American Meat Packing Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 835 (N.L.R.B. 1991)

835
301 NLRB No. 119
AMERICAN MEAT PACKING CORP.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 We have modified the judge’s recommended Order to include the Board’s
customary remedy for unlawfully implemented unilateral changes in wages and
terms and conditions of employment, and to include an expunction remedy for
unfair labor practice striker John Frison (whose name appears here correctly
spelled), whom the Respondent discharged because of alleged strike mis-
conduct.
3 We note that the Respondent has admitted an obligation to supply sup-
porting financial information, and that its sole issue on exceptions before the
Board to the violation found on that issue is the claim that it lawfully condi-
tioned the provision of financial information on the Union’s conducting an ex-
tensive and costly audit covering a period of 5 years. We find that the judge
correctly found that the conditional nature of this proffer of supporting infor-
mation was unlawful. See Tama Meat Packing Corp., 291 NLRB 657 (1988).
American Meat Packing Corporation and Beef
Boners and Sausage Makers Union, Local 100-
A, affiliated with United Food and Commercial
Workers Union, AFL–CIO. Cases 13–CA–
25581 and 13–CA–26279
February 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 7, 1988, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel and the Charging Party Union filed briefs
in opposition to the exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions, and to
adopt the recommended Order as modified.2
We affirm the judge’s conclusion that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by, inter
alia, engaging in bad-faith bargaining with the Union
during negotiations for a new contract. In doing so we
rely on the rationale set forth below, rather than on the
judge’s conclusion that the Respondent’s bargaining
proposals were unusually harsh or vindictive or so un-
reasonable as to warrant the conclusion that they were
proffered in bad faith. See Chevron Chemical Co., 261
NLRB 44 (1982), enfd. 701 F.2d 172 (5th Cir. 1983).
The Board has recently reaffirmed in Reichhold
Chemicals, 288 NLRB 69, 69–70 (1988), that the con-
tent of a party’s contract proposals may be a legitimate
area of inquiry in bad-faith bargaining cases, but cau-
tioned that the Board should avoid making purely sub-
jective judgments concerning the substance of bar-
gaining proposals. In Reichhold, the Board emphasized
that its often difficult, but essential, task in bad-faith
bargaining cases is to assess from the aggregate of a
party’s conduct whether that party’s intent during bar-
gaining was to reach agreement on the terms of a con-
tract.
In the present case, this task is complicated by the
Respondent’s volunteering at the outset of bargaining
that it was in dire financial circumstances, that many
of its proposals were aimed at achieving financial re-
lief from the labor costs it was currently incurring, and
that absent such relief the facility would join the roster
of Respondent’s plants which had recently been closed.
Although the judge found that the Respondent’s plea
of inability to pay more than its proposed pay rates
was a sham, we note that neither the General Counsel
nor the Charging Party has attacked the substance of
the Respondent’s financial claims. Further, although
we agree with the judge that the Respondent unlaw-
fully failed to provide the Union with information on
request in support of its plea of poverty,3 we find that
this failure did not warrant the adverse inference drawn
by the judge (and otherwise unsupported by evidence
or contention) that the Respondent was not genuinely
in some need of economic relief.
Despite our disagreement with some of the judge’s
reasoning, however, we reach the same conclusion
concerning the Respondent’s lack of good-faith intent
to reach agreement. In determining that the Respondent
lacked that intent, we are guided by certain principles
stated by the Board in General Electric Co., 150
NLRB 192 (1964), enfd. 418 F.2d 736 (2d Cir. 1969),
a case that is similar in important respects to this case.
In General Electric, the Board emphasized the impor-
tance of the parties’ full acceptance of the bargaining
process itself, observing as follows:
[A]n employer . . . violate[s] Section 8(a)(5)
where it enters into bargaining negotiations with
a desire not to reach an agreement with the union,
or has taken unilateral action with respect to a
term or condition of employment. . . . But, hav-
ing refrained from any of the foregoing conduct,
an employer may still have failed to discharge its
statutory obligation to bargain in good faith. As
the Supreme Court has said:
. . . the Board is authorized to order the ces-
sation of behavior which is in effect a refusal to
negotiate, or which directly obstructs or inhibits
the actual process of discussion, or which reflects
a cast of mind against reaching agreement.
Thus, a party who enters into bargaining negotia-
tions with a ‘‘take-it-or-leave-it’’ attitude violates
its duty to bargain although it goes through the
forms of bargaining, does not insist on any illegal
or nonmandatory bargaining proposals, and wants
to sign an agreement. For good-faith bargaining
means more than ‘‘going through the motions of
negotiating.’’ ‘‘. . . the essential thing is rather
the serious intent to adjust differences and to
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Unless otherwise indicated, all dates are in 1985.
5 Cf. 88 Transit Lines, 300 NLRB 177, 178 (1990), in which the Board
found that the Respondent was not ‘‘so adamant concerning its own initial po-
sitions on a number of mandatory subjects’’ as to warrant a finding of a bad-
faith ‘‘‘take-it-or-leave-it’ approach to bargaining’’ (citation omitted).
6 Member Devaney, in agreeing with his colleagues that the Respondent vio-
lated Sec. 8(a)(5) and (1) by engaging in surface bargaining, finds it unneces-
sary to pass on whether the Respondent’s contract proposals evinced an unlaw-
ful effort to nullify the Union’s representative capacity after the contract was
signed.
reach an acceptable common ground. . . .’’ [Ci-
tations omitted; emphasis in original.] [150 NLRB
at 193–194.]
In the present case, as explained below, the Respond-
ent manifested no real intent to adjust differences, but
essentially adopted the ‘‘take-it-or-leave-it’’ approach
condemned in General Electric.
The Respondent and the Union were parties to a col-
lective-bargaining agreement effective from December
20, 1982, through December 19, 1985. Negotiations
for a successor agreement began on October 21, 1985.4
Although the Respondent and the Union met on 30 oc-
casions in a 1-year period, no new agreement was con-
cluded.
At the outset of negotiations, the Respondent prof-
fered a series of proposals for changes in terms and
conditions of employment, the most significant of
which was its proposal 38, revising employees’ job
classifications and wage rates. Three days after these
proposals were given to the Union, and after a single
meeting at which only cursory reference was made to
proposal 38, the Respondent’s president read a letter to
employees, stating in part that its proposal on job clas-
sifications and wage rates, which it had posted on a
bulletin board ‘‘will go into effect on December 20,
1985.’’ Although the Respondent subsequently de-
clared that such implementation would be preceded by
either agreement or impasse, its ability to predict with
certainty such an endpoint in negotiations (tied directly
to the expiration date of the old contract) has less to
do with the Respondent’s prescience, than with its oth-
erwise demonstrable hostility toward the bargaining
process.
The Respondent’s attitude toward the negotiations is
perhaps most succinctly described by the statements of
the Respondent’s chief negotiator, Michael Schumann,
at the parties’ 11th bargaining session on December
13, shortly before the prescribed date for the imple-
mentation of proposal 38. Walter Piotrowski, the
Union’s chief negotiator, pointed out that the Respond-
ent had not agreed to any of the Union’s proposals,
and Schumann responded, ‘‘We went through this six
months ago when we were coming up with these pro-
posals. We put a hard hat on a broom and said it was
you. We gave you some and us some.’’ This was not
an isolated remark. During the next bargaining session
on December 14, the Union accused the Respondent of
entering negotiations with ‘‘a bad attitude.’’ Schumann
responded:
The Employer has spent a lot of time revising the
present contract and we realized that we have to
take drastic action. This Employer has closed a lot
of facilities. We went through everything and de-
cided what is our bottom line on these proposals.
We know we’re asking for a lot. We’re not here
to give here and take there. We came here to say,
‘‘Gentleman, we’re here to convince you of our
Proposals.’’
During the same session, when Piotrowski commented
about the Respondent’s adamancy, saying there is a
way of bargaining matters out, Schumann stated, ‘‘We
aren’t going to move. This is where we stand.’’ Later,
Schumann reiterated, ‘‘The Employer’s position is that
we did the give and take before we walked in here.
What we have here is our bottom line proposal. We
want to convince you on the merits of it so that you
can convince your people of it.’’ The Respondent’s ob-
durate insistence that agreement would be obtained
only by the Union accepting the Respondent’s pro-
posals was no hyperbole made in jest, but is fully con-
sistent with the results of bargaining as of this last
date. This is documented by the Respondent’s position
statement 9, which shows that the only proposals that
tentatively had been agreed on were 34 proposals that
had been made by the Respondent.
Far from evincing a ‘‘serious intent to adjust dif-
ferences,’’ as required by General Electric, these state-
ments illustrate precisely what General Electric pro-
scribes: take-it-or-leave-it bargaining. No valid basis
exists to construe these statements as mere inartful ex-
pressions rather than, as we deem them to be, a true
reflection of the Respondent’s bargaining position.5
The statements are symptomatic of the Respondent’s
conduct at and away from the bargaining table. Thus,
they were but one aspect of a bargaining strategy that
also included the following: insistence on contract pro-
visions that, together, would effectively nullify the
Union’s ability to act as the employees’ collective-bar-
gaining representative;6 a systematic campaign directed
at employees in which the Respondent’s president,
Carl Herrmann, disparaged and discredited the Union
and threatened employees with a loss of jobs and plant
closing in letters he read to the employees; unlawful
direct dealing with employees about the Respondent’s
job reclassification proposal; unlawful unilateral imple-
mentation of that proposal; and the imposition of an
unreasonable condition on the provision of financial
information, i.e., the Union’s conduct of a time-con-
suming and costly audit.
In finding that the Respondent’s overall bargaining
strategy was imbued with bad faith, we of course do
not rely on the Respondent’s failure to make substan-
837AMERICAN MEAT PACKING CORP.
7 The Respondent proposed this as ‘‘Section C’’ in its article on the agree-
ment’s ‘‘Coverage.’’ It provided as follows:
It is expressly understood and agreed between the parties, that notwith-
standing any other provisions of this Agreement, the Employer is not ob-
ligated to provide any specific amount of work to the bargaining unit and
will relocate work from the bargaining unit during the term of this Agree-
ment, to the extent essential for the running of a profitable business.
It is not the intention of the Employer to have managerial or research
and development personnel perform bargaining unit work because that de-
tracts from their assigned work, but to the extent that it is essential for
the running of a profitable business, such persons will perform bargaining
unit work.
8 This proposal, which was offered as part of the ‘‘Seniority’’ article, pro-
vided as follows:
The Employer, in its sole discretion, will employ part-time and causal
[sic] employees to perform bargaining unit work, when it is in the interest
of the Employer to do so.
9 When union negotiators—responding to the Respondent’s contention that
such employees would be used only ‘‘in emergency situations’’—asked if that
language could be written into the provision, the Respondent rejected the pro-
posed modification outright.
10 The grievance procedure, which was to comprise art. IX of the agreement,
was set out in proposals 55 through 59 of the Respondent’s initial proposals.
On the sheet containing proposal 59, the Respondent stated, inter alia, that ‘‘It
is the Employer’s position that the quasijudicial remedy of arbitration is no
longer appropriate in modern labor relations . . . .’’
11 The 1982–1985 agreement, while containing a similar two-step grievance
procedure, permitted economic action after the second step.
tial concessions; and we are mindful that the Respond-
ent’s economic condition was poor and that this at
least in part motivated its bargaining on economic
issues. But although the Respondent’s financial condi-
tion may explain its refusal to agree to such union pro-
posals as improvements in health and pension benefits
and the elimination of the two-tier wage system and,
indeed, its own proposals for retrenchments, it does not
explain the Respondent’s refusal even to consider any
changes in proposals that had the potential for totally
eliminating unit work by transferring it to nonunit per-
sonnel. It similarly does not explain the Respondent’s
insistence on a grievance procedure and no-strike
clause that required the Union to yield the employees’
Section 7 rights to engage in strikes, and even
handbilling outside of working hours, in ‘‘exchange’’
for the statutory right to enforce contractual provisions
through the courts. And, finally, it does not explain
why the Respondent never showed any willingness to
consider any framework for reducing costs other than
its own.
In proposals 9 (‘‘No Work Preservation’’)7 and 40a
(‘‘Part-time and Casual Employees’’),8 which were
part of its initial proposal offered at the first negoti-
ating session, and on which it remained adamant
throughout the bargaining, the Respondent essentially
reserved the right to assign all the unit work to indi-
viduals other than regular bargaining unit employees.
Although proposal 9 did express the Respondent’s dis-
inclination to assign bargaining unit work to ‘‘research
and development personnel,’’ and stated that this
would be done only if it were ‘‘essential to the running
of a profitable business,’’ the provision sets no real
standards or limits that might be enforceable in court—
the only recourse the Respondent would allow the
Union for seeking to assure the Respondent’s compli-
ance with the agreement.9 The provision for the use of
casual and part-time employees contained no limita-
tions at all.
The broad management-rights clause strongly rein-
forced the Respondent’s ability to reduce or eliminate,
at will, work performed by the regular bargaining unit
employees. Among the lengthy list of subjects left to
the Respondent’s sole discretion, were the ‘‘determina-
tion whether to . . . reduce or eliminate the work
force temporarily or permanently,’’ and the ‘‘reloca-
tion, transfer, or subcontracting of bargaining unit
work.’’ Thus, although the Respondent’s proposals al-
lowed for limited use of departmental seniority in mak-
ing layoffs of more than 5 days, there was no protec-
tion against the work’s being assigned or contracted
away; and the broad zipper clause (proposal 81 in the
Respondent’s initial proposals) would prevent the
Union from attempting to bargain over the ramifica-
tions of such an impact on the bargaining unit during
the contract term.
The Respondent’s ‘‘take-it-or-leave-it’’ stance was
most egregious, however, in its insistence on its griev-
ance and no-strike proposals. Like the employers in
NLRB v. A-1 King Size Sandwiches, 732 F.2d 872
(11th Cir. 1984), cert. denied 469 U.S. 1035 (1984),
and Prentice-Hall, Inc., 290 NLRB 646 (1989), the
Respondent was insisting, without any real explanation
or incentive, that the Union yield substantial rights
which belonged to it by statute. In particular, the Re-
spondent demanded that the Union agree to a proce-
dure for resolving grievances that consisted of the fol-
lowing two steps, the first of which is little more than
a codification of what Section 8(a)(5) requires: (1) the
grievance (submitted in writing) would be discussed by
representatives of the Union and management, and (2)
if the grievance were not settled or abandoned, the
party would have to resort to a court action under Sec-
tion 301 of the Labor-Management Relations Act, 29
U.S.C. § 185.10 Going to court would be the Union’s
exclusive remedy at that point, because in the no-strike
clause proposed by the Respondent, the Union and in-
dividual employees were asked to waive all rights to
engage ‘‘directly or indirectly’’ in any strike activity.11
The proposal included in its definition of ‘‘strike’’ in
the following actions:
. . . any concerted refusal to perform assigned
work . . . any concerted picketing or handbilling
of the Employer’s premises at any hour, which is
against the Employer’s business; any concerted
boycott activity against the Employer’s business;
any other concerted activity the object of which is
to cause economic harm to the Employer. More-
over, it is expressly understood that included in
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Job bidding, under the Respondent’s proposals, was conducted solely
within departments, and the determination whether an employee qualified for
a position was to be in the ‘‘sole discretion of the Employer.’’
13 The Respondent contends that it did not actually contemplate imple-
menting the plan unless there was impasse or agreement, but we agree with
the judge that statements by two of the Respondent’s negotiators, Michael
Schumann and Joseph Carey, to the effect that the December 20 date assumed
impasse or agreement represented little more than the Respondent’s effort to
‘‘build a defense.’’ The Respondent could not have known on October 24,
what the state of bargaining would be on December 20. It seems clear that
the Respondent simply devised its plan and decided to implement it on the
first day that the constraints of the existing contract were lifted. In this regard,
it is telling that, during the November 4 bargaining session, after negotiator
Carey stated that ‘‘[w]ith respect to December 20, nothing will be imple-
mented until and if there is impass[e] on the issues at that time, ‘‘he then as-
serted, ‘‘Without the contract expiring, nothing will be done.’’ In other words,
the day following contract expiration was the critical date, and the Respondent
had simply decided in advance that it would discover a state of impasse as
of that date.
Gaining acceptance of a proposal with such dramatic and devastating effects
on longtime employees could not be expected to be an easy task, but the Re-
this definition of strike is (1) any of the above de-
scribed actions, the object of which is to protest
any action by the Union and/or its parent organi-
zation; (2) any of the above described actions, the
object of which is to protest any action by any
party not a signatory to this Agreement, and (3)
any of the above described actions, the object of
which is to support or be in sympathy with an-
other organization, including another labor organi-
zation.
Under that proposal, for example, if the Respondent at
various times during the year failed to pay the contrac-
tually specified wages to an employee or employees,
or to comply with contractual holiday provisions, and
if it rejected the Union’s grievances on these subjects,
the injured employees would not even be able to com-
municate their protest in handbills to other employees
or to the public during periods outside of their regular
working hours. A lawsuit (at their own expense) would
be all that was left to them. Furthermore, the Respond-
ent was demanding that the Union waive even the em-
ployees’ right to protest, by handbilling, actions taken
by the Union. When, during the December 18 negoti-
ating session (the day before contract expiration), the
Union indicated it might agree to the no-strike clause
if the language prohibiting handbilling and ‘‘concerted
picketing at any hour’’ were removed, the Respondent
rejected the offer and insisted that the Union waive all
the rights specified in its provision.
Finally, the Respondent’s bad-faith approach to ne-
gotiations was manifested in its bargaining on its job
classification proposal and related wage rate proposal.
The job classification designated proposal 38 in the
Respondent’s initial contract offer at the first bar-
gaining session on October 21 and included as part of
the Respondent’s proposed ‘‘Seniority’’ article, pro-
vided as follows:
As soon as practicable following the execution of
this Collective Bargaining Agreement, the Em-
ployer, in its sole discretion, will assign every em-
ployee to a particular department and to a par-
ticular job classification within such department,
and the respective employees will have, for this
one time only, seniority in such department dating
from last hire. Thereafter, seniority within a de-
partment will be pursuant to this Article.
The Employer will furnish to the Union a list
of employees by department and by seniority in
such department. The Employer will revise such
seniority lists on a calendar quarter basis there-
after.
At the bottom of the page containing this proposal, the
Respondent added the following ‘‘Note’’: ‘‘The Em-
ployer will prepare position schedules that will reflect
the Employer’s position of where each employee will
be assigned as of December 20, 1985, i.e., the job
classification and rate of pay.’’ This proposal, as sup-
plemented by an attached list of employees slotted into
wage classes with proposed wage rates, was designed
to bring about a major change not only in the average
level of wage rates but also in the relative positions of
employees in the work force. As finally implemented,
it cut the wages of 193 employees, increased those of
89, and left the wages of 4 unchanged.
The Respondent certainly cannot be found in viola-
tion of the Act simply for proposing such a sweeping
change or even for adhering to such a position after
listening with an open mind to criticisms or counter-
proposals. The problem lay, as a union negotiator pro-
tested at one point, in the way the plan was ‘‘pre-
sented.’’ From the very first, the Respondent made it
clear that this was to be the only way that cost reduc-
tions could be made. The Respondent never expressed
any willingness to consider proposals for reducing
costs in any other way. Although it sought union and
employee ‘‘input’’ into the plan, this consisted not of
inviting proposals for alternatives to the plan, but
merely of soliciting individual employees to protest
their selection for a particular spot and prove that they
had the ‘‘skills and qualifications’’ to be placed in a
higher paying job. The Respondent, of course, would
be the initial and final judge of whether the employee
qualified.12
The Respondent’s intransigence was made unmistak-
ably clear when, on October 24–3 days after the com-
mencement of bargaining, and after only two bar-
gaining sessions had been held—the Respondent’s
president, Carl Herrmann, read a letter to employees
stating that the Respondent’s job classification plan
would ‘‘go into effect on December 20, 1985.’’ This
statement was made notwithstanding that there had
been little opportunity for bargaining yet on the highly
detailed plan and that the union negotiators had re-
quested some time to study it.13
839AMERICAN MEAT PACKING CORP.
spondent hardly even made an effort to secure agreement. It waited until De-
cember 16, 3 days before contract expiration, to offer a tradeoff for the
Union’s agreement; and the tradeoff was simply the Respondent’s willingness
to forgo insisting on eliminating the union-security and dues-checkoff provi-
sions that had been in prior contracts.
14 Thus, for example, in his November 15 letter to employees, Herrmann
told them that Walter Piotrowski, the secretary-treasurer of the Local Union,
who had gone to Hawaii for a conference on fringe benefit trust funds, was
‘‘going to Hawaii free, paid for by your union dues, while you and I must
stay here and worry about our jobs.’’ The letter denounced Piotrowski as ‘‘this
stubborn old man.’’ Similar epithets appeared in other letters; and in his De-
cember 5 letter, Herrmann told employees: ‘‘The Union will not win this fight,
because a large majority of you, our employees, do not agree with Piotrowski
and his blind, stubborn resistance to AMPAC’S proposals.’’
15 In his second letter to employees, dated November 6, Herrmann implied
that Piotrowski had become a mere figurehead and that ‘‘it is clear that Robert
Waters on behalf of the International Union has the final word over Local 100.
This is a major change in the politics of the Union in Chicago.’’ In a letter
dated December 17, Herrmann advised employees that ‘‘it appears that the
International Union may be getting nervous with the way Walter Piotrowski
is handling the negotiations for the Union.’’
16 Compare Safelite Glass, 283 NLRB 929, 930 (1987); United Technologies
Corp., 274 NLRB 609, 610–611 (1985).
17 We reject the Respondent’s contention that its bargaining conduct at issue
in this case was no different from its conduct during the negotiations that were
considered in Kane-Miller Corp., 259 NLRB 1075 (1982), in which the Board
dismissed allegations of surface bargaining and direct dealing. The proposals
advanced here differ in significant ways from those advanced earlier, e.g., the
breadth of the no-strike clause. The Respondent’s advance statement of the day
on which it would implement the job classification scheme and its series of
letters undermining the Union’s representational role also differentiate this case
from the earlier one.
In this and eight subsequent letters from Herrmann
to the employees, the Respondent pictured the union
negotiators as people with no legitimate role to play
other than agree to the Respondent’s proposals, and it
sought—by ad hominem attacks 14 and attempts to cre-
ate and exploit divisions between local and inter-
national representatives of the Union 15—to denigrate
them in the eyes of the employees. On at least one oc-
casion (in a letter dated November 6), Herrmann mis-
represented allusions union negotiators had made to
the possibility of a strike by claiming that ‘‘the Union
said that there will be a strike on December 20, 1985’’
and then told employees that ‘‘AMPAC’s owners have
said that they will not go through the expense of an-
other strike and will permanently close AMPAC if we
do not receive the concessions we have proposed.’’
Considered together, the letters from Herrmann go be-
yond truthfully reporting to the employees the pro-
posals the Respondent had offered them through their
representative and the Union’s response.16 Rather, they
amount to a campaign aimed at ‘‘disparaging and dis-
crediting the statutory representative in the eyes of its
employee constituents, to seek to persuade the employ-
ees to exert pressure on the representative to submit to
the will of the employer, and to create the impression
that the employer rather than the union is the true pro-
tector of the employees’ interests.’’ General Electric
Co., supra, 150 NLRB at 195, citing NLRB v. Herman
Sausage Co., 275 F.2d 229, 233 (5th Cir. 1960), and
NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 268 (2d
Cir. 1963).
In sum, we find that the Respondent’s communica-
tions with the employees, its negotiations on the job
classification and wage rate proposal, and its other bar-
gaining conduct described above manifested an intent
to undermine employee support for the Union and en-
able it to impose, virtually unchanged, what it unilater-
ally decided at the outset was a fair set of terms and
conditions of employment.17 On the basis of all the
foregoing, we find that the Respondent has refused to
bargain in good faith with the Union, and we shall ac-
cordingly adopt the judge’s recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Amer-
ican Meat Packing Corporation, Chicago, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the existing paragraphs.
‘‘(b) On request, rescind the unilateral changes made
in employees’ classifications and wages and make the
employees whole for any losses suffered as a result of
the changes.’’
2. Insert the following as newly relettered paragraph
2(e) and reletter the remaining paragraphs.
‘‘(e) Remove from its files any reference to the un-
lawful discharge of John Frison and notify him in writ-
ing that it has done so and that it will not use the dis-
charge against him in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in good
faith concerning wages, hours, and other conditions of
employment with Beef Boners and Sausage Makers
Union, Local 100-A, affiliated with United Food and
Commercial Workers Union, AFL–CIO, as the exclu-
sive bargaining representative of the employees in the
following appropriate unit:
All production and maintenance employees, ex-
cluding office clerical employees, administrative
employees, guards, salesmen, chauffeurs, engi-
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
neers, livestock handlers and janitors, and super-
visory employees as defined by the National
Labor Relations Act.
WE WILL NOT unilaterally change the terms and con-
ditions of employment of bargaining unit employees.
WE WILL NOT bypass the Union by negotiating indi-
vidually with unit employees.
WE WILL NOT refuse to furnish bargaining informa-
tion relevant and necessary to the Union because it de-
clines to use methods we prescribe to conduct an audit
of our financial records.
WE WILL NOT discharge or otherwise discriminate
against employees because of their lawful strike activi-
ties.
WE WILL NOT fail to reinstate unfair labor practice
strikers on their unconditional application to work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the National
Labor Relations Act.
WE WILL, on request, bargain in good faith with
Beef Boners and Sausage Makers Union, Local 100-A,
affiliated with United Food and Commercial Workers
Union, AFL–CIO, as the exclusive collective-bar-
gaining representative of our employees in the above
appropriate bargaining unit with respect to wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
WE WILL, on request, rescind the unilateral changes
we made in employees’ classifications and wages and
make the employees whole for any losses suffered as
a result of the changes.
WE WILL, on request, furnish the Union’s accountant
with all books and records concerning financial infor-
mation to substantiate our claim of financial hardship.
WE WILL offer John Frison and all other employees
who made an unconditional application to return to
work on or about September 4, 1986, immediate and
full reinstatement, without prejudice to their seniority
or other rights and privileges, to their former positions
or, if such positions are no longer in existence, to sub-
stantially equivalent positions, discharging, if nec-
essary, any replacements.
WE WILL make the employees whole for any loss of
pay they have suffered as a result of the discrimination
against them, with interest.
WE WILL notify John Frison that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
AMERICAN MEAT PACKING CORPORA-
TION
Arly Eggertsen, Esq., for the General Counsel.
Joseph P. Carey, Esq., of White Plains, New York, for the
Respondent.
Barry M. Bennett, Esq. (Archer, Pavalon, Gittler & Green-
field), of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
was tried before me on 1 and 2 December 1986 on charges
filed under the National Labor Relations Act (the Act), by
Beef Boners and Sausage Makers Union, Local 100-A, affili-
ated with the United Food & Commercial Workers Union,
AFL–CIO (the Charging Party or the Union) and complaints
issued by the General Counsel against American Meat Pack-
ing Corporation (the Respondent, the Employer, or AMPAC).
The charge in Case 13–CA–25581 was filed by the Union
on 20 December 1985 and a complaint thereupon was issued
on 28 February 1986 alleging that the Respondent had vio-
lated Section 8(a)(5) and (1) of the Act by failing to provide
financial information which the Union had requested in con-
nection with bargaining. On 19 August 1986 an amended
complaint issued alleging that the Respondent had violated
Section 8(a)(5) and (1) by refusing to bargain with the Union
in good faith by its entire course of conduct during 30 nego-
tiation sessions with the Union, by bargaining directly with
employees by refusing to supply the Union with relevant fi-
nancial information which had been requested, and by unilat-
erally implementing changes in bargaining unit job classifica-
tions and wages. The amended complaint further alleges that
a strike by bargaining unit employees, which began on 20
December 1985, was the result of the enumerated unfair
labor practices. The Union filed the charge in Case 13–CA–
26279 on 15 September 1986. On 20 October 1986 a com-
plaint issued thereupon alleging an unlawful refusal to rein-
state unfair labor practice strikers and an unlawful discharge
of employee John Frizzon in violation of Section 8(a)(3) and
(1). The Company filed answers to the complaints admitting
jurisdiction of the matter in the National Labor Relations
Board but denying the commission of any unfair labor prac-
tices and denying that the strike was caused by any such un-
fair labor practices.
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation with an
office and place of business in Chicago, Illinois, has been en-
gaged in the business of processing and wholesaling meat
products. During the calendar year preceding issuance of the
original complaint, which period is representative, Respond-
ent, in the course and conduct of its business operations, pur-
chased and received at its Chicago facilities products, goods,
and materials valued in excess of $50,000 directly from sup-
pliers located at points outside Illinois. Therefore, Respond-
ent is now, and has been at all times material, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
841AMERICAN MEAT PACKING CORP.
1 The Company’s proposals did not include an introduction or a ‘‘purpose
of agreement’’ clause such as those contained in the 1982 contract, but there
is no evidence that such provisions were intended to be eliminated by the Em-
ployer. The parties never got beyond the separate-page-for-each-proposal stage,
so it cannot be known for certain.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(5) Allegations
1. Background
Since 1975, the Union has represented the production and
maintenance employees of the employer at its Chicago facil-
ity which is located on Normal Avenue in Chicago. Prior to
the events of this case, Respondent operated two other pack-
inghouses, one in Warren, Michigan, and the other on Racine
Avenue in Chicago. The Racine Avenue plant and the Nor-
mal Avenue plants were both in operation until 4 February
1984 when the Racine Avenue plant was closed by Respond-
ent. Until that date the Union had represented the production
and maintenance employees of both plants in one unit. There
was a single seniority list for the two Chicago plants; there-
fore, on the closing of the Racine Avenue plant, 264 of the
least senior employees of the two plants were terminated and
all operations were transferred to the Normal Avenue plant.
(Respondent also closed its Warren, Michigan plant in Sep-
tember 1985.)
During the relationship between Respondent and the
Union, there has been a series of contracts, the negotiation
of one of which resulted in litigation before. In negotiating
a successor agreement to the contract which was to expire
on 19 December 1979, Respondent demanded economic and
other concessions. The Union refused and a strike ensued. A
charge was filed and a complaint issued, but the complaint
was dismissed by the Board. The negotiations in question in
that case did result in an agreement on 28 February 1990,
which included no wage increases for the first year of the
agreement and a wage reopener for the second; it also pro-
vided union shop and checkoff, replaced the union pension
plan with an employer-sponsored plan, increased health and
welfare benefits in place of employer contributions to a
union clinic, provided a two-tier wage structure, and elimi-
nated a previously existing arbitration provision.
At the wage reopener the parties agreed to a complete 2-
year agreement effective 1 September 1980 through 19 De-
cember 1982. This agreement was followed by an agreement
effective 29 December 1982 through 19 December 1985.
During the existence of the latter agreement (the 1982 con-
tract), the Company twice asked the Union to forgo sched-
uled wage increases and twice the Union refused.
2. The 1985–1986 negotiations
In negotiating a successor to the 1982 contract, the parties
met in 30 bargaining sessions between 21 October 1985 and
21 October 1986. These sessions, the proposal exchanged
therein, correspondence between the parties, correspondence
between the Employer and the employees, and various ‘‘po-
sition statements’’ submitted by the Employer during bar-
gaining were made the subject of a stipulated portion of the
record.
The Union was usually represented at the session by Wal-
ter Piotrowski, secretary-treasurer of the Local Union, Bob
Waters, an International representative, several other union
representatives, and several employees. Respondent was usu-
ally represented by Michael Schumann, Respondent’s direc-
tor of industrial relations, Attorney Joseph Carey, and several
other management officials. In this (long) narrative, when I
say the Union, or the Company ‘‘said that’’ or ‘‘took the po-
sition that,’’ I am referring to statements by Piotrowski, Wa-
ters, Carey, or Schumann which were expressly or implicitly
adopted by others on the same side of the table.
Bargaining Session 1; 21 October 1985
Schumann began the session by reading all of AMPAC’s
proposals. The proposal was for complete agreement1 and
consisted of several pages with the proposals therein listed
as numbers 1 through 87; however, several numbers are
skipped, so there is actually a lesser amount.
The first two proposals were entitled ‘‘job analysis’’ and
‘‘performance appraisal model.’’ The proposals stated that
there were attached analyses of bargaining unit jobs and ap-
praisal forms for employees, but these forms were not placed
in evidence. The appraisal model proposal stated that reviews
would be conducted in the ‘‘sole discretion’’ of the Em-
ployer. No such explicit provisions were contained in the
1982 contract; however, the management-rights clause of the
1982 contract did state that:
The Company has complete legal responsibility ex-
cept as expressly and specifically limited in this Agree-
ment and sole right to manage its business, including,
but not limited to the right to (a) hire, assign, reassign,
transfer, promote, demote, schedule production, layoff,
recall, discipline, and discharge its employees and di-
rect them in their work, as well as the right to deter-
mine the qualifications and ability of employees, (b)
make and enforce personnel rules and regulations, (c)
determine and schedule (I) work and production, (II)
work and production methods and means, to determine
the products to be handled, produced, or manufactured,
(III) acquisition, installation, operation, maintenance, al-
teration, retirement and removal of equipment and fa-
cilities, (d) establish, evaluate, and measure quality and
production standards, (e) control all Company property,
equipment, and facilities and the manner and extent of
their use, (f) foremen or other personnel designated by
management may perform any duties that are necessary
in the conduct of the business, (g) the Company retains
the right to contract work in areas that it deems nec-
essary to assure as efficient an operation as possible.
The Employer proposed to continue the 1982 contract’s pro-
hibitions against race and age discrimination and proposed
compliance with OSHA laws.
The Employer included the same bargaining unit descrip-
tion as in the 1982 contract except that it proposed to ex-
clude production control and shipping/receiving control scal-
ers, exclusions which were not stated in the 1982 contract.
The 1985 proposal injected a ‘‘no work preservation
clause’’ proposal which stated that the Employer was not ob-
ligated to provide any specific amount of work to the bar-
gaining unit. The proposal further stated that the Employer
‘‘will relocate work from the bargaining unit during the term
of this agreement to the extent essential for the running of
a profitable business.’’ The ‘‘no work preservation clause’’
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposal also included a statement that the Employer did not
intend to have managerial or research and development per-
sonnel perform bargaining unit work, but, to the extent that
it would be essential for the running of a profitable business,
such persons could perform bargaining unit work. No such
clauses existed in the 1982 contract; nor was there a work
jurisdiction clause in the 1982 contract.
The 1985 proposal eliminated the existence of union shop
and checkoff which had been provided in the 1982 contract.
The 1985 ‘‘visitation’’ proposal limited the right of union
representatives to come on company premises for only
‘‘proper Union business’’ and permitted such representatives
to make such visits only ‘‘during working hours.’’ The pro-
posal provided that no visit should interfere with the work
of the employees and ‘‘such visitation will be limited to the
cafeteria area only.’’ There were no such limitations in the
visitation clause of the 1982 agreement which required re-
porting to the plant superintendent who ‘‘may’’ accompany
the union agent wherever he visited.
Respondent’s proposal changed the existing plantwide se-
niority system to a departmental basis, listing seven depart-
ments: kill floor, shipping, maintenance, rendering, cut floor,
boning, and packaging. The article concludes: ‘‘seniority
rights shall not accumulate in more than one department at
a given time.’’
The proposal increased the probationary period from 30 to
180 days and further provided that ‘‘compensation of proba-
tionary employees would be within the Employer’s sole dis-
cretion.’’ The 1982 agreement stated that ‘‘nor will such
[probationary] employee be covered by any other portions of
this agreement.’’
The 1985 proposal stated that, if physical fitness and abil-
ity were relatively equal, preferences would be given to em-
ployees according to seniority within a department for the
purposes of bidding on posted job openings, layoff and re-
call, and selection of vacation (subject to approval by the
Employer). In the 1982 agreement seniority was plantwide
and was stated determinative only for the purposes of layoff
and recall, and there was no expressed job bidding and post-
ing procedure. The 1985 proposal further stated that job bid-
ding would be only on a departmental basis when need, as
defined by the Employer, existed. Jobs open for bid were to
be filled at the ‘‘sole discretion’’ of the Employer, and em-
ployees from other departments who were awarded jobs
would lose their seniority in their former departments and
begin their new assignments with no seniority in the depart-
ment to which they had successfully bid. All aspects of the
proposed posting and bidding procedures were stated to be
‘‘in the sole discretion of the Employer.’’
The 1985 proposal stated that temporary layoffs were de-
fined as reduction in work force due to lack of work for peri-
ods not in excess of 5 days, and that seniority ‘‘need not be
recognized during a temporary layoff.’’ No such provisions
were in the 1982 agreement; seniority controlled for all lay-
offs.
After stating several different ways that seniority would be
strictly on a departmental basis, Respondent, in its proposal
38, proposed:
As soon as practicable following the execution of
this collective-bargaining agreement, the Employer, in
its sole discretion, will assign every employee to a par-
ticular department and to a particular job classification
within such department, and the respective employees
will have, for this one time only, seniority in such de-
partment dating from last hire. Thereafter, seniority
within a department will be pursuant to this Article.
The Employer will furnish to the Union a list of em-
ployees by department and by seniority in such depart-
ment. The Employer will revise such seniority list on
a calendar quarter basis thereafter.
Attached to Respondent’s proposals was a schedule of job
classifications and wage rates which must be considered with
Respondent’s proposal 38 mentioned above. The first page of
the attachment states the following:
AMPAC PROPOSALS
JOB CLASSIFICATIONS
JOB CLASS: NUMBER 1 = $6.10hr
NUMBER 2 = $6.50/hr
NUMBER 3 = $7.00/hr
NUMBER 4 = $7.75/hr
NUMBER 5 = $8.50/hr
EMPLOYEES RECEIVING RAISE IN PAY = 86
EMPLOYEES RECEIVING CUT IN PAY = 203
EMPLOYEES RECEIVING NO CHANGE IN
PAY
= 3
TOTAL = 292
Following this schedule, the Employer included a listing of
all seven departments. For each department Respondent list-
ed, by name, the employees, the job to which Respondent
proposed to assign the employees, and the classification (one,
two, three, or four), into which the jobs would fall. The pro-
posal further listed the named employees’ present rate and
his proposed rate which, of course, would be the rate for
classification 1, 2, 3, or 4, depending on which classification
had been designated for the employee. Therefore, for exam-
ple, all job class 3 employees on the cut floor, of which all
15 were named, would receive $6.50 per hour (because they
were in job classification 2), even though all of the employ-
ees had been receiving wages in excess of that figure (rang-
ing from $7.10 an hour to $9.615 per hour.) Similarly, the
34 named employees who were placed in job class 3 on the
kill floor would be receiving $7 an hour and this constituted
a wage increase for 4 of those employees.
The 1985 proposal listed 11 reasons for loss of seniority
which would result in termination of employee status, includ-
ing quit, discharge for cause, etc. The proposal included a
provision that seniority was lost after 6 months of layoff, a
provision which was in the 1982 agreement, and four ab-
sences in a calendar year, a provision which was not. The
proposal further stated, in another section, that the depart-
mental seniority would be frozen after an employee is trans-
ferred outside the bargaining unit for 6 months.
As a new provision, the Employer proposed:
The Employer, in its sole discretion, will employ part-
time and casual employees to perform bargaining unit
work when it is in the interest of the Employer to do
so.
843AMERICAN MEAT PACKING CORP.
The Employer further proposed the new unilateral right to
schedule lunch periods and the hours of workweek.
Respondent proposed to continue giving a 15-minute rest
period during the first portion of a workday and 15 minutes
or more if the workday is greater than 9 hours, as in the
1982 contract, but Respondent’s 1985 proposal eliminated a
provision of the 1982 contract which granted another 15-
minute rest period during a workday in excess of 12 hours
and further eliminated provision for food or $2.50 in cash
after 10 hours.
Respondent proposed for computation overtime pay, time
and one-half after 40 hours in any workweek and double
time for all work performed on the seventh scheduled work-
day, provided that an employee has not been absent on any
prior day in such workweek. The previous agreement pro-
vided for time and one-half for all work on Saturdays, but
the 1985 proposal did not.
The 1985 proposals eliminated all night-shift premiums.
The 1982 contract had a 17-cent-per-hour night-shift pre-
mium effective for hours worked between 6 p.m. and 6 a.m.
The Respondent’s 1985 proposal included all provisions of
the expiring contract’s management-rights clause and further
included:
The right to determine the job analysis for every job in
the bargaining unit as contained in the attached Exhibit,
and to revise the same, including any new jobs . . . the
right to conduct a performance appraisal, as contained
in the attached Exhibit for every bargaining unit em-
ployee as often as the Employer deems warranted . . .
the right to grant merit increases as often and in such
amounts as the Employer deems warranted . . . the
right to determine the rate of pay for any new job . . .
the right to determine whether a given employee is
qualified to perform a job to which he has been as-
signed.
The exhibit referred to is the job classification/wage rate
schedule (proposal 38) quoted above.
The 1985 management-rights proposal also included a new
section entitled ‘‘Cross Training’’ which, if accepted, would
give the Employer the unilateral right to determine which
jobs in the plant should have multiple employees trained to
perform such jobs and which employees in the bargaining
unit would be assigned to such cross-training.
As a new proposal for discipline the Employer proposed
25 employee ‘‘do’s and don’ts’’ which it listed as suggestive,
that is, not all-inclusive. The do’s and don’ts, many of which
are compound, began with ‘‘to be honest’’ and end with
‘‘not to engage in an unauthorized work stoppage or other
forms of disorder.’’ The proposal provides for suspension
pending discharge and provides that the Union will be noti-
fied of the actions taken by the Company. It gives the ac-
cused employee the right to inform the Employer of other
witnesses who should be contacted, but the extent investiga-
tion lay solely in the hands of management. The Union
would be permitted the right to grieve the issue of ‘‘just
cause.’’
The grievance procedure proposed included two steps; the
first step was the filing of written notice of a claimed viola-
tion of the contract; the second step was a Section 301 suit.
A note at the bottom of Respondent’s grievance procedure
proposal stated that Respondent wished to have the judicial
remedies available to it as in other aspects of its enterprise
and that it disagrees with court decisions which encourage
arbitration as a means of settling industrial disputes. The
1982 contract did not have arbitration; however, it did in-
clude a right to strike over unresolved grievances.
The holiday proposal submitted by Respondent included
seven of the eight holidays specified in the 1982 contract
(birthdays were eliminated) and further provided for double
time for work on holidays. The 1985 proposal added: ‘‘The
Employer in its sole discretion will, on reasonable notice to
the employees and to the Union, observe any such holidays
on alternate days.
The 1982 contract provided for 1 week’s vacation after 1
year’s service, 2 weeks after 2 years, 3 weeks after 8 years,
and 4 weeks after 14 years. The 1982 contract further pro-
vided for pro rata vacation pay in the event of layoff and pro
rata vacation pay to the family in the event of the death of
an employee. Respondent’s 1985 proposal required 1 full
year of service for a 1-week vacation, 3 years of service for
a 2-week vacation eliminated the 4-week vacation for em-
ployees with 14 years of service; it further eliminated all pro
rata vacation pay and required, for the first time, 1 week’s
notice of resignation before any accrued vacation pay would
be paid.
The 1982 contract granted leaves of absence for periods of
1 week to 1 month, depending on length of service, for
emergencies and for other periods with the permission of the
Company for good and sufficient reason. Respondent’s 1985
proposal required the consent of the Employer for all leaves
of absences.
The 1982 contract and the 1985 company proposal for fu-
neral leave were the same except that the 1985 proposal
eliminated ‘‘any relative permanently in the household of the
employee’’ as a member of the definition of the immediate
family.
Respondent’s jury duty proposal, up to 2 weeks’ pay, less
jury fees, was unchanged from the 1985 contract.
Respondent proposed an ‘‘effect of termination of con-
tract’’ clause which stated that all provisions of the agree-
ment (proposed to be 1 year) would be ‘‘null and void at the
expiration of contract, except that grievances filed before the
expiration date would be administered as if the agreement
were still in effect.
The Employer proposed a ‘‘new elimination of all past
practices’’ clause which states that ‘‘all practices which have
existed in the bargaining unit and which are not expressed
in this collective-bargaining agreement are expressly re-
scinded and the same will be null and void for all purposes
and have no legal effect.’’
The Employer proposed to continue a safety and health
committee, consisting of three members appointed by each
party, to implement the provisions of the Occupational Safety
and Health Act of 1970.
Respondent’s new ‘‘employee on leave returning to work’’
proposal required 5 working days’ notice to the Employer
when an employee was returning to work and gave the Em-
ployer the right to contest any medical evidence submitted
on the employee’s returning from sick leave.
Respondent submitted a separate ‘‘merit pay increase’’
clause which, again, gave the Employer the right to ‘‘unilat-
erally award increases in pay.’’ The separate proposal further
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stated that the Employer ‘‘in its sole discretion, may unilater-
ally revoke such merit increases.’’ Neither of such provisions
were contained in the 1982 contract.
Respondent proposed an ‘‘exclusive recourse to agreement
and waiver’’ provision which stated that, except for appeals
to the National Labor Relations Board, other Federal agen-
cies, and the United States district court, the Employer, the
Union, and all bargaining unit employees ‘‘expressly waive
the right to bargain on any subject, except as provided for
in the applicable federal labor case law, whether or not the
same was mentioned and/or discussed during the course of
. . . collective bargaining.’’ No such provision was con-
tained in the 1982 agreement.
As noted, the previous agreement allowed strikes if griev-
ances were not satisfactorily resolved. Respondent’s 1985
proposal prohibited all strikes, including unfair labor practice
strikes and sympathy strikes, and all other concerted activity
the object of which is to cause economic harm to the Em-
ployer including, but not limited to, handbilling.
The Respondent’s proposal did include a ‘‘no lockout’’
provision, but, as definition of ‘‘lockout,’’ it proposed:
For purposes of this Agreement, and for any inter-
pretation thereof, a lock-out is defined as the barring,
by the Employer, of the employees in the bargaining
unit from the performance of bargaining unit work, as
the exercise by the Employer of an economic weapon
as that phrase is used by the various United States Su-
preme Court decisions, for the purpose of furthering
some objective of the Employer in its dealings with the
Union.
Under no circumstances is the Employer’s exercise
of the management right to reduce the work force, in
whole or in part, pursuant to Article 7, and/or pursuant
to Article 3, Section C herein, to be construed as a
lock-out, and any allegations made during the terms of
this agreement, by the Union and/or by any covered
employee or employees, that the Employer has locked-
out the employees by reason of the exercise of such
management rights, will be inconsistent with the ex-
pressed terms of this agreement, and will have abso-
lutely no merit and is to be given no legal effect by any
Court of competent jurisdiction, by virtue of this sec-
tion.
The reference to ‘‘Article 7’’ is a reference to Respond-
ent’s management-rights proposal. ‘‘Article 3, Section C’’ is
Respondent’s ‘‘no work preservation clause’’ proposal which
is quoted above.
The Respondent proposal further included a new ‘‘picket
line’’ proposal which stated that under no circumstances
could an employee refuse to cross any picket line at the Em-
ployer’s premises unless, after conferring with management,
there were no adequate safeguards for the physical protection
of such employee.
In addition to those already mentioned, provisions of the
1982 contract which were not included in Respondent’s 1985
proposal were the following: a provision that uniforms re-
quired by Respondent would be furnished by Respondent; a
provision that the Company would furnish knives, sharpening
steels, whetstones, arm guards, mesh gloves, scabbards, and
leather aprons; a provision that the Employer would bargain
about rates of handicapped employees during the life of the
contract; 8 hours’ holiday pay for all employees, not just
full-time employees; voting time; a requirement that the Em-
ployer bargain about any changes in wage rates which would
be imposed as a result of a timestudy; physical examinations,
at the Employer’s cost, only for newly hired employees; pay
for time lost due to treatment for employment-related acci-
dents; and a pension program. (In a later session Schumann
stated that the pension program was omitted by oversight,
and the parties generally agreed to continue the previous ex-
isting plan.) A ‘‘tools and equipment’’ proposal was sub-
mitted by Respondent at the fifth bargaining session, but
whetstones were omitted.
After Schumann completed presentation of these proposals,
about which the Union asked no questions, the Union re-
cessed and returned with a one-page listing of topics as pro-
posals which was:
1. CONTRACT THE SAME FOR ALL WITH WAGES
2. IMPROVEMENTS IN THE HEALTH & WELFARE &
PENSION FUND
3. PAID OVERTIME OVER 8 HOURS
4. REGULATE STARTING TIME ON ALL THE LINES
5. CLEAN-UP TIME ALLOWANCE
6. GRIEVANCE PROCEDURE WITH ARBITRATION
7. IMPROVE HEALTH/WELFARE FROM 40M TO 60M . . .
DISABILITY FROM $125.00 TO $150.00 PER WEEK.
8. BENEFITS TO BECOME EFFECTIVE SOONER THAN
THE PRESENT SIX MONTHS.
9. SET STANDARD TIME FOR LUNCH AND WALK (NOT
WHEN THE LINE GOES DOWN).
10. FAIR STANDARDS ON CUTS (ASK TOO MUCH FOR
FROZEN MEAT)
11. MONEY . . . $1.50 WAGES OVER 3 YEARS / 20%
C.O.L.A. INCREASE TWICE PER YEAR OVER 3 YEARS
12. USE OF THE MEDICAL CENTER
13. 36 HOUR GUARANTEE
14. FREEZE RED CIRCLE RATES
15. RIGHT TO ADD PROPOSALS
The Company asked no questions about the union propos-
als or various cryptic comments made by Piotrowski as he
presented them. The stipulated bargaining notes reflect that
at the end of the session Piotrowski expressed disappoint-
ment in the Employer’s proposed wage rates and asked if the
Company was saying it had been losing money. Schumann
replied that the Company had lost $4 million in the last 4-
3/4 years and further stated, ‘‘You can look at our records.’’
Bargaining Session 2; 22 October 1985
The meeting opened by Schumann stating that the initial
draft of the job analyses had been completed and that the
Union should give the Company its input on that as well as
its proposals for job classifications and job rates. Piotrowski
stated that the Union had not had time to review all of the
proposals but it had been enough to know that many of the
employees were getting wage cuts and were likely to be
placed in jobs which they did not want. Schumann replied
that the employees could bid on other jobs and that the Com-
pany needed the reductions in pay because of economic cir-
cumstances. Schumann said, ‘‘it’s a question of survival.’’
Schumann further argued that the Union’s request for a $1.50
wage increase and a 20-percent increase in cost-of-living al-
845AMERICAN MEAT PACKING CORP.
2 The Union withdrew from this agreement at the fifth bargaining session.
lowance would result in $18 an hour for many workers when
the Employer actually needed substantial cuts. Piotrowski re-
plied that that was his proposal but he would talk about it.
The following exchange occurred:
PIOTROWSKI: You have fine workers in your plant.
You have inherited some skills of the plants [sic] here.
It is a great asset. They are good.
SCHUMANN: We believe the same thing. But if we
want to keep working, we have to incorporate our pro-
posals.
Schumann stated that the performance appraisal model was
still being composed and would be presented later. The par-
ties discussed several proposals but there were no agreements
except for the statements about equal employment oppor-
tunity practices. (Other matters were put on hold or rejected,
for example, the Employer’s no-union shop and no-checkoff
proposals.) The Union objected to the requirement that all
visits had to be accompanied by someone from management
and could only meet employees in the cafeteria. Schumann
replied that it was ‘‘common practice’’ and ‘‘past practices’’
which the Employer wanted to keep.
The Union presented proposals for 10 holidays, clothes
changing time, 1-year seniority retention for layoffs, and a
proposal that any contract reached be for 3 years. In response
to a question by Schumann, Piotrowski stated that the two
additional holidays he sought were Martin Luther King’s
birthday and George Washington’s birthday.
24 October 1985
On this date Carl Herrmann, president of Respondent,
called all employees together and read them the following
letter:
Dear Bargaining Unit Employees:
Three years ago AMPAC’s management settled a
labor contract that called for a $1.00 cut in the hourly
wage rate in the first year and a 50 cent increase in
each of the second and third years because we were
losing so much money. That settlement turned out to be
a mistake because even with the $1.00 reduction, when
it came time on December 20, 1983 to pay the first 50
cents we could not afford to do so because losses had
continued longer than expected. We asked the Union
for relief. The Union refused. One year later on Decem-
ber 20, 1984, we again pleaded with the Union to
waive the second 50 cents. The Union refused. And our
losses have continued!!
Now we are back at the bargaining table, and what
has happened? In 3 years 2 months, Racine Avenue
plant lost $3,213.000. We closed it on February 4,
1984. In the past 4 years 9 months, Normal Avenue
plant has lost $4,025.000. That is a total loss for
AMPAC of $7,238.000. And you all know that we
were forced to close our Star Meat plant in Detroit last
month because its losses were no longer acceptable.
Management is again asking the Union for a reduc-
tion in labor costs because without a reduction we can-
not survive, and any labor contract we sign will be
worthless. And you all will be out of work, perma-
nently.
The Union, as usual, cares nothing about the above
facts. Management again offered to have the Union hire
a C.P.A firm to audit and confirm the above losses. But
the Union refused our offer because they know that we
are telling the truth and they do not want to spend the
money for the audit. All they want is more, more, more
and it’s just not there!!
Please look at the bulletin board, where we have
posted a copy of AMPAC’s offer of job classifications
and proposed new wage rates for each classification.
This will go into effect on December 20, 1985. We
have asked the Union to obtain your input to this docu-
ment, as well as to the 116 jobs on which we have sub-
mitted a job analysis. At least the Union has agreed to
do this.
It is important to remember that all the senior and
qualified employees will be assigned, effective Decem-
ber 20, 1985 to the highest paying jobs, and in the fu-
ture will be assured of obtaining higher paying jobs
through the new bidding procedure.
If you have any questions about this important mat-
ter, ask your Union representatives.
After reading the letter, Herrmann told the employees that
the Racine Avenue plant and Respondent’s Star plant in De-
troit had closed and:
. . . the same thing will happen here at the Normal Av-
enue plant if we do not reduce our expenses including
our labor costs and repay the banks and become profit-
able again.
Now if you have any questions your stewards are
here and they will answer your questions or they will
get answers for you. Thank you.
This letter was the first of many from Herrmann to the em-
ployees. It is also the first of many representations by Her-
mann of things the Union had said or done which are not
borne out by the record.
Bargaining Session 3; 4 November 1985
At this session the Union agreed with several of the Em-
ployer’s proposals: Fair employment practices, equal employ-
ment opportunity, no age discrimination, definition of senior-
ity (departmental),2 posting of job openings, bidding proce-
dures, requirement that employees keep themselves informed
of job postings, definition of recall, recall by reverse senior-
ity, and workweek defined (Monday through Friday).
Other company proposals were rejected or the Union stat-
ed that they should be put on hold.
Schumann and Carey explained the Company’s position on
several of the rejected/held proposals: The Employer did not
intend to have management do employees’ work but some
times employees don’t show up for work and the Employer
needs the flexibility to have supervisors take over; it was un-
likely that the supervisor would do that for a long period of
time. The Employer wanted to eliminate the union-security
provision and let the employees choose; several employees
had expressed to management that they should have that
right; several employees expressed displeasure at being rep-
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resented by the Union. The Employer felt that the person
doing the job should be paid the same as the employee
standing next to him doing the same job and ‘‘now we come
in with what we can afford.’’
Schumann said that the Employer had posted a job classi-
fication system on the bulletin board and had meetings with
the employees wherein the senior employees were allowed to
express what classification they would like to be placed
under and the Employer felt it had a very up-to-date under-
standing from all the input of the union membership about
the proposed job classification system. The Employer distrib-
uted a revised job classification system which had moved
some employees around so that the employees receiving
raises in pay were 81; employees receiving cuts in pay were
194; and those employees receiving no change in pay were
3. In discussing the proposed job classification system,
Piotrowski asked how employees could grieve if they were
not satisfied with their assignment on 20 December. Carey
stated:
Well, such an employee would not have a grievance be-
cause we would correct it beforehand: there would ei-
ther be a contract on 12/20/85 or disagreement on Pro-
posal 38. If there was impasse on this disagreement,
then AMPAC would be free to unilaterally act on Pro-
posal 38.
Schumann added that the job bidding procedure would
allow for correction of any inequities. When asked about
being confined to the cafeteria for visits, Schumann replied
that in 3 years he had never been asked by a union represent-
ative to meet an employee anywhere else.
Schumann stated the reason for the demand of a proba-
tionary period of 180 days was that it would give the Em-
ployer a better chance to see what an employee could do and
find out if he would be habitually tardy or otherwise be a
disciplinary problem, and it benefited the employees because
the Employer would not make a mistake and let a good em-
ployee go if that employee, with proper training, could dem-
onstrate that he should be hired.
In stating the reasons for the proposed cut in wages,
Schumann again stated that the Employer had lost over $4
million in the past 4 years and ‘‘[w]e must work at a system
to give us an opportunity to have a job and the workers too.
We are saying that we cannot take such a great loss. We had
to close the Racine plant and the Star Meat plant . . . . We
realized that we had to make cuts ourselves . . . . We have
no more plants to close. This is it. We all want to keep our
jobs.’’
Schumann stated that the proposed revision of job classi-
fications would be posted on the following day and the Com-
pany would like the Union’s input from the employees.
Schumann stated: ‘‘The more input that we receive from
those people and you, the less it’s going to cost us when the
time comes to put this through.’’ International Union Rep-
resentative Robert Waters, who was present at that meeting,
asked if that meant that if the Company did not have a con-
tract on 20 December it was going to close the plant.
Schumann replied, referring to Kane-Miller, Respondent’s
parent corporation:
These proposals will be implemented only after im-
passe. The people on this list will be set in their posi-
tions. Kane-Miller told us that if we don’t have a con-
tract by December 20, 1985, we’ll close.
Carey added again that nothing will be implemented until
and if there is an impasse on these issues at the time.
Piotrowski told Carey not to attempt intimidation by threat-
ening to close the plant; Carey replied: ‘‘The Union has to
communicate with the employees if they want to keep their
jobs, they have to cooperate with us.’’ Schumann added that
the Union should attempt to win the employees over to the
Company’s proposals.
At no point did the Company refuse to answer any of the
Union’s questions or explain what it meant by its proposals.
During the meeting the Union handed the Employer a one-
page sheet entitled ‘‘Proposals 11/4/85.’’ There were no de-
tails in the proposal; the document only listed the following
topics: severance pay, profit sharing, 6 months’ closing no-
tice, wage increases of 50 cents per hour (total of $1.50), and
the option to work over 10 hours per day if requested.These
proposals were not discussed at the meeting.
Bargaining Session 4; 5 November 1985
At the beginning of this session, Piotrowski complained
that the union proposals were not being considered.
Schumann replied that the Company incorporating the
Union’s proposals in its discussions about the Company’s
proposals; the union proposals which Piotrowski mentioned
at that time were simply rejected. The parties went to night-
shift premium which the Employer proposed to eliminate.
Piotrowski said that the Union wanted a 21-cent premium
and asked why the Company proposed to eliminate the cur-
rent 17-cent premium. Schumann replied that there were a
few rendering employees who were working night shifts; a
‘‘decent proposal for their wages’’ was incorporated into the
Company’s proposal; some employees had asked to start ear-
lier and the Company wanted to start a small night shift
without having to pay the employees any more money; 17
cents per hour for a small night shift would be prohibitive.
The parties then went to Respondent’s management-rights
proposal and Piotrowski asked what the problems were under
the present contract. Carey responded:
Let me give an example the—NLRB says absent bar-
gaining, the Employer cannot change personnel rules,
and this is why we need clear language. Otherwise, it
will result in continuous bargaining through the contract
period.
The union representatives repeated that there was nothing
wrong with the prior contract language and the management
representatives gave the additional example of merit pay in-
creases and stated that it needed its proposed right to grant
them without review by the Union to operate more profit-
ably. The discussion drifted over to proposal 3, and
Schumann again asked the Union for input, stating that per-
haps the Union had knowledge of individual employee skills
which the Company did not. Piotrowski asked: ‘‘Do you in-
tend to firmly stand on these rates? Are we going to continue
these negotiations as leaving those as is?’’ Schumann re-
plied: ‘‘At this time our proposal is firm.’’
847AMERICAN MEAT PACKING CORP.
3 Apparently some employees had been ‘‘red-circled’’ under the 1982 agree-
ment: that is, their wage rates stayed the same even though lower rates for
their classifications had been negotiated.
The parties agreed on the Employer’s language for the first
step of the grievance procedure, but argued over the effi-
ciency of arbitration which the Company had rejected.
The parties went to holiday; Schumann stated that the
Company was proposing to drop the birthday holiday be-
cause it upsets the operation. Schumann added: ‘‘It’s eco-
nomics.’’
The parties discussed the following topics in the Employ-
er’s proposal: eligibility of probationary employees for bene-
fits and holiday pay; pay for work performed on a holiday;
holidays occurring during vacation; prohibition of employ-
ees’ receiving holiday pay while on layoff or leave of ab-
sence vacation benefits; pay for vacation benefits; time for
receipt for vacation pay; prohibition against receiving pay in
lieu of vacation; vacation benefits on termination of employ-
ment; leaves of absences; funeral leave; jury pay; effective
termination of contract; elimination of all past practices;
elimination of red-circle rates;3 safety and health; elimination
of work clothes and laundry fees; employees on leave return-
ing to work; notice of resignation; responsibility for keeping
employees’ records current; merit increases; waiver of rights;
prohibition of strikes and strikes defined, and duration of
contract.
Agreements were reached only on four of those topics:
Time when vacation pay is received; prohibition against pay
in lieu of vacation time; jury duty, and employee records. All
other matters were either rejected by the Union or placed on
hold. Management’s representatives gave reasons for their
proposals which were either economic or a need to manage
the business more efficiently. Respondent further gave as the
reason for a proposed 1-year agreement that neither party
could envision how things would go under their proposed
agreement and did not want to be committed for the 3-year
period. Schumann added, in response to Piotrowski’s objec-
tion to the proposed pay rates, mostly cuts: ‘‘We need to
make the cuts in order for the Company to survive. Maybe
next year we will need more concessions. We cannot know
that now.’’ Piotrowski replied that the Union’s bargaining
committee has given him a vote that if the Company’s posi-
tion didn’t improve on its proposals that the negotiating com-
mittee would recommend a strike and he believed that the
negotiating committee could ‘‘swing the rest of the people in
the plant.’’ Schumann replied that the Company could not
take a strike and that the Union should review what hap-
pened to the Star Meat plant after a strike; it closed.
Schumann added that if Piotrowski wanted to earn your
fancy salary he should convince the people that the Company
could pay no more than it was offering. Carey added: ‘‘Can
we assume that you agree with AMPAC’s inability to pay
since you have not taken up the offer of the audit?’’
Piotrowski replied, ‘‘Don’t assume anything.’’
There were brief exchanges about the Union’s proposals,
none of which were agreed on, and thereafter the meeting
broke up.
6 November 1985
On this date Herrmann assembled the employees and read
a letter to them which he was also mailing to them. The let-
ter stated:
Monday night and last night we completed our third
and fourth meetings with the International Union and
with Local 100. While Walter Piotrowski is the chief
spokesman, it is clear that Robert Waters on behalf of
the International Union has the final word over Local
100. This is a major change in the politics of the Union
in Chicago.
At last night’s session the Union was angry over
what they refer to as AMPAC’s insistence that hourly
wage rates be revised and that holiday [and] vacation
benefits be reduced. The Union also said that there will
be a strike on December 20, 1985. Management re-
scinded that the Union did not believe AMPAC in De-
cember 1983 when it requested a waiver on the 50
cents then due and because of that the Racine plant was
closed and 264 people lost their jobs. We said that if
the Union now makes the same foolish mistake, they
will cause the closing of the Normal Avenue plant.
AMPAC’s owners have said that they will not go
through the expense of another strike and will perma-
nently close AMPAC if we do not receive the conces-
sions which we have proposed. The $7,238,000.00 loss
in the past 4 years 9 months is all that they will tol-
erate.
I regret to tell you that things look bad at the present
time. The Union and some of you—I don’t know how
many, are making a serious miscalculation. That is that
AMPAC is bluffing and will not close the plant if we
do not receive these concessions. I can assure you from
my personal experience with many plant closings, that
AMPAC’s owners are serious and I urge you to avoid
a common mistake, which is to ignore the warning and
lose your job as a result.
Don’t join the 264 former AMPAC employees who
lost their jobs at Racine because of the Union. Don’t
join the thousands of employees I used to know who
lost their jobs at plants that I had to close. A job at a
lower rate is better than no job at all. At least if there
is a future, there is always the hope that things will im-
prove. If this plant closes, it will never open again.
If you have any questions, ask someone from the
Union.
At the end of the letter Herrmann added:
My goal is to save your job and to save my own job.
Your union and some of you are making a big mistake
and I want to do all that I possibly can to prevent that
mistake from happening. The mistake is that AMPAC
will not close if we do not receive these concessions.
(Point to bulletin board.) This proposal has been revised
once because of your input. Please continue to tell your
stewards if you disagree with where your name appears
on the proposal.
I have a responsibility to every employee hourly and
management—and to their families.
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bargaining Session 5; 11 November 1985
At the beginning of the meeting the Employer introduced
two proposals: ‘‘Tools and Equipment, which stated certain
tools such as knives, mesh gloves, and belly guards, would
be furnished by the Employer who would require a reason-
able deposit (not to exceed 100 percent); the proposal pro-
vided that new tools would be replaced by the Employer if
broken or worn out tools were turned in. A proposal entitled
‘‘employment physicals’’ provided that physicals for newly
hired employees would be paid for by the Employer and that
the employee, if requested, would sign authorizations for the
Employer to obtain reports for such examinations. The Em-
ployer further submitted its ‘‘Position Statement No. 3’’
which listed, by numbers, union and Employer proposals
agreed to, rejected, held, or withdrawn. The listing showed
that 24 of the Company’s proposals had been accepted; 19
had been rejected; and 29 were on hold. Twenty-three union
proposals had been rejected, four were on hold, and seven
had been withdrawn; none had been accepted by the Em-
ployer.
Schumann introduced the tools and equipment and em-
ployment physical proposals with the statement that they rep-
resented small changes from the current contract (which was
true); Piotrowski stated that the Union would review them
and get back to him.
Also distributed at the meeting, but not placed in evidence,
was a performance appraisal form. Schumann introduced the
performance appraisal model by stating that it tied in with
the Company’s job analyses and he reviewed the tasks enu-
merated in the job descriptions. He stated that performance
appraisals would be done by two supervisors or a supervisor
and a plant superintendent.They would review it with the
employees and both parties would agree on an improvement
plan. Piotrowski objected that the matter was ‘‘all within the
Employer’s sole discretion,’’ and there was no room for
union input or participation in this process except to file a
grievance which could not go to arbitration. Waters asked if
the review would be a one-time process; Schumann replied
that it would be periodic with the Employer picking out em-
ployees in need of assistance. Carey stated that some em-
ployees were unhappy with the jobs to which they had been
slotted and they would be evaluated first. Piotrowski stated
that many employees had not been classified properly;
Schumann replied that the Company wanted to be made
aware of such objections, and if there were conflicts, the per-
formance appraisal model could be used to resolve them. He
added:
We don’t want chaos on December 20, 1985. The em-
ployees with the most seniority will get to bid on the
highest paying jobs. We don’t want the chaos of every-
one moving around come December 20th. If he tells us
now, we will move him now if he can handle it.
Piotrowski stated that the Employer was just trying to intimi-
date the workers; Schumann replied that when the Employer
closed the Racine Avenue plant, employees were transferred
to inappropriate jobs because they had skills the Employer
did not know about; the Employer was now giving the em-
ployees an opportunity to tell it about the skills they had.
In a discussion of seniority, Piotrowski stated that his pre-
vious agreement for departmental seniority applied only to
changes within a department; he wanted the parties to con-
tinue the existing contract’s provisions for plantwide senior-
ity in cases of layoff. Schumann replied that there was no
way the Company could live with such a system.
The parties returned to Employer’s proposal 38, the as-
signment of all employees into specified jobs at specified
rates. Waters again objected that the Company was proposing
to allow itself to change wages and put every one in the
plant into any job it wanted in its sole discretion, and that
some employees were not properly classified. Schumann an-
swered Piotrowski’s objections:
We want to be made aware of that, of course, since
we need the Boners. If there is any conflict, this is a
tool that we can utilize. If he doesn’t qualify, then we
will let him know how he can improve. We don’t want
chaos come December 20, 1985. The employees with
the most seniority will get to bid on the highest paying
jobs. We don’t want the chaos of everyone moving
around on December 20th. If he tells us now, we will
move him now if he can handle it.
. . . .
We are putting them where we feel they would end
up on December 20, 1985 with the bidding procedure.
At that time (Dec. 20th) they have a free and open
choice to try for other jobs based on their seniority.
This assumes either a contract on December 20th or im-
passe on AMPAC Proposal 38.
Schumann also stated that beginning 20 December the Em-
ployer intended to start posting a few jobs in each depart-
ment and employees with seniority and qualifications could
bid on the jobs. When asked by Waters how the Company
was going to determine which jobs would be posted,
Schumann replied:
It’s a process we are still looking at. We’ll start taking
those with the most seniority and are presently doing
the jobs. We’ll talk to them and see if they want to stay
on the job or not. This is to minimize confusion.
When asked by Waters what would be the total number of
jobs posted per week Schumann replied that he did not
know.
The parties moved on to other topics. To a union objection
that the Employer should not have sole discretion as to when
to determine starting and quitting hours, Carey replied:
If you don’t have the sole discretion language, then the
Employer can’t change those starting times. The Em-
ployer wants to negotiate it now and then get back to
work. They don’t want to continue negotiating with you
during the contract term.
The parties discussed an array of other Employer proposals
with no further agreements being reached; the Union contin-
ued to insist that it wanted to leave the contract as it was;
the Employer arguing that it needed the changes for oper-
ational efficiency and economy.
12 and 13 November 1985
On the days between the 5th and 6th negotiating sessions,
a systematic survey of employees was conducted by Re-
849AMERICAN MEAT PACKING CORP.
spondent. The surveys began with supervisors’ requiring
union stewards to meet with them in the supervisors’ offices.
Thereafter employees were called in and the supervisor told
the union steward to ask the employee if he was satisfied
with the placement which Respondent had given him under
proposal 38. After getting the answer, the supervisor told the
steward to ask the employee what other jobs he believed he
could perform. This went on for a while the morning of 12
November before John Frizzon, a union steward, asked for
permission to be excused to call the Union about what was
going on. Frizzon was denied permission to do so then but
was told by his supervisor that he could call at a break.
Frizzon did call the Union at a break and was instructed not
to cooperate further with the survey. Frizzon, in turn, in-
formed other stewards to refuse to cooperate in the surveys.
Thereafter Respondent, through its supervisors, completed
the survey on 14 and 15 November. No prior notice of the
conduct of this survey had been given to the Union by Re-
spondent.
Bargaining Session 6; 14 November 1985
At the beginning of the session, Respondent gave the
Union a revised proposal on discipline and its ‘‘Position
Statement No. 4.’’ In that statement the Employer gave its
reasons for conducting the survey which it called ‘‘business
justification.’’ The position statement said that proposal 38
had once been revised ‘‘based upon the input from only a
few employees,’’ and faulted the Union for refusing to co-
operate with the survey to get more employee input. The
statement recited the results of the survey which indicated
183 (62.9 percent) agreed with the jobs that they had been
assigned under proposal 38; 61 (21 percent) disagreed; 11
(3.8 percent) refused to respond; 36 (12.3 percent) were not
available for contact during the survey; and 64 (22 percent)
stated that they were skilled in other jobs. The position state-
ment concluded with a statement it was Respondent’s posi-
tion ‘‘that it is significant that 183 employees, who are the
vast majority, believed that management has correctly classi-
fied them on the schedule of proposed job classification as-
signments.’’ The position statement was signed by Carl
Herrmann, president.
The parties then returned to the Employer’s proposal with
Schumann defending the Employer in many positions where
it had insisted on the sole discretion to do such things as as-
sign working hours. The Union either stated that the matters
should be placed on hold or rejected them outright. When the
parties again returned to economic issues Schumann stated:
‘‘We have to make a decision—do we keep this plant open?
We know we’re asking some pretty tough concessions here,
but we looked at what we felt were all aspects of it. . . .
We’re saying to [the senior employees], give us a break and
work with us ‘cause we’re trying to keep this plant open.’’’
A further comment on the wage proposals by Schumann
was: ‘‘I can assure (the employees) that if this proposal is
accepted, AMPAC will do everything in its power to keep
this operation going. That’s not a guarantee, but it’s a com-
mitment that we’ll try to get Kane-Miller to keep this thing
going.’’ Schumann added that this was the reason Respond-
ent was proposing that all employees get paid the same for
all jobs, no matter what their seniority. Piotrowski replied
that the employee were angry over the Company’s demand
for such drastic wage reductions and added, ‘‘Maybe we’ll
see the closing of AMPAC. It won’t be my fault.’’
The parties returned to the management-rights proposal,
and during the colloquy Carey stated that the NLRB required
bargaining on the topics listed therein unless there was such
a management-rights clause. Schumann added: ‘‘We don’t
want to share with you the right of sole discretion.’’
The parties repeatedly stated their positions on the matters
of sole discretion which the Employer insisted that it had to
maintain. Piotrowski stated that at one point the Union only
wanted to help to see that the Company ran successfully.
Schumann replied: ‘‘You’re having the opportunity now to
give us your input and work out this contract, but not on a
day-to-day basis.’’
The parties repeated their respective positions on arbitra-
tion, holiday vacations, and vacation benefits, and engaged in
an extensive discussion of why an employee should/should
not be required to give notice of termination before he is en-
titled to accrued vacation benefits, but there were no agree-
ments except for the Employer’s proposal that there would
be no lockout during the contract; however, there was no
agreement on Respondent’s proposed definition of ‘‘lock-
out.’’
15 November 1985
On this date Herrmann sent another letter to the employ-
ees. The letter stated that the Union had refused to agree to
the conduct of the survey and reported the results recited
above. The letter stated that the Union had been told that
AMPAC needed financial relief in order to prevent it from
going out of business but that Piotrowski had said that the
employees do not care if it goes out of business. Herrmann
stated that he did not believe that Walter Piotrowski spoke
for all of AMPAC’s employees when he said such things.
Herrmann continued that that he believed that employees re-
membered that Piotrowski had said the same things a few
months before the Racine Avenue plant was closed. When
Respondent had asked for a 50-cent-per-hour waiver,
Piotrowski had refused and refused to conduct an election on
the issue. He concluded:
Now Walter Piotrowski is about to cost 291 members
to lose their jobs when the Normal Avenue plant closes.
I believe that a majority of our people do not agree
with this stubborn old man. Make your voices heard.
Save your jobs! Tell the Union that you want to save
AMPAC. Under Federal law you are entitled to a secret
ballot to vote to save your job.
Bargaining Session 7; 26 November 1985
Walter Piotrowski was absent from this session, and
Ruben Ramirez and Bob Waters took his place for the
Union. Respondent submitted its ‘‘Position Statement No. 5’’
listing the matters which had been agreed on, and the parties
went to the Union’s proposals all of which the Employer re-
jected on the basis of economics, its needed ability to man-
age, or its objections to arbitration which had been stated
previously. Other items were rejected for reasons previously
stated or the matters were put on hold.
The parties then went back to the Employer’s proposals
and the Union’s position did not change except that the ex-
clusive recognition clause was agreed on, and the Union in-
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dicated that it would agree to limitations of the areas in
which the union representatives could speak to employees if
the locker room were included as well as the cafeteria.
When the parties got to proposals 38 and 39, the Union
again objected that the Employer was seeking to retain the
right not only to place the employees initially but unilaterally
determine where they went thereafter. Schumann responded:
We have already told you up front what the assign-
ments are. You have our proposal of what it’s going to
be on December 20 if we sign a new agreement or if
there’s impasse on Proposal 38.
Bargaining Session 8; 27 November 1985
After an initial skirmish about whether the Union would
proceed without a full committee (some of whom were still
working), there was an exchange between Schumann, Carey,
and Ruben Ramirez, a local union representative. The tran-
script of the bargaining session reflects the following:
CAREY: How can you ask us to give them a raise
when we tell you we’re losing money?
RAMIREZ: We have all our sessions planned. The
people aren’t convinced that that is what you need.
CAREY: Why don’t you at least send your auditors
over to verify it for yourselves and them?
RAMIREZ: Maybe the burden is on you.
SCHUMANN: No, it isn’t.
RAMIREZ: You keep wanting more and more relief.
SCHUMANN: If we don’t get some relief, these people
will be out of a job. We’re not here to give; we’re here
to take.
The parties then went into the substance of both union and
company proposals, the only agreement being reached was
that the Union agreed to the Company’s proposal that pay for
vacation benefits would be 40 times the straight-time hourly
wage rate per week of vacation in effect at the time the vaca-
tion is taken. At several points in the session the Company
objected to the Union’s refusal to give an answer on pro-
posals on the basis that the Union’s lawyers had not had an
opportunity to review them.
Bargaining Session 9; 4 December 1985
Walter Piotrowski reappeared as the chief union spokes-
man at this meeting. After some initial, nonproductive, ex-
changes, Piotrowski stated that he had been told that while
he was away the Company was saying that it was there to
take and not to give. He then asked Schumann if the Com-
pany was bargaining in good faith. Schumann replied that it
was. Piotrowski asked, ‘‘What will it really take to keep the
plant open, and what sacrifices will the people have to
take?’’ Schumann replied, ‘‘It will take for you to agree with
our proposals and sign that contract, and we’ll keep the plant
open.’’
At this session Respondent produced its statement No. 6
which summarized the agreements reached to that point; the
Union had agreed to 29 of the Company’s proposals and the
Company agreed to none of the Union’s.
At this session Respondent introduced a pension benefits
proposal (which was the same as in the 1982 contract). Re-
spondent also introduced an insurance benefit proposal which
called for employee contributions for the first time.
Piotrowski asked for the cost figures on the insurance benefit
proposal and Carey stated that they would be provided before
the next meeting.
The parties then went to previously rejected proposals. The
Union continued to object to the implementation of a per-
formance appraisal model stating that the Company already
had the right to appraise employees and that the model was
just a vehicle for harassment of the employees. Schumann
stated that he had been advised by counsel that the model
would constitute a unilateral change without agreement by
the Union. The parties discussed Respondent’s proposed re-
moval of certain scale operators from the unit; Respondent
stated that it wanted this because those employees were cre-
ating and maintaining production records and were never
used as production employees themselves. The Union stated
it wanted this matter on hold.
The parties again discussed the visitation rights proposal
and the Union again stated that it did agree with Respond-
ent’s last proposal with the understanding that the union rep-
resentative would be able to meet in the locker room area
with employees.
The Company again insisted on a 180-day probationary
period proposal for its previously stated reasons; the Union
stated that it had agreed to move from 30 to 60 days and
that was enough.
5 December 1985
On this date Herrmann wrote another letter to the employ-
ees stating the negotiations were stalled because of the
Union’s delaying tactics (leave sessions at 8 p.m.; refusing
to start any session unless all hourly committee members are
present, refusing to discuss subjects which they have pre-
viously rejected; and refusing to discuss proposals with their
lawyers). Herrmann went on to say that the two main objec-
tives of Respondent in the negotiations were to reduce labor
costs and increase productivity. He continued:
The Union will not win this fight, because a large
majority of you, our employees, do not agree with
Piotrowski and his blind, stubborn resistence [sic] to
AMPAC’s proposals.This large majority knows that
Piotrowski by his refusal to grant concessions in De-
cember of 1983, forced the closing of the Racine [Ave-
nue] plant and the loss of 264 jobs in February 1984.
But you can do something to save your jobs. You all
have the legal right to demand that Piotrowski and the
Union committee do what the majority of the member-
ship want; that is to accept AMPAC’s proposed job
classifications and rates of pay and thereby prevent
AMPAC from being forced out of business.
There are only 14 days left. You can make a dif-
ference. Make your voices heard now! [Emphasis in the
original.]
Bargaining Session 10; 9 December 1985
At the beginning of the meeting, Piotrowski objected to
the ‘‘interrogation of the work force by your supervisors
about the job classifications.’’ Carey denied that Respond-
ent’s survey was an interrogation, and the parties went to Re-
spondent’s revised proposal on scalers. The Company was
851AMERICAN MEAT PACKING CORP.
still insisting that they should be excluded from the Union;
no agreement was reached.
The Company presented a comparison of the costs and
benefits of the proposed health plan as opposed to the current
one. Piotrowski sidetracked the discussions by demanding
that Respondent stop vilifying him in their publications.
Schumann tried to get the talks going again by asking if
Piotrowski had a proposal; Piotrowski replied that he did:
Renew the existing contract with the $1.50 increase per year
for 3 years. Schumann stated that that proposal was rejected
and the Company would continue to insist on its job classi-
fication system and wage rates (proposal 38).
Further discussion of the health and insurance proposal oc-
curred, but the matter was put on hold.
The parties thereafter discussed their respective positions
on Respondent’s proposal to change the seniority to depart-
mental, rather than plantwide as had existed before. The
Union objected that the proposal would allow probationary
employees in one department to remain working while senior
employees in another department were laid off. Schumann
replied that by the proposed procedure Respondent would not
have to retrain someone in the event of a layoff in another
department. Waters replied that a probationary employee
could not have too much expertise anyway, and that Re-
spondent should absorb the cost of retraining senior employ-
ees rather than retain a probationary, or otherwise junior, em-
ployee.
The parties discussed Respondent’s proposal for reasons
for loss of job seniority; the Union agreed with obvious ones
such as when the employee quit or is discharged for just
cause, but no other agreements were reached except that the
Union agreed that when an employee reaches the age of 70,
or otherwise retires, seniority is lost.
10 December 1985
On this date Herrmann sent another letter to employees
stating that Piotrowski was wasting time in the meeting and
added, ‘‘I don’t believe that Walter Piotrowski is in touch
with you, our employees. That’s why I must send these let-
ters to you. We understand that the Union committee is not
allowed to talk with you about negotiations.’’ Herrmann
went on to outline the Company’s health and insurance pro-
gram. He concluded: ‘‘I feel strongly that the vastly im-
proved benefits we are proposing more than justify the small
contribution. The Union again walked out of the session
early over AMPAC’s protest. If you have any questions,
please ask someone from the Union because the Union is not
telling you all that you need to know about saving your job
at AMPAC.’’
Bargaining Session 11; 13 December 1985
At the beginning of the session, Schumann accused
Piotrowski of refusal to bargain on 10 of the Company’s pro-
posals: management-rights, discipline, Section 301 suits/no
arbitration, leaves of absences, waiver of rights, no-strike
clause, definition of strike, no-lockout, no picketing or
handbilling clause, and employment physicals.
The parties then went to management rights, Piotrowski
objecting to the ‘‘sole discretion’’ vested in Respondent and
several other provisions of the proposal. When pressed for a
reason Piotrowski would only say that it was on the advice
of counsel that he refused to agree with the Company’s pro-
posals. The parties then moved to disciplinary rules and
Piotrowski stated that he promised an answer by the next
session. Schumann objected to another delay for a reference
to counsel, a frequent response by Piotrowski by that point.
Reference was made to Respondent’s closing of its Detroit
plant. Schumann stated that it had been for ‘‘economic rea-
sons’’ and Piotrowski stated that the Company had made a
profit in Detroit. Schumann replied: ‘‘What profit? I’m glad
you brought that up. Why don’t you come in to our plant.
Spend some money and come into our plant and see how
much money we’ve lost.’’ Jim Forbes, another management
representative, added: ‘‘Please come in and bring your audi-
tors to see how much we’ve lost.’’
The parties moved to health insurance and Schumann dis-
tributed pamphlets regarding its proposed switch to another
insurance company. Piotrowski objected to the fact that
under the proposed system the employees would have a con-
tribution to make and he added that the Union was still in-
sisting on a $1.50-per-hour wage increase over 3 years.
Schumann stated that alternative to the Company’s proposal
was no jobs at all for the employees and, ‘‘I suggest you use
your skill to convince these employees that if AMPAC is to
survive, you should put your wonderful name on the dotted
line of AMPAC’s proposals.’’
At a later point in negotiations, Piotrowski pointed out that
the Company agreed to none of the Union’s proposals.
Schumann replied, ‘‘We went through this 6 months ago
when we were coming up with these proposals. We put a
hard hat on a broom and said it was you. We gave you some
and us some.’’ The parties discussed several other topics
then in dispute, repeating their prior positions and no agree-
ments were reached.
As the parties were discussing arbitration, Schumann stat-
ed:
You’ve only had a few grievances in the past few
years. You’ve had recourse with the District Court. I
guarantee you that this Employer will not move on the
position of arbitration.
Bargaining Session 12; 14 December 1985
The parties began covering issues still outstanding and
when they got to the Employer’s proposal to eliminate pre-
mium pay for Saturdays if an employee did not work a full
40-hour week preceding, Schumann stated, ‘‘The Employer
isn’t going to move an this position.’’ Waters replied, ‘‘We
aren’t either.’’ Waters further stated that the Union was not
willing to eliminate night-shift premium pay as the Employer
had further proposed. When asked why the Union was pro-
posing an additional holiday, Waters cited the ‘‘bulk’’ of em-
ployers in the industry. Schumann replied, ‘‘You ask, ask,
ask. You don’t seem to hear us when we say we lost a great
deal of money. If you question it, get your auditors in our
office.’’
In discussing the positions in general, and in replying to
the Union’s statements that the Employer’s position was
completely negative, Schumann stated:
The Employer has spent a lot of time revising the
present contract and we realize that we had to take
drastic action. This Employer has closed a lot of facili-
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ties. We went through everything and decided what is
our bottom line on these proposals. We know we are
asking for a lot. We’re not here to give here and take
there. We came here to say, ‘‘Gentlemen, we’re here to
convince you of our proposals. Let’s get down to the
brass tactics.’’ . . . We aren’t going to move. This is
where we stand.
Later in the meeting, Schumann added:
The Employer’s position is that we did the give and
take before we walked in here. What we have here is
our bottom line proposal. We want to convince you of
the merits of it so that you can convince your people
of it. Then with the one year contract, we’ll be back
here to negotiate again.
Schumann further stated during the meeting that concessions
for which the Employer was asking would not guarantee that
the Company would be open during next year.
The parties did discuss other substantive proposals, repeat-
ing themselves for the most part, but reaching agreement
only on such matters as time when vacation pay was re-
ceived, safety and health, and rules regarding employees re-
turning to work from leaves of absence.
Bargaining Session 13; 16 December 1985
At the beginning of the meeting, Piotrowski asked
Schumann if the Company would be willing to split the bill
for auditing the Company’s financial reports; Schumann said
the Company would not. Piotrowski named his CPA firm as
Thomas Harvey of Chicago, and indicated that Mr. Harvey
wanted to review the records the next day. After conferring
with Walter Soliunas on the Company’s negotiating team,
Schumann stated that the records would be ready Saturday,
21 December.
At this meeting Schumann proposed that the Company
would grant a union shop and checkoff if the Union would
agree to the proposal 38. The Union refused.
The Company distributed its ‘‘Position Statement No. 9’’
reflecting that the Union had agreed to 34 of Respondent’s
proposals but the Respondent had agreed to none of the
Union’s. The parties began discussing various proposals. At
one point Piotrowski stated that he would agree with Re-
spondent’s step 2 grievance procedure, resort only to a Sec-
tion 301 suit in the event that a grievance was not resolved;
however, Piotrowski also stated that the Union still sought
arbitration. (Later, the Union made it clear that it still wanted
arbitration.) Piotrowski further stated that the Union still
wanted 50 cents more per hour for 3 years for all employees.
Schumann asked Piotrowski if he was serious, Piotrowski re-
plied that he was. The Union agree to Respondent’s pro-
posals regarding discipline and leaves of absence, but there
were no other agreements reached during the session.
Bargaining Session 14; 17 December 1985
At the beginning of this session Dwane Carman, an Inter-
national representative of the Union, introduced John Janz,
managing director of the Union’s welfare fund, who ex-
plained the operation of the existing union health and welfare
fund and compared it with the Employer’s proposed health
and welfare proposal, generally in the negative.
No agreements were reached at this session, although the
Employer did agree to review the Union’s proposal that
when employees asked that the shifts start early, night-shift
premium would be waived. When the Union asked again for
the Company’s reasons for proposing a 180-day probationary
period, Schumann this time stated that the employees needed
‘‘the full time’’ to become accustomed to the jobs and Carey
added that the Employer needed it for ‘‘our role of man-
aging.’’ Waters asked how the Employer had been hurt by
even the past practice of 30-day probationary period; Carey
replied, ‘‘It’s part of [Schumann’s] experience.’’ Waters de-
manded any evidence that the Employer had been hurt by the
30-day probationary period in the past. Carey replied,
‘‘That’s not how it works.’’
The Union asked again why the Company was proposing
to delete the existing contractual provision for hot coffee and
food after 10 hours of work (and in lieu thereof $2.50), and
further to eliminate the clothes and laundry allowance. Carey
replied, ‘‘Economics.’’ Schumann added, ‘‘It’s economics.
Isn’t that a wonderful word? It keeps popping up.’’
In response to the Union’s demands, Schumann further
pointed out that with its $1.50-per-hour wage demand (at 50
cents per year for 3 years) and its COL demand, the Union
was asking for $21 an hour by the end of the contract. Car-
man stated, ‘‘You’re being ridiculous, calculating it out to be
$21,’’ but he made no estimate of his own.
At one point in the meeting, Piotrowski stated that the em-
ployees on the negotiating committee had told him to close
the plant rather than accept Employer’s proposal 38.
18 December 1985
On this date Herrmann sent another letter to employees.
He began the letter by arguing that the health and insurance
program proposed by AMPAC was better than that in the ex-
piring contract, he criticized the Union for being late and
otherwise delaying negotiations, and he stated that Inter-
national Representative Carman ‘‘promised’’ a strike against
AMPAC. The letter stated that there had been no progress
at the 14th session and concluded that the employees should
attend an upcoming union meeting ‘‘which will be held im-
mediately after our session, and vote in support of AMPAC’s
last offer—and keep AMPAC open and keep your jobs.
Please attend the Union meeting tonight and keep your
jobs.’’
Bargaining Session 15; 18 December 1985
After initial arguing about what had been agreed on as far
as the date on which the Company would allow the Union’s
auditor to examine records, Schumann stated that the Com-
pany agreed to the Union’s proposal to retain section 11 of
the current contract was acceptable. (The section states in
full: ‘‘Work clothes and laundering—the uniform required by
the Company shall be furnished and laundered by the Com-
pany.’’)
At one point in the discussion the parties reached the Em-
ployer’s proposal that employees be required to submit phys-
ical examinations for which the Employer would pay. The
Union proposed that the employees be given a 7-day waiting
period before being so required. The Company stated its po-
sition, centering on the fact that 7 days would, of course,
give time for evidence of drug or alcohol abuse to disappear.
853AMERICAN MEAT PACKING CORP.
At this meeting Schumann distributed the Employer’s po-
sition statement 10 which contained ‘‘an update’’ of the ef-
fect that Respondent’s proposal 38 would have, if accepted.
(These numbers changed, as Schumann then told the Union,
because of employee turnover). Under the revised schedule,
89 employees would receive wage increases; 193 would re-
ceive pay cuts; 36 would receive pay raises up to a $1; 37
would receive raises between $1 and $2; 14 would receive
raises between $2 and $3; and 2 would receive wage in-
creases of over $3; 80 employees would receive cuts up to
$1; 59 would receive cuts between $1 and $2; 50 would re-
ceive cuts between $2 and $3; and 4 would receive cuts $3
and above; 4 employees would receive no change in pay.
The Employer also submitted its position statement 11
which stated:
AMPAC’s Proposal No. 38 with job classification and
wage rate attached has been at impasse for some period
of time and such impasse continues to the present hour.
Economic necessity dictates that AMPAC unilaterally
implement the job classification and hourly wage rates
as per AMPAC’s Proposal No. 38 effective 6 a.m., Fri-
day, December 20, 1985. AMPAC does not intend at
this time to unilaterally implement any of the many
other bargaining subjects about which impasse also ex-
ists.
When the Company presented the above statement, Waters
stated: ‘‘Our position is that the impasse is premature. There
are a number of issues that still haven’t been discussed. The
Union is ready to continue to meet. . . . We believe that the
wage rates are a total package and that there is no impasse.’’
The meeting concluded after other topics had been dis-
cussed with no further agreements being reached.
18 December 1985
After the bargaining session of this date concluded about
8 p.m., the Union conducted a meeting of the membership
at the union hall. Speaking at the event were Walter
Piotrowski and Bob Waters. The comments of Piotrowski
and Waters were translated to Polish and Spanish for the
benefit of the many employees who spoke only those lan-
guages.
Waters told the employees that the Employer was delaying
furnishing information regarding its financial records (which,
at that point, was not correct) and that the Employer was en-
gaged in surface bargaining.The representatives explained to
the employees that by surface bargaining they meant the Em-
ployer was negotiating without intent to reach agreement;
that it was demanding that the Union surrender all rights to
represent the employees; that it was insisting on agreement
to proposals which it had originally made; and the Employer
was refusing to agree to any of the Union’s proposals or ne-
gotiate about them.
At the end of the speeches a secret-ballot election was
conducted on whether a strike should ensue. The vote was
268 in favor of a strike with no votes opposed.
19 December 1985
On this date Carl Herrmann sent another letter to employ-
ees stating that no progress had been made in the 15th bar-
gaining session and he argued the Employer’s position on
one topic, merit pay increases. He concluded the letter by
stating that AMPAC had informed the Union that it would
put into effect its proposal on job classifications and wage
rates ‘‘because we are deadlocked on the subject.’’ The letter
stated that the Company had not been informed as to any
vote by the union membership in a meeting which had been
scheduled for the previous evening. The letter further stated
that while the job classifications and wage rate proposals had
been put into effect, ‘‘Under the Federal Labor Law all of
the other terms and conditions of the present contract must
remain in effect, except that it will be unlawful for AMPAC
to check off dues or compel Union membership after the
contract expires at midnight tonight.’’
20 December 1985
On this date the employees began a strike which continued
until 4 September 1986 when the Union made an uncondi-
tional offer to return to work on behalf of the striking em-
ployees.
30 December 1985
After some difficulties in communicating when an audit
could be made, Steven Felke, the Union’s certified public ac-
countant, presented himself at AMPAC’s place of business
prepared to conduct an audit. Felke had previously informed
Respondent’s attorney, Carey, that he wished to examine
AMPAC’s previous tax returns and audits performed by Re-
spondent’s accountant, Touche Ross & Co.
When Felke presented himself to the office of Respondent,
he was presented with ‘‘AMPAC Position Statement No.
12’’ by Carl Herrmann. The statement was, in full:
At collective bargaining session #15 on 12/18/85, the
Employer informed Local 100 that because the Union
had not responded on 12/16/85 to AMPAC’s offer to
make records available for an independent CPA audit
on Friday, 12/20/85, that the next available date for the
commencement of such audit would be Tuesday
12/24/85. This date was computed on the basis that
AMPAC needs 3 working days notice from the Union
in order to prepare for such audit.
Subsequently on 12/19/85, Steve Felke, CPA of the
CPA firm of Thomas Harvey & Company, telephoned
AMPAC’s labor attorney, Joseph Carey, and informed
him that because of his vacation schedule, he could not
start such audit on 12/24/85 but would do so on
12/30/85.
The reason that AMPAC is allowing this discovery
audit is because AMPAC at session #1 on 10/21/85 in-
formed the Union that AMPAC was unable to grant the
general wage increases because of the following losses
from operations:
Operating Income Loss
Normal Racine Total
1981–1985 4025 3213 7238
(4 yrs., 9
mos.)
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This total loss of $7,238,000 for the period of
12/30/80 to 09/29/85 is a financial fact that the Union
has apparently refused to accept.
It is AMPAC’s position that given the Union’s de-
mands for general wage increases of 50 [cents] + 50
cents for a 3-year agreement with corresponding 6
month C.O.L.A. adjustments of 20% in each of such 3
years, that AMPAC will be unable to persuade the
Union to accept its economical [sic] offer for a l-year
contract, until the Union verifies by an independent
CPA that the above losses from operations are agreed
[sic].
It is further AMPAC’s position that such discovery
audit be conducted in accordance with generally accept-
ed auditing standards, and that the results of such audit
will thereby be entitled to unquestioned credence, al-
lowing AMPAC to utilize the results of such audit in
its attempt to persuade the Union to accept its eco-
nomic offers for a l-year contract.
Because such audit will span a period of almost 5
full years, the volume of financial records to be re-
moved from storage in 2 separate buildings and made
accessible to Mr. Felke is enormous. In order to mini-
mize disruption in the ordinary course of AMPAC’s
business, AMPAC will require that the following sched-
ule be complied with during the course of such audit:
(1) The entire records for the 1981 audit will be
made accessible, the audit completed and such
records returned to storage.
(2) The entire records for the 1982 audit will be
made accessible, the audit completed and such
records returned to storage.
(3) The entire records for the 1983 audit will be
made accessible, the audit completed and such
records returned to storage.
(4) The entire records for the 1984 audit will be
made accessible, the audit completed and such
records returned to storage.
(5) The entire records for the 1985 audit will be
made accessible, the audit completed and such
records returned to storage.
During the course of such audit, AMPAC’s con-
troller, Mr. Brad Melville, will monitor the conduct of
such audit and assure that all records and documents
which are necessary for the performance of such audit
in accordance with generally accepted auditing stand-
ards, are made available to Mr. Felke.
In the aforementioned telephone conference between
Mr. Carey and Mr. Felke, Mr. Felke stated that in order
to minimize expenses for the Union, who must pay the
fees for such audit, he intends to merely verify for the
years of 1981, 1982, 1983 and 1984 and 1985,
AMPAC’s tax returns and the audits performed by Tou-
che Ross & Co., AMPAC’s independent auditor. How-
ever, this procedure is not acceptable to AMPAC for
the following reasons:
(1) Kane-Miller Corporation files consolidated tax
returns and for such purposes, transfers and allocates
certain expenses across subsidiary lines, which have
the effect of distorting AMPAC’s losses of oper-
ations, as above enumerated.
(2) The Touche Ross & Co. auditors employ simi-
lar transfers and allocations with the same resulting
distortions of AMPAC’s losses from operations, as
above enumerated.
AMPAC will allow Local 100 of U.F.C.W. to audit
AMPAC’s financial statements by outside independent
auditors for years 1981 through 9 months of 1985.
The audit will have to be made in accordance with
generally accepted auditing standards. The audit’s scope
should be in sufficient, but not unreasonable detail that
would be required by an outside auditing firm, and it
would permit issuance of a separate report on the finan-
cial and operational status of the Company. Documenta-
tion produced by the subject audit should be available
to the Company and its outside auditors for review that
it agrees with their conclusions.
Should there be any questions or statements con-
cerning this Position Statement either by the union bar-
gaining committee or by Mr. Felke, such questions or
statements are to be directed only to the undersigned.
At trial Felke testified that the cost of proceeding as Re-
spondent required would have cost $100,000 and would have
taken a minimum of 3 months to perform. He further testi-
fied that the examination which he requested would have
cost a maximum of $10,000 and would have taken no more
than 2 or 3 weeks depending on how the Company made the
information available. None of these estimates about Felke as
to time or cost was challenged by Respondent. Respondent
did produce a certified public accountant who testified that
the audit which the Company demanded of the Union would
have been much more accurate, ultimately, than what the
Union proposed to do.
On 2 January 1986 the Union, by its attorney, Donald W.
Cohen, wrote Respondent stating:
At this time the Union once again requests that its audi-
tor be furnished with the financial statement [sic] which
he requested for purposes of making a determination as
to the financial status of AMPAC during the years 1981
through 1985. In view of the extensive costs of con-
ducting a full audit and the time delays which would
be severely damaging to effective collective bargaining,
this information is necessary and should be provided
immediately. We are prepared to make provisions to
protect the confidentiality of any elements which you
are fearful might be utilized for other purposes or
which may impact upon other aspects of the Kane-Mil-
ler operation.
The information was never furnished.
Bargaining Session 16; 3 January 1986
The parties met before Federal Mediator Bill Seigler and
began going over open issues. When they got to seniority,
the Union stated that it was withdrawing its prior agreement
to departmental seniority for any purposes and stated that it
wanted straight, plantwide seniority.
The parties discussed the company proposal for transfers
outside the bargaining unit which stated that employees shall
continue to accrue seniority for 6 months after such transfer;
seniority would be frozen as of the end of that 6-month pe-
855AMERICAN MEAT PACKING CORP.
riod; and if an employee returned to the bargaining unit
thereafter total length of service would be reduced by the
amount of time spent outside the bargaining unit minus 6
months. At this meeting Schumann noted that the Union had
proposed that seniority would be lost after 6 months and the
Company was, then, agreeing to that union proposal.
The parties discussed the Employer’s ‘‘loss of seniority’’
proposal. Schumann noted that the parties were still in dis-
agreement over the Employer’s proposals that seniority be
lost after a layoff of 6 months and the proposal that an em-
ployee loses seniority when he accumulates four unexcused
absences within a calendar year unless excused by the Em-
ployer. Schumann stated that the Company was standing by
the first proposal but modified its second to be that seniority
was lost when there were six unexcused absences in a year
or 3 days of consecutive absences. The Union persisted in
its demand that seniority not be lost except in cases of layoff
in excess of 12 months although the prior contract stated that
seniority was lost in such cases after 6 months. The Union
did not respond to the Employer’s proposal that seniority be
lost with four unexcused absences within a calendar year.
The Union also refused to agree to a proposal that seniority
was lost after 1 year of medical leave.
The Employer had previously proposed to eliminate a pro-
vision in the 1982 contract for a break after 12 hours, 15
minutes (in addition to breaks during the first portion of the
day and after 9 hours, 15 minutes). At this meeting
Schumann proposed that a paid 15-minute rest period would
be given after 12-1/2 hours if ‘‘at least one hour of work re-
mains.’’ The Union rejected this proposal.
When the parties got to the computation of overtime pay
proposal by the Employer (time and a half after 40 hours and
double time on the seventh scheduled workday provided that
employee has not been absent on any prior day in such
workweek), the Union stated it was still insisting on time and
a half after 8 hours, double time on Saturdays, and triple pay
for Sundays and holidays. The previous contract provided for
time and a half after 40 hours, time and a half on Saturdays
(if it was a sixth scheduled day) and double pay for Sundays
unless Sunday was one of five regularly scheduled workdays.
Schumann replied that the Company would never pay time
and a half after 8 hours but would provide time and a half
for a sixth scheduled workday if an employee had not been
absent for any reason during the five preceding workdays.
The Union agreed to discuss this proposal, but there was no
agreement reached at this session.
The parties discussed the Employer’s proposal that the
Employer could designate alternate days as holidays. The
Union stated that the Company should spell it out if, as they
represented, they would not change such days as Independ-
ence Day and Christmas Day. Schumann agreed to get back
to the Union on that. (The Employer never stated which holi-
days of which it would never change the celebration date.)
At this meeting, in discussing pay for holiday benefits the
Employer agreed to drop its proposals that employees who
worked regularly less than 8 hours would not receive 8 hours
of holiday pay.
At Respondent’s proposal for pay for work performed on
a holiday the Employer dropped its proposal that it pay only
double time for such holidays and agreed to triple time as
the Union proposed (8 hours for the holiday plus double time
for hours worked).
On funeral leave, the Employer agreed to the Union’s pro-
posal to include the deaths of relatives permanently in the
household of the employee as those which would justify fu-
neral leave.
The Employer further agreed at this session to the Union’s
demands that sharpening stones and smocks be among the
tools provided by the Employer. There was extensive discus-
sion about the health and welfare proposals, the Employer
again stated its many reasons why it felt that its proposal was
superior, and more beneficial, to the employees. No agree-
ment was reached.
Many of the sections of the Employer’s proposals were
discussed, but no other agreements were reached.
Bargaining Session 17; 4 January 1986
At the beginning of the meeting, the Union accepted the
Employer’s proposals on lost seniority upon transfers outside
of the bargaining unit, pay for holiday benefits, pay for work
performed on a holiday, funeral leave, tools and equipment,
and the Union further acknowledged that it had previously
agreed, and would agree, that seniority would be lost after
1 year of medical leave. The Union further proposed that the
Employer provide rubber boots and aprons for four stated job
classifications; Schumann replied that the Company would
answer after a later caucus.
The Union further acknowledged that for layoffs depart-
mental seniority could be observed, but still wanted
plantwide seniority for job bidding purposes. The company
officials argued that a dual seniority system would be cha-
otic.
At this session the Union dropped its request for 20 per-
cent cost-of-living allowance but persisted in its demand for
a $1.50-per-hour increase in wages over 3 years. The Em-
ployer representatives did not respond and the Union accused
the Employer of not bargaining in good faith. Schumann re-
plied:
You walked in here with bloated demands. The Em-
ployer has stood by the position that our financial fu-
ture requires a reduction in costs, not an increase. We
are here to take, not give. We can’t afford your de-
mands and, therefore, we reject your proposals. . . . If
we give away any more money, we can’t compete.
The parties discussed further union economic demands and
no agreements were reached, except that the Employer did
agree that employees would be guaranteed 4 hours’ showup
pay, something which was present in the 1982 contract
which Respondent had proposed to eliminate.
6 January 1986
On this date Schumann delivered to Piotrowski the Em-
ployer’s ‘‘Position Statement No. 13’’ which stated:
AMPAC’s Proposal No. 30, probationary period, has
been at impasse for some period of time and such im-
passe continues to the present hour. Economic necessity
dictates that AMPAC unilaterally implement the proba-
tionary program as per AMPAC’s Proposal No. 30, ef-
fective 6 a.m. January 7, 1986. AMPAC does not in-
tend, at this time, to unilaterally implement any of the
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969).
5 The transcript of this bargaining session is of lesser quality than others.
For example, at several points the discussion is omitted and only ‘‘long discus-
sion’’ is noted.
many other bargaining subjects, about which impasse
also exists.
Also on this date, Carey (company lawyer) sent a letter to
Cohen (union lawyer) reaffirming the Employer’s position
that only the full 5-year audit could be conducted by the
Union and the Union could not have the prior auditing state-
ments which had been prepared by the Company’s auditors.
Bargaining Session 18; 13 January 1986
At this meeting, the parties only discussed relative bar-
gaining strengths during the strike situation. No proposals
were discussed; however, the Employer did state that it was
instituting the ‘‘pay boning system’’ which cuts the training
time for boners; Schumann stated during this discussion, ‘‘if
Local 100 wishes to be a part of AMPAC’s operation, they
should do so soon.’’
On the same day the Employer issued a letter to all em-
ployees stating that replacements being hired were permanent
employees and would not lose their jobs at termination of the
strike, as was the case after the 1980 strike.
22 January 1986
On this date, by letter, Schumann advised Piotrowski that,
because of economic necessity, AMPAC was unilaterally im-
plementing its proposals on insurance benefits, leaves of ab-
sence, and elimination of all past practices. Schumann stated
again that these matters had been at impasse for some time
and that the Employer intended at that time to implement no
further unilateral actions.
Bargaining Session 19; 27 January 1986;
At this session only a few topics were discussed and nei-
ther party made a concession and no agreements were
reached. The Company announced that the striking employ-
ees would be required to pay their life, health, and benefits
insurance premiums and, on the same day, sent the employ-
ees a notice to that effect, stating that single coverage would
be $81.85 a month and employee and dependent coverage
would be $158.08 per month.
Bargaining Session 20; 11 February 1986
On this date the parties met for 4 minutes and exchanged
the information that neither had anything to offer.
14 February 1986
On this date the Company delivered to the Union its ‘‘Po-
sition Statement No. 16.’’ The statement recites that the
strike has been long, accusing the Union of ‘‘terrorism’’ and
making the following proposals: Respondent withdrew its
offer to grant union shop and checkoff if the Union agreed
to its proposal 38, job classifications and wage rates; Re-
spondent withdrew its proposal that six absences in a cal-
endar year would result in loss of seniority and reinstituted
its original proposal that four such absences would terminate
seniority; Respondent withdrew its previous concessions re-
garding overtime pay and reinstituted its original proposal of
only time and a half pay for hours worked over 40 in a
week; Respondent reproposed elimination of night-shift pre-
mium; Respondent withdrew its proposal for pay for work on
a holiday and reproposed only double time for holidays
worked; Respondent proposed a 3-year agreement termi-
nating December 1988; Respondent withdrew its proposal
that employees contributed only $3 a week for health insur-
ance and proposed that for an employee and one dependent
it would be $6 a week and, for an employee and two or
more dependents, $8 a week; Respondent proposed a 25-cent
per-hour general increase effective December 20, 1986, and
a 25-cent-per-hour general increase effective December 20,
1987, on top of the wage rates and job classifications on its
unilaterally implemented proposal 38; Respondent offered
union shop and checkoff if all other proposals submitted by
the Employer were agreed on; Respondent proposed that in
any strike settlement agreement no permanent replacement
employees would be displaced, there would be a 1-year limit
on Laidlaw4 rights, and ‘‘former strikers who have been
guilty of strike misconduct will be denied reinstatement.’’
By letter dated 17 February 1986 from Piotrowski to
Schumann, the Union rejected these proposals.
Bargaining Session 21; 26 February 19865
The parties agreed to go through their respective proposals
to see if any further agreements could be reached. Waters,
speaking for the Union, stated that Respondent’s proposed
evaluation system would be acceptable if the Union had arbi-
tration; the Union wanted some number of employees having
displacement rights in cases of layoff; and the Union ‘‘was
willing to look at 90 days’’ for a probationary period;
Schumann replied that AMPAC would be willing to ‘‘look
at’’ 90 days’ probationary period also.
Waters further stated that the Union would accept
AMPAC’s pension program and proposed that certain ‘‘red
circle’’ rates be retained, and the Employer would give a 2-
cent-per-hour rate in the second and third year of the contract
for all except the red circled employees who would get a 10-
cent-per-hour rate.
When asked by Waters, Schumann stated that the Com-
pany would be willing to go back to eight paid holidays but
had no change of position on vacations.
Waters stated that the Union was still adamant in objecting
to the Employer’s removal of the scalers from the unit and
further objected to the Company’s proposal to eliminate the
work-preservation clause. The Union proposed to keep
plantwide seniority in case of layoffs but did add that only
certain numbers of employees would be allowed to displace
union employees in other departments at a time.
At ‘‘loss of seniority,’’ Schumann stated that Respondent
would agree that a 1-year layoff (instead of previously pro-
posed 6-month layoff) would terminate seniority ‘‘if insur-
ance terminates on the day of layoff.’’ Waters agreed to look
at that. Schumann further stated that the Company would be
willing to ‘‘look at’’ its previous revision of its proposal that
four unexcused absences within a calendar year terminate se-
niority and go back to its proposal that it would require six.
The Union stated that it wanted to continue the 1982 con-
tract’s provisions for rest periods and further wanted to keep
all Sunday work as double time. Schumann replied that the
Company would consider the double-time proposal.
857AMERICAN MEAT PACKING CORP.
Schumann proposed to return to a night-shift premium but
without stating how much; the bargaining minutes show no
response by the Union.
The Union stated there was ‘‘no way that the Employer’s
management-rights proposal was acceptable and the Union
still wanted arbitration. Schumann replied, ‘‘if we agreed on
everything else, we would not sign a contract where arbitra-
tion is in it.’’ The Union further objected to the Employer’s
proposal that it could designate holidays to be observed on
dates it chose; Schumann replied that ‘‘We’ll look at it.’’
In response to the Company’s proposal that employees on
layoff or leaves of absence would not receive holiday bene-
fits, the Union proposed that employees on layoff receive
holiday benefits for 60 days; Schumann said the Company
would consider it. The Union stated that it wanted the same
vacation benefits as in the previous contract; Schumann re-
plied that the Company would stand by its original proposal.
At discussion of the Company’s proposal for ‘‘elimination
of all past practices’’ Waters again, as he had done before,
asked for examples; the notes read: ‘‘[Schumann] tried to ex-
plain but said he would give better specifics later.’’
Schumann stated that AMPAC would be willing to give
up its requirement of 7 days’ notice before resignation. No
response from the Union is reflected in the transcript.
The parties discussed Respondent’s proposed ‘‘exclusive
recourse to agreement and waiver’’ clause, but no agreement
was reached.
The parties discussed Respondent’s proposed no-strike
clause; the Union stated it would be willing to give up its
right to sympathy strikes but not give up the right to hand-
bill. Schumann replied that the Company would stand on its
proposal. The same discussion ensued when the parties dis-
cussed the Respondent’s picket line clause.
At ‘‘length of agreement,’’ the Union stated, ‘‘We want a
three-year contract.’’ Schumann replied: ‘‘We are still look-
ing for a l-year contract.’’ However, it is to be noted that
in the previous session the Company proposed a 3-year
agreement. The bargaining minutes do not explain this con-
flict; nor do they reflect that the Union accused the Company
of going back on its previous proposal.
In regard to the Company’s proposal that it be allowed to
require physical examinations of employees, Waters stated
that the Union would probably move on the issue, ‘‘but you
will have to earn it. I cannot commit to it today.’’
The parties then discussed the Union’s proposals, but no
agreements were reached.
The parties went on to discuss various sections of the ex-
pired contract: The Union wanted continuance of 2 hours of
excused absence for voting; Schumann said it was not nec-
essary. The Union wanted to continue its right to be con-
sulted about timestudies; Schumann replied, ‘‘You know our
position on this.’’ (It was not proposed by Respondent.) The
Union wanted continued compulsory physical examinations
for new employees only; Schumann insisted on the company
proposal for examination of all employees.
The parties then turned to the Union’s demands made at
the first bargaining session. The Union still wanted cleanup
time allowance in the contract; Schumann refused. The
Union agreed to the Company’s proposal of eight holidays,
and the Union stated that it still wanted the clothes-changing
time which the Employer had proposed to eliminate.
Bargaining Session 22; 12 March 1986
At the beginning of the session, Schumann presented four
statements of position. The first was a revision of wage
scales for proposal 38. Several jobs at the kill floor were up-
graded and a new classification was created in the mainte-
nance department.
Another statement of position stated that it was AMPAC’s
position that the Union had lost its economic strike and
therefore ‘‘AMPAC is hardening its position in collective
bargaining by making the following proposal.’’ The pro-
posals were withdrawal from the previous agreement with
the Union’s proposal for continuation of the prior contract’s
provision that there would be 4 hours’ showup pay. This
statement of position further proposed to modify AMPAC’s
proposal 35(c), seniority at section (g), ‘‘regular layoff de-
fined.’’ Respondent proposed that in the event that the layoff
exceeded 30 calendar days, insurance coverage under
AMPAC’s proposals would cease and the employee would
be given the right to convert to an individual policy and pay
the full cost.
Another position statement submitted on this date recited
that the Employer had previously unilaterally implemented
its proposals on seniority probationary period, insurance ben-
efits, leaves of absences, and elimination of all past practices.
The statement went on that AMPAC now gives notice of its
intention to unilaterally implement the following proposals
about which impasse has existed for some considerable time.
Thereafter were listed, by section numbers, 72 of Respond-
ent’s original proposals. This was virtually all of Respond-
ent’s proposals which had not been previously implemented.
Finally, the last position statement submitted on this date
was a proposal to amend the Employer’s retirement plan in
the following manners: Redefinition of the term ‘‘employee’’
to include not only employees subject to the collective-bar-
gaining agreement with the Union, but all production and
maintenance employees at the plant, including the scalers.
This position statement further amended the eligibility re-
quirements to include employees who were members of the
plan on 19 December 1985 and all employees hired since
then after they had been employed 6 months. The position
statement further put a cap of ‘‘credited service’’ under the
plan at 40 years.
After presenting these proposed changes, Schumann asked
the Union if they wanted to take a break, they did and left
the meeting.
13 March 1986
On this date, Herrmann advised the employees that at the
preceding meeting AMPAC had informed the Union that it
was hardening its position in collective bargaining and that,
except for three revised proposals, AMPAC was putting into
effect all of its contract proposals. The three revised pro-
posals were listed as the creation of new jobs, inclusion of
the permanent replacements as employees under the pension
plan, and a proposal to provide insurance conversion privi-
leges to those employees on layoff for more than 30 days.
Bargaining Session 23; 20 March 1986
At the beginning of the session, Piotrowski asked the
Company if it had any other concessions which would make
the Company’s proposals more palatable to the membership.
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Schumann replied that he did not and further stated, in writ-
ing, that if the strike were ended at that point all strikers ex-
cept those who were guilty of misconduct would be rein-
stated; otherwise, if and when the Union made an uncondi-
tional offer to return to work, the employees (as economic,
not unfair labor practice strikers) would have only their
Laidlaw rights. The meeting ended with no agreements
reached.
21 March 1986
On this date at a membership meeting the employees voted
to reject the Employer’s proposals. That afternoon Schumann
wrote Piotrowski that the Employer was withdrawing its of-
fers of a 25-cent general wage increase, effective December
20, 1986, and December 20, 1987, made at 9:45 that morn-
ing. (How those proposals came about is not in the record.)
Schumann added that AMPAC was also thereby withdrawing
its offers made at the same meeting to give union shop and
checkoff in return for the Union’s agreement on all out-
standing Employer proposals. The letter concluded that, since
the Company’s proposals had been rejected, returning strikers
would be replaced, in effect, only under the Laidlaw rules.
5 April 1986
On this date Schumann sent a letter to Piotrowski enclos-
ing a new proposal entitled ‘‘Preparatory and Concluding
Activities.’’ The proposal was: ‘‘AMPAC’s long-standing
practice of excluding from hours worked time spent by an
employee in changing and/or washing at the beginning or
end of each shift is hereby confirmed and formalized as part
of this collective-bargaining agreement.’’
The letter further stated that the following proposals ‘‘had
been at impasse for some considerable period of time and
about which AMPAC intends to unilaterally implement.’’
These proposals were proposal 38, the seniority listing with
wage rates (as revised on 12 March) and the definition of
layoff and pension benefit proposals (also proposed on 12
March).
Bargaining Session 24; 17 April 1986
No substantive proposals were discussed at this meeting.
The Union argued that the Employer needed the strikers be-
cause its members had seen several employees leaving the
plant who were being cut in the process of production.
Schumann responded that there would always be accidents in
the industry and that the plant’s accident rate was no greater
than before the strike. The Union concluded the meeting by
stating that it would return to work only under the terms it
had previously expressed.
Bargaining Session No. 25; 13 May 1986
The Union stated that it was going to a ratification meet-
ing in a few days and asked for the Company’s final offer.
Schumann stated that the Union already had it. The Union
asked how many jobs were open at that point, and Schumann
replied that there were 18. (This figure was corrected by let-
ter dated 16 May in which the number was raised to 152.)
No agreements were reached at this meeting.
17 June 1986
On this date Schumann sent Piotrowski a letter stating that
he had been informed by a Federal mediator that the Union
wished another bargaining session. Schumann stated that for
purposes of that session, for which he proposed a date, he
was enclosing a complete set of management proposals, in-
cluding those proposals which had been agreed upon and
those which had not. Schumann further restated Respondent’s
position that, for purposes of any strike settlement agree-
ment, strikers would be reinstated only according to their
Laidlaw rights.
Bargaining Session 26; 26 August 1986
At this meeting the parties only discussed two provisions
of the Employer’s complete proposal which it had mailed on
17 June. The Union stated that it could agree to the perform-
ance appraisal model if the parties could agree on a griev-
ance procedure which did not require going to court on a
Section 301 suit. Carey stated that the parties should mark
it down as ‘‘conditionally approved.’’
The Union stated that it would accept the Employer’s
amended proposal 38, with the attendant slotting of indi-
vidual employees, with the exception of those employees
who then were making more than the proposal called for
(they would be red-circled with no reduction greater than 50
cents per hour); the Union further asked for a 3-year agree-
ment with 25 cents granted the second and third year. The
Company caucused and returned stating that the operation
was proceeding efficiently at the rates the Company was then
paying and that it saw no reason to offer any wage rates
other than those which it had already proposed. The Em-
ployer did not plead inability to pay at this point.
The session closed without any agreements being reached.
Bargaining Session 27; 2 September 1986
At the beginning of the session Waters listed several em-
ployees and stated that the Employer had slotted them incor-
rectly in its proposal 38. Schumann said the Employer would
review the Union’s contention.
The parties began going over the June set of complete
management proposals. At this time the Union agreed to the
Employer’s proposal on job analyses and that there would be
a performance appraisal model, although not its content; the
Union further agreed to the Employer’s proposal for equal
pay, equal employment opportunity, no age discrimination,
and Occupational Safety and Health Act compliance. The
Union further agreed to the Employer’s proposed bargaining
unit description which included only employees at the Nor-
mal Avenue plant and excluded scalers. The Union asked
why the Employer refused to include a work-preservation
clause; Schumann stated that it needed the provision in view
of recent NLRB cases. The Union responded that the Em-
ployer’s provision for a ‘‘no work preservation clause’’
would allow the Employer to circumvent the entire agree-
ment. Carey stated that he agreed but that was not the Em-
ployer’s intention.
After a caucus Schumann offered the Union dues checkoff
if the Union would agree to the remainder of Respondent’s
proposals; the Union refused.
859AMERICAN MEAT PACKING CORP.
6 Tr. 5 of this session states that the parties were in disagreement on sec.
‘‘I’’ of Respondent’s holiday proposal. There is no ‘‘section I.’’ The transcript
of the following bargaining session makes it clear that the section in dispute
at this point was pay for work performed on a holiday, sec. D of that proposal.
7 Tr. 5 of this bargaining session states ‘‘100 to 150.’’ This is an obvious
error because the Union had originally proposed 125.
Waters stated that he would be meeting with the member-
ship on the next day and recommend that they return to work
unconditionally even though no contract had been reached.
Schumann stated that ‘‘in a final effort to get you to sign,
we will agree to the reinstatement of all strikers in a reason-
able amount of time, except those guilty of misconduct, if
you agree to sign our contract.’’ Waters refused.
Bargaining Session 28; 3 September 1986
At this session the parties completed review of the Em-
ployer’s package of proposals submitted in June.
At article 4, union security, the parties noted that there
was conditional agreement on the dropping of checkoff.
At article 5, seniority, the parties were in agreement on the
following sections: definition of seniority, department senior-
ity, definition of job opening, posting and bidding proce-
dures, responsibility of employees to keep the Employer in-
formed of job openings, definition of layoff, method of lay-
off (departmental), definition of recall, method of recall,
transfers outside of the bargaining unit, and reasons for loss
of seniority (the Union agreed at this time that four absences
within a calendar year would cause a loss of seniority.) The
parties were not in agreement on the following seniority pro-
visions: the Employer’s proposal for a 180 calendar-day pro-
bationary period, qualifications for, and awards of, jobs, re-
strictions on bidding after successful bids, definition of tem-
porary layoff, the seniority listing (this was proposal 38 to
which the Union would not agree without arbitration), and
right of Employer to use part-time and casual employees to
do bargaining unit work whenever, in its sole discretion, the
Employer chose to do so.
The parties discussed article 6, hours and overtime. On the
initial run through, the parties were in disagreement on all
sections: workday defined, workweek defined, rest periods,
computation of overtime pay, overtime work required, and
elimination of night-shift premium pay rate. Later in the ses-
sion the Union agreed to the Employer’s proposal on rest pe-
riods and the proposal that overtime work was required; also,
later in the session, the Employer proposed a 10-cent-per-
hour night-shift differential, but there was no agreement on
that.
At article 7, rights of Employer to manage, the parties dis-
cussed section A, management-rights clause. The transcript
of the bargaining session does not reflect the discussion, but
it is clear that the parties were not in agreement. They fur-
ther were not in agreement on section B, residual rights, and
section C, cross-training.
The parties discussed article 8, discipline. There is no cov-
erage of the discussion in the transcript; however, it is clear
that the parties were not in agreement.
When the parties got to article 9, grievance procedure,
Waters stated that if arbitration were not included there
would be no agreement.
When the parties got to article 10, holidays, the Employer
still proposed seven designated holidays; the Union contin-
ued to demand eight. The parties were in agreement that for
holidays occurring during vacation, employees would receive
1 day’s extra pay, but could not take an extra day of vaca-
tion. The Employer proposed double time for work per-
formed on a holiday; the Union still wanted triple.6 The par-
ties were in agreement on eligibility for holiday benefits, pay
in lieu of holiday benefits, and prohibition of holiday bene-
fits to employees on layoff or on leave of absence.
The parties were in disagreement as to the amount of va-
cation benefits per number of years worked but, at this ses-
sion, the Union agreed to the Employer’s proposal that vaca-
tion benefits would be granted to those who resigned only
if 1 week’s notice was given. (Although not mentioned in the
transcript of this session the parties were in agreement on
pay for vacation benefits being 40 hours per week, the time
when vacation pay is received, and the prohibition against
payment in lieu of time taken.)
The transcript reflects no discussion of the Employer’s
proposals for leaves of absence, funeral leave, jury duty, ef-
fective termination of contract, safety and health, safety com-
mittee, discipline for refusing to wear safety equipment, duty
of employees to notify the Employer of changes in residence
or other such information, and tools and equipment. All these
matters had previously been agreed on. The parties were still
in disagreement on ‘‘elimination of past practices,’’ terms
under which employees could return to work from leave, the
right of the Employer to grant and withdraw merit wage in-
creases ‘‘in its sole discretion,’’ waiver of all bargaining
rights by the Union, right of Employer to require physical
examinations of all unit employees, and Respondent’s insur-
ance benefits proposals.
The parties remained in disagreement on the Employer’s
proposals for prohibition against strikes, handbilling, slow-
down, interruption of business, definition of lockout, and the
picket line clause.
The Employer’s proposal on the table at this meeting stat-
ed that the agreement would expire on 19 December 1988,
which would have been 28 months from the date of that bar-
gaining session. When questioned on this Schumann stated
that the Employer would propose a termination date of 3
years after ratification. No agreement was expressed.
After completion of the review, the Union stated its ac-
ceptance of the Employer’s proposals on loss of seniority,
rest periods, requirement of overtime, eligibility for holiday
benefits, payment for holidays occurring during vacations
and pension benefits.
After a statement of these concessions by the Union,
Schumann stated that the Company had these further posi-
tions which were contingent on the Union signing a contract:
Withdrawal of the Employer’s right to make unfettered merit
pay increases, a grant of a 10-cent-per-hour night-shift pre-
mium, an eighth holiday, and reduction of probationary pe-
riod from 180 days to 120.
Waters stated that the Union would have to have the fol-
lowing concessions: overtime after 8 hours, sick leave pay-
ment increased from $1257 to $150 per week, 36 hours guar-
anteed workweek, and amnesty for all strikers. After a cau-
cus, the Company agreed to increase sick leave pay from
$125 a week to $150 a week, but rejected all other demands
by the Union.
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If Respondent had wished, at any point, to present to the employees (or
anyone else) a more complete picture than that which may have been drawn
by the Union, it, of course, would have been free to do so. The many letters
from Herrmann to the employees demonstrate that Respondent is not shy about
communicating directly with its employees.
The meeting concluded without any further agreements.
4 September 1986
On this date the Union, through its attorney Donald W.
Cohen, made an unconditional offer to return to work on be-
half of the bargaining unit employees. By letter of the same
date, Herrmann advised the Union that the strikers would be
treated as economic, rather than unfair labor practice, strikers
and that they would be returned to work in order of senior-
ity. The letter attached a seniority roster of the employees
and designated certain of them who would not be reinstated
‘‘because of strike misconduct.’’ One of those employees so
named was John Frizzon, the alleged discriminatee in this
case.
15 September 1986
On this date the Company submitted to the Union its posi-
tion statement 22 which noted that at the 3 September bar-
gaining session the Company had made seven concessions
contingent on the Union’s accepting the remainder of the
Company’s proposals which had not then been agreed upon.
These seven listed concessions were: restoration of checkoff,
dropping Respondent’s proposed merit pay increase provi-
sions; 10-cent-per-hour night-shift differential; 120, not 180,
calendar-day probationary period; one additional holiday,
making it eight; three not five, days’ notification of return
from leave of absence; and agreement to the Union’s demand
that sickness and accident weekly benefits be raised from
$125 to $150. The letter concluded that since the Union had
not accepted these concessions, the seven listed proposed
concessions were withdrawn.
Bargaining Session 29; 22 September 1986
On this date the parties met briefly. The Union, by Waters,
stated that although the Company had withdrawn its conces-
sion as mentioned in Schumann’s letter, the Union was
standing by all the concessions it had made. Waters said that
he was not accepting the Company’s last offer as it then
stood and asked if the Company had anything else to offer.
Schumann stated that the Respondent did not, and the meet-
ing quickly adjourned.
Bargaining Session 30; 21 October 1986
At this final meeting the Union was joined by Phil
Imosote, a regional director of region 11 of the Union.
Imosote acted as the chief spokesman for the Union. He
began the session by asking to review all matters in dispute
to see if he understood the Company’s proposals. After a re-
view of the items in dispute, and a few questions, Imosote
said that the Union would agree to all other proposals if the
following union proposals were met: the Union would be no-
tified of grants or elimination of all merit increases to any
individuals; the Company will state which holidays would, or
would not, be observed on the date observed nationally; if
an employee’s physician states that he can work when the
Employer’s position states that he cannot, the two physicians
would select a third physician to make the decision; union
shop and checkoff; 25 cents wage increases the second and
third year of the contract; reinstatement of one holiday (the
eighth); reinstatement of all former strikers.
Schumann replied that the Company would notify the
Union of all changes and would agree to the proposals for
a third doctor to make a binding decision on whether an em-
ployee was physically able to work. Schumann stated the
Employer was not going to force striker replacements out of
their jobs, nor would they be forced to join the Union. The
Employer would not grant more holidays or wage increases
and Schumann added, ‘‘we do not believe the Union has
economic power to force us to give more money or to add
more holidays.’’ Schumann concluded that, if the Union was
willing to sign the Company’s version of the contract, the
Employer would grant dues checkoff for members or those
who wish to become union members.
Imosote stated that the Union would respond in 5 calendar
days. There was a subsequent exchange of letters, but no fur-
ther change of positions were made by either side.
3. Analysis and conclusions
a. Refusal to furnish information
In this case, Respondent argued from the first bargaining
session until the last (when it had clearly won the strike and
had unilaterally lowered wages) that it needed its demanded
economic concessions for its very economic survival. Re-
spondent further repeatedly insisted that the Union ‘‘look at
the books.’’ In this to posture it cannot be denied, and Re-
spondent does not deny, that the Union had a right to the in-
formation necessary to appraise Respondent’s claim of eco-
nomic necessity.
Respondent refused to furnish to the Union its existing au-
dits and balance sheets and other information with which the
Union sought to appraise Respondent’s plea of inability to
pay more. Respondent argues that it did this because it felt
that the information which was requested would present a
less than completely accurate portrayal of its financial condi-
tion. Thus, the Respondent argues, the Union should have
been required to conduct full-scale audits for the preceding
5 years before it could secure any existing information about
Respondent’s current financial status. As stated in Respond-
ent’s position statement 12, this would have involved an
‘‘enormous volume of records.’’
If I wanted to know the telephone number of the zoo, but
the information operator would give it to me only after I had
copied down all preceding entries in the telephone book, I
could fairly say that the operator was refusing to give me the
number altogether. Assuming, under some theory of law with
which I am not familiar, that the telephone company had an
obligation to provide me with the zoo’s telephone number,
the operator’s action would be a violation of that obligation.
Likewise, it is not for Respondent to dictate through what
hoops the Union should be required to jump before it re-
ceives the information to which it is entitled under the Act.
Respondent cites no case of authority to the contrary, and
any other construction of the Act would render the duty to
furnish information meaningless.8
Accordingly, I find and exclude that beginning 30 Decem-
ber 1985, when Respondent presented its position statement
861AMERICAN MEAT PACKING CORP.
9 PRC Recording Co., 280 NLRB 615 (1986), enfd. sub nom. Richmond Re-
cording Co., 836 F.2d 289 (1987).
12 to the Union’s accountant, to date, Respondent has re-
fused to furnish the Union financial information to which the
Union was lawfully entitled, in violation of Section 8(a)(5)
and (1) of the Act.
b. Unilateral implementation of proposal 38
At the core of the differences between Respondent and the
Union was Respondent’s proposal 38 which was introduced
at the first bargaining session on 21 October 1985. All 290
bargaining unit employees were reclassified under the pro-
posal and, as a summary attached to the proposal reflected,
86 were to receive wage increases, 203 were to receive cuts,
and 3 employees would have received no change in pay.
On 24 October, 3 days after presentation of the proposal
to the Union, Respondent’s president, Carl Herrmann, by let-
ter of that date, informed the employees that the proposed
wage rate and classification changes had been placed on the
bulletin board, and he further stated, without any qualifica-
tion whatsoever, ‘‘[t]his will go into effect on December 20,
1985.’’
On 4 November, at the third bargaining session, without
any input from or further discussion with the Union, Re-
spondent revised its proposal 38 to call for 194 employees
to receive cuts in pay. Carey told the Union that there would
be no grievances on the issue of job placement because all
disagreements would be handled before 20 December and,
failing agreement, if there was impasse, Respondent would
be free to act unilaterally. The Union was further told that
the revisions would be posted the next day and as Schumann
stated, ‘‘We would like the input from the Union and the
employees. The more input that we receive from these peo-
ple and you, the less it’s going to cost us when the time
comes to put this through.’’
The next day Schumann told Piotrowski, ‘‘our proposal is
firm.’’ On the day after, 6 November, Herrmann told the em-
ployees that AMPAC’s owners have said that they will . . .
permanently close AMPAC if we do not receive the conces-
sions we have proposed.’’ He added, apparently for the ben-
efit of the obtuse, ‘‘a job at a lower rate is better than no
job at all.’’ At the fifth session on 11 November, Schumann
told the Union that proposal 38 placed the employees where
it thought ‘‘they would end up on December 20, 1985.’’
On 12 and 13 November, without prior consultation with
the Union, Respondent conducted a systematic survey of bar-
gaining unit employees, asking them if they were satisfied
with their placement on proposal 38 and could they do other
jobs. On 15 November Herrmann sent another letter to em-
ployees stating that the proposal had received overwhelming
support from the employees, but that Piotrowski was still re-
fusing to do anything and ‘‘Now Walter Piotrowski is about
to cost 291 more members to lose their jobs when the Nor-
mal Avenue plant closes. I believe that a majority of our
people do not agree with this stubborn old man.’’
At the seventh session on 26 November, Schumann told
the union negotiators, ‘‘You have our proposal of what it’s
going to be on December 20 if we sign a new agreement or
if there’s impasse on Proposal 38.’’
On 18 December, the Employer proposed a revision of
proposal 38 to reflect employee turnover, declared an im-
passe on that issue, and announced that proposal 38, as re-
vised, would be implemented ‘‘effective 6:00 a.m., Friday,
December 20, 1985.’’ When the union representatives ob-
jected that there were many other topics in dispute and that
a declaration of impasse was premature, Carey replied only
that the law of impasse ‘‘is as per subject.’’
In summary, proposal 38 was presented at the first nego-
tiation session as something that Respondent had to have to
survive, and that it had to have it by 20 December. Within
3 days of its presentation, Respondent’s chief executive told
the employees that the proposal would, indeed, be imple-
mented on 20 December. Thereafter, the employees were
subjected to a barrage of threats by Herrmann that if pro-
posal 38 were not accepted the plant would close and they
would be out of a job. While Schumann and Carey occasion-
ally qualified their pronouncements of Respondent’s intent to
implement proposal 38 only after impasse, these were clearly
no more than statements ‘‘for the record’’ in an attempt to
build a defense. Respondent’s true intent was revealed by
Herrmann’s statements and the unyielding insistence on pro-
posal 38 by Respondent’s negotiators.
On 26 November, when Schumann told the union nego-
tiators that ‘‘you have our proposal on what it’s going to be
on December 20 if we sign a new agreement or if there’s
impasse on Proposal 38,’’ he was telling the Union that it
could have proposal 38 as the result of an impasse, or it
could have proposal 38 as part of any contract which Re-
spondent would sign, but, either way, the Union was going
to have proposal 38; and, as Herrmann had told the employ-
ees, the Union was going to have it on 20 December 1985.
This was not bargaining; this was presentation of a Hobson’s
choice.
Therefore, Respondent never bargained about proposal 38,
and it cannot be said, as Respondent contends, that proposal
38 was implemented only after the parties had bargained to
impasse. Accordingly, I find and conclude, that by the imple-
mentation of the job classification and wage changes con-
tained in proposal 38 on 20 December 1985, Respondent vio-
lated Section 8(a)(5) and (1) of the Act.9
c. The ‘‘surface bargaining’’ allegation
The General Counsel alleges that Respondent has engaged
in ‘‘surface bargaining.’’ Use of the term ‘‘surface bar-
gaining’’ has evolved from the fountainhead case of NLRB
v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir. 1953),
cert. denied 346 U.S. 887 (1953). In that case, the First Cir-
cuit reasoned that to determine if the duty to bargain in good
faith has been assumed by a party, the Board necessarily
looks at the substance of the proposals themselves for ‘‘if the
Board is not to be blinded by empty talk and by the mere
surface motions of collective bargaining, it must takes some
cognizance of the reasonableness of the positions taken by an
employer in the course of bargaining negotiations. ’’
This oft-quoted language of the First Circuit, if taken too
far, could serve as a predicate for those who would attempt
to determine what proposals are, or are not, ‘‘acceptable.’’
Any such attempt necessarily flies in the face of the explicit
language of Section 8(d) of the Act which establishes the na-
ture of the duty to bargain and, in so doing, provides: ‘‘such
obligation does not compel either party to agree to a proposal
or require the making of a concession.’’
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 277 NLRB 639, 640 (1985).
11 As Carey, on 5 November, stated in reference to Respondent’s manage-
ment-rights proposal, ‘‘otherwise, it will result in continuous bargaining
through the contract period.’’ Carey stated it more plainly on 11 November:
‘‘They don’t want to continue negotiating with you during the contract term.’’
Schumann was also plain-spoken when, on 14 November, he told the Union,
The other extreme of the pendulum’s swing is, of course,
the logic that the Board should never look at the substance
of the parties’ proposals to appraise their conduct. Pro-
ponents of such a view would argue that the National Labor
Relations Act brings the parties to the bargaining table, but
what happens after that is none of the Government’s busi-
ness. One could say that such thinking produced in
Reichhold Chemicals,10 the unqualified statement that: ‘‘The
Board will not attempt to evaluate the reasonableness of a
party’s bargaining proposals, as distinguished from bar-
gaining tactics, in determining whether the party has bar-
gained in good faith.’’
However Reichhold is not mentioned in the most recent
case in which a Board majority analyzes in detail the totality
of a party’s conduct to determine whether the party has en-
gaged in bad-faith bargaining. In Eltec Corp., 286 NLRB
890 (1987), the Board analyzed the employer’s approach to
the bargaining table, but it did not do so under the criteria
emanating from Reed & Prince, or its progeny; nor did it
conduct its analyses on the basis of Reichhold. Instead, the
Board looked for authority to the older (but hardly old) case
of Chevron Chemical Co., 261 NLRB 44, 46–47 (1982),
which I quote at length:
As noted above, in ascertaining whether the duty to
bargain in good faith has been complied with, it must
be remembered that Section 8(d) does not ‘‘compel ei-
ther party to agree to a proposal or require the making
of a concession . . . . Thus, the Board does not, either
directly or indirectly, compel concessions or otherwise
sit in judgment upon the substantive terms of collective
bargaining agreements. NLRB v. American National In-
surance Co., 343 U.S. 395, 404 (1952).6 On the other
hand, as stated by the Supreme Court, ‘‘[Tlhe Board
has been afforded flexibility to determine whether a
party’s conduct at the bargaining table evidences a real
desire to come into agreement . . . . And specifically
we do not mean to question in any way the Board’s
powers to determine the latter question, drawing infer-
ences from the conduct of the parties as a whole. NLRB
v. Insurance Agents’ International Union, AFL–CIO
[Prudential Insurance Co.], 361 U.S. 477, 498 (1960).
The Board does, of course, with court sanction, con-
sider the content of bargaining proposals as part of its
review when making a determination as to the good
faith of parties negotiating a contract.7
. . . .
Contrary to the Administrative Law Judge, we con-
clude that the proposals described above indicate hard
bargaining by both sides, each desirous of improving its
position vis-a-vis the other as measured by the existing
P & M contract. Thus, in our view, the proposals of
Respondent do not warrant a finding of bad faith based
upon its having offered them. Nor do we find that they
can be fairly characterized as harsh, vindictive, or oth-
erwise unreasonable.10 Apart from the contract pro-
posals themselves, the conclusion that Respondent met
its obligation to bargain in good faith is supported by
other factors which we deem relevant in our consider-
ation of the totality of the circumstances revealed by
the record. In this regard, we note that the parties have
maintained an ongoing bargaining relationship con-
cerning Respondent’s P & M employees for several
years, and that the record discloses no intent by Re-
spondent to undermine that relationship. Likewise, the
record as to the actual negotiations reflects no refusal
by Respondent to meet and confer, or to provide infor-
mation. It reflects no adamant refusal by Respondent to
make concessions in its bargaining positions, or failure
or refusal to provide justification for its bargaining pos-
ture. Nor does the record suggest that the parties were
at an impasse when the strike was called.
Finally, no other unfair labor practices are involved
here, and the record reflects no conduct by Respondent
away from the bargaining table which would suggest
that its negotiating positions were taken in bad faith.11
Accordingly, we shall dismiss the complaint in its
entirety.
6 But see fn. 10, infra.
7 See, e.g., Seattle-First National Bank v. NLRB, 638 F.2d 1221,
1225–26 (9th Cir. 1981); Pease Company v. NLRB, 666 F.2d 1044 (6th
Cir. 1981).
. . . .
10 While unusually harsh, vindictive, or unreasonable proposals may
be deemed so predictably unacceptable as to warrant the evidentiary
conclusion that they have been proffered in bad faith (see, e.g. Pease
Company v. NLRB, supra at fn. 4, and cases cited with approval there-
in), the proposals at issue in this case do not, in and of themselves,
warrant such a finding.
11 Cf. Safeway Trails, Inc., 233 NLRB 1078 (1977), on remand from
the United States Court of Appeals for the District of Columbia Circuit,
which had concluded that an 8(a)(5) violation can be made out based
on other evidence, ‘‘even though overt evidence of that bad faith does
not appear at the bargaining table itself.’’
Therefore, using the quotations in, and of, Chevron, the com-
pound, complex issue may fairly be framed as: Did Respond-
ent’s conduct at the bargaining table evidence a real desire
to come to agreement; or is bad faith evidenced by proposals
which are unusually harsh or vindictive or so unreasonable
as to warrant the evidentiary conclusion that they had been
proffered in bad faith; or, is bad faith indicated by an attempt
to undermine an established relationship, by a refusal to meet
and confer, by a failure to provide information, by adamant
refusals to make concessions in Respondent’s bargaining po-
sitions, or by failure to provide justification for its bargaining
posture; or is bad faith evidenced by a combination of con-
duct at, and away from, the bargaining table?
(1) Proposals to remove the Union as collective-
bargaining agent
As repeatedly stated by Carey and Schumann, a principal
objective of Respondent in these negotiations was to secure
an agreement which would insulate Respondent from being
required to deal with the Union throughout the term of any
agreement reached. In other words, after signing the agree-
ment, all that was left for the Union to do was to dis-
appear.11
863AMERICAN MEAT PACKING CORP.
‘‘You’re having the opportunity now to give us your input and work out this
contract, but not on a day-to-day basis.’’
Examples of Respondent’s proposals designed to this end
are manifold. Respondent would appraise all employees
under its performance appraisal model which gave Respond-
ent the ‘‘sole discretion as to when and/or if a performance
appraisal will be conducted for any individual bargaining
unit employee.’’ Through its ‘‘no-work preservation clause’’
proposal, Respondent would have the right to relocate the
bargaining unit work anywhere on the planet, and it further
allowed management and research and development per-
sonnel to perform bargaining unit work ‘‘to the extent that
it is essential for the running of a profitable business.’’ Re-
spondent’s proposals permitted the same latitude to Respond-
ent in the employment of part-time and casual employees.
Job bidding and posting rights were limited to those occa-
sions when the Employer in its ‘‘sole discretion’’ determined
that job openings and need for employees existed. Moreover,
the duration of any training periods for successful bidders
and the initial determination of qualifications to be slotted in
jobs will be within the sole discretion of the Employer. Re-
spondent would retain complete discretion of which employ-
ees were to be laid off for any period; Respondent’s tem-
porary layoff proposal specified this plainly for layoffs of pe-
riods not exceeding 5 days and the method of layoff proposal
would have resulted in the same thing for longer layoffs be-
cause the Employer could base layoff selection on the basis
of qualifications and ‘‘qualification shall be within the sole
discretion of the Employer.’’
The hours of the workday and the timing of lunch periods
were matters left to the sole discretion of the Employer in
its proposal. The Employer further demanded the right to ob-
serve holidays on any day it wished. (The Employer stated
that certain days, such as Christmas and Independence Day
would not be moved, but never put such qualification in
writing, and Schumann refused to say what other days of
holiday celebration would not be moved.)
The management-rights proposal, insisted on from first to
last, specified that Respondent retained the rights unilaterally
to determine job analysis for each job in the plant (as listed
in proposal 38), to revise the same as often and in any man-
ner as Respondent saw fit, and the right, again, to conduct
performance appraisals as often as Respondent saw fit, to
grant merit raises as often and in such a manner as Respond-
ent saw fit, to determine wage rates for all new jobs, to de-
termine whether an employee is qualified to do any job, and
to make and enforce personnel rules and regulations and to
revise the same as often as Respondent saw fit.
Respondent insisted on increasing from 60 to 180 the
number of days new employees would be absolutely without
rights, putative or otherwise, under the contract.
The Employer insisted, from first to last, not only the right
to make unilaterally all disciplinary rules, but the right to
conduct, unilaterally, all aspects of any disciplinary problem,
with only notice to the Union of what it had done. The
Union was left to after-the-fact grievances which could not
go to arbitration, but could only be the subject of a Section
301 suit.
Assuming that a Section 301 suit were filed over a dis-
ciplinary (or any other) matter, Respondent, in addition to a
complete panoply of discretionary rights could, under the
proposals upon which it insisted from first to last, defend any
such suit with its proposal to eliminate from consideration all
past practices by any form. Such changes would necessarily
vitiate any theory of contract violation based on alleged dis-
parate treatment. Finally, in the seeming concern that any-
thing had been missed, Respondent insisted, from first to
last, that the Union agree that it waived all rights to bargain
on ‘‘all issues,’’ whether discussed or not, during the term
of the agreement. Therefore, these proposals, if accepted
would have meant that the employees would be without rep-
resentation for the term of any contract reached.
(2) Harsh or vindictive proposals
While ‘‘harsh’’ is a relative term, and certainly one which
is subject to misuse, there is no question that certain of Re-
spondent’s proposals, insisted on from first to last without
modification, warrant this characterization.
From first to last Respondent insisted on its proposals for
departmental seniority, the unilateral right to transfer, the
right to require ‘‘cross-training,’’ the right to determine the
need for layoff, and the unilateral right to select employees
for layoff. These proposals must be read together. Under
these proposals Respondent could eliminate any employee
from the work force at any time it wished. Upon being sent
to another department (via the devices of transfer or ‘‘cross-
training’’), the employee would lose all seniority. Then the
Respondent would be free to proclaim layoff, of one em-
ployee or more, and the new transferee would be gone. In
summary, the transfer, cross-training, and departmental se-
niority proposals (which Respondent insisted on from first to
last) collectively contain an insidious scheme, and the pro-
posals are ‘‘harsh’’ under any concept of the word.
‘‘Harsh’’ aptly fits Respondent’s position on no-strike and
lockout. As well as being relegated to the right to file only
nugatory grievances, the Union was prohibited not only from
striking but handbilling to air complaints on behalf of em-
ployees. At the same time, Respondent insisted on the right
to lock out employees at any time it saw fit. While Respond-
ent did propose in haec verba a no-lockout clause, it simulta-
neously insisted upon a definition of lockout which excluded
any exercises of its open-ended management-rights proposal
or its proposal permitting relocation of the work force at any
time it saw fit.
Another union-undermining, and ‘‘harsh,’’ proposal, in-
sisted on from first to last, was Respondent’s proposed right
to employ not only supervisors and research and develop-
ment personnel to do bargaining unit work, but the right to
employ part-time and casual labor to do any job in the unit.
With this right, any employee, and, indeed, the whole unit
represented by the Union, could be eliminated from the plant
in the exercise of the ‘‘sole discretion’’ of management.
In this regard, one must view Respondent’s merit pay pro-
posals. From first of negotiations to the last, Respondent in-
sisted on the absolute, unilateral right to grant and withdraw
merit pay increases. Favoritism could flourish; employees
could be pitted against employees; and all employees would
be denied union assistance in objecting to any arbitrary con-
duct on the part of Respondent. It is difficult to imagine a
finer tool for fomenting divisiveness.
‘‘Vindictive’’ is a word appropriately ascribed to Respond-
ent’s bargaining approach, especially concerning wages. As
stated early in this narrative, in negotiating the 192 contract,
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 At the 11th bargaining session when Piotrowski complained that the Com-
pany had agreed to none of the Union’s proposals, Schumann replied, ‘‘We
went through this 6 months ago when we were coming up with these pro-
posals. We put a hard hat on a broom and said it was you. We gave you some
and us some.’’ Also, at the next session, Schumann stated, ‘‘the Employer’s
position is that we did the give and take before we walked in here.’’
13 Respondent’s ‘‘concessions’’ were proposals to restore what it had pre-
viously proposed to take away; e.g., showup pay and providing sharpening
stones (Respondent also proposed to restore union shop and checkoff, but only
if proposal 38, and all it entailed, were swallowed by the Union.)
14 While there are several examples, the epitome of this aspect of Respond-
ent’s bargaining technique is contained in Herrmann’s 15 November letter to
employees which stated: ‘‘Now Walter Piotrowski is about to cost 291 mem-
bers to lose their jobs when the Normal Avenue plant closes. I believe that
a majority of our people do not agree with this stubborn old man. Make your
voices heard. Save your jobs! Tell the Union that you want to save AMPAC.
Under federal law you are entitled to a secret ballot to vote to save your job.’’
15 As Herrmann told the employees in his letter of 6 November (and as Re-
spondent confirmed in its position statement 4), Respondent’s proposal 38 was
modified ‘‘because of your input.’’
the Union agreed to a $1 pay cut and the Respondent agreed
to wage increases of 50 cents for the 2 following years.
When the time for the increases came, Respondent asked the
Union to forgo them, and twice the Union refused. Respond-
ent thereafter closed the Racine Avenue plant. During the
bargaining, Herrmann sent a barrage of letters to the employ-
ees blaming the Union for the closing of that plant. He did
this in spite of the fact that the union representatives assured
Respondent’s bargaining team that the employees had voted
to refuse to grant the requested concessions.
One must consider the campaign by Herrmann together
with the refusal of Respondent to furnish information. If the
information requested would have substantiated Respondent’s
claims, Respondent assuredly would have produced it. It did
not, and it is logical to conclude that the plea of inability to
pay more than the proposed reduced wages was a sham. It
is logical to conclude, further, as I do, that the insisted-upon
wage cuts (of up to $3 per hour for almost all of the unit)
were the product of vindictiveness; Respondent wanted to get
even with the Union for not granting the requested bypassing
of the 50-cent wage increases which had been due in the
past.
In sum, I conclude that Respondent’s proposals for wage
reductions were both harsh and vindictive.
(3) Respondent’s bargaining technique
As Schumann told Piotrowski, before the bargaining began
Respondent decided what it could do.12 Then, thereafter,
while making no meaningful concessions to the Union13 it
went to the employees with the message that the Respondent
had done the best it could for the employees in its proposals,
that the Union was acting only out of malice for them, and
that the employees should put pressure on the Union to get
the Union to accept the Employer’s proposals.14 This was
precisely the technique employed by the employer in Gen-
eral Electric Co., 150 NLRB 192 (1964), enfd. 418 F.2d 736
(2d Cir. 1969). There, the Board, with court approval, con-
cluded that this technique was clearly indicative of an intent
not to reach an agreement on terms other than those unilater-
ally determined by the employer.
d. Individual bargaining
Part of the technique employed by Respondent was the use
of systematic, individual interviews to ask the employees if
they were satisfied with their job slotting in proposal 38 and
whether they possessed skills for other jobs. The obvious
purposes were twofold: Respondent wished to give the em-
ployees the impression that only Respondent was looking out
for them, and Respondent further wished to show the em-
ployees that they could get positive results without the
Union.15
Such going-behind-the-back constitutes an independent re-
fusal to bargain, as I find and conclude, because, as the
Board stated in Obie Pacific, Inc., 196 NLRB 458 at 459
(1972):
Part of the tasks facing a negotiator for either a union
or a company is effectively to coalesce an admixture of
views of various segments of his constituency, and to
determine, in the light of that knowledge, which issues
can be compromised and to what degree. A systematic
effort by the other party to interfere with this process
by either surreptitious espionage or open interrogation
constitutes clear undercutting of this vital and necessary
confidential function of the negotiator. It is indeed de-
signed to undermine the exclusive agency relationship
between the agent and its collective principles.
The systematic interrogations here, coupled with the
denegrating letter-writing campaign by Herrmann, could only
have had the purposes of undermining the bargaining stance
of the Union and further interfered with the negotiation proc-
esses.
e. Conclusion as to Respondent’s overall conduct
of bargaining
While Respondent was willing to sit and sit and talk and
talk, and occasionally offer—as a concession—the restoration
of some of what it had previously proposed to take away, it
never bargained with the Union as the term ‘‘bargain’’ is en-
visioned by Section 8(d) of the Act.
On the authority of Chevron Chemical and cases cited
therein, and taking into account Respondent’s refusal to fur-
nish vital information necessary for the bargaining process,
its unilateral implementation of its proposals for wage rate
and classification changes, its direct dealing with employees
(all independent violations of Sec. 8(a)(5) of the Act), as
well as its insistence on proposals which would, in effect, re-
move the Union as the employees’ collective-bargaining
agent for the duration of any contract negotiated, its further
insistence on the unduly harsh and vindictive proposals for
wage cuts and other terms which would allow unilateral re-
moval of any and all employees from the unit without any
effective recourse by them or the Union, and further allow
unfettered favoritism by the Employer by the use of merit
pay increases (again without recourse), and further allow
lockout of employees at any time, and further taking into ac-
count Respondent technique of adamant insistence on terms
which it unilaterally found satisfactory while denegrating the
Union and soliciting the employees to put pressure on the
Union to accept Respondent’s uncompromising demands, Re-
spondent has bargained in bad faith with the Union in viola-
tion of Section 8(a)(5) and (1) of the Act, as I find and con-
clude.
I further find and conclude that the strike which began on
20 December 1985 was caused by Respondent’s bad-faith
865AMERICAN MEAT PACKING CORP.
bargaining and that it was further caused and prolonged by
its unilateral actions and direct dealings with employees and
its refusals to furnish information necessary for the purposes
of collective bargaining. Therefore, the strikers were unfair
labor practice strikers and entitled to reinstatement on their
unconditional application to return to work on 4 September
1986. Respondent’s failure to reinstate them was, therefore,
a violation of Section 8(a)(3) and (1) of the Act as I further
find and conclude.
B. The Discharge of John Frizzon
As previously noted in the above chronology, before the
Union offered that the employees would return to work from
strike, Respondent announced that it would not reinstate John
Frizzon because of strike misconduct an his part. This con-
stituted a discharge. Respondent’s misconduct allegation is
based on a threat which Frizzon allegedly made on 21 March
1986.
Normal Avenue in Chicago runs north and south. Re-
spondent’s main entrance faces east on Normal Avenue. The
building has a side entrance which is accessed through an ad-
jacent parking lot an the south side of the building.
Schumann testified that about 7:40 a.m. on 21 March 1986
he and Carey arrived at the plant by automobile and they
walked through the parking lot toward the sidewalk which
runs parallel to Normal Avenue and leads to the main en-
trance. Schumann testified that no employees were picketing
that morning on the sidewalk, but 10 to 15 strikers were
standing across the street near a fire barrel; others were in
a warmup shanty, also across the street. One of the strikers
standing around was John Frizzon.
Schumann testified that as he and Carey approached the
sidewalk, with Carey slightly ahead of Schumann, Frizzon
stated to him, ‘‘Well I guess it will be just you and your
scab workers.’’ Schumann replied that he responded, ‘‘Well,
I guess so.’’
Then, further according to Schumann, he and Carey turned
at the sidewalk and walked toward the entrance. As they ap-
proached the door, with Carey slightly behind Schumann,
Frizzon ‘‘[y]elled out, ‘We will get Joe Carey tonight.’’’
Schumann further testified that he then turned and saw
Frizzon out in the middle of the street in front of the fire
barrel. Then Carey responded to Frizzon, ‘‘[T]ry it.’’
Schumann further testified that as he turned back toward the
door, he heard Frizzon reply, ‘‘[W]e will.’’
On cross-examination, Schumann was shown his pretrial
affidavit. He acknowledged that in giving that affidavit he
was asked what had been said. He further acknowledged that
in his affidavit there is no mention of anything said by
Frizzon after Carey said, ‘‘[T]ry it.’’ Schumann was asked
if he had any explanation as to why he did not remember
Frizzon’s reply when he gave the affidavit, and Schumann
replied that he did not.
Carey, who also conducted the case at trial for Respond-
ent, also testified about the incident. He testified that there
was an exchange between Frizzon and Schumann, but he had
paid no attention to what Frizzon had said, and he did not
hear what Schumann’s response was. After this exchange,
further according to Carey, he and Schumann continued
walking toward the front entrance. As his back was to him,
‘‘John Frizzon said in a loud voice right toward us, ‘We will
get Carey tonight.’ I quickly said something to the effect ‘try
it.’’’ Carey concluded his testimony, ‘‘I was frightened by
the remark and that is the end of the testimony.’’ Carey did
not testify that Frizzon responded, ‘‘We will,’’ as did
Schumann.
Frizzon testified that he was at the warmup shack when
Carey and Schumann arrived that morning. Frizzon testified
that as Schumann and Carey walked toward the main en-
trance, he spoke to Schumann . His testimony on direct ex-
amination concluded:
Q. What did you say to Mr. Schumann?
A. What I said to Mr. Schumann was that, ‘‘Mike
your last proposal sucked.’’ I told him, it seemed like
him and his scabs would have to get in there and do
their work. I also asked Mike to give Carey some
knives so he could help. Carey waved his hand and said
okay, fine. Then when he did that they walked on up-
stairs into the plant.
Q. Did you say anything else to them?
A. No, that was all that I said.
Q. Did you say anything to the effect that you would
get Joe Carey tonight?
A. No.
Q. Did anyone else on the picket line say that?
A. No, if they did, I did not hear it.
In response to a question on cross-examination, Frizzon testi-
fied that when he made the remark to Schumann, he was
standing on the curb, across the street, ‘‘around’’ a fire barrel
which was in front of the warmup shack.
David Webb was a striking employee who was present on
21 March. He testified that he heard Frizzon say,
‘‘Schumann, you better give Carey some knives so he [can]
help those scabs cut the meat up.’’ On cross-examination
Webb acknowledged that he was Frizzon’s cousin and that
he is a member of the bargaining committee. At one point
Webb testified inconsistently with Frizzon in that Webb stat-
ed on cross-examination that he and Frizzon were on the
same side of the street as Carey and Schumann, carrying
picket signs and walking in the same direction (toward the
entrance) when Frizzon made his remark.
Tony Richardson, another bargaining committee member,
testified that he was present on the morning of 21 March
and, ‘‘Mr. Frizzon hollered to Mike that if he thought we
were going to accept that contract he was crazy. He then told
Mike Schumann he better give Joe Carey some knives to
help the scabs do their work inside the plant.’’ Richardson
placed Frizzon on the street, about 5 feet in front of the fire
barrel, essentially the same place where Frizzon, Schumann,
and Carey did. Richardson further placed Webb at the fire
barrel with the other employees, and not across the street, on
the sidewalk, picketing with Frizzon as Webb testified.
The last striking employee to testify was Tommy
Williamson. He testified that all Frizzon said was,
‘‘Schumann, get Carey some knives to help out the scabs.’’
On cross-examination, Williamson testified that when Carey
and Schumann got out of their automobile, they headed for
the side door, not the entrance on Normal Avenue as all
other witnesses testified. Williamson further testified that he,
Frizzon, and about 25 others were on the sidewalk in front
of the building, not across the street at the fire barrel.
Williamson testified that Frizzon was right next to him and
Webb was a few feet behind.
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Obviously, there are great discrepancies in the accounts re-
garding the placement of Frizzon vis-a-vis Schumann, Carey,
and the employees. In its brief, Respondent argues that the
accounts of the employees are so inconsistent that their testi-
monies must have been contrived. I disagree. All of the em-
ployees, including Frizzon, had a credible demeanor. I be-
lieve that all of them were trying to recount accurately what
they had heard. Moreover, Richardson placed Frizzon, Carey,
and Schumann in essentially the same positions as did Carey
and Schumann in their accounts. Finally, there is nothing in-
consistent with the accounts of Carey and Schumann in
Frizzon’s placement of the men involved.
Rather than demonstrating contrivance, I believe that the
testimonies of Webb and Williamson reflect a certain ingenu-
ousness. They did not rehearse anything; nor had they been
told by anyone what they should say. I feel they were mis-
taken, but these were mistakes of honest attempts of reflec-
tion. I believe that they heard what Frizzon said, but it did
not make any particular impression on them at the time be-
cause Frizzon’s statements were innocuous. The situation
was so undramatic to them that their memories did not
record the details of where they were, and where Frizzon
was, at the time they heard Frizzon’s remark. In short, Webb
and Williamson remembered what they heard; they just did
not remember precisely where the persons involved were
standing at the time.
There was nothing particularly revealing in the demeanors
of Schumann and Carey. However, because of Schumann’s
inability to explain his failure to include Frizzon alleged
‘‘We will’’ reiteration of the alleged threat in his affidavit,
and the failure of Counsel Carey to include the remark in his
testimony, I am absolutely confident that the ‘‘We will’’
statement was testimonial lilly-guilding by Schumann; it did
not happen.
All employees placed Carey, Schumann, and Frizzon from
30 to 50 feet apart at the time of Frizzon’s statement. It
could well have been that Schumann and Carey heard the
words ‘‘Carey,’’ and ‘‘get,’’ and, from that distance, they
could have misunderstood the word ‘‘knife’’ and thought
Frizzon had said ‘‘night.’’ Through their processes of logical
reconstruction, they may have come to the conclusion that
Frizzon had stated the threat which they testified they heard.
However, I need not speculate. As I stated, I found all the
employee witnesses credible on the essential issue of what
Frizzon said.
I find that the claimed 21 March conduct by Frizzon did
not occur. Since, at the time, Frizzon was engaged in a
course of statutorily protected activity, his discharge violated
Section 8(a)(1) of the Act, as I so find and conclude. NLRB
v. Burnup & Sims, 379 U.S. 21 (1964).
CONCLUSIONS OF LAW
1. American Meat Packing Corporation is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of American Meat Packing
Corporation constitute an appropriate unit for collective bar-
gaining:
All production and maintenance employees, excluding
office clerical employees, administrative employees,
guards, professional employees and supervisors as de-
fined in the Act, salesmen, chauffeurs, engineers, live-
stock handlers and janitors.
4. At all times material and continuing to date the Union
has been the exclusive representative of all employees within
the appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By discharging employee John Frizzon, Respondent vio-
lated Section 8(a)(1) of the Act.
6. By the following acts and conduct, Respondent has en-
gaged in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
(a) Refusing to furnish to the Union information necessary
for the purposes of collective bargaining.
(b) Unilaterally making wage and job classification
changes for the employees in the above unit.
(c) Individually bargaining with the employees in the
above unit.
(d) Negotiating in bad faith, without intent to reach agree-
ment, with the Union which is the exclusive bargaining agent
of the employees.
7. The strike which began on 20 December 1985 and ter-
minated on 4 September 1986 was caused and prolonged by
the above unfair labor practices committed by Respondent.
8. By refusing to reinstate unfair labor practice strikers on
their unconditional offer to return to work from strike on 4
September 1986, Respondent has violated Section 8(a)(3) and
(1) of the Act.
9. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
In order to remedy the unfair labor practices found here,
my recommended Order will require Respondent to cease
and desist from further violations of the Act and post an ap-
propriate notice to employees. I shall order that Respondent
bargain collectively, on request, with the Union as the exclu-
sive representative of the employees in the appropriate unit,
and, if an understanding is reached, embody such under-
standing in a signed agreement.
Having found that Respondent unlawfully discharged em-
ployee John Frizzon, and having further found that the Re-
spondent has discriminatorily refused to reinstate the unfair
labor practice strikers on the Union’s unconditional applica-
tion on their behalf to return to work, Respondent shall be
required to offer Frizzon and the other unfair labor practice
strikers (to be identified at the compliance stage of this pro-
ceeding) immediate and full reinstatement to their former po-
sitions or, if such positions are no longer in existence, to
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging if nec-
essary, any replacements. Further, Respondent shall be re-
quired to make them whole for any loss of pay they may
have suffered as a result of the discrimination against them.
The amounts due to Frizzon and the other discriminatees
shall be computed as provided in F. W. Woolworth Co., 90
867AMERICAN MEAT PACKING CORP.
16 See generally Isis Plumbing Co., 138 NLRB 716 (1962). Under New Ho-
rizons, interest is computed at the ‘‘short-term Federal rate’’ for the under-
payment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Inter-
est accrued before 1 January 1987 (the effective date of the amendment) shall
be computed as in Florida Steel Corp., 231 NLRB 651 (1977).
17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
18 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
NLRB 289 (1950), with interest as provided in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).16
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, American Meat Packing Corporation,
Chicago, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union, as the
exclusive representative of the employees in the unit de-
scribed above by, refusing to furnish bargaining information
relevant and necessary to the Union, by making unilateral
changes in the terms and conditions of employment of bar-
gaining unit employees, by bargaining individually with bar-
gaining unit employees, or by negotiating in bad faith with
the Union.
(b) Discouraging membership in Beef Boners and Sausage
Makers Union, Local 100-A, affiliated with the United Food
& Commercial Workers Union, AFL–CIO, by discharging
employees or by failing and refusing to reinstate unfair labor
practice strikers on their unconditional application to work.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which, it is found,
will effectuate the policies of the Act.
(a) On request, bargain in good faith with Beef Boners and
Sausage Makers Union, Local 100-A, affiliated with the
United Food & Commercial Workers Union, AFL–CIO, as
the exclusive bargaining representative of the employees in
the unit described above and, if an understanding is reached,
embody such understanding in a written, signed contract.
(b) On request, furnish to the Union information necessary
for and relevant to the purposes of collective bargaining.
(c) Offer to John Frizzon and the other employees engaged
in the unfair labor practice strike as of 4 September 1986 im-
mediate and full reinstatement to their former positions or,
if such positions no longer exist, to substantially equivalent
positions, discharging if necessary, any replacements, without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of pay
or other benefits suffered by reason of Respondent’s failure
to reinstate them on their unconditional offer to return to
work from an unfair labor practice strike in the manner de-
scribed in the remedy section of the decision.
(d) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at Respondent’s Chicago, Illinois facilities, copies
of the attached notice marked ‘‘Appendix.’’18 Copies of the
notice on forms provided by the Regional Director for Re-
gion 13, after being duly signed by Respondent’s representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.