Arcadia Foods, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1981

254 N.L.R.B. 1012 (N.L.R.B. 1981)

1012
Arcadin AUied
rind Workem
Lenet 15-CA-7490,
and
Or1
General
~espondent
The at-
tachtxl
briefs af?irm
rec-
omm
--
1
overrule
r ~ n l m con-
vinccs Standard Wall Pmducfs
I n c , 544 ((1950). F.2d
examined
see.
II1.A.
fact
' l l ~ e
rcinsta:ed labor
Genenll Counxl
employea corre-
spondi~g losrvs
n o d circumstanccs
profeeding
entitlal payments. shall
lvhole l a s
s~ffered
The Respondent o&r
reinntament employee Lcnet dis-
mias. il' necessary. employee 11.
practice
modif)
Rlspondent necessary, No-
v e m k
w i t h d r : ~
rec-
ognitian,
barls
Teml l Compny.
F.M
Regi~rding
year
n~odify
goa l
' Su-
pervisar Sec. S(a)( I)
The
"4.
9(a)
8(a)(5)
"9.
by-attempting vehicular
8(a)(1)
lqc )
~ o a r d '
ofi-
'
& Incorpomfed, 115
Monfgomery
affirm
Inc.,
Hickmoff F d s , Inc.
In
IrJLRB
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foods, Inc. and Food Workers, Dis-
trict Union No. 327, affiliated with United Food
Commercial International Union
trnd R. Smith, Jr. Cases
15-CA-7552, 15-CA-7548
February 26, 198 1
DECISION AND ORDER
Substitute the following Conclusions of Law 4,
5, and 9, respectively, for those of the Administra-
tive Law Judge:
Since October 26, 1978, the Union has been
the duly certified and designated exclusive repre-
sentative of the employees in the unit found to be
October 22, 1980, Administrative Law Judge
Lowell Goerlich issued the attached Decision in
this proceeding. Thereafter, Respondent and the
Counsel filed exceptions and briefs in sup-
port thereof, and filed an answering
brief to the General Counsel's exceptions.
Board has considered the record and the
Decision in light of the exceptions and
and has decided to the rulings,' find-
i n g ~ , ~and conclusions of the Administrative Law
Judge, as modified herein, but not to adopt his
ended Order.
Rtspondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
an administrative law judge's resolutions with respect to credi-
bility the clear preponderance of all of the relevant evidence
us that the resolutions are incorrect. Dry
91 NLRB enfd. 188 362 (3d Cir. 1951). We have
carefully the record and find no basis for reversing his findings.
The Administrative Law Judge inadvertently stated in par. I of
of his Decision that the Union was certified on October 18, 1978.
In the Union was certified on October 26, 1978.
Administrative Law Judge found that Respondent improperly
unfair practice strikers. Although he also stated that the
failed to prove that these employees suffered any loss.
we note that the General Counsel presented uncontradicted testimony
that three suffered a loss of overtime opportunities and
of wages following their improper reinstatements. Our
practice in these is to leave to the compliance stage
of this the determination of whether any employee is actually
to receive We therefore provide that Respondent
make these employees for of earnings, if any, that they may
have by reason of Respondent's failure to reinstate them proper-
ly.
Administrative Law Judge provided that shall
to Smith. Jr., requiring Respondent to
any hired on or after January 1980. As
the str ke was an unfair labor strike from its inception, we shall
this portion of the Administrative Law Judge's remedy to require
that dismiss, if any employee hired on or after
8, 1979.
The Administrative Law Judge also found that Respondent unlawfully
recognition, and refused to bargain thereafter, on October 31,
1979, and recommended issuance of a bargaining order. In agreeing with
the Administrative Law Judge that Respondent unlawfully withdrew
we rely on his factual finding that Respondent did so solely on
the of a mere rumor that a decertification petition was circulating
among ita employees. Obviously, Respondent has failed to demonstrate
sufficient objective considerations to justify its withdrawal of recognition.
Machine 173 NLRB 1480. 1480-81 (1969). enfd. 427
1088 (4th Cir. 1970).
the issuance of a bargaining order, the Administrative Law
Judge provided that Respondent be required to bargain with the Union
for I from the time it first complies with the order to bargain. We
shall this portion of his remedy to accord with our customary
bargair ing order in these circumstances to require Respondent to bargain
in faith with the Union for a reasonable period of time.
The Administrative Law Judge found that Respondent, through
Roland Chacon, violated by circulating a decertifi-
cation petition among employees. However, we note that unit.
No. 128
appropriate within the meaning of Section of
the Act."
"5. By making unilateral changes in an employ-
ee's wages, and by withdrawing recognition from
the Union as exclusive bargaining representative of
its employees in the above appropriate unit on Oc-
tober 31, 1979, Respondent has engaged in and is
engaging in unfair labor practices in violation of
Section and (1) of the Act."
By threatening an employee with plant clo-
sure, assault on an employ-
ee who was picketing, and by threatening to run
over that employee the next time, Respondent has
engaged in unfair labor practices within the mean-
ing of Section of the Act."
ORDER
Pursuant to Section of the National Labor
Relations Act. as amended. the National Labor Re-
lations hereby orddrs that the Respondent,
Arcadia Foods, Inc., Metairie, Louisiana, its
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Allied Food
Workers, District Union No. 327, afiliated with
United Food and Commercial Workers Internation-
al Union, or any other labor organization, by fail-
Board has generally refused to hold an employer responsible for antiun-
ion conduct of a supervisor who is part of the bargaining unit, absent evi-
dence that the employer encouraged, authorized, or ratified the supervi-
sor's activity, or acted in such a manner as to lead the employees to rea-
sonably believe that he was acting on behalf of management. Monfgomery
Ward Co.. NLRB 645, 647 (1956). The record dis-
closes no evidence that would render Respondent liable for Chacon's
conduct under the principle of Ward. We therefore shall dis-
miss that portion of the complaint which alleges supervisory solicitation
of an employee to sign a decertification petition. Member Jenkins would
the Administrative Law Judge in finding a violation on the basis of
Chacon's conduct. See his dissent in Times-Hemld 253 NLRB No.
66 (1980).
The Administrative Law Judge recommended a narrow cease-and-
desist order. In view of the extent of the violations found herein and the
seriousness of the withdrawal of recognition and refusal to bargain, we
believe that a broad cease-anddesist order is warranted, and shall so pro-
vide. See 242 NLRB 1357 (1979).
The Administrative Law Judge found that Respondent violated the
Act when a supervisor threatened an employee with plant closure, by at-
tempting vehicular assault on an employee who was picketing, by threat-
ening to run over that employee the next time, and by making unilateral
changes an employee's wages when under a duty to bargain with the
Union. However, the Administrative Law Judge inadvertently failed to
conform his Conclusions of Law and recommended Order with his find-
ings. We shall amend his Conclusions of Law accordingly. We shall also
conform our Order and notice to the violations found herein.
254
ARCADlA INC.
ing
Refusing
with
bargaining
leadmen
workers Me-
tai~ie,
Unlawfully
emphyee
Ullawfully
( f )
prrlctice
Rezognize
F t d Worken,
with Work-
Offer Lenet
Ic~nger
1
Ilemedy,"
Makt: Es-
have
Backpay
backpay terms
Metairie,
"Appendi~."~
shall
( f ) tb IS,
w-~n.a
IT
the notice reading
Punu-
the Stam Appeals
POSED ORDER
affiliated
leadmen
1013 FOODS,
or refusing to reinstate lawfully any of its em-
ployee$ who engage in a lawful strike.
(b) to recognize and bargain in good
faith Allied Food Workers, District Union
No. 327, affiliated with United Food and Commer-
cial Workers International Union, as the exclusive
representative of its employees in the
following appropriate unit:
All production and maintenance employees in-
cluding truckdrivers, helpers, all boning, ship-
ping, and ground meat and sanitation
employed by Respondent at its
Louisiana, facility; excluding all sales
personnel, office clerical employees, watch-
men, guards and supervisors, as defined in the
Act.
(c) threatening an employee with
plant closure.
(d) Unlawfully attempting vehicular assault on
an who was picketing.
(e) threatening to run over an em-
ployee cn the picket line.
Unlawfully effecting unilateral changes in an
employee's wages.
(g) Urlawfully failing to reinstate properly unfair
labor strikers.
(h) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) and, upon request, bargain with
Allied District Union No. 327, af-
filiated United Food and Commercial
e n lnternational Union, as the exclusive representa-
tive of its employees in the above-described appro-
priate bargaining unit, and embody in a signed
agreement any understanding reached.
(b) Smith, Jr., immediate and full re-
instatement to his former position or, if such posi-
tion no exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, discharg-
ing, if necessary, an employee hired to replace him
on or after November 8, 1979, and make him
whole for any loss of pay he may have suffered by
reason of he refusal to reinstate him in accordance
with the recommendations set forth in the section
of the Administrative Law Judge's Decision enti-
tled "The as modified herein.
(c) whole Gary M. Chapital, Michael
teves, and Ronald A. Coste for any loss of pay
they may suffered by reason of the failure to
reinstate thtm lawfully as set forth herein.
with interest therein is to be computed in the
manner set forth in the section of the Administra-
tive Law Judge's Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of due under the of this
Order.
(e) Post at its facility in Louisiana,
copies of the attached notice marked
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
Notify Regional Director for Region
in writing, 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges vio-
lations of the Act not found herein.
In the event that this Order is enforced by a Judgment of a United
State Court of Appeals, the words in "Posted by
Order of the National Labor Relations Board" shall read "Posted
ant to a Judgment of United Court of Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
BY OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bar-
gain in good faith with Allied Food Workers,
District Union No. 327, with United
Food and Commercial Workers International
Union, as the exclusive representative of our
employees in the following appropriate unit:
All production and maintenance employees
including truckdrivers, helpers, all boning,
shipping, and ground meat and
sanitation workers employed by us at our
Metairie, Louisiana, facility; excluding all
sales personnel, office clerical employees,
watchmen, guards and supervisors, as de-
fined in the Act.
WILL
WILL
above-
lights WE
backpay
him,
Michael Coste
loss
of
il~terest.
55-CA-7490)
a/w
IJnion,
Inc.,
111,
8(a)(1)
8(a)(1)
15-CA-
8(a)(1)
15-CA-7490.
sumbit
' the
resord
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage union or concert-
ed activities of our employees or their mem-
bership in Allied Food Workers, District
Union No. 327, affiliated with United Food
and Commercial Workers International Union,
o r any other labor organization, by failing or
refusing to reinstate lawfully any of them who
engage in a lawful strike.
WE WILL NOT unlawfully threaten an em-
ployee with plant closure.
WE NOT unlawfully attempt vehicular
assault on an employee who is picketing.
WE NOT unlawfully threaten to run
over an employee who is picketing.
WE WILL NOT unlawfully effect unilateral
changes in an employee's wages.
WE WILL NOT unlawfully fail to reinstate
properly unfair labor practice strikers.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them under
Section 7 of the Act.
WE WILL recognize and, upon request, bar-
gain with the aforesaid Union as the exclusive
representative of our employees in the
described appropriate bargaining unit, and
embody in a signed agreement any understand-
ing reached.
WE WILL offer Lenet Smith, Jr., who we re-
fused to reinstate after the strike ended on Jan-
uary 11, 1980, reinstatement to his former job
or, if his job no longer exists, t o a substantially
equivalent job, without prejudice to his senior-
ity or other rights and privileges previously
enjoyed, discharging, if necessary, any em-
ployee hired to replace him.
WE WILL restore his seniority and other
and privileges and WILL pay him
he lost because we failed to reinstate
with interest.
WE WILL make whole Gary M. Chapital,
Esteves, and Ronald A. for any
of pay they may have suffered by reason
our failure to reinstate them properly, with
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: A
charge and an amended charge (Case were
filed or November 14, 1979, and January 9, 1980, respec-
tively, by the Allied Food Workers, District Union No.
327, United Food and Commercial Workers Interna-
tional herein referred to as the Union, and duly
served on Arcadia Foods, Respondent herein, on or

about the same dates. An amendment to the complaint

was filed on March 6, 1980. The complaint alleges that

Respondent, through Supervisor Roland Chacon, solicit-

ed employees to sign a decertification petition, through

Supervisor Willie White, orally threatened an employee

that Respondent would close the facility rather than deal

with the Union, and, through Supervisor Ted Daly

attempted to hit an employee with his automobile and

made verbal threats to the employee, all in violation of

Section
of the National Labor Relations Act, as
amended, herein referred to as the Act. Additionally, the
complaint alleges that, without notice to or an opportuni-
ty for the Union to discuss or bargain thereon, Respon-
dent made unilateral wage increases and decreases in an
employee's salary; since on or about May 15, 1979, Re-
spondent failed and refused to bargain in good faith with
the Union and had no intention of entering into any final
agreement; and, since on or about October 31, 1979, re-
fused to meet with the Union and engage in collective
.bargaining, all in violation of Section and (5) of
the Act. Respondent, by its January 25, 1980, answer,
denied that it had violated the Act and also denied the
supervisory status of Roland Chacon.
Additional charges were filed by Lenet R. Smith, Jr.,
in Case 15-CA-7548 and by the Union in Case
7552 against Respondent on January 21 and 23, 1980, re-
spectively. On March 6, 1980, the cases were, pursuant
to Section 102.33 of the Board's Rules and Regulations,
Series 8, as amended, consolidated and a consolidated
complaint was issued. The consolidated complaint alleges
that Respondent violated Section and (3) of the
Act by refusing to recall and/or reinstate certain em-
ployees to their former jobs, causing employees to lose
hours and corresponding wages, and unlawfully failing
to reinstate employee Lenet R. Smith, Jr., after its em-
ployees had engaged in a strike. Respondent, by its .
March 19, 1980, answer, admitted that from November
8, 1979, to January 11, 1980, some of its employees en-
gaged in a strike but denied that it was an unfair labor
practice strike. Respondent also admitted that Lenet R.
Smith, Jr., had not been reinstated but asserted that this
action was based on a good-faith belief that he engaged
in picket line misconduct.
Pursuant to an order by the Regional Director issued
on March 6, 1980, Cases 15-CA-7548 and 15-CA-7552
were consolidated with Case The consoli-
dated cases came on for hearing on May 12-16, 1980, in
New Orleans, Louisiana. Each party was afforded a full
opportunity to be heard, to call, examine, and cross-ex-
amine witnesses, to argue orally on the record,' to
proposed findings of fact and conclusions of law,
and to file briefs. All briefs have been carefully consid-
ered.
There being no opposition, counsel for General Counsel's motion

to correct the
is granted.
1015
RESF'ONDENT
in
course
$50,000
Respondent
an
2(6)
11. LABOR
Allied Workers,
or;Ganization 2(5)
111. UNFAIR
The Lnion
18,
6. 1S79.
lrnow
111,
want
because
'White LeBeaux's
un-
taaimony
111
[H]e
11e
-
' fact; bared
observation or witn-. The
for demunor witnesses,
t a c h ngs N.LR.B Walton Lo-
ganvillc Panu Co.. 401, (1%2).
contruiction hcrein, has
witncsbes tecause
belief. teslimony
doors
111's
white,
LeBeaux's
8(a)(I)
Noah
Coste.
111,
way."s
I11
III's assault Thomp
8(a)(1)
Fads,
Unilateml Aa'justments Estews
$5
-
Maury's &
(1976),
8(a)(1)
Decerti/ication
view.*
undenied Coste
' pcti-
tion
ARCADIA FOODS,INC.
I. THE BUSINESS OF
Respondent is, and has been at all times material
herein, a corporation duly organized under and existing
by virtue of the laws of the State of Louisiana, and is en-
gaged the wholesaling of meat products at its plant lo-
cated at 7133 Ivy Street, Metairie, Louisiana.
During the past year, Respondent, in the and
conduct of its business operations, purchased goods and
product I valued in excess of directly from points
outside the State of Louisiana.
is, and has been at all times material
herein, employer engaged in commerce within the
meaning of Section and (7) of the Act.
THE ORGANIZATION INVOLVED
The Food District Union No. 327, a/
w United Food and Commercial Workers International
Union, is, and has been at all times material herein, a
labor
the Act.
within the meaning of Section of
THE LABOR PRACTICES
A. The Threat of Plant Closure
was certified as the collective-bargaining
representative of Respondent's employees on October
1978. Actual bargaining sessions commenced on Febru-
ary In the latter pan of October 1979 Thelma
LeBeaux engaged in a conversation with Production
Manager Willie White whom LeBeaux quoted as saying,
"I don't what you think of the union, but [Ted T.
Daly president of Respondent] doesn't want it, he
doesn't a union in the place, he doesn't want a
union telling him how to run his place. Or what to do,
so he'll close up first." On cross-examination LeBeaux
testified that the language used was "would rather close
up he don't want no one to come in here telling
him what to do and running his business."
While corroborated certain parts of
testimony he denied that he had uttered the alleged
threat. In respect to the subject of plant closure, the
denied of employee Gary Chapital discloses
that Daly told unit employees prior to the 1978 elec-
tion that:
didn't want a union in Arcadia Foods. And
that would do anything in his legal powers to
keep the union out. And, he mentioned the fact that
The found herein are on te record as a whole and the
the credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with
due regard the logic of probability, the of the
and the of v. Manufacturing Company and
369 U.S. 408 As to those witnesses testify-
ing in to the findings their testimony been dis-
credited, either as having been in conflict with the testimony of credible
or it was in and of itself incredible and unworthy of
All has been reviewed and weighed in the light of the
entire record. No testimony has been pretermitted.
he would shut the before the union would
ever get in Arcadia Foods.
The credited record in this case does not indicate that
Daly attitude changed after the 1978 election. Thus,
it is reasonable that his production manager,
would transmit Daly's ideas; LeBeaux is credited.
Whether one chooses version on direct or
cross-examination, the language attributed to White,
under the circumstances, contains an inference of plant
closure. By White's remarks, Respondent violated Sec-
tion of the Act
B. Ted Daly Ill's Vehicular Assault on
Thompson
On November 9, 1979, the Union engaged in a strike
and among the pickets were Noah Thompson and
Ronald A. While engaged in picketing, Ted Daly
who was driving an automobile, "swerved about 20
feet out his way and came up into a driveway and he
came about three feet from Noah and Noah had to jump
out the
When Daly passed, after parking his car, he shout-
ed some obscenities to Thompson and added that if he
did not get out of the way he would run over him the
next time. Daly vehicular on Noah
son and his subsequent threat to run over him were vio-
lations of Section of the Act. Green Briar Nursing
Home, Inc., 201 NLRB 503 (1973); Fry Inc., 241
NLRB 76 (1979).
C. Wage for Michael
The parties stipulated that the payroll records reflect
that Michael Esteves was raised to an hour for the
week ending October 3, 1979; his pay was $4.50 an hour
for the week ending October 10, 1979; and it was $5 an
hour for the week ending October 17, 1979. The wage
adjustments were affected unilaterally by Respondent
while Respondent was under an obligation to bargain
with the Union. Citing Fluorescent Appliance
Service, 226 NLRB 1290, 1291-92 the General
Counsel claims that such unilateral action by Respondent
violates Section and (5) of the Act. This case sup-
ports the General Counsel's claim. The violation is
found.
D. The Petition
On November 7, 1979, a petition to decertify the
Union was filed with the Board. The solicitor of the peti-
tion was Roland Chacon, whom the General Counsel
claims was a supervisor within the meaning of the Act.
Respondent espouses the opposite
T h i s is the testimony of which was corroborated by
other witnesses to the event.
Chacon had utilized the services o f a lawyer in processing the
but could not remember his name or the amount of his fee which
had not been paid.
When Chacon was first asked if he knew Willie White, the production
manager, he answered, "No, sir."
Q. You don't know him?
Continued
111 Respon-
dart's
Dubroc,
R&ph
111
s u p e ~ i s o r . ~
Ch:lcon
According
I11
wm
Chacon
wo~ked
Upcm
"[mlake
he lp
ci~lled ofice
Dal:r
"litt
"into take[s]
8:30
I'll
tcm I'll
tunnel, I'll
IV,
you IV
check
washmg."
solva
Chtlcon
IL.
Chawn s
connecton
1
y 111
Cs.
carlied as
1V.
been
tasks
increaae
111
I11
I11
ofice."
*
Dennis E. Ehrharr,
1 ofice;
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In late 1977 or early 1978 Daly convened
employees and, among other things, stated that
Chacon would be the supervisor of the boning depart-
ment, Willie White, the production manager, Henry
supervisor over shipping and receiving, and
Ragusa, supervisor over the patty department.
Daly testified that Chacon had been carried on Re-
spandent's payroll as a Chacon was paid the
supervisor's wage rate. Respondent sought to have
excluded from the bargaining unit as a supervi-
sor
to employee Michael Esteves, he was told
by Daly that he "had to obey Roland Chacon."
When Webster Daniel Long first went to work Chacon
introduced as his supervisor by Daly IV. He said,
"Now Roland is in charge of this department, and he
will tell [you] what you will do from here."
testified about his duties: he said that he
in the grinding or ground meat department.
arriving at work he checks the equipment to
sure that everything is set right so no one can
get hurt on it." This equipment includes the mixer,
grinding machine, patty machine, and tunnels. He then
"them" bring the merchandise out, after which he
is to the and given lists by his supervisor,
IV, which he gives to employees in the depart-
ment. Chacon then helps to mix a "little bit" and grind a
e bit" and "then get the machine started to get it
going." Upon instructions of Daly IV, Chacon then goes
the freezer and an inventory of the stock
that is low" and gives the list to Daly IV. Daly IV pre-
pares another list and tells Chacon, "Make a copy. Give
one to the grinding department and give one to the girls.
One to each." It is then about a.m. (Chacon starts
worl: at 7 a.m.) Chacon continued: "Then it just goes on.
If the girls need something, bring it down. I have
some seasoning downstairs. Patty paper for the machine
or I will relieve the girls on the patty machine or she
will go the bathroom or something like that. She may
get cold, so I will run the patty machine and then
go back to the freezer. Whatever came out the end of
the go put it away." The rest of the day is
"pretty much the same, except after lunch." After lunch
Chacon goes to the office and asks Daly "What else
do want us to grind." Daly replies "check this
and that and let me know what you've got."
"After that, I give him a list and he says, 'Okay, break it
down.' I will start breaking down the grinding and
mixing [machine] and start Chacon also re-
the problems which the employees encounter in
operating the machines.
testified that "most of the time" employees
woulc come to him for permission to leave early but he
I know Willie White but I never spoke to Willie White about
an) thing [the decertification petition] we were going to do.
gratuitous remark raises a question as to whether Respondent's
with the decertification petition was less remote than is re-
vealed i the testimony.
Dal testified:
So,since, at least for the last three years, he [Chacon] has been
as a supervisor. and been viewed a supervisor by you?
A . Yes.
would refer them to Daly However, there is testimo-
ny that Chacon excused employees. It seems obvious
that, if Chacon did not have authority to excuse employ-
ees, they would not have come to him "most of the
time" for permission to leave early since such would
have a futile act. Chacon is found to have excused
employees.
Chawn testified that he teaches job to inexperi-
enced employees.
Employee Floyd L. Brooks testified that if employees
wanted an in salary "they had to go up through
Mr. Chacon," and when an employee asked Daly for
a raise he was told to ask Chacon. Gary M. Chapital's
testimony was corroborative. Chapital asked Daly for
a raise and was told to "check with Roland Chacon to
see if [he] was putting out the production that [he] said
[he] was."
Brooks also testified that Chacon "would give or tell
Mr. Daly who was doing their work, and who wasn't."
According to Chapital when he was hired he was told
by Daly that he would "be working under Roland
Chacon, and that he would train [him] in [his] job." Mi-
chael Esteves, who had worked in the grinding depart-
ment for 1-1/2 years, testified that Chacon "goes in the
freezer and sees how the stock is doing, what do we
have in stock. And then he writes it up, and brings me a
paper telling me what he wants" and determines "how
much meat has to be ground" and gives "orders" to
other grinding department employees. Esteves stated that
Chacon did not engage in production work when a full
staff was present. "He makes sure that everything is
going rignt, and he works in the
Long testified that Chacon "told us what to do, when
to do it, and how much to do." Long also said Chacon
gave Daly "progress reports" on employees. For exam-
ple, he heard Chacon report to Daly IV upon being
questioned by Daly IV as to how an employee was
"doing," "Well, I think he's going to make it, he'll be all
right." Long also heard Chacon tell an employee, "Well,
you have to get on the ball, because if we don't get to
work, I'm going to have to go up there and tell the
man." Production Manager White testified that Daly
would say to Chacon, "Look, Roland this is what we
want done today."
Where the testimony of Chacon and other witnesses
conflict I have discredited Chacon. His testimony was of
a supererogatory nature and his responses appeared to be
purposely tailored. Chacon's memory also appeared to be
conditioned to favorable responses for Respondent.
Chacon was classified as a supervisor and represented
to the employees as a supervisor. Cf.
d/b /a Americraft Manufacturing Company, 242 NLRB
1312, fn. (1979). He spent substantial time in the
he granted employees permission to leave early; he par-
ticipated in the granting of salary increases; he furnished
progress reports to his superior; he determined the
amount of meat to be ground and gave orders to the
grinding department employees; he told an employee to
"get on the ball" or he would "tell the man" (Daly IV).
In his exercise of the responsibility to direct employees
in their work, Chacon required the use of independent
ARCADlA
judgm1:nt.
Sec:ion 2(11)
8(a)(l)
October Bargoin
Thereafler
engaged I11
These
IT/, I11
Cktober
negotiator, 111.
111:
I le
An ' j
hirri,
.was
"Ol:ay,
111
in-
formatioil
I11
weel:
was
law
N.L.R.B. M a y d
Dii'ion F.2d 1
8(a)(5)
refusid rea-
sonat~ly
e.g.,
J. Burt F.2d
N.L. F.2d
Cir.
N.L.h'.B., F.2d 1
this
F.2d Persons
F.2d
N.L F.2d 644,
1973), cert.
incumbent
NL.R.B. supm, F.2d
N.L W. 7'hompson. supm,
F.2d 133637. Medo
Tmnsport Inc., F.2d
also Compny
F.2d 1973), "[Tlhe
Carilli Restaurant,
section 8(a)(5)
em-
ploiees-about
&
Quolity Co.. Inc.,
(1
Tht, Cloim
s~matories insuf- Certoin Lobor
ficient barbin
estalAishes
supported Chapi-
tererit." tal, Coste, LeBeaux, rein-
Chacon was a supervisor within the meaning
of of the Act and his action in circulating
the decertification petition was in violation of Section
of the Act.
13. Respondent's Withdrawal of Recognition on
31, 1979, and Its Refusal To
On October 31, 1979, Respondent withdrew recogni-
tion frcm the Union and thereafter has refused to bargain
with the Union. On this date the Union and Respondent
were in a bargaining session. Daly had heard
rumors that a decertification petition was being circulat-
ed. rumors were transmitted to him by his son.
Daly or White. Daly testified, "I heard that it
was a nimor, I don't even know if it was a fact." He had
made no attempts to confirm the rumor.
On 31, Ronald H. Schroeder, Respondent's
chief phoned Daly As related by Daly
called me and he said, "Well, Ted, there's a
decertification out." And I said, "Are you sure?"
he said, "Right." And he said, well, I said to
"What do you think we should do?" Because
he at the meeting with them, and I said, "What
do you think we should do?" And he said, "I don't
think we should negotiate any more." And I said,
don't negotiate."
Daly said it was his decision to discontinue negoti-
ations and that the only reason for his action was the
he had received from Schroeder. At the time
Daly did not know how many employees had signed
the decertification petition. He added, "I don't even
know for a fact that it even exists." Respondent present-
ly refuses to bargain with the Union.
A later, on November 7, 1979, the decertification
petition filed with the Board in Case 15-RC-436.
The applicable to the abovedetailed facts appears
in the case of v. Plant of Grede Plas-
tics A of Grede Foundries, Inc., 628 (D.C.
Cir. 1980):
AIL employer does not violate section if its
to bargain is based on a good faith and
grounded belief that the incumbent union
no longer enjoys the support of a majority of the
bargaining unit employees. See, N.L.R.B. v.
Alvin and Co., 598 1267, 1271 (2d Cir.
1979); R.B. v. Top Manufacturing Co., 594
223, 224 (9th 1979); Allied Industrial Workers v.
476 868, 88 (D.C. Cir. 1973). But,
as court has previously said:
naked showing that a decertification petition
has been filed, with no indication of the number
of or other related matters. is an
basis in fact for refusing to since it
no more than that the petition was
by the requisite 30% "showing of in-
FOODS. INC. 1017
Allied Industrial Workers v. N.LR. B., supra, 476
at 881-82. Accord, Retired Pharmacy
v. N.L.R.B., 519 486, 490-91 (2d Cir. 1975);
Rogers Mfg.Co. v. R.B., 486 647 (6th
Cir. denied, 416 U.S. 937 (1974). More-
over, an employer that has itself orchestrated the
union-ousting campaign cannot rely on the penden-
cy of a decertification petition or the loss of major-
ity status to justify its withdrawal of recognition of,
and refusal to bargain with, the represen-
tative. v. Sky Wolf Sales 470
at 830; R.B. v. A. Inc., 449
at See also Photo Supply Co.,
321 U.S. 678, 687 (1944); N.L.R.B. v. Altermon
Lines, 587 212, 228 (5th Cir.
1979).
See Rogers Manufacturing v. N.L.R.B., 486
644 (6th Cir. where it is stated: mere
filing of a decertification petition is of itself insufficient
justification" for a refusal to bargain with a union, and
Anthony d/b/a Antonino's 246 NLRB
833 (1979).
It is clear that substantial objective indicia of the loss
of union support among Respondent's employees is lack-
ing in the instant case and that there is no credible proof
that Respondent entertained a reasonable or good-faith
doubt of the Union's majority status.
It is found that Respondent's withdrawal of recogni-
tion and its refusal to bargain on and after October 31.
1979, was in violation of of the Act.
F. The Strike
On November 8, 1979, Respondent's employees en-
gaged in a strike. Charles R. Godfrey, secretary-treasurer
of Meatcutters District Union 327, who was involved in
the negotiations between the Union and Respondent as
principal negotiator, met with certain of Respondent's
employees (those who later walked the picket line) about
2 or 3 days before the strike. Godfrey advised the assem-
bled employees that Respondent was "negotiating in bad
faith." He also testified, "I told the employees that the
company refused to bargain any further, I told the
the decertification petition that they had
going around, they said they had heard about it, and I
said that the company had refused to bargain with us any
further. I told them it was, I left it up to them, if they
wanted to strike, we would strike." Thereupon the em-
ployees present voted "one hundred per cent to strike."
The strike which was caused by Respondent's unfair
labor practices detailed above was an unfair labor prac-
tice strike. Notional Fresh Fruit Vegetable Company
ond Banana 227 NLRB 2014, 2017
977).
G . The that Respondent Failed To Properly
Reinstate Unfair Pmctice Strikers
On January 11, 1980, an unconditional offer to return
to work was tendered on behalf of the unfair labor prac-
tice strikers. Of these the General Counsel claims
and Esteves were improperly
10111
statl:d. & Inc.. & Supervalue
[Ulpon
Lamnd Leburelies Inc.,
Mprtro Corp.
N.L
L,?Beaux: LeBeaux
pached
Beaux grinding
grinding LeBeaux "pattie ma-
LeBeaux's
Res~ondent
LeBeaux
d Inc.,
supm 8.)
CAapital: "bone[d]
imd
~wrk, steaks"
returi
which
i mproperl
Eslews:
grind=."
wage
bi~siness
e~nployee
Estev~a' Esteves,
unl'air
reinsultement. Es-
Cmre:
"orde~
11s
r
Jn
fixturc~,
Coste's
Coste's
LeBeaux,
8(a)(3) & Inc..
supm.)
Jr.
Lawson,
Lawson
111. Lawson
111
111 Lawson
Lawson
Lawson 111
111
w r ~ n g . " ~
111 Lawson
Lawson
111 Lawson
Lawson
111 Malone Schroeder,
111
Lawson,
[sltay 111
Lawson
111, Lawson
Lawson
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted in C E Stores, C E
Division, 229 NLRB 1250, 1252 (1977):
their unconditional application Respondent
was obligated to reinstate "all its employees who
participated in said strike to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without impairment of their se-
niority and other rights and privileges, dismissing, if
necessary, any persons hired as replacements on and
after" the strike began. 213
NLRB 197, 198 (1974); Plastics v.
R.B., 350 U.S. 270, 278 (1956).
Prior to the strike worked in the
meatcutting department for about 2 years where she
"all the meat that needed to be packed, ground
mea., pork chops, or whatever." After the strike Le-
was placed in the department. In the
department operated a
chin:." She received the same rate of pay. After 7 days
she was returned to her meatcutting department job.
New employees were performing meatcutting
department job when she returned to the plant. Since
was obligated to replace the new employees
with the unfair labor practice strikers, was im-
properly returned to work. (See C E Stores
At the time of the strike Chapital
ribs rounds, and put up orders, and cut portion con-
trol veal in the "table area" or table depart-
ment. When he returned from the strike he was given a
job as a painter which he filled until he filed an unfair
labor practice charge involving Respondent's failure to
him to his prestrike job. He worked as a painter
for a period of "about a week or a week and a half' after
he was returned to his prestrike job. The wages
were the same in both jobs. It is obvious that Chapital
was y reinstated.
Prior to the strike Esteves was the "head
He was reinstated as the "assistant grinder."
His rate was the same. In regard to the change in
his work after the strike Esteves explained, "I was the
head grinder before the strike, I was taking care of all
the for the grinders. After the strike, I was assis-
tant t ~ > another guy. I was doing what he told me to do."
An was filling Esteves' job as head grinder
when he returned to employment after the strike. Since
head grinder's job was in existence, as
an labor practice striker, was entitled to the job on
Thus, he was improperly reinstated.
teves s presently working in the head meat grinder's job.
The head meat grinder who replaced Esteves during the
strike has been fired.
Prior to the strike Coste was assigned to the
filling" department. He testified "They would
send with an order form and tell us we needed 10
pound of meat for this certain company and to go into
the freezer and get it out and put it on the rack, and then
put it the truck." Coste testified that, after the strike,
"They had me cleaning ceilings, the walls, cleaning light
cleaning the freezer. Just cleaning a bunch of
stuff that I didn't do before. Cleaning up everybody
else's mess." wages were the same. Another em-
ployee was filling prestrike job. Coste, who was
fired in February 1980, was likewise improperly reinstat-
ed.
The General Counsel has failed to prove that any of
the strikers suffered any wage losses after their respec-
tive reinstatements.
Respondent's failure to return unfair labor practice
strikers Chapital, Esteves, and Coste to the
jobs to which they were entitled was in violation of Sec-
tion and (1) of the Act. (See C E Stores,
H . The Refusal To Reinstate Lenet Smith,
Respondent refused to reinstate Lenet Smith, Jr., be-
cause of an incident which occurred on the picket line
between him and John a nonstriker. On the
same day that the incident occurred reported it
to Daly According to he reported: "I told
him that I pulled out. He meddled me and the guy called
me a bitch and that's when I turned around and came
back and that's when Smith told me . . . 'You better
know what you're doing, boy. I've been in the peniten-
tiary.' He didn't have any weapons or anything in his
hand. He was standing up and we was just talking . . . I
was on one side of the truck and he was on the other
. . . I told him the guy said he was going to kill me."
Daly said, "Don't worry about the guy. He's not
going to do you anything."
Daly asked during the conversation "Do
you want me to call the police?" answered,
"No, I don't think it is necessary."
Later reported to Daly that Smith, Jr., had
apologized to him. Daly commented, "Well, that's
good. I'm glad he apologized to you. At least he ad-
mitted he was a man. That he was
Daly related that had come to his office
about a week after the strike commenced "very upset."
said, "A guy out there, Smith he threatened to
kill me . . . he even made the sign of the cross and he
was going to do it on the cross."
When Daly asked whether Smith was seri-
ous, answered. "Yeah. sure he is serious." Daly
called either Ernie or Ron appar-
ently for advice. Daly 111 was informed, "Well, just sit
tight and try to calm John down." Daly told
"Under no circumstances, go around the guy
. . . away from him." Daly testified that
had not disclosed to him that he had turned his
truck around and confronted the employees.
Later, according to Daly reported to him
that Smith, Jr., had apologized to him. He said that "it
didn't make any difference. He still didn't trust him . . .
John made the statement that if Smitty even looks at him
. . . that if Smitty even raises a hand to me, I am going
thus described Smith's apology. "After the incident, he came
back and apologized to me but he didn't apologize in front of any of the
guys . . . Now, I forgot about it. When we see each other, we wave to
each other."
drop I11
thal."
I11
followtd
Lawson
tunled
01'
emotiord
Iawson
Lawson Lawson
Sm~th
Lawson
Lawson
convening
Lawson was his
bitch" Lawson
and
l~ysterical." Lawson
w a ~ t
yo11."
Lawwn,
Lawson rc:plied,
jol, Lawson
Eeteves' Chapi-
tars
Lawson
moving
~ ~ d l e d
rurned
t n ~ c k
penitentiary.
Tha.e
anqthing
t:wck
Ys. "I'll
th'at,
111
w i t n m
that
wal
evidcntx
Ill's
111's
Lawson I11
Lawson's refwing
Cornpony
N. R, F.2d 660, Cir.
versions.
Tmh, Inc.,
I11
111
I11 g o d
111
served
111
return."
Lawson
111
Lawson
111,
vio-
' Lawson see
ARCADIA FOODS,INC. 1019
to him." Daly responded, "John, don't fuck and
do

Had Daly
elicited the story of the incident from
Smith, Jr., which he failed to do, and had his statement
Smith's testimony, it would have revealed,
"Mr. came past and when he got to the comer.
he around fast and came back and stopped in
front my car so I got out of my car . . . he was all
. . . I asked him what are you doing . . . and
he said . . . I'm trying to keep my job and I said well,
go on and do your job then. He got back in his car and
he pulled off." Smith, Jr., specifically denied that he had
called a "bitch," or that he had mentioned the
penitentiary or that he was going to kill him. He also
denied that he swore on the cross.
Smith. Jr., testified that about a week later he asked
why he came back that "fast." replied
that had "hollered something at him." Smith re-
sponded, "Well, I didn't holler anything at you."
replied, "I know, I'm sorry, man." Smith said,
"I'm sorry too," whereupon Smith and "shook
hands."
Chapital's version of the incident reveals that he and
Esteves were on the picket line when
passing in truck at which time the word
"jive was remarked. turned the truck
around drove back, "jumped out of the truck and he
was all Addressing Esteves, said,
"You to say how much a bitch I am." Esteves re-
plied, "What's wrong with you, man. I wasn't even talk-
ing to At this point Smith got out of his car and
told "You know what you're doing, huh?"
"I'm just trying to do my job." Smith
countered, "Well, get back in the truck and go do your
fucking then." left.

version of the incident was similar to

version.

thus described the incident:

When I pulled off, I had the window down. I
was off slowly, you know, and that's when
Mike me a bitch. So that's when I kept going
and I around and came back and I got out of
the and that's when Smith told me, he said,
"Boy, you better know what you're doing." I'd be
in the
was something else he said but I forgot
what he said.
So, I just stood up there a while and Mike didn't
say and Gary didn't say nothing. So, I got
in the and I left.
Q. D o you recall anything else that was said?
A. I'm more than sure he said, kill you
boy. . . . You better know what you're doing."
With 1 left and, when I came back, I didn't see
him out there.
Had Daly interviewed the participants as well as
the he would no doubt have concluded, as I
have done, there are serious doubts as to whether
the threat uttered at all and that by a preponderance
of the there is no showing that the incident oc-
curred as Daly testimony would indicate. Thus, at
the threshold or a consideration of Daly action
taken against Smith, Jr., Daly 111's failure to delve into
the truth of the matter beyond the representations of
supports a strong inference that Daly seized

upon story as a pretext for
to recall
Smith, Jr. As was said in United States Rubber
v. LR. 384 662-663 (5th 1967):
Perhaps most damning is the fact that both [em-
ployees] . . . were summarily discharged after re-
ports of their misconduct. . . . without being given
an opportunity to explain or give their
See also Metal Cutting 191 NLRB 536 (1971).
Such inference takes on added substance when it is con-
sidered that Daly precipitously withdrew recognition
of the Union at the drop of a hat, and revealed a disposi-
tion and attitude, throughout the credited record, of an
individual who wanted to shed himself of the Union and
its adherents. His reason given for the refusal to reinstate
Smith, Jr., was pretextual in nature. Thus, Daly ex-
pressed his reasons, "I was afraid that if Smitty came
back and John would ever say something to Smitty or
vice versa, there would be a big hassle and one of them
could get hurt very badly and of course, we don't want
that to happen on Company property." Nevertheless,
Daly testified that he "called a friend who is a
seafood processor just like I am a meat processor and
recommended Smitty a job with him. . . I recommended
him very highly for the job." Moreover, when Daly
hired Smith, Jr., he knew he had in the peniten-
tiary for manslaughter. Indeed Smith had worked for
Respondent before he was incarcerated and after he was
released from the penitentiary. Smith, Jr., had been hired
directly from the prison. Daly viewed Smith, Jr., as
"a good employee" before he went to prison and "satis-
factory upon his
was a truckdriver and did not work in the vi- ,
cinity of Smith, Jr. His only contact with Smith, Jr.,
would have been when he would have passed by on his
way to and from the freezer loading his truck. More-
over, Daly knew that an apology had been effected
between Smith, Jr., and and there was no appar-
ent reason for the bad blood7 between them. Hence, it is
clear that Daly who had accepted Smith, Jr., as an
employee despite his penitentiary record, who had rec-
ommended him to a friend, and who had not reported
the incident to the police when it occurred, could have
held no honest basis for his apprehensions with respect
to Smith, Jr. These apprehensions were obviously
feigned and seized upon in order to rationalize the bar-
ring of Smith, Jr., from the plant.
Based on the credited facts in the record, Respondent
could not have entertained an honest belief that Smith's
alleged misconduct was of such a violent or serious char-
acter as to render him unfit for further employment. I
conclude that, except for Respondent's desire to discour-
age union activity, Smith, Jr., would have been reinstat-
ed. By refusing to reinstate Smith, Jr., Respondent
testified. "I forgot about it. When we tach other, we
wave to each other."
1O;:O
latc:d 8(a)(3)
Inc.,
Compny
11
ref~sed
~ntention
mer~t."
arg~lment
sufticient
sec.
maiutains
unrebutted,
pen isor
:;aid
slruck.
t11at
our
out
b
cornpany
fac:
Antl
cmt.
war,
I11
1111
111,
111
go
arguendo, Godfrey's
111
I41/2
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section and (1) of the Act. See Midwest Sol-
vents, 251 NLRB 1282 (1980); Geneml Telephone
of Michigan, 251 NLRB 737 (1980).
I. Respondent's Alleged Failure To Bargain in Good

Faith

the complaint the General Counsel alleges: "Since
on or about May 15, 1979 [Respondent has] failed and
to bargain in good faith with the Union and with
no of entering into any final or binding agree-
The General Counsel supports this allegation by
that Respondent's negotiator lacked authority
and Respondent failed to spend time in negotia-
tions. (See G.C. br., VII.) The General Counsel
that Respondent never intended to reach an
agreement and cites the following undenied,
and unimpeached testimony of Chapital, who quotes Su-
Chacon:
Yes, he was asking me why hadn't we gone on
strike yet? And he told me that that was the only
way that we were going to get the company to
come to agreement with us, if we forced them. Be-
cause Mr. Daly told him that they were just going
to keep prolonging the negotiations until they could
get another election after one year. And he said that
he would be able to get another election. And he
that Mr. Daly had a large . . . .
He said, Mr. Daly said that he had hired a union
[busting firm], and he was spending a lot of money,
and there was no way that we could beat this com-
pany. They were just going to bust us up. And that
he also stated that, Mr. Daly could let this thing go
on for as much as three years or more, and that the
only way that we were going to get it, is if we
And then he mentioned the fact again, that
if we go on strike, that Mr. Daly had another crew
was waiting on standby to come in and replace
jobs. And he said that everyone who walked
on this job to go walk on the picket line, would
fired.
Q. Did he say how he knew all of this?
A. He said Mr. Daly told him all of this.
Q. And did you make any response?
A. I just told him that we can't, just holding an
election like that, they are obligated to negotiate
with the union, just so long as the union would
want to sit down and negotiate with them. Because
we had an election, and we [won] an election. And
he said that well, he just kept stressing that the
could keep prolonging it, and I argued the
with him that they could not just do it like
that. And he told me that all they have to do, is
wait one year, and then get thirty per cent of the
people in there to sign a petition, filing for a peti-
tion, and that they would hold another election.
I told him that they would have to get fifty
per cent of the people because that's what we had
to get in order to file the petition for a union for the
election of a union.
Q. Did he make any response to that?
A. No. He said they just needed thirty per
And he cut the conversation off, because it was just
turning into argument.
Ronald H. Schroeder, a teacher and a "general business"
consultant, the principal spokesman for Respondent
at the negotiation sessions. He had prior negotiation ex-
perience. Daly I V also attended the bargaining sessions.
Godfrey was the principal negotiator for the Union.
Schroeder testified that he was given "the authority to
fully conduct" the negotiations by Daly and, at the
preliminary meeting of the Union and Respondent, he
was "introduced [by Daly as the negotiator that
would fully handle the entire negotiations." Schroeder
also testified in respect to his relationship with Daly
"I was keeping him advised, of course, at all times, and
he did have veto power over it, but I would always state
my position, what my recommendations would be and
what I would do and I cannot recall him disagreeing
with me at any time."
The parties exchanged proposals on January 27, 1979,
and thereafter met in bargaining sessions on February 6
and 20, March 8.20. and 26. April 12, May 3 and 9, June
21, July 30, and October 26, 1979.
While Godfrey testified that Schroeder on numerous
occasions (see infm) said that he would have to "get
back" with Daly for his position. Schroeder testified
that he could not "recall any specific instance when [he]
said that [he] would have to back to Mr. Daly and
get his approval." Assuming, that
testimony accurately states the facts, a review of the tes-
timony does not indicate that bargaining was hampered
by reason of Schroeder's lack of authority or that,
through Schroeder as its agent, Respondent was avoid-
ing its obligation to bargain. The fact that an agent con- ' fers with his principal about matters raised in a bargain-
ing session with which he may not be wholly conversant
is not necessarily an exhibition of bad faith. In this re-
spect there is no showing that Schroeder's alleged resort
to Daly may not have been for such purpose. The
General Counsel's claim that Respondent's negotiator
lacked authority to the extent that his participation in the
bargaining was an unfair labor practice is not supported
by the facts in the record.
The General Counsel points out that Respondent spent
only hours at the bargaining table. After the certi-
fication Respondent, by a letter dated November 22,
1978, set the first meeting for January 27, 1979. The
Union protested but the meeting was not held until such
date. At the March 8, 1979, meeting which lasted 2-3/4
hours the union representatives told Schroeder that they
"would like to go and try to reach agreement."
Schroeder responded that that was "as far as they could
go that day" and that "he would have to talk with Mr.
Daly some more." At the March 20 meeting which
lasted 1-1/2 hours Godfrey told "Schroeder that we
should have longer sessions so we could try to reach an
agreement." Schroeder responded that "he would try to
get back to Mr. Daly with some of this stuff." At the
INC.
God-
sad,
i:o
had
tke
1979,
him?"
Schroeder
September God-
phclned
nr
becaule
coultl
meeting,
meeting
and, 111
recclgnition.
:ime
):hat
Hac 111
havc:
Clounsel's
8(a)(5)
2(6)
t,le
U~iion
2(5)
!iection 9(b)
truc:kdrivers,
leadmen
I)y
e.rcluding ofice
Act.*
8(a)(5)
8(a)(5)
Union good
8(aX5)
7.
Coste, LeBeaux,
8(a)(3)
8(a)(1)
2(6)
affirmative
8(a)(3)
- -
subskintially
earned
l? Woolworth
(1950), Florida C o r p
mtion, (1977).9
unit
Isis & Ca. I38
1021 FOODS,
March 26, 1979, meeting which lasted 1-1/2 hours,
frey "There's no reason why we could not do more
to try reach an agreement." Schroeder answered that
"he to get back to Mr. Daly before he could go any
further."
At April 12 meeting, which lasted 1 hour, the next
date for a bargaining session was set for May 3,
since Respondent's representatives insisted on the pres-
ence of Daly IV, who was scheduled to attend a cooking
school. Godfrey commented that it "looked like the
company kept stalling and Daly always had to go to
school.' Godfrey asked, "Can't you meet without
answered, "Well, the Company wants him
there."
On 12, 1979, according to Schroeder,
frey him and told him that the employees at the
meeting on September 12, 1979, did not vote for a strike
but that they "wanted to negotiate further, and, specifi-
cally, they were looking for more money." During the
same conversation, Godfrey advised Schroeder that he
was going to call a mediator to take part in further nego-
tiations.
The xt negotiation session was postponed to October
26 the mediator was tied up in a teachers' strike
and not make the scheduled meeting. At the Octo-
ber 26 in the presence of the mediator, Respon-
dent offered more money. At the close of the meeting
another was set for October 31, 1979.
At this meeting the rumor of a decertification petition
surfaced as noted above, Daly immediately with-
drew
At the the withdrawal of recognition occurred, it
appeared negotiations were progressing, with the aid
of the mediator, and had not reached the point of im-
passe. Daly not frustrated and terminated the ne-
gotiations by his unfair labor practices, the probabilities
are that resolution of the issues separating the parties
might been reached.
Under these circumstances it would appear that the
General assertion that Respondent violated
Section of the Act by failure to spend sufficient
time in negotiations prior to October 31, 1979, is not well
taken.
1. Respondent is engaged in commerce within the
meaning of Section and (7) of the Act, and it will
effectuate purposes of the Act to assert jurisdiction
herein.
2. The is a labor organization within the mean-
ing of Section of the Act.
3. The following unit constitutes an appropriate unit
for the purposes of collective bargaining within the
meaning of of the Act:
All production and maintenance employees includ-
ing helpers, all boning, shipping, and
ground meat and sanitation workers em-
ployed Respondent at its Metairie, Louisiana, fa-
cility; all sales personnel, clerical
employees, watchmen, guards and supervisors as
defined in the
4. Since October 26, 1978, the Union has been the duly
certified and designated exclusive representative of the
employees in the unit found to be appropriate within the
meaning of Section and (1) of the Act.
5. By withdrawing recognition from the Union as the
exclusive bargaining representative of its employees in
the above appropriate unit on October 31, 1979, Respon-
dent has engaged in and is engaging in unfair labor prac-
tices in violation of Section and (1) of the Act.
6. By refusing to recognize and bargain collectively
with the in faith Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section and (1) of the Act.
By unlawfully refusing to reinstate Lenet Smith, Jr.,
upon his unconditional offer to return to work after the
strike which ceased on January 11, 1980, and by refusing
to properly reinstate Gary M. Chapital, Ronald A.
Thelma and Michael A. Esteves, Re-
spondent has engaged in unfair labor practices within the
meaning of Section and (1) of the Act.
8. The strike which occurred on November 8, 1979,
was an unfair labor practice strike.
9. By interfering with. restraining, and coercing em-
ployees in the exercise of rights guaranteed by Section 7
of the Act, Respondent has engaged in unfair labor prac-
tices within the meaning of Section of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion and (7) of the Act.
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
be ordered to cease and desist therefrom and take certain
action designed to effectuate the policies of
the Act. It having been found that Respondent unlawful-
ly refused to reinstate Lenet Smith, Jr., since January 11,
1980, in violation of Section and (1) of the Act, it
is recommended in accordance with Board policy that
Respondent be ordered to offer the foregoing employee
immediate and full reinstatement to his former position
or, if such position no longer exists, to a
equivalent position, without prejudice to his seniority or
other rights and privileges previously enjoyed, dismiss-
ing, if necessary, any employee hired on or since January
11, 1980, to fill said position, and make him whole for
any loss of earnings that he may have suffered by reason
of Respondent's acts herein detailed by payment to him
of a sum of money equal to the amount he would have
from January 11, 1980, to the date of an offer of
reinstatement, less net earnings during such period, with
interest thereon, to be computed on a quarterly basis in
the manner established by the Board in W.
Company. 90 NLRB 289 and Steel
231 NLRB 651
This appropriate is admitted.
See, generally, Plumbing Heating NLRB 716 (1962).
been required
8(a)(5) aher
Respondent 1 year date fimt complies
8(a)(5)
undemtand-
of
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent has also engaged in have to bargain had it continued its bar-
unfair labor practices violative of Section and (I) gaining duty on and October 31, 1979). for a period
of the Act, it is further recommended that of from the it with the order to
recognize and bargain with the Union in good faith as bargain herein, in conformity with Section of the
the exclusive bargaining representative of its employees Act, and embody in a signed agreement any
in the appropriate unit concerning any term or condition ing reached.
employment, or change thereof (as to which it would [Recommended Order omitted from publication.]