deceased person complaint. However, the alleged conduct averred in having interest in the proceeding lacks inherent trustwor- Case 7-CA-16680 and 7-CA-17014 is closely related to thiness, that the affidavit was not timely furnished to Re- the conduct alleged in Case 7-CA-16527 and, thus, it is spondent, and that the affidavit as furnished to Respond- clear that Respondent has been on notice of the issues ent was not complete. under investigation in this case at all times since June 27, The Board has always been guided as to the receipt of 1979. Therefore, the overall facts relating to the ultimate evidence by Section 10(b) of the Act which provides in termination of employees in November 1979 warrant the effect that its proceedings shall, so far as practicable, be reinstatement of the charge in Case 7-CA-16527. 6 conducted in accordance with the rules of evidence ap- plicable in the district courts of the United States under B. Statements of Jordon-Affidavit and Oral the rules of civil procedure for the district court. In this The General Counsel's complaint alleges that Re- regard the Board has found affidavits of deceased per- spondent discriminatorily discharged Elmer Jordon on or sons having an interest in the proceeding to be admissible about August 6, 1979. On the second day of the hearing, as evidence.7 The Board, however, has determined that July 17, 1980, the General Counsel (A. Bradley Howell) statements of deceased persons should be considered offered an affidavit of Elmer Jordon into the record as with the utmost care and caution and closest scrutiny. evidence. Howell stated, as counsel, that Jordon was de- The weight to be given such statements depends on con- ceased, that he (Howell) had personally taken the affida- sideration of the richness and fullness of detail and vit, and that Jordon had signed the same in his presence. whether such details are corroborated or disputed and Further, statements of Howell were to the effect that the resultant logical consistency of such statements with Jordon had died around July 2, 1980; that Howell all other facts presented on the issues involved. learned of Jordon's death on or around July 7, 1980; that The Federal Rules of Evidence contain the following Howell had advised one of Respondent's attorneys, rules relevant to the issues presented concerning the re- Hyman, of Jordon's death, and that a copy of Jordon'sidavit into evidence: affidavit had been mailed to Respondent's counsel on July 9, 1980. 7 See Prestige Bedding Company. Inc., 212 NLRB 690, 701, fn. 13 (1974): Canterbury Gardens and Manchester Gardens. Inc., 238 NLRB 864, California Pacific Signs. Inc.. 233 NLRB 450. 451 (1977). 868 (1978). EASTERN MARKET BEEF PROCESSING 105 Rule 102. Purpose and Construction scheduled be postponed. I am persuaded that the better These rules shall be construed to secure fairness policy for the General Counsel would have been to fur- nish the affidavit without deletion of names, well before pen administration, eiand promotion of unusgrowth and de- the time of the hearing, that, if the affidavit were needed pense and delay, and promotion of growth and de- velopment of the law of evidence to the end that as evidence, such need outweighed any internal policy the truth may be ascertained and proceedings justly relating to confidentiality. I note that it is standard prac- determined, tice, at the hearing and upon request after a witness has testified, to furnish unedited affidavits of said witnesses * * * * * to counsel. The trier of fact in his discretion might refuse to receive such proposed affidavit if to do so under all Rule 804. Hearsay Exceptions: Declarant the circumstances would be unfair to respondent or an Unavailable abuse of the hearing process. In the instant case, howev- (a) Definition of unavailability.-"Unavailability as er, Respondent's counsel was advised that time would be a witness" includes situations in which the declar- given him to prepare concerning the affidavit. Thus, the ant- timing of the furnishing of the affidavit to Respondent and the presentation of an edited affidavit at such time * * · * * do not constitute an impairment to the receipt of the affi- davit in evidence. (4) is unable to be present or to testify at the As to the question of whether an affidavit by a de- hearing because of death or then existing physical ceased person who has an interest in the proceeding has or mental illness or infirmity; or ... . guarantees of trustworthiness, Board case law reveals (b) Hearsay exceptions.--The following are not that the affidavit is admissible but subject to careful and excluded by the hearsay rule if the declarant is un- cautious consideration and to close scrutiny with the available as a witness: weight to be given subject to consideration of all of the circumstances and facts. Accordingly, I reaffirm the * * · * ruling wherein the affidavit of Jordon was received into the record. (5) Other exceptions.-A statement not specifi- The General Counsel further attempted to present tes- cally covered by any of the foregoing exceptions timony of Calloway as to statements made by Jordon to but having equivalent circumstantial guarantees Calloway concerning the events surrounding his dis- of trustworthiness, if the court determines that charge. Such testimony was objected to and rejected. It (A) the statement is offered as evidence of a ma- is clear that the General Counsel did not advise Re- terial fact; (B) the statement is more probative on spondent prior to the hearing that he intended to intro- the point for which it is offered than any other duce evidence through Calloway of statements by evidence which the proponent can procure Jordon. Normally, such evidence would be inadmissible through reasonable efforts; and (C) the general because of its hearsay characteristics. In the instant case, purposes of these rules and the interests of justice the principles of Federal Rule 804 has not been followed will best be served by admission of the statement or practically applied. I reaffirm the ruling rejecting such into evidence. However, a statement may not be testimony. admitted under this exception unless the propo- nent of it makes known to the adverse party suf- C. Supervisory Statuss ficiently in advance of the trial or hearing to pro- vide the adverse party with a fair opportunity to At all times material herein, except as limited by indi- prepare to meet it, his intention to offer the state- cation, the following named persons occupied the posi- ment and the particulars of it, including the name tions set forth opposite their respective names, and have and address of the declarant. been and are now supervisors of Respondent at its Scott Street plant, within the meaning of Section 2(11) of the Considering all of the foregoing, I am persuaded that Act, and its agents: Marcus Rohtbart-owner; James the Board should adhere to the principles of Federal Richardson-plant manager; Benjamin Govaere-super- Rule 804 insofar as practicable and as consistent with its visor; Lawrence Selig-supervisor until July 1, 1979, past decisions relating to the receipt of evidence. thereafter Michael Mislevy-supervisor; Matthew Guil- Thus, I am persuaded that receipt or consideration of a foyle 9--boning room supervisor. statement, as to which the proposing party has not com- plied with the requirement of furnishing a copy of said The facts are based on the pleadings and admissions therein, and on statement to the adverse party sufficiently in advance of stipulations. The General Counsel further contends and Respondent the hearing, is dependent on discretion requiring consid- denies that Lawrence Selig's supervisory status commenced in the begin- ning of June 1979. It suffices to say that the evidence is not sufficient to eration of all of the circumstances. In the instant case, it establish that fact. Under the facts of this case as later found out, this appears that the General Counsel furnished the affidavit, appears to have little significance. with certain names deleted, to his opponent within a rea- The motion to amend the complaint to include Guilfoyle as a supervi- sonable time considering the timing of the events. There sor aS indicated on the record sets forth the name "Matt Gilford." Wit- ness Matthew Guilfoyle testified in this proceeding. The names sound is no indication that Respondent, on receipt of the "affi- similar. Under the circumstances I am persuaded that the correct name of davit," found it necessary to ask that the hearing as the supervisor referred to is Matthew Guilfoyle. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Background during the time of the before-referred-to 1976-79 collec- Fro in or abou t 1972 and through November 22, tive-bargaining agreement. The sum of all of the facts es- 1979, Amalgamated Meat Cutters and Butcher Workmen tablishes, and I conclude and find, that the bargaining 1979, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 26, AFL-CIO, or United Food unit as set forth above with respect to Respondent's em- and Commercial Workers International Union, Local 26, ployees at the Alfred Street plant and/or the Scott Street AFL-CIO-CLC, and Eastern Market Beef Processing plant constitutes an appropriate collective-bargaining Corporation had a collective-bargaining relationship and had collective-bargaining agreements, the last of which E. Bargaining and the New Plant-Scott Street Plant was effective from November 22, 1976, until November 22, 1979. In January 1979, Rohtbart, president of Respondent, The last collective-bargaining agreement and perhaps discussed with his attorney the fact that Respondent was earlier ones were agreements negotiated when Eastern doing some subcontracting of work. It appears that at Market Beef Processing Corporation bargained as part of such time Rohtbart was contemplating and exploring the the Detroit Meat Packers Association. Said agreement possibility of subcontracting agreements and was also in- spelled out the covered appropriate bargaining unit as volved in the planning of acquisition of new plant facili- follows: ties and "changes" in operations, including changes in methods of payment for labor services. Respondent's at- All employees who are engaged in janitorial, re- torney informed Rohtbart that he needed to notify the ceiving, boning, breaking, cutting, grinding, slicing, Union about his subcontracting of work. curing, preparing, processing, sealing, wrapping, Rohtbart, after exploring the idea of subcontracting, bagging, prefabricating, of all meat products, sau- apparently decided not to enter into any extensive agree- sage, poultry, fish and sea food products, whether ment with anyone for the subcontracting of work. Ex- such products are fresh, frozen, chilled, cooked, cepting for the foregoing reference to subcontracting, cured, smoked or barbecued, including those em- later events do not involve the question of true subcon- ployees operating equipment used in wrapping, tracting. It appears from all of the evidence, and I draw cubing, tenderizing of such meat products and who such inference, that Respondent considered that it had perform those duties in all areas where such prod- the same obligation of notifying and bargaining with the ucts are prepared. All services as indicated above Union about the relocation of its Alfred Street plant to performed in the plant shall be performed by em- Scott Street and about changes in operations and wage ployees covered by this agreement. plans. In such regard, terminology of "subcontracting" appears to have been used with reference to said reloca- The General Counsel alleges, and Respondent denies, tion and changes in operations or as a result of confusion in effect that the above-described appropriate bargaining otherwise. unit of employees employed by Respondent at its facility Thus, in January 1979, Respondent was in the midst of located at 1545 Alfred Street, Detroit, Michigan, but ex- arrangements to acquire a plant at Scott Street and of cluding office clerical employees, guards and supervisors plans for the relocation of its Alfred Street plant. ' Arm- as defined in the Act, constitutes an appropriate bargain- strong, business agent for Local 26, informed Seely, busi- ing unit within the meaning of the Act. ness representative for Local 26, that Respondent Plant Respondent's counsel indicated an understanding that Manager Richardson desired a meeting to discuss con- cleanup janitorial employees were not in the unit. Appar- tracts and the procedure for moving the Alfred Street ently in support of such contention, Respondent present- plant to the Scott Street facility. ed into evidence memorandum agreements relating to Following the foregoing, Seely had a meeting with janitorial service employees and "night cleanup" employ- Richardson in the latter part of January 1979. What oc- ees. I would note, however, the 1976-79 contract was curred is revealed by the following credited excerpts executed on December 15, 1977, and appears to have ab- from Seelv's testimony: sorbed earlier agreements as indicated in such memoran- dum. Q. (By Mr. Howell) Where did the meeting take I note that the facts reveal that Respondent, prior to place? March 1979, had two plants, one on Alfred Street and A. In the union office. the other on Adelaide Street. The plant on Adelaide Q. Who was present at this meeting? Street apparently closed around March 1979, and its em- A. Mr. Jack-Maynard Jack Armstrong, Jim ployees were transferred to the Alfred Street plant. Fur- Richardson, and myself. ther, the union steward for the Adelaide plant became Q. What time of day did that occur? the union steward at the Alfred Street plant when the A. In the morning. old steward left. Thus, it appears that Respondent's Q. What was said and by whom at this meeting? 1976-79 collective-bargaining agreement covered em- A. Mr. Richardson explained to me that the com- ployees at both the Alfred and Adelaide Street plant pany had acquired the Scott Street facility and was until March 1979 and thereafter covered the employees intending to move very shortly into the Scott Street at the Alfred Street plant. Further, it appears that, facility. That the Alfred Street facility would be whether or not janitorial employees of Respondent were closed, that the company was desirous of entering covered or in the bargaining unit prior to 1975 and 1976, '° This finding is based on a consideration of all of the facts and logical such employees were included in the bargaining unit inferences therefrom. EASTERN MARKET BEEF PROCESSING 107 into a new collective bargaining agreement, which changes in areas that are not specifically covered would be patterned after the Western-and I am under the current collective bargaining agreement. putting that in quotes-"The Western Type Beef For this reason, we think it is proper at this time to Packers" and that also the company was desirous of invite you to contact us so we may arrange a mutu- having a contract also comparable to the Western ally agreeable time to meet and discuss the future of Beef Packers. Mr. Richardson further showed me a Eastern Market Beef. Please bear in mind that these list of grades or classifications with pay rates de- changes are essential to prevent Eastern Market scribing the work content of the new radical type Beef from going the same way as the following: operation. He described it as a new on-the-rail beef Rem Packing Company, Prime Meat, Ray's Beef, boning operation. Standard Beef, and Snow Beef. We are looking for your response in the very * * * * * near future. All right. I said, "Do you want rates comparable to At some point of time in February 1979, Plant Man- the Western Beef Packers also? He said, "Yes." I ager Richardson and Local 26's chief steward, Peter C. said, "You have your beef boners on an incentive Kitka III, engaged in a discussion concerning a griev- plan at the Alfred Street facility. What happens to ance. During the time of such discussion, Kitka ques- the incentive plan? He said, "There will be no in- tioned Richardson as to whether Respondent had pur- centive plan at the new operation." And I said, chased the "Wolverine" plant on Scott Street. Richard- "Jim, you've got to be kidding. You're talking son told Kitka that Respondent had purchased the Wol- about cutting people's wages." verine plant, that the operations at such plant would in- volve a different type of procedure for "boning," that Later, on or about February 9, 1979, Richardson con- there would be no need for artisan boning, and that this tinued Respondent's approach to Local 26 concerning its was the way "they do it out west and that is our compe- desired changes by sending a letter to Maynard Arm- tition. That's the way it is." strong which set forth reference to further discussion of Later, around March 4, 1979, Respondent held meet- proposed changes as follows:" ings with chosen employee groups. At one of such meet- Re: Current Status of Eastern Market Beef ings at least, Richardson showed the Alfred Street em- ployees blueprints of the "Scott Street Plant," told the Dear Mr. Armstrong: employees that they would be working there, and spoke concerning the proposed Scott Street plant as is revealed As I am sure you are quite well aware, the small by the following excerpts from Kitka's credited testimo- independent beef packers in the State of Michigan, ny: and especially the City of Detroit, have experienced many problems of a financial nature in the last year. Q. What was said and by whom in that meeting? Several independent meat packers in the City of A. Well, Jim was up there and he had the blue- Detroit have been forced to close their facilities be- prints of the Scott Street plant. cause they were unable to cope with the economic Q. Did you examine those blueprints? reality of meat packing in today's economy. Man- A. Oh, yes. agement has been actively engaged in studying the Q What did they show? methods and procedures regarding the operation of A. Well, it had the whole w oor plan of the whole a plant facility that are currently being used by in- Scott Street plant, showing the meat as it would dependent meat packers in the western portion of come in. How they would bring it in off the trucks the United States. It is our opinion that we can no and how they would send it along the rails to dif- longer continue to operate Eastern Market Beef as ferent spots in the plant to be boned out and proc- it is currently known to the union. There have been essed. many innovations in the past couple of years that enable a packer to run its operations in a more ef- * * * * * fective, efficient, and competitive nature. As I am quite sure you know, the competition has become He started the meeting by saying, "You'll be work- fierce in this industry. ing there. We will not have any need for any arti- The union and the employer must work together san boning or any skilled jobs." He also said that he to effectuate the changes that must be made in the did not care what kind of seniority we had, plant or current operations of Eastern Market Beef to enable departmental seniority. He said that that would be a it to remain a viable entity. We have no intention to different procedure altogether. Our competition is displace any union employees. Our only goal is a out west and that's what we're against. And he also reorganization that would enable us to be competi- said that March 15 was a deadline for signing the tive in the marketplace. We intend to make some mortgage for the loan for plant and in 60 days after that we would move in. He also wanted the expira- " In the meantime, Local 26 had apparently taken no steps to comply tion date of our contract to be moved up to July 1. with Respondent's request for discussions. It should be noted that, where there is a collective-bargaining agreement, changes therein cannot be When he was asked about wages, he would say that made unilaterally even if there occurs bargaining to an impasse. we would have to negotiate that with the union. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One of the other employees asked him about new ardson. What occurred is revealed by the following machinery in the plant, and he said that during the credited excerpts from Seely's testimony: upcoming months they would be taking a line out of Plant 2 and a line out of Plant I and moving Q. Who called who? them over there, both the roll-omatic machines and A. Mr. Richardson called me. other machines that would be used. Q. What did he say and what did you say? He also said, if I can recall, that to remain sol- A. He demanded to know who and why the vent we would need, you know, a loan. He wanted union could act contrary to a petition that had been our contract moved up. I've already said that, signed by the majority of the employees of Eastern sorry. Right now, that is all I can recall. Market Beef, and which the employees had de- manded that Local 26 enter into contract negotia- At some point of time in March 1979, Respondent tions. I responded that the petition had no weight convened around 30 employees for a meeting in Presi- because a local union had a contract with the com- dent Rohtbart's office. At such meeting were Plant Man- pany that ran to November of 1979. ager Richardson and President Rohtbart. During such Q. Was anything else said during this conversa- meeting, a movie was shown the employees. What oc- tion? curred is revealed by the following credited excerpts A. I am trying to remember. from David Dziepak: Q. Was anything said regarding the multiem- ployer group? Q. What was the movie about that he showed? A. Yes that was the other part. This was also ex- A. Mr. Richardson and Mr. Rohtbart explained plained at the membership meeting, that there were that the movie was taken on a trip out West. And some legal and or technical- the movie depicted meat cutting operations in a Q. Who is doing the explaining? plant out West. And the description of the movie A. I am was showing how beef was cut out West on the Q What did you say? rail, and Mr. Richardson and Mr. Rohtbart ex- Q. What did you say? rlai, and Mr. Richardson,,and Mr. Rol rt ex-, ,.,A. That there were some legal or technical ques- plained that the way this meat was cut out West tions that barred Local 26 from terminating the was a more efficient way of cutting it than the way contract with Eastern Market Beef because Eastern we were cutting it at the Alfred Street plant. Q. Okay. Was anything else said at this meeting? Market Beef were members, or a member of a mul- A. Mr. Richardson and Mr. Rohtbart, I am not tiemployer group that were signatory parties to the sure which one, said the general explanation, but current collective bargaining agreement and that if they said this was a more efficient-boning on the we were desirous of terminating that contract the rail, which is the way they bone it out West, was a union would have to obtain approval from all the more efficient way of boning it than the way we other signatory. This I considered at that time to be did at Scott Street, on the table. impossible. Q. Scott Street or Alfred Street. . ScottAlfred Street. Ator Alfred Street we were On March 23, 1979, Respondent completed the pur- boning the meat on the table. And Mr. Richardson chase of the Wolverine plant facilities at Scott Street. explained that they were planning on going to the On or about April 15, 1979, President Rohtbart tele- more efficient way of boning meat, which would be phoned Seely. What occurred is revealed by the follow- on the rail. ing credited excerpts from Seely's testimony: At some point of time in March 1979, Local 26 re- Q. And who called who? ceived a petition from employees at the Alfred Street A. Mr. Marcus Rohtbart called me at approxi- plant. Said petition requested Local 26 to enter into im- mately 4:00 o'clock in the afternoon. mediate negotiations with Eastern Market Beef for the Q. What did he say and what did you say? purpose of negotiating a new contract. Seely, for Local A. He said to me, "Harold, we have to have a 26, convened a union meeting to discuss the referred-to new contract." And I said, "Marcus, what's the petition. What occurred is revealed by the following hurry? You've got a contract that runs until No- credited excerpts from Seely's testimony: vember." I said, "We're covered. There's no prob- lem." And he said, "No, I am having trouble with Q. What occurred at this meeting? the bank. We had a lot of money involved and we A. I presented the petition that had been given to have loans and the bank has to have some assur- the union and opened the floor immediately to ques- ances before we can move over there to the Scott tions as to what had precipitated their drawing up Street operation that we have to have a contract in and signing a petition, reminding them that they effect." And I said, "Marcus, it is late in the day. had a contract in effect and they were being well Maybe I can make it tomorrow or possibly next taken care of and that their contract would continue week." Mr. Rohtbart said to me, "No, I am leaving until November 1979. town. You have to come over right now." Following the above-referred-to union meeting, Seely Following the above-referred-to conversation, Seely had a telephone conversation with Plant Manager Rich- left his office and went to Respondent's office and met EASTERN MARKET BEEF PROCESSING 109 with President Rohtbart, Richardson, and Respondent's Upon motion duly made, seconded and carried, it attorney, Hyman. What occurred is revealed by the fol- was unanimously lowing credited excerpts from Seely's testimony: RESOLVED, That Company hereby establishes Q. And what was said and by whom? two divisions to be known as the Scott Street Di- A. Well Mr. Rohtbart again impressed or at- vision and the Alfred Street Division. tempted to impress me with the fact that they had FURTHER RESOLVED, That the business of to negotiate a new agreement before they moved to the Scott Street Division shall be conducted at Scott Street, that it was imperative and again, in his 1825 Scott Street, Detroit, Michigan, and the words, that they have a contract in effect when business of the Alfred Street Division shall be they made the move. One of the main-the primary conducted at 1545 Alfred Street, Detroit, Michi- purpose, as he explained to me, was that he had no gan. intention of moving over to the new facility and then having to enter into negotiations and face a FURTHER RESOLVED, That separate bank possible strike in November of 1979. I said that that accounts and separate books and records shall be made sense to me. I said, "So your only purpose in maintained for each Division. early negotiations are negotiating a new contract FURTHER RESOLVED, That transfers of mer- was to establish labor peace for operation in a new chandise from one Division to another Division facility." And, he assured me that that was the only shall be invoiced and billed by the transferor Di- reason. vision and paid by check by the transferee Divi- Q. Was anything else said? sion. A. Yes. I said, "As long as you have told me what your position is, I will tell you what our fearsll be maintained as a separate profit each Divisionter. are." I said, "There has been talk in an membership meeting that I got from the membership that the On or about April 17, 1979, Plant Manager Richardson company had planned to discontinue their participa- transmitted a letter to Seely. In said letter, Respondent tion in the various trust funds; pension, health and gave the requested assurances as is revealed by the fol- welfare, dental, optical, and prescription drug funds. lowing excerpts from said letter: So, there is a fear on the part of the union and the employees that the company intends to withdraw Management at Eastern Market Beef offers this their participation from those funds." At that point, letter to the union in order to show our good faith Mr. Rohtbart said, "Well, what can we do to assure and to maintain labor peace. you that we will not withdraw from the funds or On February 9, 1979, a letter was sent to Mr. hurt the employees?" And, I gave him some exam- Armstrong inviting the union negotiating committee ples of what could happen. And, he said, "Well, I to meet with management and discuss the possibili- don't want to hurt the employees. What do you ties of subcontracting. We are anxious to resolve need?" I said, "1 will need a written commitment this matter with the present union and the present from the company that the company will not with- work force. draw from the funds, thereby protecting the em- Eastern Market Beef does not intend to revoke ployees interest." He looked around to Mr. Hyman any of the benefits, embodied in the current Collec- and he said, "Can we do that?" And, Mr. Hyman tive Bargaining Agreement dated November 22, assured him that we could. He then directed Mr. 1979, that are presently being enjoyed by employ- Hyman to draw up such a letter and present it to ees. the union. And, I said, "When we get that letter, we can begin negotiations." Following the receipt of Richardson's April 17, 1979, letter, Seely set up a meeting to elect a bargaining com- On Monday, April 2, 1979, Eastern Market Beef Proc- mittee and to obtain proposals for demands to use in ne- essing Corporation held a special meeting of its board of gotiation on a new contract. There is nothing in the directors. What occurred is revealed by the following record to indicate the exact date of such scheduled meet- excerpts of the minutes of said meeting: ing. On or around May 1, 1979, Seely received information held at the office of the Company on Monday, from the Union's chief shop steward that Respondent hreld at 19Athe office tof s th re C paenY o na had posted a copy of a letter from Attorney Hyman to April 2, 1979. All Directors were present. Armstrong. 2 Later that day, a copy of the referred-to A discussion was had regarding the affairs of the letter was hand-delivered to the Union's office. Such Company. The Company has acquired a new plant letter was as follows: located at 1825 Scott Street, Detroit, Michigan. The Company will be required to purchase equipment and remodel said plant. The operations to be con- ducted at said plant are different from the oper- ations presently conducted by Company at its plant 12 Exactly what was said by the union chief shop steward to Seely is at 1545 Alfred Street, Detroit, Michigan. not revealed in more detail. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1, 1979 would get a copy of the proposals and we could Mr. Maynard Armstrong begin. Amalgamated Meat Cutters and Butcher Workmen of North America Thereafter, Local 26 prepared proposals for negotia- Local Union 26 tions. On May 14, 1979, Local 26 met with certain Re- 211 Woodward Ave., Room 408 spondent officials to discuss the oncoming negotiations. Detroit, MI 48201 At such time, Local 26 presented certain proposals. At- tending for Respondent were David Rohtbart, son of Re: Potential Subcontracting at Eastern Market Beef President Rohtbart, and Plant Manager Richardson. At- Dear Mr. Armstrong: tending for Local 26 were Seely, Chief Steward Kitka, Pat Hardy, Dave Dziepak, and apparently six other In both our letters of February 9, 1979 and April members. What occurred in effect is revealed by the fol- 16, 1979, the employer, Eastern Market Beef, has lowing credited excerpts from Seely's testimony: expressed the urgency of meeting with the bargain- ing committee to discuss the potential effects of sub- Q. (By Mr. Howell) What was discussed at this contracting on bargaining unit members. I have met first preliminary meeting? with you at the plant and discussed this on one oc- A. At the preliminary meeting most of the discus- casion. sion was centered around the urgency on the com- As our letter of April 16, 1979 indicates, we do pany's part. not intend to revoke any of the benefits embodied Q. Who was doing the talking? in the current collective bargaining agreement. I do A. Mr. Richardson. The urgency of reaching an not know what further we could have done to ex- agreement so that the move could be made to the press the urgency of meeting with the bargaining new facility, the company further said- committee and discussing these matters. Still you have failed to heed our request to come * * * * * to the table and negotiate. It is unfortunate for both the employer and the union that you have not done Mr. Richardson again. That Mr. Rohtbart senior so. We are at a point in time where we are forced and he had decided that a target date should be to negotiate with subcontractors. We intend to be picked at which time an agreement should be negotiating with subcontractors during the month reached. Must be reached. And if no agreement of May. Your failure to respond to our repeated re- were reached by that date that the company would quests has left us no other alternative. start sub-contracting the work. /s/ Douglas A. Hyman Q. Was anything else said? Douglas A. Hyman, Attorney A. Well, I at that point, explored with Mr. Rich- for Eastern Market Beef ardson about what he specifically meant by sub- DAH/pap contracting. Because I was of the opinion or the feeling that sub-contracting as I have known it in Following the receipt of the above letter, Seely tele- the past was not being applied here in the interpre- phoned Richardson. What occurred is revealed by the tation of Mr. Richardson. So, I asked him to explain following credited excerpts from Seely's testimony: what he meant by sub-contracting. And, he told me that, "Our plan is to set up a satellite company in Q. What was said during the conversation? .. Wat wId then e Rcnrdsaon? the new facility at Scott Street and have them do A. Okay I then called Mr. Richardson and ex- the work that is presently being done by the Alfred plained to him that the letter obviously was not in- tended for the union but was intended for the em- Street operation." ployees. I said that I did not appreciate the compa- The first real bargaining session occurred on May 16, ny posting a letter that was addressed to the union, 1979. Later, on May 22, 1979, Richardson transmitted a posting it for the employees' intimidation before we letter to Seely which stated: "This is to clarify and had a chance to look at it. Further, I said to Mr. inform you that Eastern Market Beef Processing Corp. Richardson, I said, "Look, the company is telling us will be negotiating its new contract by itself and on its that they want to negotiate and then your hanging own, apart from the Detroit Meat Wholesalers Assoc." this sub-contracting thing over our head." I said, Following this, there were around seven bargaining ses- "You go ahead and talk to the sub-contracts first. sions with the last bargaining session occurring on June And when you get through with them we will sit 7, 1979. It appears that the parties had reached agree- down and talk with you." And then Mr. Richard- ment on all items for a new contract excepting the par- son said, "Look, we don't want to talk to any sub- ties could not reach agreement on certain cost-of-living contractor. Let's just get started negotiating a con- provision language. tract so we can move." The respective positions of the parties were as re- Q. Was anything else said? vealed by the following credited excerpts from Seely's A. I think it was at that point that I told him that testimony: I had scheduled a meeting for the purpose of elect- ing a bargaining committee and drawing up a pro- Q. What was the union's position? posal and I said that as soon as I was done he EASTERN MARKET BEEF PROCESSING 111 A. The union's position was we had proposed a tractors, sales personnel, professional employees, semiannual cost of living adjustment which would and guards and supervisors as defined in the Nation- have allowed full adjustment of cost of living with- al Labor Relations Act. out regard to maximums. The company's position was that there would be a continuation of the cost During the week preceding June 17, 1979, Howard of living formula in the old contract which pro- Shapiro, Local 26's business agent, was in Washington, vided for a ten cent cap every six months. D.C., in connection with the merger which changed Local 26 from being Amalgamated Meat Cutters and What occurred with respect to the disagreement on Butcher Workmen of North America, Local 26, AFL- the cost-of-living language in the proposal and the pro- CIO, to United Food and Commercial Workers Interna- posal as a whole is revealed by the following credited tional Union, Local 26, AFL-CIO-CLC. Shapiro re- excerpts from Seely's testimony: turned to Detroit on the night of June 17, 1979. During the week following, Shapiro telephoned Plant Manager Q. What occurred at this June 7th, 1979 bargain- Richardson's office on Monday, Tuesday, and Wednes- ing session? day (June 18, 19, and 20, 1979). On such occasions, the A. Well when we reached a point where we person who took Shapiro's call informed him that Rich- could not agree on the cost of living language, the ardson was not available." Said person, however, took company then requested that the union take the Shapiro's name and telephone number and told him that offer to the employees, to the membership, for a Richardson would return his telephone call. vote. And requested also that the union-first ask On June 21, 1979, Shapiro transmitted the following the union if we would recommend it for accept- letter to Respondent: ance. We said that we would not. The company had requested, or asked if we would take the pack- As you are aware, at the urgent behest of the age to the members with no recommendation. And, Company, we have been in negotiations with you we agreed that we would. for more than a month, despite the fact that our current agreement is not due to expire until Novem- Thereafter on June 12, 1979, Local 26 held a ratifica- ber of this year. tion vote for the contract proposals. These were rejected We responded to the urgency of your request be- by the Union's membership. cause of your representation that it was necessary to On June 13, 1979, Seely telephoned Richardson and finalize a new agreement preparatory to moving related the results of the vote by the membership. What into a new plant which would necessitate a revolu- occurred is revealed by the following credited excerpts tionary change in your methods of operation. from Seely's testimony: During this one month period we have attempted Q. What did he say and what did you say? in all good faith to arrive at a new, mutually ac- A. Well it was the following morning and I was ceptable agreement. However, as you know, the reporting to him the results of the vote that had most recent proposal by the Company was voted been taken. I would like to point out that was a down in a secret ballot vote by an overwhelming secret ballot vote. I explained to Mr. Richardson majority. that the final proposal of the company had been re- I have since that time requested that we resume jected by a vote of 76 to 6 and that we were inter- negotiations in an attempt to resolve the outstanding ested in getting back to the bargaining table. Mr. issues. You have failed to set a date for this pur- Richardson asked me if Mr. Shapiro was back in pose, and phone calls I have made to you have town and I said that he was not yet back and, he found you unavailable and were not returned. said, "Well have Mr. Shapiro call me as soon as he Additionally, you have begun operations in the gets back and we will get back together again." new plant, hiring approximately 30 new employees who will be performing the same work covered by In the meantime certain employees had been hired by our existing and un-expired [sic] Collective Bargain- Respondent to engage in cleanup work at the facility it ing Agreement. had purchased on Scott Street. On June 16, 1979, Re- It appears to me that you have provoked serious spondent assigned production jobs at the Scott Street fa- doubts about the good faith bargaining required by cility. On the same day Respondent recognized the In- law and implemented over many years in the rela- dustrial, Technical, and Professional employees, a Divi- tionship between your Company and the Union. sion of National Maritime Union, AFL-CIO, as the ex- We hereby assert that the so-called new plant is clusive collective-bargaining agent for its Scott Street an integral part of the operation of the Eastern plant employees. On June 17, 1979, Respondent executed Market Beef Company and demand that the new a collective-bargaining agreement with NMU. The bar- employees hired by you receive all the wages and gaining unit covered by such contract is as follows: conditions provided for in our Collective Bargain- All production and maintenance employees em- ing Agreement. ployed by the Respondent at its plant located at 'S Shapiro in his testimony revealed that the person who took his tele- 1825 Scott Street, Detroit, Michigan; but excluding phone calls was a female. Shapiro described her as the operator who took office employees, employees of independent con- his telephone calls. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Should you fail to do so, the Union will be com- Among the employees who worked at the Scott Street pelled to utilize its full resources under law to plant and who engaged in some union activity toward assure compliance with the contract and the full the end of July and first part of August were employees protection of the wages, conditions and seniority of J. C. Bonner and Elmer Jordon. On or about August 1, your employees. 1979, Respondent discharged J. C. Bonner. On or about We do not seek a confrontation with your Com- August 6, 1979, Respondent discharged Elmer Jordon. pany. We much prefer to resolve things peaceably On August 7, 1979, Local 26 filed unfair labor practice and maintain and strengthen a decent relationship charges against Respondent. Such charges, docketed as which has existed over the years. Case 7-CA-16680, allege in effect that Respondent had It is my sincere hope that you feel the same way. discriminatorily discharged Bonner and Jordon because May I expect to hear from you soon. of their activities on behalf of the Union. Such conduct is alleged to constitute conduct violative of Section 8(a)(3) and (1) of the Act. Following this, on August 21, /s/ Harold L. Shapiro 1979, Local 26 took an appeal to the General Counsel Harold L. Shapiro from the Regional Director's August 2, 1979, refusal to Deputy Trustee issue a complaint in Case 7-CA-16527. On the same day, HLS:is August 21, 1979, Local 26 filed an amended charge in cc: Ted Sachs Case 7-CA-16680, alleging in effect that Respondent had Charles A. Hayes assisted and recognized NMU improperly and in viola- I. Mark Steckloff, with enclosure tion of Section 8(a)(1) and (2) of the Act. On September 6, 1979, Kearis, president of Local 26, On June 26, 1979, Plant Manager Richardson transmit- transmitted a letter to Respondent Plant Manager Rich- ted a reply to Shapiro's June 21, 1979, letter, as is re- ardson. Said letter in effect notified Respondent of Local vealed by the following: 26's desire to negotiate changes in the existing collective- bargaining agreement between the parties. At the same Thank you for your June 21, 1979 letter. As I am time Local 26 gave notice to the Federal Mediation and sure you are aware, I was unable to meet last week Conciliation Service of the proposed modification of the because Markus was out for several days and I was existing contract. extremely busy for reasons I am sure you well un- On September 28, 1979, the Regional Director issued a derstand. complaint in Case 7-CA-16680. Such complaint alleges When we made our last offer to you, it was my conduct violative of Section 8(a)(3), (2), and (1) of the fondest hope that the union would recommend it to Act. At the same time the Regional Director refused to the employees and that the employees would alp- issue complaint in the broadest scope of Section 8(a)(2) prove it. Unfortunately, our best offer was rejected by an overwhelming majority. byTo reman overwhelmi an y possible doubt in your mind, it is On or about October 1, 1979, Business Representative To remove any possible doubt in your mind, it is our current intention to continue to operate the Seely spoke to Plant Manager Richardson concerning Alfred Street facility, negotiations and whether Respondent intended to negoti- We reject the other assertions set forth in your ate as part of the multiemployer group or intended to ne- June 21, 1979 letter. gotiate on an individual basis. Richardson indicated to If after reviewing the above you still desire to Seely that Hyman would handle the negotiations from meet, please give me a call and we can set up a that point on. On October 1, 1979, Seely transmitted a meeting this week. letter to Attorney Hyman and requested a response as to whether Respondent intended to bargain individually or On the next day, Local 26 filed an unfair labor prac- as a group. Said letter indicated that enclosed with such tice charge which was docketed as Case 7-CA-16527. letter were proposals for the new collective-bargaining Such charge alleged in effect that Respondent "Since in agreement. Thereafter, on October 4, 1979, Hyman, by or about May, 1979," had refused to bargain in good letter, indicated receipt of Seely's October 1, 1979, letter, faith by repudiating the collective-bargaining agreement advised that Respondent intended to negotiate on an in- in existence between Respondent and Local 26 and en- dividual basis, and informed Seely to feel free to contact tered into on December 15, 1977, and effective Novem- him at his office. ber 22, 1976, to and including November 22, 1979. Such On October 9, 1979, the General Counsel denied the conduct was alleged to be violative of Section 8(a)(5) Charging Party's appeal from the Regional Director's re- and (1) of the Act. fusal to issue a complaint in Case 7-CA-16527.'4 On Oc- Around July 23, 1979, an agent or agents for Local 26 tober 10, 1979, the Charging Party appealed the Region- commenced monitoring activities at Respondent's Scott al Director's refusal to issue complaint in Case 7-CA- Street plant, and commenced organizational efforts di- rected at Respondent's Scott Street plant employees. On August 2, 1979, the Regional Director issued a letter ad- As noted previously, the charge therein alleged conduct violative of vising the parties that he was refusing to issue a cornm- Sec. 8(a)(5) and (1) of the Act and referred to an alleged repudiation of plaint in Case 7-CA-16527. the collective-bargaining agreement. EASTERN MARKET BEEF PROCESSING 113 16680 in certain aspects with regard to alleged conduct at 1825 Scott Street, Detroit, Michigan, for violative of Section 8(a)(1) and (2) of the Act.' 5 $1,500,000 cash. The purchase price was allocated On or about October 23, 1979, Hyman, for Respond- as follows: ent, transmitted the following letter to Seely for Local 26. Land and Building $841,720.00 Equipment $658,280.00 I am writing this letter to inquire when and if you intend on negotiating with Eastern Market Beef On the same day, EMB borrowed D i,500,000 on the Alfred Street plant. I have discussed this from Michigan National Bank of Detroit. The matter with you on several occasions and you have promissory note evidencing said debt bears interest informed me that you would get back to me. at 1/2 of 1% over prime and is payable in monthly I received your cover letter dated October 1, installments beginning May 1, 1979, of $12,500 per 1979 in which you inquired as to whether we would month plus accrued interest. A balloon final pay- be bargaining as a group or individually. On Octo- ment of $312,500 plus accrued interest is due on ber 4, 1979, 1 answered with my letter informing April 1, 1987. you that we intended to negotiate individually. On the same day, EMB entered into a loan agree- Since that date, I have heard nothing further from ment with MNB covering a $2,500,000 line of credit you regarding these negotiations. including obligations on outstanding letters of Please be put on notice that the employer is, and credit. The interest on the line of credit loan is has at all times, been ready, willing, and able to ne- prime. Letter of credit charges are 1/2 of 1% per gotiate on the Alfred Street facility. Please contact annum. EMB agreed to maintain compensating bal- me so that we may arrange to negotiate at times ances with MNB of $600,000, of which $300,000 mutually agreeable to both parties. must be collected funds. Present and future obligations and debts of EMB On or about October 23, 1979, James Williams III, for to MNB are secured by a mortgage on the Scott the USDA, gave Plant Manager Richardson a memoran- Street real estate and by a security interest in all dum dated October 23, 1979. Such memorandum re- presently owned and hereafter acquired equipment, ferred apparently to a prior inspection date of July 23, inventory, accounts, etc. 1979, of various "projects" of correction which had been The foregoing summary is a general outline only due to start on 8-15-79 and due to have been completed and the complete terms of the transactions are set by 9-15-79, and due to start on 9-12-79 and to be corn- forth in the documents attached. pleted by 10-12-79. Further, such memorandum indicat- ed that Williams had to have from Respondent the dates At some point of time between March 1979 and Octo- when corrective action would be taken and completed. ber 22, 1979, Respondent's letter line of credit had been Such memorandum indicated that, if this were not done, increased by the Michigan National Bank of Detroit to the areas mentioned would have to be "rejected."1 6 $4 million. In any event, on October 22, 1979, the Michi- Sometime after Seely received Hyman's October 23, gan National Bank of Detroit approved a "reapproval" 1979, letter, Respondent and the Union agreed to have a of a $4 million letter line of credit and approved a bargaining session on October 29, 1979. Considering the $500,000 term loan to be added to the existing $1-1/2 timing of events, I find it reasonable to infer that the term loan. agreement to have a bargaining session on October 29, Around October 25, 1979, President Rohtbart spoke to 1979, occurred after Respondent had received Williams' Peter P. Miller of the Michigan National Bank of Detroit October 23, 1979, memorandum. and told him that he needed $2 million as an additional In the meantime, on March 23, 1979, when Respond- loan. Miller told Rohtbart the bank had extended him ent purchased the "Scott Street plant," Respondent en- loans in an amount as considered possible and that the tered into certain financial arrangements with the Michi- bank was not willing to extend any higher loan. "' gan National Bank of Detroit as is revealed by excerpts from a summary of transactions in evidence as an exhibit. F. The Closing of the Alfred Street Plant Such excerpts are as follows: On October 29, 1979, Local 26 and Respondent met at the Union's offices as scheduled. What occurred is re- vealed by the following credited excerpts from Seely's On March 23, 1979, EMB purchased from Wol- testimony: verine Packing Co. the plant and equipment located Q. Who was present? " Although the timing of these events might suggest that the October A. Present was Pete Kitka, the chief steward, 10, 1979, appeal was with knowledge of the General Counsel's October Dave Dziepak, committee man, Robert Walker, an 9, 1979, action, I would find the evidence insufficient to so establish. If the October 9, 1979, action were by letter, it would not appear that the parties would be aware of the same by October 10, 1979. The parties may have been aware of such actions by telegrams, or by telephone communi- " I credit that the conversation took place. Rohtbart's testimony re- cation. However, the facts do not so establish. vealed that he was very knowledgeable about money, collateral, and " The evidence does not reveal whether the October 23. 1979, memo- other facts of business life. Considering all of the facts, I am not persuad- randum from Williams occurred before or after Hyman had transmitted ed that Rohtbart seriously sought said loan. Rather, I am persuaded that his letter of October 23, 1979, to Seely. Rohtbart sought to obtain the answer he expected and received the same. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working with me on negotiations. And for the em- the Alfred Street employees?" He said, "No. We ployer were Mr. Hyman, and a man I believe are taking applications." I said, "On those employ- whose name was Woods, his associate. ees that you do hire will you recognize their Alfred Q. Okay what was said and by whom? Street seniority?" And, he said, "No." And, I said, A. The union had its proposals all drawn up and "Do you really intend to put a 160 people out on spread out in front of the union committee and was the street just like that?" And, he shrugged, you ready to commence negotiations on the set of pro- know like tough. posals. Mr. Hyman sat down, reached into his brief- MR. SYKES: I object, your honor, and move to- case, and brought out several copies of a letter THE WITNESS: That's what he did. which he passed- MR. SYKES: Your honor, I object and move to , , , , * strike the witnesses- THE WITNESS: I am testifying under oath, your Yes this is a letter that Mr. Hyman had delivered at honor. the bargaining table. MR. SYKES: -Characterization of that's tough. JUDGE STONE: I will strike the words and im- The letter delivered to the Union and bargaining corn- pression like that's tough. If the witness is testifying mittee was as follows: that he in effect shrugged his shoulders, I will allow the record to still show that. Go ahead. Dear Mr. Seeley & Bargaining Committee Mem- Q. (By Mr. Howell) Did he advise you of a date? bers: A. Yes he did. The employer, Eastern Market Beef Processing Q. What did he say? Corporation, regrets to inform you that we are here A. He told me that the plant would be closed at today to negotiate the closing of the Alfred Street the expiration of the contract which was November Plant. The purpose of this negotiating session is to 23rd. negotiate the closing of the plant and the effect of After the October 29, 1979, meeting between Respond- the closing on current employees at the Alfred ent and Local 26, the facts reveal a number of unfair Street facility. labor practice charges and letters exchanged by the par- Economic conditions have made it impossible to ties in such a manner that the same appeared similar to continue the operation of the Alfred Street facility, that of filing pleadings and motions. The conditions involve but are not limited to the On November 1, 1979, Local 26 filed an unfair labor following: practice charge against Respondent. In such charge, (A) Less credit availability. docketed as Case 7-CA-17014, Local 26 in effect reiter- (B) Higher interest costs. ated its earlier charge in Case 7-CA-16527, added more (C) Tighter margins detailed language relating to discrimination and transfer (D) United States Department of Agriculture re- of work, and added a of refusal-to-bargain allegation quirements for refurbishing the Alfred Street fa- concerning the closing of the Alfred Street plant. In cility which must be met prior to licensing. sum, the charge alleged conduct violative of Section 8(a)(5), (3), and (1) of the Act. The employer has every intention of paying off On November 2, 1979, Hyman, attorney for Respond- accrued vacation time, accrued sick pay time, and ent, transmitted a letter to Seely which set forth the fol- with dealing with all pending grievances which lowing relating to the meeting earlier held on October remain unsettled as of the date of this agreement. 29, 1979.18 Dear Mr. Seeley: Respectfully yours, /s/ Douglas A. Hyman Please accept this letter as a follow up to our Douglas A. Hyman plant closing negotiations which took place on Oc- Attorney for Eastern tober 30, 1979 at your offices at 10:00 a.m. in the Market Beef Processing morning. Corporation During that meeting, we explained to you we would be closing the Alfred Street facility and also After deliverance of the letter, what occurred is re- discussed briefly, the reasons for closing. In that vealed by the following credited excerpts from Seely's meeting, I informed you that the employer has meeting, I informed you that the employer has every intention of negotiating the effects of plant We read the letter. And I said, "Do you intend to closure on current employees at the Alfred Street keep operating at the Scott Street facility?" And, he facility. At that meeting, I informed you and your said, "Yes." And, I said, "Will any of the Alfred negotiating committee that we have every intention Street employees be transferred over to the Scott Street facility?" And his answer was, "We are I Said letter set forth that such meeting was held on October 30, 1979. The testimony revealed that such meeting was held on October 29, 1979. taking applications." And I said, "Are you going to Whether such meeting was held on October 30 or on October 29, 1979, recognize seniority at the Scott Street application of would not vary the effect of the meeting. EASTERN MARKET BEEF PROCESSING 115 of paying off accrued sick time, accrued vacation ing; it would seem that the union could have called time and with dealing with any and all pending me instead of having you write a letter requesting grievances. me to contact them. Be that it as it may, I have this It is important that you contact me so that we date, sent a telegram to the union requesting to may arrange a time and place to work out the final know what dates they are available to meet. phases of the plant closure. I will be expecting to The company not having heard from the union, hear from you within the next week, as to an agree- has gone ahead and made plans for the immediate able time and place to work out the figures and discontinuance of production effective upon the ter- final dollar amounts that may be due to employees. mination of the contract. We are still ready to dis- cuss the long term future of the plant including the Following this November 2, 1979, letter was a letter decision and effects of any permanent closure. dated November 8 and a letter dated November 12, Relative to the information you have requested 1979. The sum effect of such letters reveals an effort to us to tender to the union, we will take that up with have the Union negotiate concerning the effects of the the union as requested in the last paragraph of your closing of the Alfred Street plant. '9 November 16, 1979 letter. We will, of course, pro- At some point of time, apparently around November vide the union such information as is required by 12, 1979, Local 26 filed a grievance concerning Respond- the National Labor Relations Act as amended. ent's decision to close the Alfred Street plant. On November 16, 1979, Attorneys Kruszewski and On November 21, 1979, Local 26 filed a suit in the Steckloff, for Local 26, transmitted a letter to Plant Man- United States District Court, Eastern District of Michi- ager Richardson with copies of the same apparently gan, Southern Division. Such suit, against Respondent, transmitted to Local 26, Howell (of Region 7 of the Na- was directed toward prohibiting Respondent's closure of tional Labor Relations Board), and to Douglas Hyman the Alfred Street plant.? Following the filing of the suit, (attorney for Respondent). Said letter set forth a conten- apparently with notice to Respondent and with the pres- tion that Respondent had been under an obligation to ence of Respondent's attorney, Hyman, in court, United bargain with Local 26 about the decision to close the States District Judge, Honorable Ralph M. Freeman, Alfred Street facility, demanded that Respondent fulfill issued a temporary restraining order directed at restrain- such obligation before carrying out its intention to close, ing Respondent from closing its Alfred Street plant. On demanded transfer rights to the Scott Street facility for the same day, after the filing of said suit in court, Re- the Alfred Street employees, requested certain specific spondent filed an unfair labor practice charge against information relating to Respondent's decision and ac- Local 26. Such charge was docketed as Case 7-CB-4620 tions, demanded an audit of Respondent's books, and de- and alleged that Local 26, since October I, 1979, had re- manded that negotiations resume. fused to bargain with respect to a decision to close the On or around November 20, 1979, Respondent's attor- Alfred Street facility and with respect to the effects of ney, Hyman, responded to the foregoing letter by trans- the closing of such facility. mittal of a telegram and a letter. The telegram was trans- On November 27, 1979, a hearing was conducted, and mitted to Seely and Shapiro of Local 26, referred to Judge Freeman dissolved the temporary restraining Kruszewski's letter of November 16, and indicated that order issued in Case 9-74420 on November 21, 1979. On Hyman was waiting for Local 26 to contact him with the same date or the next day, Respondent closed down dates "to negotiate the decision to close and to negotiate its operations at its Alfred Street plant. the effect of closure if it does take place." The letter was On November 28, 1979, the Regional Director for transmitted to Kruszewski with copy thereof to Seely. Region 7 of the National Labor Relations Board issued a Said letter referred to Kruszewski's November 16, 1979, letter setting forth that he was declining to issue a com- letter, and set forth the following: plaint in Case 7-CA-17014 (involving refusal-to-bargain charges-Sec. 8(a)(5) and (1) of the Act). At some point As you know, Eastern Market Beef has requested of time in the first week of December 1979, Respondent bargaining over the decision and effects of the con- templated closing of the Alfred Street plant for and the Union met and discussed certain grievances that templated closing of the Alfred Street plant for sometime. On October 30, 1979, hand carried a were outstanding. On December 7, 1979, Respondent transmitted a letter setting forth in effect a request that letter to the union at a negotiating session relative transmitted a letter setting forth in effect a request that the charges in Case 7-CB-4620 be withdrawn. Apparent- to same and was ready, willing and able to discuss any aspects of the contemplated closing and effects. ly, the Regional Director approved said withdrawal re- any aspects of the contemplated closing and effects. On November 2, 1979, November 8, 1979 and No- quest on or about that date. vember 12, 1979, I wrote the union a letter relative On December 10, 1979, Local 26 initiated an appeal of vto the foregoing. wrote the umon a letter relatlve the Regional Director's decision not to issue a complaint It is unfortunate at this late date that the union in Case 7-CA-17014. On the same day, Respondent and now desires us to contact them relative to a meet- 10 Docketed as Case 9-74420. 2' Respondent had planned to cease operations at its Alfred Street "9 I note that the parties during the events spoke of the "closing" of plant on November 23, 1979. However, Respondent continued such oper- the Alfred Street plant. Further, the facts reveal that, with respect to the ations during the time of the pendency of the temporary restraining order operation of the Alfred Street plant, such plant was closed on November issued on November 21, 1979, and ceased its operations after dissolution 27, 1979. Respondent, however, amended its pleadings to admit only that of the same. Thus, it appears that Respondent ceased its operations of the it ceased operations on or about November 26, 1979. Alfred Street plant on or about November 27 or 28, 1979. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 26 met and negotiated an agreement relating to pleading poverty. In sum, the facts relating to Respond- certain grievances. ent's initial acquisition of the Scott Street facility and the On December 18, 1979, Respondent's attorney, attempt to negotiate a new contract are sufficient only to Hyman, transmitted a letter to Kruszewski, Local 26's at- show that President Rohtbart believed that Respondent torney. Certain excerpts from such letter are as follows: would end up with a better financial arrangement with the purchase of said plant, changed operational proce- Enclosed please find documentation pursuant to your request and letter dated November 16, 1979. dures, and new wage agreements. Since June 1, 1979 and prior to your letter, the The above affords little help toward the understanding nemployer moved two 8200 cryovac machinest, one of the events in June 1979, whereby Respondent com- employer moved two 8200 cryovac machines, one bonematic, and a portion of a box conveyor from menced operations with new employees and different the Alfred Street facility, wages and other conditions at Scott Street as compared The employer has determined that at the Alfred to Alfred Street. The instant proceeding is not one facility, it costs $9.05 per man per hour to process whereby Respondent planned to and did subcontract meat. At the Scott Street facility, it costs approxi- work to another employer or where Respondent ceased mately $6.93 per man per hour to process meat. operations entirely because of economic conditions. It These figures do not include any fringe benefits. can always be said that if a respondent could obtain a Again, I would like to inform you, that the em- different contract with wage rates or other conditions of ployer is not pleading poverty therefore, we will a nature to be more financially advantageous to itself not permit an examination of the books under any that such has economic overtones. Such does not consti- circumstances. By now, it should have become ob- tute a defense, however, to unilateral changes of contrac- vious to all parties involved that a meat packing tually agreed-to conditions during the time of the con- plant in the City of Detroit cannot remain competi- tract. In sum, most of the evidence relating to economics tive unless the meat is processed on the rail. has little relevance to the issues in this proceeding. In conclusion, if you would review the affidavit The same problem as to relevance or materiality of the previously submitted by Markus Rothbart, it will economic evidence is also presented with respect to Re- become obvious to any objective person that 1979 spondent's termination of the Alfred Street employees. has been a catastrophic year in the meat business. As indicated later herein, Respondent's actions in June I am anxiously awaiting your response so that we 1979 in hiring employees for the Scott Street plant and may make a final decision on whether or not to in unilaterally setting wages and conditions were viola- close the Alfred Street facility. tive of Section 8(a)(l), (3), and (5) of the Act. This being so, Respondent's ultimate November 1979 action of ter- In January 1980, Respondent let a contract for certain onct r- repairs or changes to the Alfred Street plant. The ex- mination of employees without having corrected the ear- repairs or changes to the Alfred Street plant. The ex- penditure for such work was in the amount of $33,030 hlier unfair labor practice makes the "economic" factors Later, on February 28, 1980, Respondent's attorney, largely immateral.2 Hyman, by letter, advised Local 26's attorney, Krus- 2. The evidence relating to a comparison of the oper- zewski, that Respondent had decided to sell the Alfred ation and other factors pertaining to Respondent's Alfred Street facility and that the sale was expected to be con- Street and Scott Street plants may be summarized as fol- summated immediately. lows: On April 2, 1979, Respondent established two divisions G. Miscellaneous to be known as the Scott Street Division and the Alfred 1. Some of the testimony of witnesses and the exhibits Street Division. Such divisions were to have separate in the case suggest that economic considerations had bank accounts, books, and records; transfers of merchan- dise from one division to the other would be handled by some bearing on Respondent's actions in this case. As to dise from one division to the other would be handled by Respondent's actions concerning the acquisition of the invoice, bills, and checks; and the two divisions were to Scott Street plant and the attempt to bargain for a new be handled as separate profit centers. James Richardson contract in mid-1979, the facts are sufficient only to sup- was plant manager at Alfred Street prior to June 16, port a finding that President Rohtbart considered that 1979, and appears to have continued such responsibilities Respondent would end up with a better financial ar- thereafter until November 23, 1979. The evidence on rangement with the purchase of such plant, changed such point is scanty. However, Respondent presented operational procedures, and new wage agreements. into the record a document which Richardson testified The evidence as presented concerning financial condi- was given him around October 23, 1979, by an agent of tions covered Respondent and its wholly owned subsid- the United States Department of Agriculture. Such doc- iaries. The record does not reveal what such subsidiaries ument indicated that it was directed to Plant Manager are. Further, such records for 1980 contained data relat- Richardson and concerned itself with the contention at ing to both the Alfred Street and Scott Street plants and the Alfred Street plant. The overall tenor of the facts in- negates a real comparison of the different systems of op- dicates that Richardson functioned as plant manager of eration. One of Respondent's letters alludes to the cost of both the Alfred Street plant and the Scott Street plant production but excludes therefrom the cost of fringe and that he had assistants to help him supervise the benefits. Further, Respondent's letters refer to "econom- ic" reasons but also set forth that Respondent was not 22See Burroughs Corporoaion, 214 NLRB 571, 579 (1974). EASTERN MARKET BEEF PROCESSING 117 plants.23 The facts are clear that Richardson handled ed Section 8(a)(l), (3), and (5) of the Act by the above- labor relations for both plants in the matter of collective referred-to conduct. bargaining. The customers and suppliers for both the Considering all of the facts, I find merit in the General plants were the same. The employees at both the plants Counsel's contentions. Thus, the credited facts reveal were engaged in the fabrication and processing of beef. that Respondent's agents told Local 26's agents that the It may be said that all except a small number of the em- Alfred Street plant would be closed and that Respondent ployees at the Scott Street plant engaged in such fabrica- was going to move its operations to a new facility at tion and processing. A few employees at the Scott Street Scott Street. Respondent's agents told Local 26 that it plant engaged in maintenance and laundry work not per- desired a new contract geared to its contemplated new formed by employees in the bargaining unit at the Alfred type "boning on the rail" operation. Thereafter, despite Street plant. The testimony of Richardson as to whether the fact that the existing contract did not expire until rendering work was performed at the Alfred Street plant November 22, 1979, the parties attempted to negotiate a was confused. It appears that a few employees per- new contract. After the parties had reached agreement formed such work at the Scott Street plant and that such on all items except certain cost-of-living proposals, Re- rendering work was not performed at the Alfred Street spondent requested Local 26 to submit the same to the plant. 24 membership. Such was done and the proposal was reject- It appears that, at times before the termination of the ed. It was only then, and without notice, that employees Alfred Street plant, Respondent had had to utilize serv- outside the bargaining unit were hired. It was also, and ices of public cold storage warehouses. At the Scott without notice, that Respondent instituted at the Scott Street plant, Respondent had a cold storage warehouse Street plant new wages and working conditions which of its own. The record is silent as to whether after June were different from the wage scales and conditions of 16, 1979, Respondent, for its Alfred Street plant, utilized employment in existence at its Alfred Street plant. its Scott Street plant storage facilities, or whether it had Respondent contends in effect that it intended to have to use public cold storage warehouses. From the overall two divisions and that it only ceased operations of the testimony as to finances, the evidence suggests that Re- Alfred Street plant in November because of certain eco- spondent would have used its cold storage warehouse at nomic problems. In this regard, only Respondent's min- the Scott Street plant for needs at the Alfred Street utes of April 2, 1979, tend to support such contention. It plant.25 Further, Respondent had an automatic weigher should be noted, however, that the handling of the af- at the Scott Street plant and did not have a similar fairs of the Alfred Street plant and the Scott Street plant weigher at its Alfred Street plant. as contemplated very well could only be a bookkeeping Around the middle of August 1979, Respondent device so as to know clearly the profitability or lack moved its business office from the Alfred Street plant to thereof of the "rail-boning" procedure. Contrary to this its Scott Street plant, and commenced its office functions contention is the fact that Respondent was bargaining from such changed location. Further, several items of with Local 26 for a contract at a time when the old con- machinery were moved from the Alfred Street plant to tract was still in existence and would be in existence for the Scott Street plant. Some of such machinery was re- 5 or 6 months. Further, no evidence was presented to placed at the Alfred Street plant by machinery which reveal that Respondent was thinking of refurbishing the served the same functions. Alfred Street plant or that it communicated to the Union that it had refurbished the Alfred Street plant. Even after H. Contentions and Conclusions notices from the USDA in July 1979 of problems to be corrected, Respondent took no steps to correct building i. Hiring of employees and establishment of wages problems at the Alfred Street plant. If Respondent had and termmployees and Responditiont's Sott Street plant of actually planned to continue operations of two plants, I am persuaded that Respondent's request for loans, made The General Counsel contends and Respondent denies prior to October 22, 1979, would have included amounts that Respondent discriminatorily selected employees for sufficient for the Alfred Street plant operation. The sum hiring for commencement of its Scott Street plant oper- of the facts reveals that Respondent in May and June ation instead of utilizing the employees who were en- had decided to move its Alfred Street plant operation to gaged at Respondent's Alfred Street plant. The General the Scott Street plant and had determined to utilize its Counsel contends and Respondent denies that Respond- existing bargaining unit as its employee unit at the Scott ent discriminated in employment conditions and refused Street plant. Similar to the reasoning in N.L.R.B. v. to bargain with the Union by unilaterally setting wages Burns International Security Services, Inc., 406 U.S. 272 and terms and conditions of employment for employees (1972); and Howard Johnson Co. v. Hotel Employees, 417 at Respondent's Scott Street plant. The General Counsel U.S. 249 (1974), Respondent's determinations as set forth contends and Respondent denies that Respondent violat- above fixed its obligation to bargain with Local 26. This being so, Respondent was not free to determine unilater- 23 A finding, however, that Richardson from June 16, 1979, onward ally wages and terms and conditions of its Scott Street was plant manager only at Scott Street would not affect the ultimate plant employees since the same were covered by an ex- findings of facts herein. isting collective-bargaining agreement. It follows that 24 A different finding as regards the rendering work would not affect the overall findings of facts herein. Respondent's unilateral setting of new terms of wages, :" A different finding would not affect the overall findings herein, hours, and conditions of employment constituted conduct 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violative of Section 8(a)(l) and (5) of the Act. It further Thus, where the facts reveal that Respondent had de- follows that Respondent's determination to hire employ- termined that its employees at the Scott Street plant ees not in the existing bargaining unit, following bargain- would be its Alfred Street plant bargaining unit and ing unit employees' rejection of the contract Respondent thereafter has violated Section 8(a)(1) and (3) of the Act desired, and in the context wherein Respondent had pre- by the hiring of other employees and has violated Sec- viously thereto decided to move its bargaining unit em- tion 8(a)(1) and (5) of the Act by unilaterally setting dif- ployees to the new location at Scott Street, constitutes ferent wages and terms and conditions for the Scott conduct violative of Section 8(a)(1) and (3) of the Act.26 Street employees as compared to the Alfred Street plant employees, absent a correction of such unfair labor prac- 2. The termination of operations at the Alfred tices or other evidence persuasive of good-faith bargain- Street plant and the termination of these employees ing, the facts preponderate for a finding of failure to bar- The General Counsel alleges and contends in effect gain in good faith as to the termination of the Alfred and Respondent denies that Respondent violated Section Street plant when such occurred. Thus, the facts prepon- 8(a)(1), (3), and (5) of the Act by terminating its Alfred derate for a finding that Respondent's termination of the Street plant employees and terminating the Alfred Street Alfred Street plant operations constituted conduct viola- plant operations on November 27, 1979. tive of Section 8(a)(5) and (1) of the Act. Similarly, It has been previously found in effect that Respondent where Respondent's discriminatory conduct in the hiring had decided before June 1979 that it would move its of new employees has not been corrected and in the ab- Alfred Street plant employees to the Scott Street plant, sence of affirmative steps to eliminate any effect of dis- that its bargaining unit at the Scott Street plant would be crimination upon the Alfred Street plant employees, the the Alfred Street plant unit, and that Respondent had facts preponderate for a finding that Respondent's termi- bargained with Local 26 on such a basis. This being so, nation of the Alfred Street plant employees on Novem- Respondent's contract covering its Alfred Street plant ber 27, 1979, constituted discriminatory conduct based employees covered its Scott Street plant unit, and Re- on their membership and support of Local 26 and in vio- spondent was not free to make unilateral changes in the lation of Section 8(a)(l) and (3) of the Act. terms and conditions for its Scott Street employees The General Counsel contends and Respondent denies absent consent by the Union. It, thus, was found that Re- that Respondent violated Section 8(a)(3) and (1) of the spondent violated Section 8(a)(1) and (5) of the Act by Act by not transferring or allowing Alfred Street plant unilaterally setting terms and conditions of employment employees to transfer to the Scott Street plant. The facts for the Scott Street employees which were different are clear that the Union clearly sought to have Alfred from the existing terms and conditions covering the Street plant employees transferred to the Scott Street Alfred Street plant employees. plant in November 1979, and that Respondent set forth The facts reveal in effect that commencing around in effect that it would not do so but would accept "appli- June 16, 1979, Respondent engaged in conduct of dis- cations" for employment. In the context of all of the crimination against the Alfred Street plant employees by facts, such conduct reveals that Respondent has not not employing them at the Scott Street plant under the transferred and has refused to allow Alfred Street plant terms and conditions of the existing collective-bargaining employees to transfer to Scott Street. In the context of contract with Local 26. The facts also reveal that Re- the findings of conduct violative of the Act otherwise, spondent gave misinformation to Local 26 and disguised such conduct is found to constitute violations of Section its plans. Such conduct clearly constitutes violation of 8(a)(l) and (3) of the Act. Section 8(a)(1) and (5) of the Act. I would note further that the facts reveal that Re- Further, the facts as later set out reveal that Respond- spondent's letter of October 29, 1979, and statements ent, commencing around June 16, 1979, engaged in con- made by Respondent's agents to the Union revealed in duct violative of Section 8(a)(1) and (2) by rendering aid effect that the decision to close Alfred Street had already and assistance to the Industrial, Technical, and Profes- been made and that negotiations were in real effect only sional Employees, a Division of National Maritime to be about the effects of the closing. Further, the over- Union, AFL-CIO, by recognition of such union and by all facts reveal in my opinion that Respondent, as of June executing a collective-bargaining agreement with said 16, 1979, only intended to operate the Alfred Street plant Union in the face of Local 26's rights and claims, and by until the end of the collective-bargaining agreement and other acts. that the overall plans were to rid itself of the existing Considering all of the facts, I find it clear that Re- bargaining unit and Local 26 because of difficulties in ob- spondent terminated its Alfred Street plant and employ- taining the contract Respondent desired. ees of such plant without bargaining with Local 26, and Briefs and arguments suggest that the factual issues in that such conduct was violative of Section 8(a)(5) and (1) this case warrant a consideration of "subcontracting" of the Act. I also find it clear that Respondent's termina- issues. In my opinion, this case does not involve a sub- tion of the Alfred Street employees constituted a dis- contracting issue. Rather, Respondent planned on criminatory termination in violation of Section 8(a)(l) moving a bargaining unit of employees from one plant to and (3) of the Act. a different plant and bargained with Local 26 on such basis. Under such circumstances, Respondent's bargain- : See P.A. Hayes. Inc. and P.H. Mechanical Corp., 226 NLRB 230 ing unit when it hired new employees at the Scott Street (1976). plant and when it continued its Alfred Street plant at the EASTERN MARKET BEEF PROCESSING 119 same time constituted one unit and Respondent violated is not clearly established. For the same reasons previous- Section 8(a)(1) and (5) by setting wages and terms and ly given, the granting of access to the NMU agents to conditions of employment for the Scott Street employees the Scott Street plant, at a time when Respondent was different from those in effect at the Alfred Street plant. obligated to recognize and bargain with the United Food Thus, an offer to bargain about the effects of closing of and Commercial Workers International Union, Local 26, the Alfred Street plant without considering the Alfred AFL-CIO-CLC, clearly constituted unlawful aid and as- Street plant and Scott Street plant employees as part of sistance to NMU in violation of Section 8(a)(l) and (2) of one bargaining unit in effect constituted a meaningless the Act.2 8 offer to bargain. The General Counsel's allegation relating to a threat In sum, the facts reveal that Respondent violated Sec- was as follows: "On or about August 17, 1979, Respond- tion 8(a)(l) and (5) of the Act by failure to bargain about ent through its agent, James Richardson, at its Scott its decision to close the Alfred Street plant, and violated Street plant threatened to withhold the paychecks of its Section 8(a)(1) and (3) of the Act by its selection of the employees until they signed membership authorization Alfred Street plant employees for termination as part of cards for NMU." a plan to rid itself of its Alfred Street plant bargaining There was no evidence presented concerning acts by unit and obligation to bargain with Local 26. James Richardson. Employee Beeman testified in effect 3. Recognition and assistance to the NMU that he commenced work around July 24, 1979, signed a NMU card around August 17, 1979, was told on such The General Counsel alleges and contends and Re- date by someone, who he stated was a supervisor named spondent denies that Respondent violated Section 8(a)(l) Larry, that he could not get his check because a lady and (2) of the Act by (1) recognizing Industrial, Techni- wanted to see him in the office, went to the office and cal, and Professional Employees, a Division of National had a short conversation with the lady in the office, and Maritime Union, AFL-CIO, as the exclusive collective- was told that he had to sign a card before he could get bargaining agent for employees in a production and his check because Respondent was getting stricter. On maintenance unit at Respondent's Scott Street plant, (2) cross-examination, Beeman testified that all that "Larry" executing a contract with NMU, (3) assisting NMU in told him was that the secretary wanted to see him and obtaining support from the Scott Street plant employees, that he signed some insurance papers while in the office. (4) granting NMU access to the Scott Street plant during "Larry" Selig was not presented as a witness on the working hours for the purpose of encouraging those em- above issue. 29 ployees to sign authorization cards, and (5) threatening Considering all of the facts, I am not persuaded that to withhold paychecks of employees until they signed the testimony of Beeman has sufficient probative value to membership authorization cards for NMU. establish that an agent of Respondent threatened employ- Considering all of the facts, it is clear that Respondent ees that paychecks would be withheld until they signed had an obligation to recognize United Food and Com- union membership authorization cards. First, the supervi- mercial Workers International Union, Local 26, AFL- sor who was alleged to have made such threats was sor who was alleged to have made such threats was CIO-CLC, as the exclusive collective-bargaining repre- James Richardson. No evidence was presented to reveal sentative of the employees at the Scott Street plant as that Richardson had any involvement with employee the same or extended portion of the established Alfred Beeman on the occasion that Beeman allegedly signed a Street plant unit, at the time when Respondent recog- union authorization card. 3 0 Beeman initially indicated nized, and executed a collective-bargaining agreement that a supervisor named Larry had told him that he with, the Industrial, Technical, and Professional Employ- could not get his check, that "the lady wanted to see" ees, a Division of National Maritime Union, AFL-CIO, him in the office. On cross-examination, Beeman testified as the exclusive representative of a P&M unit of employ- ees at the Scott Street plant. 27 Thus, it is clear that Re- wanted to see him. Thus, the evidence is insufficient to spondent was not free to recognize, or enter into a con- tractual relationship with, NMU as the representative of that h is chek would be withheld Larry threatened Beeman the Scott Street plant employees and the recognition and establishment of a contractual relationship with such A As to the issues of whether Respondent has violated Sec. 8(aX1) and union for such employee complement clearly constituted (2) of the Act, I do not find it necessary to determine whether Respond- unlawful aid and assistance to NMU in violation of Sec- ent would have violated the Act if Respondent had not been obligated to tion 8(a)(l) and (2) of the Act. recognize and bargain with said Local 26 but, faced with a claim for rec- The facts reveal that Respondent did grant access in ognition by said Local 26 and in the face thereof, recognized and bar- June and July 1979 to NMU agents to its Scott Street gained with said NMU Union. Nor do I find it necessary to determine whether certain conduct of Respondent. as alleged, would be violative of plant to see employees after Respondent had entered into Sec. 8(aXI) and (2) of the Act if not undertaken in the face of an obliga- a contractual relationship with the NMU. Further, it is tion to recognize and bargain with Local 26 or a realistic claim for rec- clear that such NMU agents spoke to employees and so- ognition by said Local 26. Further, I find it unnecessary to discuss some licited employees to sign cards. Whether such cards of the other evidence relating to aid to NMU since the same would not add to the ultimate findings herein. Thus, the evidence relating to em- were union authorization cards or "dues checkoff" cards ployees, away from the plant, seeing NMU agents getting out of cars driven by a respondent supervisor has little if any value in resolving the 27 The General Counsel, at the hearing, abandoned any contention that issues herein. NMU was not designated by a majority of employees in the appropriate Respondent had a supervisor named Laurence "Larry" Selig. bargaining unit at the time of recognition and execution of the collective- 30 An employee named Jimmy Wheeler was present with Beeman and bargaining agreement between Respondent and NMU. the lady secretary. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card. Accordingly, the allegation of violative conduct in Bonner returned to work. Later that afternoon, Super- such regard will be recommended to be dismissed. visor Govaere observed that Bonner was walking up and down the production line talking to employees, that em- I. The Alleged Discriminatory Discharge ployees were at least momentarily stopping from work, and that Bonner appeared to be laughing and joking and 1. J. C. Bonner was leaving his work station. 34 What occurred then is re- vealed by the following credited excerpts from Go- J. C. Bonner was initially employed by Respondent on July 13, 1979, and worked thereafter until he was dis- vaeres testimony: charged on August 1, 1979. Bonner was employed as a Q. What, if anything, did you say to him when meat boner and his immediate supervisor was Benny Go- you called him over to the side. vaere. Sometime within several days of July 13, 1979, A. Well, I told him to stop disrupting the line, Supervisor Govaere warned Bonner about "disturbing" and at the time I noticed alcohol on his breath, so I employees on the workline. told him that I can smell alcohol, and I don't want you disrupting the line. Just calm down, and stay at During the last part of July 1979 Dan Calloway, a rep- you disrupting the line. Just calm down, and stay at your station and do your work. resentative for Local 26, was parking near the entrance Q. Do you know about what time of the day this to the Scott Street plant. Bonner had known Calloway was approximately? when Bonner had worked for Wolverine Packing at the A. Shortly after lunch. It would be between say Scott Street site. At such time Bonner had been a a quarter to one and one o'clock, somewhere in member of Local 26. there. On or about July 29 or 30, 1979, Bonner met with Q. Then what did you do, if anything, after you Calloway at noon and had lunch with Calloway. Later, talked to him? on July 31, 1979, around noontime, Calloway gave A. The balance of the day I just observed him. Bonner some union authorization cards.3" Q. What did you observe? After seeing Calloway, Bonner returned to work. A. A continuation of the same thing. After work, Bonner again saw Calloway and explained that he had not had enough time to get anyone to sign union authorization cards. Bonner told Calloway that the employees had finished work and had started leaving for the shift? home.32 Bonner promised to get some union cards signed A. I called him in the office, and I told him this for Calloway by the next day. was the last straw, because the previous times- On August 1, 1979, Bonner and several other employ- ees met Calloway at noon and had lunch with him. Su- * * * * * pervisor Selig was observed appearing to be looking where Calloway and Bonner were near the plant en- Q. What did you say, if anything, to Mr. Bonner trance. Apparently, the employees with Bonner signed when he was in the office? union authorization cards. Bonner had signed a union au- A. I said this was the last straw because I had thorization card on July 31, 1979. Bonner gave these previously warned you within the previous two cards to Calloway. At lunch Bonner had a sandwich and weeks about disrupting the line, nothing about several beers.3 3 drinking. I hadn't warned him about that. I told him this was the last straw because of the drinking and a' The General Counsel's evidence relating to the events leading to the continuation of disturbing the line after I had Bonner's discharge is contradictory of itself and reveals much confusion. warned him right after lunch time. Thus, Bonner testified to the effect that he first saw Calloway on July 31, 1979, that several days later he received union authorization cards, and Following this, Govaere terminated Bonner from his that the next day he was fired. Calloway's testimony suggests that he first saw Bonner on July 30 or 31, 1979, that he gave him union cards on such employment. An employee named Jordon later spoke to occasion, and that Bonner was discharged the next day. Jordon's affidavit Supervisor Govaere about taking Bonner back in a indicates that he and others were with Bonner and Calloway on July 30, couple of weeks. Govaere indicated that he would do 1979, that he and Bonner received union cards from Calloway and that so.3 5 Thereafter, Respondent did not call Bonner back to Bonner was discharged several days later. Considering the logical con- work. sistency of all of the evidence, I find the facts as set forth. 32 Bonner's testimony concerning the obtaining of signatures to union cards was confused and contradictory. Such testimony did not have the 3* The General Counsel presented testimony through witnesses for the ring of truth. I discredit his testimony to the effect that he received purpose of establishing that Bonner did not talk any more or louder than signed union cards at any time prior to the receipt of one or two signcd others, and that his condition was normal. The questions were leading in cards while in Calloway's car on August 1, 1979. Although Calloway ap- nature, and the answers to the questions were qualified. Thus, the wit- peared to be a truthful witness, considering the logical consistency of all nesses qualified their statements and indicated as an example that their an- of the evidence, Jordon's affidavit relating to cards distributed by Jordon, swers were "to the best of their knowledge." Howard testified relating to and Bonner's and Calloway's testimony as a whole, I am persuaded that Bonner's condition that "wasn't nothing violent, you know he wasn't in- Calloway's testimony was mistaken as to the number of cards received toxicated or nothing you know. At least to my knowledge." from Bonner on August 1, 1979, before Bonner's discharge. "3 In making these findings I have considered the affidavit of Jordon as "s Many of the questions directed to Bonner and the other witnesses evidence and have carefully considered the same in view of Jordon's were leading in nature. To one such question, Bonner replied that he own interest in the proceedings at the time he gave such affidavit. I do only had "one" beer at lunch. At another point, Bonner replied in effect not find the affidavit to be reliable evidence except as is consistent with that "We had a beer or two." the facts found herein. EASTERN MARKET BEEF PROCESSING 121 2. Conclusions-discharge of Bonner with his work. He said, "No, but we don't have The sum of the facts reveals that Bonner engaged in them here at all." He said, "If you're not careful some union activity before his discharge on August 1 you're next." I said, "Man, the guy has a family." I said, "Me and you go back a ways why don't you 1979, that Bonner was seen by a supervisor with an said, "Me and you go back a ways why don't you agent for Local 26 prior to his discharge, and that Re- talk to h"m i a few days." Benny said, "I'll agree spondent has some animus toward Local 26. The facts t that" I said, "Will yothu gvlse was said that I can also reveal, however, that Respondent had warned enny said, "Yes." Nothing else was said that I can recall. Bonner, within 2 or 3 weeks of his discharge, about dis- Jordon went out of the plant and related to Local 26's turbing the production line, that such warning was unre- agents Calloway and Bonner what Govaere had said. lated to any possible union activity by Bonner, that on Jordon then passed out some union cards to employees August 1, 1979, Bonner did have the odor of alcohol on who apparently were leaving work. During the time his breath at work and was away from his work station period that Jordon was passing out union cards outside talking to other employees. I found Govaere to be a the gate, Govaere drove nearby and apparently momen- thoroughly truthful appearing witness and credit that he tarily paused.3 8 observed Bonner's conduct and considered that he was On or about August 2 or 3, 1979, Jordon passed out disturbing other employees. Considering all of the evi- and collected some union cards before he punched in for dence, I am persuaded that the facts preponderate for a work. Later, employees were told to go to the lunch- finding that Respondent discharged Bonner on August 1, room. In the lunchroom were Plant Manager Richard- 1979, for cause. son, some supervisors, and an NMU agent. Richardson 3. Elmer Jordon told the employees that with cards being passed out that there were rumors that there was not a union there and Jordon started working for Respondent on July 26, that he was there to clear it up. There then ensued a dis- 1979. Jordon's job was that of a lugger (loader), and the cussion about the NMU union. Jordon was one of the rate of pay for such job was one of the highest in the employees who asked a question or two about the Union. plant. On Friday, July 27, 1979, around 3:15 p.m., Jordon After the meeting Jordon asked Richardson what he spoke to Local 26's agents, Calloway and Armstrong. At was going to do about Bonner. Richardson said that it the time Jordon, Calloway, and Armstrong were at was up to Benny Govaere. Later, around 12:45 p.m., Calloway's car which was parked on Scott Street near Jordon, at lunchtime, went to Calloway's car which was the plant. As Jordon was leaving in Calloway's car, parked on Scott Street. Calloway and Armstrong, Local Jordon saw Govaere driving Govaere's car. Apparently 26 agents, and Bonner and another person were present. there was not a great distance between the two cars.3 6 On such occasion Jordon gave Calloway some cards. On July 30, 1979, around 12 to 12:30 p.m., Jordon, an While there, Govaere was nearby at the guard shack. On employee named Simmons, and Bonner were in such occasion Govaere looked at Jordon. Calloway's car. Calloway gave each some union cards. On the morning of August 6, 1979, Supervisor Go- After work that day Jordon passed out some union au- vaere asked Jordon if he could break "fronts." Jordon thorization cards to fellow employees. told Govaere that he could. Govaere instructed Jordon On July 31, 1979, Jordon was at a lunch wagon locat- to break fronts. Govaere did so until he was later or- ed close to the plant. At such time Jordon passed out a dered to unload some trucks. Around noon Jordon was few union cards to fellow employees. While at the lunch on his way to the lunchroom when he was told by an wagon Jordon saw Supervisors Govaere and Selig employee named "Buster" that Calloway wanted to see nearby, approximately 10 feet away. Govaere and Selig him. Govaere was nearby at the time.39 Jordon went out- were looking at him.3 side the plant to Calloway's car. About this time Jordon On August 1, 1979, Jordon again passed out some saw Govaere go to Govaere's car about 12-15 feet away union cards to fellow employees at lunchtime. Later that from Calloway's car. Jordon left with Calloway to get a afternoon Jordon learned that Respondent had dis- sandwich. charged Bonner. After work Jordon went and spoke to Jordon returned to work and completed his shift. At Govaere about Bonner's discharge. What occurred when the end of the shift Jordon was told that Govaere Jordon asked Govaere about the reason for Bonner's dis- wanted to see him. Jordon then went to see Govaere. charge is revealed by the following excerpts from Jor- What occurred is revealed by the following excerpts don's affidavit. from Jordon's affidavit: I asked him why he fired "Pee Wee." He said, "For I went downstairs and Benny was waiting at the one thing, Pee Wee has too much mouth." I said foot of the steps. He said, "Bouncer, I want to talk "What do you mean too much mouth." He said, to you." I said, "What is it about." He said, "We're "You know what I mean." I said I didn't. He said "You know what I mean." I said I didn't. He said going to have to let you go. We don't have enough "Another thing I smelled alcohol on his breath when he come from work." I asked if it interfered s' The evidence is insufficient to reveal that Jordon was passing out union cards at the exact time that Govaere drove by and paused. Nor is it 36 The evidence is insufficient to establish that Govaere saw Jordon sufficient to reveal that the "pause" was more than a stop preceding the and Calloway. entrance into a street. "7 The evidence is insufficient to establish that Govaere and Selig were 39 The evidence is insufficient, however, to establish that Govaere observing Jordon when he was passing out union cards. heard what "Buster" said. Buster did not testify in the proceeding. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work to keep you." I replied, "What do you mean credibly testified to the effect that Jordon was later fired you don't have enough work to keep me you just because of belief of a threat by Jordon.4" hired four guys this morning." He said, "We'll call you. You are not a knife man you are lugger." 1 4. Conclusions concerning Jordon's discharge said, "I said that is what you hired me in as." I told The facts are sufficient to establish that, prior to Jor- him that [I] make a rail and one half fronts in an don's discharge, he had engaged in some union activity hour. [A rail and a half is about 120 fronts.] One job and at least had been seen by supervisors talking to of a knife man is to break fronts.) He said that I had known Local 26 agents. The facts are also sufficient to only broken 10 or 12 fronts in an hour. I called him reveal that Respondent had some animus against Local a liar. I asked to see Jim Richardson. He said Jim 26. However, the facts reveal a legitimate basis for the was gone for the day ... . layoff and ultimate discharge of Jordon. The General Counsel seems to emphasize that Govaere made state- Later that evening Jordon spoke to Richardson about ments to Jordon, after Bonner's discharge, to the effect his being laid off. What occurred is revealed by the fol- that if he were not careful he would be next. However, lowing credited excerpts from Richardson's testimony. 40 the total remarks are to the effect that Respondent did We needed approximately a hundred fronts done not keep employees who had the odor of alcohol on an hour, and even after a week or two of attempts, their breath and that Jordon should be careful in such he was still down to thirty or forty fronts an hour. regard. Considering all of this, the facts are insufficient So, I told Mr. Jordon that I cannot afford to pay to reveal that Respondent discriminatorily laid off and him seven dollars and twenty-five cents an hour, or then fired Jordon. Accordingly, the allegations of unlaw- seven dollars and ten cents an hour, whatever it ful conduct in such regard will be recommended to be was back then, and I could not afford to pay him dismissed. that kind of money just for a laborer's rate, and we were going to have to lay him off until we would Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES build the loading back up. UPON COMMERCE He said, you mean I am fired. The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- On August 7, 1979, Jordon returned to speak to Rich- ations described in section I, above, have a close, inti- ardson. What occurred is revealed by the following mate, and substantial relationship to trade, traffic, and credited excerpts from Richardson's testimony: commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and That was in the evening. He came back the next the free fow of commerce. morning at approximately six or six-thirty in the morning, and he approached me in the cooler, and v. THE REMEDY he said, why did you fire me. I tried to explain to him we really didn't have It having been found that Respondent has engaged in enough work for him, and that once the operation unfair labor practices in violation of Section 8(a)(1), (2), got going, that I could justify his existence as strict- (3), and (5) of the Act, I shall recommend that it be or- ly an unloader because he wasn't working fast dered to cease and desist therefrom, and to take certain enough to handle the other part of it, we would affirmative action designed to effectuate the policies of bring him back. the Act. He got all upset and told me, that I would be the With regard to the 8(a)(5) violations, I shall recom- last guy-he would be the last guy I would ever mend that Respondent, upon request, bargain collective- fire, and that I would see him another time. I got ly with United Food and Commercial Workers Interna- worried and Bennie happened to be standing there tional Union, Local 26, AFL-CIO-CLC, concerning the with me. I didn't know whether he was talking effects upon the represented employees of the plant relo- about me, or he was talking to Bennie, but anyways cation from Alfred Street to Scott Street, particularly the I asked him to please leave the plant. transfer rights of such employees, and further that Re- I asked him to please leave the plant. I do not find statements in Jordon's affidavit to the effect that Rich- ardson told him that he was "an instigator" to be reliable. Thus, I note that as to many details set forth in such affidavit that such details have Well, after he told me that, I said, look we are not been corroborated even when there were other potential witnesses. It parting company. You are fired. I am not going to is clear that Jordon had an interest in the proceeding and that the affida- vit was given after charges had been filed on his behalf. As noted at the have someone threatening me or management. hearing, hearsay statements by Calloway, apparently relating to what Jordon stated that Govaere had said, were rejected. I would note that if In addition to the foregoing, Richardson credibly testi- the same had been received that such statements in fact are contradictory fled to the effect that Jordon was laid off because of lack of Jordon's affidavit. Thus, Calloway's testimony in the nature of an offer of need for him as a loader. As indicated, Richardson of proof was that Jordon said that Govaere said he was an instigator. Jor- of need for him as a loader. As indicated, Richardson don's affidavit attributed such remarks to Richardson. There is a great suspicion in this case as to the reliability of testimony of Bonner and of 10 In the conversation Richardson told Jordon in effect when the load- Jordon's affidavit as regards any predischarge distribution of union cards ing built back up that he would be hired again. by Jordon and Bonner. EASTERN MARKET BEEF PROCESSING 123 spondent recognize and, upon request, bargain collective- privileges."2 In addition, I shall recommend that Re- ly with said Local 26 as the exclusive bargaining repre- spondent be required to make whole each of the afore- sentative of all employees who are engaged in janitorial, mentioned employees for backpay from the date of the receiving, boning, breaking, cutting, grinding, slicing, discrimination against them to the date that Respondent curing, preparing, processing, sealing, wrapping, bag- offers reemployment to them in compliance with the in- ging, prefabricating, of all meat products, sausage, poul- stant decision, backpay and interest thereon to be com- try, fish and sea food products, whether such products puted in the manner prescribed in F. W. Woolworth Com- are fresh, frozen, chilled, cooked, cured, smoked or bar- Pany, 90 NLRB 289 (1950), and Florida Steel Corporation, becued, including those employees operating equipment 231 NLRB 651 (1977).'- used in wrapping, cubing, tenderizing such meat prod- Further, as to employees hired at the Scott Street ucts and who perform those duties where such products plant at different terms and conditions of employment are prepared, employed by the Employer at the facility than those enjoyed by the Alfred Street plant employees, located at 1545 Alfred Street, or at 1825 Scott Street, it will be recommended that Respondent make such Detroit, Michigan, but excluding office clerical employ- Scott Street employees whole for loss of wages or other benefits are suffered as a result of Respondent's unilateral ees, guards and supervisors as defined in the Act. More- setting of wages and terms and conditions of employ- over, I shall recommend that during the period of nego- ment for the Scott Street plant. Computations of loss of tiation toward a new contract that Respondent be or- wages and benefits are to be computed in the same dered to maintain in effect the terms of the collective- manner as indicated above. bargaining agreement with Local 26 which was in force In view of Respondent's widespread violations of Sec- at Respondent's Alfred Street plant at the time of reloca- tion 8(a)(1), (2), (3), and (5), as referred to above, and the tion, unless the parties mutually agree to do otherwise, nature of the same revealing a general disregard for em- and to apply the provisions of said collective-bargaining ployees' fundamental statutory rights, a broad cease-and- agreement to all employees who were members of the desist order will be recommended. Hickmott Foods, Inc., bargaining unit at the time of the termination of the 242 NLRB 1357 (1979). Alfred Street plant, including the provisions of said Upon the basis of the above findings of fact and upon agreement, if any, applicable to laid-off employees, as the entire record in the case, I make the following: well as to all employees in the unit as it exists at the Scott Street plant, excepting as to provisions of a non- CONCLUSIONS OF LAW mandatory nature, or until after an impasse has been 1. Eastern Market Beef Processing Corp., Alfred and reached. Scott Street Divisions, Respondent, is an employer en- With regard to the 8(a)(2) violations, I shall recom- gaged in commerce within the meaning of Section 2(6) mend that Respondent be ordered to withdraw recogni- and (7) of the Act. tion from Industrial, Technical, and Professional Em- 2. United Food and Commercial Workers International ployees, a Division of National Maritime Union, AFL- Union, Local 26, AFL-CIO-CLC, and Industrial, Tech- CIO, as the exclusive collective-bargaining representative nical, and Professional Employees, a Division of Nation- of any of the employees in the appropriate unit described al Maritime Union, AFL-CIO, each is, and has been at above as the unit represented by United Food and Com- all times material herein, a labor organization within the mercial Workers International Union, Local 26, AFL- meaning of Section 2(5) of the Act. CIO-CLC, or as the exclusive collective-bargaining rep- 3. By discriminating in the selection of employees for resentative of a unit described as follows: hire, retention, or discharge, and/or by acts which have the inherent effect of discrimination in employment, Re- All production and maintenance employees em- spondent has encouraged membership in Industrial, ployed by the Respondent at its plant located at Technical, and Professional Employees, a Division of 1825 Scott Street, Detroit, Michigan; but excluding National Maritime Union, AFL-CIO, and discouraged office employees, employees of independent con- membership in United Food and Commercial Workers tractors, sales personnel, professional employees, International Union, Local 26, AFL-CIO-CLC, by dis- and guards and supervisors as defined in the Nation- criminating in regard to tenure of employment, thereby al Labor Relations Act. engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. I shall also recommend that Respondent be ordered to 4. The following employees constitute an appropriate cease and desist from giving effect to any collective-bar- unit for purposes of collective bargaining within the gaining agreement with said NMU to the extent that it meaning of Section 9(b) of the Act: purports to cover employees in either described unit. With regard to the 8(a)(3) violations, I shall recom- All employees who are engaged in janitorial, re- mend that Respondent offer the Alfred Street plant em- ceiving, boning, break ing, cutting, grinding, slicing, ployees represented by Local 26, who were terminated curing, preparing, processing, sealng, wrapping, as a result of Respondent's unlawful actions, immediate bagging, prefabricating, of all meat products, sau- reinstatement at the Alfred Street or Scott Street plants, reinstatement at the Alfred Street or Scott Street plants, '* Discharging if necessary any employee hired at the Scott Street to their former or substantially equivalent positions, plant. without prejudice to their seniority or other rights and o" See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sage, poultry, fish and sea food products, whether 1. Cease and desist from: such products are fresh, frozen, chilled, cooked, (a) Transferring work or relocating appropriate bar- cured, smoked or barbecued, including those em- gaining unit operations from one plant site to another ployees operating equipment used in wrapping, without giving notice to, bargaining with, or with the cubing, tenderizing such meat products and who consent of the exclusive collective-bargaining representa- perform those duties where such products are pre- tive of said appropriate bargaining unit described herein- pared employed by the Employer at its facilities or after. facility located at 1545 Alfred Street, or at 1825 (b) Unilaterally setting wages, fringe benefits, and Scott Street, Detroit, Michigan, but excluding office other terms and conditions of employees in an appropri- clerical employees, guards and supervisors as de- ate bargaining unit or part thereof without giving prior fined in the Act. notice to, bargaining with, or with the consent of the ex- clusive collective-bargaining representative of said ap- (b) Since in or about 1972, and continuing to date, propriate bargaining unit, or otherwise refusing to bar- United Food and Commercial Workers International gain with said Union in any other manner. Union, Local 26, AFL-CIO-CLC, by virtue of a series (c) Refusing to transfer or allow employees to transfer of collective-bargaining agreements with Respondent, the from one part of an appropriate bargaining unit to an- most recent one being effective from November 22, 1976, other part of said appropriate bargaining unit because of until November 22, 1979, has been the designated exclu- their membership in United Food and Commercial sive collective-bargaining representative of the unit of Workers International Union, Local 26, AFL-CIO- Respondent's employees described above. CLC, or any other labor organization. 5. By unilaterally setting terms and conditions of em- (d) Engaging in conduct of giving misinformation or ployment, by refusing to bargain about the relocation of acting in a disguised manner so as to deceive the exclu- an existing appropriate collective-bargaining unit, by re- sive collective-bargaining representative of its employees fusing to bargain about the termination of a part of an in its representation of the employees in the appropriate existing appropriate collective-bargaining unit, or about bargaining unit described hereinafter with respect to mat- the termination of an identifiable group of employees in ters of transfers of work or employees or relocation of such appropriate collective-bargaining unit, and by relat- operations. ed acts, Respondent has engaged in conduct of refusing (e) Terminating operations or employees without to bargain with United Food and Commercial Workers giving notice to, bargaining with, or with the consent of International Union, Local 26, AFL-CIO-CLC, as ex- the exclusive collective-bargaining representative of the clusive collective-bargaining representative as regards employees in the appropriate bargaining unit described terms and conditions of employment of employees in an hereinafter. appropriate collective-bargaining unit and thereby has (f) Engaging in conduct of relocation of business oper- violated Section 8(a)(5) and (1) of the Act. violated Section 8(a)(5) and (1) of the Act. ations or otherwise discriminating against employees so 6. By recognizing and entering into a collective-bar- 6. By recognizing and entering into a collective-bar- as to rid itself of contractual obligations or bargaining gaining agreement with, and by rendering aid and assist- obligations otherwise with United Food and Commercial ance to Industrial, Technical, and Professional Employ- Workers International Union, Local 26, AFL-CIO- ees, a Division of National Maritime Union, AFL-CIO, ' CLC, or any other union as the exclusive collective-bar- Respondent has aided and assisted a labor organization gaining representative of employees in the appropriate and thereby has engaged in conduct violative of Section bargaining unit as follows: 8(a)(2) and (1) of the Act. 7. By the foregoing and by interfering with, restrain- All employees who are engaged in janitorial, receiv- ing, and coercing its employees in the exercise of the ing, boning, breaking, cutting, grinding, slicing, rights guaranteed them in Section 7 of the Act, Respond- curing, preparing, processing, sealing, wrapping, ent has engaged in unfair labor practices proscribed by bagging, prefabricating, of all meat products, sau- Section 8(a)(1) of the Act. sage, poultry, fish and sea food products, whether 8. The aforesaid unfair labor practices affect commerce such products are fresh, frozen, chilled, cooked, within the meaning of Section 2(6) and (7) of the Act. cured, smoked or barbecued, including those em- Upon the foregoing findings of fact, conclusions of ployees operating equipment used in wrapping, law, and the entire record, and pursuant to Section 10(c) cubing, tenderizing such meat products and who of the Act, I hereby issue the following recommended: perform those duties where such products are pre- ORDER 44 pared employed by the Employer at its facilities or facility located at 1545 Alfred Street, or at 1825 The Respondent, Eastern Beef Processing Corpora- Scott Street, Detroit, Michigan, but excluding office tion, Alfred and Scott Street Divisions, Detroit, Michi- clerical employees, guards and supervisors as de- gan, its officers, agents, successors, and assigns, shall: fined in the Act. " In the event no exceptions are filed as provided by Sec. 102.46 of (g) Granting recognition to, executing a collective-bar- the Rules and Regulations of the National Labor Relations Board, the gaining agreement with, or otherwise maintaining, en- findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and forcing, or giving effect to recognition or bargaining become its findings, conclusions, and Order, and all objections thereto agreements with, or otherwise aiding and assisting or shall be deemed waived for all purposes. granting access to agents thereof to Respondent's prem- EASTERN MARKET BEEF PROCESSING 125 ises to Industrial, Technical, and Professional Employees, (e) Rescind any existing collective-bargaining agree- a Division of the National Maritime Union, AFL-CIO, ment with Industrial, Technical, and Professional Em- or aiding or assisting said Union in any other manner to ployees, a Division of the National Maritime Union, be and/or as the exclusive collective-bargaining repre- AFL-CIO, covering employees in the above-referred-to sentative of any of the employees in the appropriate unit bargaining units. described above or of the employees in the below de- (f) Reimburse all employees for all initiation fees and scribed unit: dues paid by them to Industrial, Technical, and Profes- sional Employees, a Division of the National Maritime All production and maintenance employees em- Union, AFL-CIO, through dues checkoff since on or ployed by the Respondent at its plant located at about June 17, 1979. 1825 Scott Street, Detroit, Michigan; but excluding (g) Recognize United Food and Commercial Workers office employees, employees of independent con- International Union, Local 26, AFL-CIO-CLC, as the tractors, sales personnel, professional employees, tractors, sales personnel, professional employees, exclusive collective-bargaining representative of employ- and guards and supervisors as defined in the Nation- al Labor Relations Act. ees at its Alfred Street and/or Scott Street plant in the unit described above in paragraph l(f), and institute the (h) In any other manner interfering with, restraining, terms and conditions of employment set forth in the col- or coercing employees in the exercise of the rights guar- lective-bargaining agreement it had with such Union anteed them in Section 7 of the Act except to the extent until November 22, 1979, excepting such provisions that such rights may be affected by lawful agreements in which might be of a nonmandatory bargaining type, accord with Section 8(a)(3) of the Act. unless and until the parties have agreed upon a new col- 2. Take the following affirmative action which it is lective-bargaining agreement or impasse has been found will effectuate the policies of the Act: reached. (a) Offer to the Alfred Street plant employees termi- (h) Upon request, bargain in good faith with United nated on or about November 27, 1979, immediate and Food and Commercial Workers International Union, full reinstatement to the employee's former position, dis- Local 26, AFL-CIO-CLC, as exclusive bargaining rep- charging if necessary employees hired for work at the resentative of the employees in the unit of employees de- Scott Street plant facility or, if such position no longer scribed in paragraph l(f) above, for a new collective-bar- exists, to a substantially equivalent position, without prej- gaining agreement covering wages, rates of pay, hours, udice to the employee's seniority or other rights previ- and other terms and conditions of employment, and as to ously enjoyed, and make each whole for any loss of pay the effects of the relocating of the plant. or other benefits suffered by reason of the discrimination (i) Post at Respondent's plants at Detroit, Michigan, against each in the manner described above in the section copies of the attached notice marked "Appendix."45 entitled "The Remedy." Copies of said notice, on forms provided by the Regional (b) Make whole all Scott Street plant employees for Director for Region 7, after being duly signed by Re- any loss of wages or other benefits, if any, suffered as a spondent's representatives, shall be posted by it immedi- result of the unilateral institution of different wages, ately upon receipt thereof, and be maintained by Re- terms, and conditions of employment then in effect in the spondent for 60 consecutive days thereafter, in conspicu- established bargaining unit. ous places, including all places where notices to employ- (c) Preserve and, upon request, make available to the ees are customarily posted. Reasonable steps shall be Board or its agents, for examination and copying, all taken by Respondent to insure that said notices are not payroll records, social security payment records, time- altered, defaced, or covered by any other material. cards, personnel records and reports, and all other re- (j) Notify the Regional Director for Region 7, in writ- cords necessary to analyze the amount of backpay due ing, within 20 days from the date of this Order, what under the terms of this Order. steps Respondent has taken to comply herewith. (d) Withdraw recognition from Industrial, Technical, IT IS FURTHER ORDERED that the allegations of unlaw- and Professional Employees, a Division of the National ful conduct not specifically found to be violative herein Maritime Union, AFL-CIO, as the exclusive bargaining be dismissed. representative of any of the employees in the appropriate unit described above as the unit represented by United Food and Commercial Workers International Union, Local 26, AFL-CIO-CLC, or of the employees in the below-described unit: All production and maintenance employees em- ployed by the Respondent at its plant located at 1825 Scott Street, Detroit, Michigan; but excluding office employees, employees of independent con- '4 In the event that this Order is enforced by a Judgment of a United tractors, sales personnel, professional employees, States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- and guards and supervisors as defined in the Nation- ant to a Judgment of the United States Court of Appeals Enforcing an al Labor Relations Act. Order of the National Labor Relations Board." 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX All production and maintenance employees em- ployed by us at our plant located at 1825 Scott NOTICE To EMPLOYEES Street, Detroit, Michigan; but excluding office POSTED BY ORDER OF THE employees, employees of independent contrac- NATIONAL LABOR RELATIONS BOARD tors, sales personnel, professional employees, and An Agency of the United States Government guards and supervisors as defined in the National Labor Relations Act. WE WILL NOT transfer work or relocate appro- priate bargaining unit operations from one plant site WE WILL NOT in any other manner interfere to another without giving notice to, bargaining with, restrain, or coerce employees in the exercise with, or with the consent of the exclusive collec- of the rights guaranteed them in Section 7 of the tive-bargaining representative of said appropriate Act except to the extent that such rights may be af- bargaining unit described hereinafter. fected by lawful agreements in accordance with WE WILL NOT unilaterally set wages, fringe bene- Section 8(a)(3) of the Act. fits, and other terms and conditions of employment WE WILL offer to the Alfred Street plant em- in an appropriate bargaining unit or part thereof ployees terminated on or about November 27, 1979, without giving prior notice to, bargaining with, or immediate and full reinstatement to the employee's with the consent of the exclusive collective-bargain- former position, discharging if necessary employees ing representative of said appropriate bargaining hired for work at the Scott Street plant facility or, unit, or refuse to bargain with said union in any if such position no longer exists, to a substantially other manner. equivalent position, without prejudice to the em- WE WILL NOT refuse to transfer or allow employ- ployee's seniority or other rights previously en- ees to transfer from one part of an appropriate bar- joyed, and make each whole for any loss of pay or gaining unit to another part of said appropriate bar- other benefits suffered by reason of the discrimina- gaining unit because of their membership in United tion against each, with interest. Food and Commercial Workers International WE WILL make whole all Scott Street plant em- Union, Local 26, AFL-CIO-CLC, or any other ployees for any loss of wages or other benefits, if labor organization. any, suffered as a result of the unilateral institution WE WILL NOT engage in conduct of giving misin- of different wages, terms, and conditions of employ- formation or act in a disguised manner so as to de- ment then in effect in the established bargaining ceive the exclusive collective-bargaining representa- unit, with interest. tive in its representation of the employees in the ap- WE WILL withdraw recognition from Industrial, propriate bargaining unit described hereinafter with Technical, and Professional Employees, a Division Technical, and Professional Employees, a Division respect to matters of transfers of work or employees of the National Maritime Union, AFL-CIO as the or relocation of operations. WE WILL NOT terminate operations or employees exclusive bargaining representative of any of the WE WILL NOT terminate operations or employees employees in the appropriate bargaining unit or as without giving notice to, bargaining with, or with employees in the appropriate bargaining unit or as the consent of the exclusive collective-bargaining the exclusive collective-bargaining representative of the consent of the exclusive collective-bargaining a unit described above unit described hereinafter. WE WILL NOT engage in conduct of relocating of WE WILL rescind any existing collective-bargain- business operations or otherwise discriminate ing agreement with Industrial, Technical, and Pro- against employees so as to rid ourselves of contrac- fessional Employees, a Division of the National tual obligations with or bargaining obligations oth- Maritime Union, AFL-CIO, covering employees in erwise with United Food and Commercial Workers the above-referred-to bargaining unit. International Union, Local 26, AFL-CIO-CLC, or WE WILL reimburse all employees for all initi- any other union as the exclusive collective-bargain- ation fees and dues paid by them to Industrial, ing representative of employees in the bargaining Technical, and Professional Employees, a Division unit described hereinafter as the appropriate bar- of the National Maritime Union, through dues gaining unit. checkoff since on or about June 17, 1979. WE WILL NOT grant recognition to, execute a WE WILL recognize United Food and Commer- collective-bargaining agreement with, or otherwise cial Workers International Union, Local 26, AFL- maintain, enforce, or give effect to recognition or CIO-CLC, as the exclusive collective-bargaining bargaining agreements with, or otherwise aid and representative of employees at our Scott Street assist or grant access to agents thereof to Respond- plant in the unit described below, and institute the ent's premises to Industrial, Technical, and Profes- terms and conditions of employment set forth in the sional Employees, a Division of the National Mari- collective-bargaining agreement we had with such time Union, AFL-CIO, or aid and assist said Union Union until November 22, 1979, excepting such pro- in any other manner as the exclusive collective-bar- visions which might be of a nonmandatory bargain- gaining representative of any of the employees in ing type, unless and until the parties have agreed the appropriate unit described hereinafter as the ap- upon a new collective-bargaining agreement or im- propriate bargaining unit or of the employees in the passe has been reached. The appropriate bargaining below-described unit: unit is: EASTERN MARKET BEEF PROCESSING 127 All employees who are engaged in janitorial, re- WE WILL, upon request, bargain in good faith ceiving, boning, breaking, cutting, grinding, slic- with United Food and Commercial Workers Inter- ing, curing, preparing, processing, sealing, wrap- national Union, Local 26, AFL-CIO-CLC, as ex- ping, bagging, prefabricating, of all meat prod- clusive bargaining representative of the employees ucts, sausage, poultry, fish and sea food products, in the unit of employees described above, for a new whether such products are fresh, frozen, chilled, collective-bargaining agreement covering wages, cooked, cured, smoked or barbecued, including rates of pay, hours, and other terms and conditions those employees operating equipment used in of employment, and as to the effects of the relocat- wrapping, cubing, tenderizing such meat products ing of our plant. and who perform those duties where such prod- All our employees are free to become or remain, or re- ucts are prepared employed by us at our facilities frain from becoming or remaining, members of any labor or facility located at 1545 Alfred Street, or at organization, except to the extent provided by Section 1825 Scott Street, Detroit, Michigan, but exclud- 8(a)(3) of the Act. ing office clerical employees, guards and supervi- sors as defined in the Act. EASTERN MARKET BEEF PROCESSING COR- PORATION, ALFRED AND SCOTT STREET DIVISIONS