Ace Foods, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1220 (N.L.R.B. 1971)

1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace Foods, Inc. and Local 73, Amalgamated Meatcut-
ters and Butcher Workmen of North America,
AFL-CIO. Case 30-CA-1436
August 27, 1971
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND KENNEDY
On May' 20, 1971, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Exxaminer's Decision. Thereafter the
Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof, and the
General Counsel filed cross-exceptions and a supple-
mental brief in support of said cross-exceptions and
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Ace Foods, Inc., Milwaukee,
Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
1 The Trial Examiner noted that the Respondent sought advice from
its labor counsel before investigating Jones ' absence, and concluded that
this step indicated it was contemplating disciplinary action without
verifying any rumors . In agreeing with the Trial Examiner that the
Respondent violated the Act by discharging Jones , we draw no inferences
whatsoever from the fact that it sought advice from its counsel.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNxE, Trial Examiner : Upon a charge filed
November 19, 1970, by Local 73, Amalgamated Meatcut-
ters and Butcher Workmen of North America, AFL-CIO,
herein the Union, against Ace Foods, Inc., herein Ace, the
General Counsel issued complaint January 29, 1971,
alleging Ace violated Section 8(aX 1), (3) and (5) of the Act.
The answer of Ace denied the commission of any unfair
labor practices.
This proceeding, with the General Counsel and Ace
represented , was heard by me at Milwaukee , Wisconsin, on
March 25 , 26, and 31 , 1971. Briefs were received on May 7.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF ACE
Ace is a Wisconsin corporation engaged in food
management service in Wisconsin , Minnesota, and Illinois.
The Milwaukee plant is the only plant involved in this
proceeding. During a representative year Ace sells and
ships products valued in excess of $50,000 to points outside
the State of Wisconsin. During the same period Ace
purchases materials valued in excess $50,000 from points
outside the State of Wisconsin.
Ace is engaged in commerce within the meaning of the
Act.
H. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
In. THE UNFAIR LABOR PRACTICES
A. Violations of Section 8(a)(1)
The complaint alleges : (1) Unlawful interrogation of
employees ; (2) threatening employees with layoffs and
subcontracting of work ; (3) promising no layoffs if the
employees rejected the Union ; (4) creating the impression
of the futility of organization ; and (5) creating the
impression of surveillance of a union meeting.
David Jones testified that he was employed in the meat
department of Respondent at 4500 West Wisconsin
Avenue and signed a union card on October 29, 1970.1 On
November 5 he had a conversation with Omar Larson,
head of the meat department ,2 who told him he would not
get anywhere with the Union as far as money was
concerned and the only benefit would come through the
insurance plan. Larson added that Ace had contacted
other meat cutting companies and that if the Union got in
there would be layoffs but that the company could afford
to work the men 40 hours per week without a union.
1 Unless otherwise noted all dates refer to 1970.
S It was stipulated that Larson was a supervisor within the meaning of
the Act.
192 NLRB No. 180
ACE FOODS, INC.
Larson repeated that one wrapper and five men could be
laid off during the December slack season . Larson then
told him there would be a pay raise coming in December of
15 cents per hour, and then asked him if he had signed a
union card and how he was going to vote.
Jerry Morrison worked in the meat department from
September 19 until January 3, 1971. He signed a card for
the Union given him by David Jones. On November 5 3 he
went into Larson's office to check his timesheets and
Larson asked him if he had signed a union card. When he
said he had Larson told him a union meant slack work and
that he would be laid off. On cross-examination Morrison
testified that it was an ordinary conversation and he did
not regard it as any threat to his job, since it was his
understanding that as a junior employee he would be
among the first to be laid off.
Michael Hertel worked in the meat department for 46
weeks and signed a union card on November 3. On
November 6 Larson stopped him in the shop and asked
him if he had ever signed a union card. When he said he
had Larson told him he would probably be laid off if the
Union came in due to his seniority status.
Thomas Krimmer, also employed in the meat depart-
ment during November, had a conversation with Larson in
his office in which Larson told him that if the Union came
in his hours would be reduced. He fixed the time as about a
week or two after Jones was terminated. At the time
Krimmer was working part time.
Janice Krueger testified that she had a conversation with
Larson on or about November 4 and that Larson told her
he had heard about the Union and that when the schools
closed down in December there would probably be a layoff
if the Union "was in."
Ruby Rife testified to a conversation with Larson in his
office on November 6 in which he told her there would be
some layoffs about Christmas time and that if the Union
got in he could not help them by letting them work in some
other part of the commissary. On November 11 a union
meeting was held at her house. On November 14 Larson
asked her how the union meeting was and she asked him
"how come he asked me." Larson said it was just for
conversation.
On cross-examination Rife testified that in her first
conversation with Larson he told her the junior employees
would be laid off during the slack season but that she
would not be laid off and it would not make any difference
whether there was a union or not.
Edward Thorton testified to a conversation with Larson
on November 5 in his office. Larson told him he had heard
the fellows in the meat department wanted to start a union
and that there could be possibility of a layoff at
Thanksgiving and Christmas. Eugene Gillingham testified
to a similar conversation with Larson about the same
period of time.
Larson was an evasive witness and much of his
testimony was ambiguous. He did admit having conversa-
tions with some of the employees concerning the Union,
3 Morrison subsequently changed his testimony to indicate that the
conversation took place after the discharge of Jones on November 17, but
after being shown his pretrial affidavit decided it was about November 5.
4 This conversation took place a day or two after the union representa-
1221
but denied that he threatened any employee with layoff if
the employees designated the Union as their representa-
tive. He also admitted that he learned of the meeting in
Rife's house from Thorton and was told Jones passed out
union cards at the meeting . He did testify that he was told
by Hans Liepscher, director of commissary operations, that
he should not discuss the Union with the employees,4 an
admonition to which he apparently paid little heed.
Without belaboring the point I think a fair reading of the
transcript will support the conclusion that the testimony of
the General Counsel 's witnesses was entitled to credence
where it is contradicted by Larson and a comparison of
their respective demeanors on the stand fortifies such
conclusion . I so find.
B. Conclusions
I find that Respondent violated the Act by Larson's
interrogation of the employees in his department; by
threatening the employees there might be layoffs during
the slack season if they accepted the Union while at the
same time implying that other work might be found for
them if they rejected the Union and by creating the
impression of the futility of organization by telling them
benefits would be confined to the insurance plan. I also
find that he created the impression of surveillance by
asking Rife how the meeting at her house went but only
because he had previously told her that he was going to
find out what was going on when she had her conversation
with him on November 4. Otherwise the statement would
appear to be no more than a casual remark made as he
passed her machine.
While it is true that Larson was a minor supervisor
working on an informal basis with his men it is also true
that he was head of the meat department and could be
expected to know what was taking place there, what
changes were contemplated and would participate in
making the changes, including layoffs and relocation of
employees. Accordingly, his words carried some weight..
C. Violation of Section 8(a)(3)
Only one violation is alleged, David Jones, terminated
November 17. The facts relating to his discharge are
relatively clear despite the efforts of counsel on both sides
to obscure them with irrelevancies.
Jones was employed as a meatcutter from February to
November and his supervisor was Omar Larson. His
regular shift was from 5 a.m. to 1:30 p.m. He also held
another job at Barrel Plating Service from June until
November 4 and as a meatcutter with Target Foods from
November 5 until November 21, where he worked from 2
p.m. to 6 p.m.
On October 29 he signed a card with the Union given to
him by Paul Fricke, union representative, at a meeting at
the home of Ruby Rife. At this meeting he was given five
blank cards for the purpose of obtaining signatures of
other employees and handed these cards to Sowinski,
tives made their demand for recognition upon Arnold Leaman. (See infra.)
Larson also testified that he had seen and probably read through a seven-
page document of instructions from Respondent 's counsel. (Resp. Exh. 2.)
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dankhart, Cowdy, Morrison, and Thorton (to give to Mike
Hertal). All of these returned signed cards to him and he
returned them to Fricke. On November 5 he had the
conversation with Larson referred to above. On November
11 he attended the meeting at Rife's house concerning
which Larson acquired knowledge from Thorton.
_,;.,1'1Monday, November 16, Jones did not report to work
because he had car trouble and could not get the car
started. He called Ace and talked to Liepscher, told him
the car was not running and that he would not be in that
day. He then took his car to a filling station and from there
to Williamson Ford, an agency, and asked them to fix his
car so he could report to work the next day. He then
returned home about 4 p.m. called the company and spoke
to Larson. He told Larson his car would not be ready until
the next morning, Tuesday, and that he would be in for
work on Wednesday, November 18. Larson told him he
would ' see him on Wednesday. On Monday he called
Target and asked if he could come in early to work on
Tuesday since he would not get his car in time to work his
full-time job at Ace .5 He said he could report to Target
about 1 p.m. The next morning, Tuesday, he called
Williamson and was told his car was ready and he reported
to Target about 1 p.m. About 3 or 4 p.m. he received a
telephone call from his wife who told him she had received
a telephone call from Western Union stating he was fired
and that a telegram would follow. The telegram (G.C. Exh.
5) read:
Because of your unauthorized absence from work while
gainfully employed by another employer and the
untruthful reason given us therefore your employment
by Ace Foods, Inc., is hereby terminated immediately.
It was signed by Arnold E. Leaman, vice president .6
Jones then talked to Pat Creighton, supervisor of the
meat department at Target, who said he would call Ace.
Later Creighton reported to Jones that Ace would not
rehire him.
On November 18 Jones called Ace and tried to talk to
Larson or Liepscher, but they were not available and he
then talked to Sowinski who said he did not have time to
talk and hung up. On November 20 Jones again called Ace
and talked to Liepscher and asked for permission to come
and get his check. Liepscher called him back and said it
was all right. When he went to pick up his check he saw
Liepscher and asked to speak to him but Liepscher told
him he was too busy. This summarizes the General
Counsel's relevant testimony respecting the discharge of
Jones.
Omar Larson testified that sometime in November he
heard that Jones might quit his job and also learned that he
was working for Target on a "moonlight" job.7 On
Monday, November 16; the first day of Jones' absence
Liepscher told him Jones would not be in. On the evening
of that day he called Jones at his home to find out if he
would be in on Tuesday but received no answer. He then
called Target and was told Jones had left. He did talk to
Jones on Tuesday when Jones told him his car was being
repaired and that he could not be in until noon and he told
Jones to come in any time he could make its Larsen'also
testified that he called Target on Tuesday (the same day he
talked to Jones) and was told there was no one by the
name of Jones working there.
About 11 a.m. on Tuesday Larsen, Liepscher, and
Leaman went to the hospital to visit an employee and
Larsen suggested the need of a replacement for Jones if he
was not going to report back. Leaman suggested that he
and Liepscher go to Target and find out whether Jones was
working there. When they entered the store they saw Jones
cutting meat. The time was fixed as about 12:30 p.m. They
did not approach Jones nor make any inquiry of him
concerning his intentions but instead Larsen went to a
telephone booth, called Target, and was again informed
that no such person as Jones was working there. When he
told Liepscher this they decided to talk to the store
manager who checked the timecards and stated Jones was
working, thus confirming the evidence of their own senses.
Liepscher and Larsen then returned to Ace without seeing
Jones again. That same afternoon Jones received his
discharge telegram.
Hans Liepscher, director of the commissary operations,
testified that he had posted a copy of "Common Sense,"
Ace's booklet on instructions to its employees (Resp. Exh.
3) on the bulletin board and that he had read Respondent's
Exhibit 2, the document relating to an employer's rights
and obligations, and gave a copy to Larsen. He also told
Larsen not to discuss the Union with the employees.
On Monday, November 16, Liepscher received a
telephone call from Jones about sometime before 12 a.m.
who told him he would be unable to work that day but
would be in the following day. Shortly after he received the,
call he was asked to keep a record of events (presumably
related to Jones), but the record does not disclose who
made the request (Resp. Exh. 4.) This record indicates the
telephone call from Jones was received at 8:15 a.m. on the
16th. He amended his testimony accordingly. Jones told
him he would not be in on that day but would be in about
11 a.m. Tuesday. Later on Monday Liepscher had a
conversation with Larsen who told him Jones had called
and said he would not be in on Tuesday. On the next day,
Tuesday, he and Larsen were instructed by Mr. Leaman to
"verify the absence of David Jones." Liepscher and Larsen
then went to the Target store and saw Jones in a uniform
and from this point his testimony coincides with that of
Larsen. Later he received a call from Jones asking if he
could pick up his paycheck and Liepscher told him he
could. Liepscher denied having any knowledge of Jones'
union affiliation or activity at this time , which was time of
termination.
Arnold Leaman testified that when he received the
Union's petition for an election on November 7 he called
Ace's counsel, Jack Bernheim, and that he then told
Liepscher to have no discussion with the employees
regarding the Union . He also told Liepscher to relay these
instructions to Larsen in the meat department, the only
5 According to Jones he lived 33 miles from Ace and 17 miles from several of the employees worked at other jobs.
Target. 8 Jones fixed this conversation as taking place on Monday , November
8 The telegram was followed by a confirming letter. (G.C. Exh . 6.) 16.
7 According to Leaman, Ace had no rule against moonlighting and
ACE FOODS, INC. 1223
department affected. He also gave Liepscher and Larsen
copies of Respondent's Exhibit 2, Bernheim' s instructions.
On November 17, Leaman -was informed by Liepscher
that Jones had been absent for 2 days due to car trouble
but that he had reason to believe that Jones was working at
another food ;store. He then called Bernheim who told him
this information should be checked. ,He then told Liepscher
and Larsen to go .to Target, and see if Jones was working
there. He fixes this time as between 12:30 and 12:45 p.m.
Either Liepscher or Larsen reported to him that Jones was
working there and that the store manager at Target told
them Jones intended to report to work on Wednesday,
November 18, at Ace. Leaman then called Bernheim and
upon Bernheim's advice Jones was terminated by telegram
and letter. (G.C. Exh. 5 and, 6.) Leaman was then asked if
he had considered that part, of the booklet "Common
Sense" ,entitled, "Absence, in reaching his decision and
said that he had.s
With respect- to the termination of Jones, Jacob L.
Bernheim testified that he received a call from Leaman on
November 17 stating that an employee named Jones had
not been to,.work, on the 16th and had not reported in that
day and that, the explanation he gave- was that his car was
not running. Leaman also told him that he believed Jones
was working for Target:, Bernheim advised them to check
and be sure he was working for Target and later received a
call from. _,Leaman telling him, that Jones was in fact
working there. Bernheim then.stated it was his opinion that
the man should be discharged rand dictated the language of
the telegram and letter, supra.
D. Conclusions
I find the dischargeof Jones to be in violation of Section
8(a)(3) of the Act.
No question was raised rat any time=concerning Jones'
ability or of his conduct on the job. The reason for
discharge was specifically limited to his working for Target
on Tuesday, November 17. At this time his union activity
had been made known to Larsen through Thorton, who
not only told Larsen that-Jones had been present at Ruby
Rife's, home on November, 11 but had also passed out
union cards at" that meeting. Whatever else the record
discloses - it, does not disclose' that Jones broke any
company rule by working at Target. It is not disputed that
he had car trouble on Monday, November 16, and that he
called Ace as early as 8:45 a.m. after earlier calls went
unanswered .- He truthfully gave them the reason for his
failure to report-and later that afternoon he called Larsen
and told hini he could not ;be, in on ` Tuesday since "the car
would not' ,be ready until- sometinieTuesday morning: He
did state hewould,bein on-Wednesday which, considering
9 That instruction read : "In case you are unable to come to work notify
the Manager as soon as you_can. "
10 There are two discrepancies respecting this telephone conversation.
One, as to whether Jones called Larsen as he testified, or Larsen called
Jones as he testified , I find immaterial . In any event a conversation did take
place between the' two: ; Larsenbeheved the conversation took place on
Tuesday morning and that . Jones told; him he would get his bar` and be in
about noon on Tuesday. Jones testified that it took place on Monday
afternoon and that since he would not get his car until Tuesday morning he
would not, in view of his working schedule, be in until Wednesday. Apart
from the fact that Jones appeared to have a much clearer recollection of
the hours he worked at Ace, seemed the earliest feasible
time. According to Jones, and this is not contradicted, no
objection was voiced by Larsen who simply told him to
come in when he could.t.o
Based on rumors which he had heard Larsen called
Target on late Monday afternoon and was told Jones had
left and called again, on Tuesday and was told that no
employee by the name of Jones was employed there. At
this time it would appear that there was no reason for
further investigation since no information had been
received which would contradict anything either Liepscher
or Larsen had been told by Jones. Jones had no record of
unauthorized or unexplained absences and was having,
apparently, no personal or other difficulties with Larsen.
He stood as an employee with a transportation problem
through no fault of his own. Yet on the second day of his
absence Leaman saw fit to call Ace's' labor counsel,
Bernheim, and reveal the situation to him. Without
blaming any respondent for seeking constant guidance
from counsel before any action is taken during the course
of a union ' campaign, this step indicates that Ace' was
contemplating disciplinary action without verifying any
rumors. The trip to Target by Liepscher and Larsen was
taken in response to Bernheim's suggestion that they
obtain proof against Jones. When this proof that Jones was
working at Target was obtained Jones was forthwith fired
by telegram without the opportunity to explain his
situation, including the fact that he could report to Target
for his afternoon work on Tuesday but could not report to
Ace until a ,time approximating the end of his shift there.
Ace could not wait until Wednesday to see if Jones would
report and interrogate, him then as to his reasons for
working at Target while not reporting to Ace; it discharged
him forthwith. This anxiety to,get rid of him arouses more
than suspicion, it creates a strong inference that the motive
was other than that stated. Since the only other motive
must have been his union activity I would find the case,
unusual in discriminatory, discharge cases, rather free from
doubt."
E. Violation of Section 8(a)(5)
Certain material facts were stipulated at the hearing. The
parties agreed that the unit appropriate for collective
bargaining was:
All meat-processing and meat-handling employees of
the employer in its meat department (Department 102)
located at its Milwaukee, Wisconsin, location, exclud-
ing office and clerical employees, professional employ-
ees, guards 'and supervisors as defined in the Act and
all other employees.
events than did Larsen , his testimony is more consistent with the facts,
particularly his work schedule . I therefore find that he informed Larsen he
would not be in until Wednesday . Larsen knew, then, when he and
Liepscher went to Target on Tuesday that Jones Was not reporting to Ace
until Wednesday:
11 1 have considered the fact that, apart from the unlawful conduct of
Larsen , Ace did not engage in any antiunion campaign or express hostility
toward union organization . On the contrary, as will be shown , infra, it
appeared willing to cooperate in the holding of an, election . This fact,
however, does not serve to countervail the only plausible motive Ican find
in its dealing with Jones.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was also stipulated that the following 12 employees
were employed in the appropriate unit in November:
Thomas J. Cowdy Janice L. Kreuger
Harry C. Dankert Jerry E. Morrison
Eugene Gillingham Ruby A. Rife
Michael J. Hertel Chester H. Rutzen
David R. Jones Alois M. Sowinski
Thomas L. Krimmer Edward P. Thorton
Paul Fricke, business, representative of the Union,
testified that, he contacted some of the employees in the
meat department at Ace and that a meeting was held at the
home of Ruby Rife on October, 25. He named David Jones,
Eugene Gillingham, Ed Thorton, Ruby Rife, and Janice
Krueger as attending among "several other employees."
Three cards were- signed and he gave five cards to David
Jones for distribution. Several days later another meeting
was held and Jones returned "at least" five more signed
cards to him. 12
,6n November 4 he and -Bill Danielson went to Ace and
saw Leaman who invited them to his office where he told
Leaman ,the Union represented a majority of the employ-
ees in -the bargaining unit and ' requested recognition.
Leaman-told them he could not recognize them on the
basis-of a card check so they returned to the union,office
and filed a petition for,an election with the Board. (G.C.
Exh. 2.)
On- November 17 Jones was discharged. On November
'19 the 'Union filed the charge herein which prevents the
processing of the representative , case . (Case 30-RC-1375.)
Arnold' Leaman testified that to the best of his
knowledge Fricke and Danielson appeared at his office
and demanded recognition on October 29. (This discrepan-
cy in dates I find immaterial since` the Union represented a
clear majority of the employees 'on November` 4' when the
petition was filed and majority status was never raised as
an-'issue .) They informed him they represented a''majority
of the employees in the`meat department and requested
recognition. Leaman told them he would not recognize- a
card check and was then told by Fricke that the Union
would have to file a petition. Leaman,agreed that that was
"the best route to go." Leaman stated that no offer to show
the cards was ;made. On November 7 he received a letter
from the Board indicating the Union had filed a petition.
Leaman then called Bernheim who told him to fill, out the
commerce data form and send the rest of the information
requested to him., Later, Leaman and Bernheim; discussed
the unit issue and agreed the unit was appropriate and that
they would proceed to an election.13, Later Leaman was
advised by the Regional. Director that the election could
not be held due to the pending unfair labor practice
charges.
This is where the representation proceeding reposed at
'the'time'of hearing.
`12 A total of nine cards was submitted by the General' Counsel. These,
with the dates of signing were from: Thomas Cowdy, 11/3; David A. Jones,
10/29; Ruby Rife, 10/29; Janice Krueger, 10/29, Alois Sominski, 11/3;
Torn Krimmer, 11/3; Michael I-Tertel, 11/3; EugeneGilli ham, 11/2; and
Edward Thorton; 11/2. The cards were unambiguous designations of
authority to represent the employees and the testimony of the employees
establish they were solicited without misrepresentation . I find all nine cards
F. Conclusions
The Union had authorization cards from 9' of the 12
employees-in the bargaining unit-when it made its demand
for, recognition upon Ace and filed its petition for an
election on November 4. The demand was refused with the
understanding , implied at last, that the parties would resort
to the Board's election procedures. These failed-' when,
following the discharge of Jones,'the Union filed the unfair
labor practice charges in the instant case, including refusal-
to-bargain charge. We therefore turn now to the gospel'of
card check law; Gissel. 14
In Gissel the Court pointed out the pivotal issue in cases
such as the instant one to be: - - -
... the -propriety of a bargaining order as a-remedy
for an 8(aX5) refusal to bargain where air employer-has
committed independent' unfair labor practices which
have made the holding of a fair election= unlikely or
which in fact, undermined a union's majority and
caused an election to be set aside:
The Court then referred to those cases in which the
employer's conduct embraced "outrageous"- and
"pervasive" unfair labor -practices and the coercive- effects
could not 'be -eliminated by the -application- of ,traditional
remedies . The second class includes the "lessextraordinary
cases marked by less pervasive practices which nonetheless
have a tendency to undermine union strength and impede
the election processes ." Lastly- are those cases- which
"because of their minimal impact on -' the election machin-
ery, will not sustain a bargaining order."
I would find that the instant case embraced by the
description applied to the second class. In this class there
must be first a showing that the Union did at one point
have a majority. That has been found here. The Court then
states:
.. , in, such a case , of course,,effectuating„ascertaina-
ble free choice - becomes as important: a goal as
determining , employer misbehavior. In fashioning a
remedy in the exercise of its discretion , then, the Board
can properly take into consideration, the extensiveness,
of the employer's, unfair, labor- practices in tens of
their,- past effect on - election - conditions, - and, ,the
likelihood , of their recurrence in, the future . If the Board,
finds that the possibility of erasing the effects-of past
practices and ensuring a fair election (or a fair, ,rerun)
by- the use of traditional -remedies, though present, is,
slight and that employee sentiment - once - ,expressed
through cards, would, on ,balance, be better, protected
by a bargaining order, then such an order,should issue.
In this ; case Ace has been , found , guiilty,, ,of ' several
violations of Section 8(a)(1)_of the Act includinguglawful
interrogation of many --of.-the -,employees-, in, the, mean
department,15 threats of layoffs if the union came , stating
that the only benefit the-employees could-gain would'be, in
insurance, and giving the impression of surveillanck-of a
valid.
'' Resp. Exh.13, a letter from Bernheim to Field Examiner Warmoth{of
the Regional ' Office , offering to consent to an election:
14 N L.R.B, v. Gissel Packing Co 395'U:S. 575.
1s The interrogation does not meet the standards of coercive interroga-
tion'required by the Secondtircuit as set forth in Bourne v. N.L.AB., 332
F.2d 47, 48.''
ACE FOODS, INC.
union meeting. These were rather extensive in nature and
while Larsen' was only a minor 'supervisor they were
communicated directly to the employees subject to his
authority and the only employees in the bargaining unit.
On the other hand none of them seem to have regarded the
interviews with Larsen as, coercive. The junior employees
who were interrogated by counsel regarding the layoff
threats testified that they knew they were subject to layoff
and the senior employees knew they were not. This was no
massive or systematic campaign, it was conducted by one
minor echelon supervisor and conducted in violation of the
instructions given him. I have grave doubt that the
misconduct of Larsen standing alone would sustain a
bargaining order, particularly in view of the Court's
statement, which can hardly be contradicted on the basis
of - experience, that cards are admittedly, inferior to the
election process in determining the true, wish of the
employees.16
But Larsen's coercive statements do not stand alone. It
has been found that the discharge of Jones was in violation
of Section 3 of the Act and- a discriminatory discharge
must be accorded the status of,mortal sin in the catechism
of labor law. The effect of discharge from employment as a
reprisal for union activity is devastating, not only upon the
dischargee but,upon all other employees similarly engaged
in-,,their guaranteed right to organize. That right cannot
exist under threat of loss of livelihood. While it is
impossible, to measure the impact, either as to depth or
duration, of discriminatory discharge upon the other
employees a factor of significance is -the number of
employees-in the,affected group. Here there were only 12
employees in, the bargaining -unit all of whom worked
together and lunched together. Jones was not simply an
anonymous, employee in large division identified by a
badge number-This factor, in my.opinion, magnifies the
consequences of the 8(a)(3) violation. Further analysis
would lead only deeper into the realm of subjective
speculation.- `'
Inevitably there is created a twilight zone between the
classes, defined by the - Court where reasonable -men will
differ as to the appropriate, remedy. Giving, as I do,
substantial , weight to the lasting "chill" imposed on
organizational.-efforts by discriminatory discharges , and
giving consideration , to the -circumstances of the instant
case, an affirmative bargaining order will be recommended
as the only effective means of redressing the unfair labor
practices found.
Upon the foregoing findings and conclusions I make the
following:
CONCLUSIONS OF LAW
1. -By-interrogating its employees regarding their union
activity; -threatening its employees with layoffs during the
slack season if they accepted the-Union while at the same,
time implying that other work might be, found for them if
they rejected the Union; by creating the impression of
16 Cf. New Alaska Development Corp., Alaska Housing Corporation v.
N.L.R.B., 441 F.2d 491 (CA.- 7); NLRB. v. General Stencils, 438 F.2d 894
(C.A. 2).
it In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
1225
surveillance of union meetings ; and by creating the
impression that union organization would , be futile,
Respondent Ace violated Section 8(a)(1), of the Act.
2. By terminating the employment of David Jones on
November 17, 1970, in order to discourageunion activity,
Respondent Ace violated-Section 8(aX3) and (1) of the Act.
3. By refusing -to recognize and bargain with the Union
on and after November 4, 1970, Respondent Ace violated
Section 8(aX5) and (1) of the Act. The unit appropriate for
collective bargaining is:
All meat-processing and. meat-handling employees of
the employer in its ' meat department (Department 102)
located at its Milwaukee , Wisconsin; location, exclud-
ing office and clerical employees, professional employ-
ees, guards and supervisors as defined . in the Act and
all other employees. -
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7}of the
Act.
THE REMEDY
Having found the Respondent Ace engaged in and is
engaging-iii unfair labor practices it will be recommended
that it cease and desist - therefrom and take certain
affirmative action 'necessary to effectuate the policies of the
Act. -
Having found Respondent Ace discharged David Jones
in violation of Section 8(aX3) of the Act it will be
recommended that it offer 'him 'full and- immediate
reinstatement Ao his former position without prejudice to
his, seniority or other rights and privileges and make him
whole for any loss of earnings he may-have suffered. Such
losses shall be computed on a-quarterly basis with interest
at the rate of 6 percent per annum. -
Because the obligation to bargain with the, Union is
being imposed upon Ace and the Union, is- being imposed
upon the employees as their bargaining agent without the
benefit of a secret ballovelection ` it is recommended that
the noticeherein contain language advising the employees
of their right to a decertification election. See NLRB. v.
Price-Less Discount Foods, Inc., 405 F.2d-1125 (C.A, 6),.,
Upon the foregoing findings , of fact and conclusions of .
law and upon the entire record, I`recommend, pursuant to
Section 10(c) of the Act, issuance of - the following:11
ORDER
Respondent, Ace Foods, 'Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a)- Interrogating its employees regarding their union
activity; threatening its employees, with layoffs during the
slack season if they accepted the Union while' at the same
time ' implying that other work might be -found for them if
they rejected the Union; creating the impression of
conclusions , recommendations and recommended Order herein shall, as,
provided in Sec. 102.48 of the Rules and Regulations , automatically become,
the findings , conclusions, decision and order . of, the Board, and all
objections thereto shall be deemed waived for all purposes.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surveillance of union meetings ; and creating the impres-
sion that union organization would be futile.
(b) Discharging or otherwise affecting the hire , tenure or
condition of employment of any employee to discourage
union activity or membership.
(c) Refusing to recognize and bargain in good faith with
Local 73, Amalgamated Meatcutters and Butcher Work-
men of North America, AFL-CIO , as the exclusive
bargaining representative of its employees in the unit
found appropriate herein.
(d) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the rights
guaranteed by Section 7.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer David Jones immediate and full reinstatement
to his former position or, if that position no longer exists,
to a substantially equivalent position , without prejudice to
his seniority or other rights and privileges.
(b) Make David Jones whole for any loss of earnings or
other monetary loss he may have suffered by reason of the
discrimination practiced against him , in the manner set
forth in that part of this decision entitled "The Remedy."
(c) Notify David Jones, if presently serving in the Armed
Forces of the United States , of his right to full reinstate-
ment upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act , as amended, after discharge from the Armed
Forces.
(d) Upon request bargain collectively and in good faith
with Local 73, Amalgamated Meatcutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive
representative of its employees in the unit found appropri-
ate herein with respect to rates of pay , wages , hours of
employment , and other terms and conditions of employ-
ment and, if understanding is reached , embody same in a
written , signed agreement.
(e) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records , timecards,
personnel records and reports , and all other records
necessary to analyze and determine the amounts of
backpay due under the terms of this recommended Order.
(f) Post at its plant at Milwaukee , Wisconsin, copies of
the attached notice marked "Appendix." 18 Copies of said
notice , on forms to be provided by the Regional Director
for Region 30, after being duly signed by the Respondent,
shall be posted by him for 60 consecutive days thereafter,
in conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(g) Notify the Regional Director for Region 30, in
writing, within 20 days from the recipt of this Decision,
what steps Respondent has taken to comply herewith.is
18 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
1e In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify said Regional Director for Region 30, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees concerning
their union activity . Their union activity is their own
business.
WE WILL NOT threaten our employees with layoffs
during the slack season if they accept the Union while
at the same time implying that work will be found for
them if they reject the Union.
WE WILL NOT give our employees the impression that
we have spied upon union meetings.
WE WILL NOT tell our employees that the only
benefit they could obtain from union organization
would be insurance benefits.
WE WILL NOT discharge any employee because of his
union activity.
WE WILL offer reemployment to David Jones in his
former job with all his former rights and privileges.
WE WILL pay David Jones for any loss of earnings he
may have suffered as a result of his discharge together
with interest at 6 percent per annum.
WE WILL notify David Jones, if he is serving in the
Armed Forces , of his right to employment, upon
application , after discharge from the Armed Forces.
WE WILL, upon request, bargain with Local 73,
Amalgamated Meatcutters and Butcher Workmen of
North America , AFL-CIO, as the exclusive bargaining
representative of our employees in the unit found
appropriate concerning rates of pay, wages , hours of
employment , and other terms and conditions of
employment. If we reach agreement we will sign a
contract with the above-named Union covering the
terms of such agreement . The appropriate unit is:
All meat-processing and meat-handling employees of
the employer in its meat department (Department 102)
located at its Milwaukee , Wisconsin , location, exclud-
ing office and clerical employees , professional employ-
ees, guards and supervisors as defined in the Act and
all other employees.
Employees , pursuant to Section 9(c)(1) of the National
Labor Relations Act, may, at an appropriate time, petition
the National Labor Relations Board at the office set forth
below , for an election to decertify and get rid of the Union
as their collective-bargaining representative. The filing of
such a petition can only be done as the voluntary act and
choice of the employees and on their own initiative,
without encouragement or assistance from any representa-
tive of management.
ACE FOODS, INC.
(Employer)
Dated . By
(Representative) (Title)
ACE FOODS, INC. 1227
This is an official notice and must not" be defaced by Any questions concerning this ,noticeor compliance with
anyone . its provisions may: be, directed , to the!. Board's Office,
This,notice must remain posted for 60 consecutive days Commerce Building, Second Floor, 744_North- Fourth
from the date of posting and must not be altered , defaced, Street, Milwaukee,`: Wisconsin 53203, Telephone 414-224-I
-
7'
covered by any other material. 3861.