Beatrice Foods Co.

National Labor Relations Board - Board Decisions

May 18, 1973

203 N.L.R.B. 753 (N.L.R.B. 1973)

HI TEMP INC. 753
Hi Temp Inc ., a Division of Beatrice Foods Co. Tru
Temp Inc . Steel Treating Inc. and United Steel
Workers of America , AFL-CIO
Production Workers Union , Local 10 , International
Union of Dolls, Toys, Playthings, Novelties and Al-
lied Products of the United States and Canada,
AFL-CIO and United Steel Workers of America,
AFL-CIO. Cases 13-CA-11222 and 13-CB-4198
signs , and Respondent Production Workers Union,
Local 10, International Union of Dolls, Toys, Play-
things , Novelties, and Allied Products of the United
States and Canada, AFL-CIO, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order.
DECISION
May 18, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On October 30, 1972, Administrative Law Judge
Alba B. Martin issued the attached Decision in this
proceeding. Thereafter, the Respondent Union filed
exceptions to the Decision and a brief in support
thereof. The Respondent Employer filed exceptions
to the Decision and a brief in support thereof. The
General Counsel filed a brief in support of the Deci-
sion, cross-exceptions to the Decision and a brief in
support thereof. The Respondent Employer filed a
reply brief to the General Counsel's brief in support
of the Decision and the General Counsel filed a re-
sponse to the Respondent Employer's latest brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Employer Hi Temp Inc., a
Division of Beatrice Foods Co., and Steel Treating
Inc., Northlake, Illinois, and Tru Temp Inc., Melrose
Park, Illinois , its officers, agents , successors and as-
1 The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We have carefully examined the
record and find no basis for reversing his findings
STATEMENT OF THE CASE
ALBA B. MARTIN, Administrative Law Judge: This conso-
lidated proceeding was tried at Chicago, Illinois, on June
6-13, 1972. Upon charges filed by the Steelworkers,' a con-
solidated complaint was issued on April 18, 1972, and an
amendment thereto on April 24, 1972. The principal issue
is whether, when Respondent Company recognized Re-
spondent Union on January 19, 1972, Respondent Union
did or did not represent a majority of the employees in an
appropriate unit.
Upon the entire record,2 including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel, the Company and
Respondent Union, I make the following:
FINDINGS OF FACTS
I JURISDICTION
Hi Temp Inc., Tru Temp Inc., and Steel Treating Inc.,
Delaware corporations, are affiliated businesses with com-
mon officers, ownership, directors, and operators, and con-
stitute a single-integrated business enterprise. This
enterprise is herein referred to as Respondent Company and
the Company. Its directors and operators formulate and
administer a common labor policy for the Company affect-
ing its employees. The three corporations have their offices
and places of business in three nearby plants in Northlake,
Illinois, and Melrose Park, Illinois, where they are engaged
in the heat treating of metals. During the calendar year of
1971, a representative period, Respondent Company and
each of its corporate components did a gross volume of
business in excess of $500,000 and processed and shipped
finished products valued in excess of $50,000 directly to
customers located in states of the United States other than
Illinois. During the same period Respondent Company, and
each of its corporate components, processed and shipped
finished products valued in excess of $50,000 to firms and
companies who themselves have annual gross volumes of
business in excess of $500,000 and who themselves annually
i The Steelworkers filed the charge in Case 13-CA-11222 on February 4,
1972, the first amended charge on April 12, 1972 The Steelworkers filed the
charge in Case 13-CB-4198 on February 15, 1972, the first amended charge
on March 1 , 1972, the second amended charge on April 6, 1972.
2 With its brief the General Counsel filed a motion to correct the transcript
in 63 numbered items. No party thereafter objected to these corrections. All
changes except items 35, 37, and 49, appear correct to me and are hereby
made . Item 35 should refer to p. 366. Item 37 should refer to p 376. Item
49 should refer to p. 415. As corrected the changes in these three items are
hereby made . The motion has been placed in the General Counsel' s exhibit
file as Exh. 1.
203 NLRB No. 119
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receive goods and material valued in excess of $50,000 di-
rectly in interstate commerce.
Respondent Company admitted , and I find , that each of
its three corporate components is engaged , and has been
engaged at all times material herein , in commerce within the
meaning of Section 2 (6) and (7) of the Act.3
11 THE LABOR ORGANIZATIONS INVOLVED
Production Workers Union, Local 10, International
Union of Dolls, Toys, Playthings, Novelties and Allied
Products of the United States and Canada, AFL-CIO, is a
labor organization within the meaning of Section 2(5) and
of the Act. Herein it is referred to as Respondent Union, the
Production Workers, Local 10, and the Union.
United Steel Workers of America, AFL-CIO, herein re-
ferred to as the Steelworkers, is a labor organization within
the meaning Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background and Surrounding Events
Involved herein is the struggle of two unions, the Steel-
workers and the Production Workers, to gain a majority
representation of and become the exclusive bargaining
agent over a group of about 90 preponderantly Mexican-
American employees .4 Many of them did not speak, read,
or understand the English language. On October 1, 1971, the
Board's Regional Director conducted a secret ballot elec-
tion with only the Steelworkers on the ballot. This Union
lost the election by three votes, with two unopened chal-
lenged ballots. The Regional Director's certification of the
result was dated November 30, 1971.
On January 14, 15, 16, 17, and 18, 1972,5 the Production
Workers conducted a whirlwind campaign to sign up the
same group of employees. During these 5 days two organiz-
ers, Daniel Cavazos, who spoke Spanish as well as English,
and John Serpico, called at the homes of and signed up a
seeming majority of the employees in an appropriate unit.
All but six of those they signed up were Spanish-speaking
employees. Through many witnesses the General Counsel
strenuously contended that the Production Workers cards
were signed as the result of massive and purposeful misre-
presentations, and the Production Workers just as strenu-
ously denied there were any misrepresentations. The
General Counsel contended the signers of the Production
Workers' cards did not know or understand what they were
signing. The alleged misrepresentations included allegedly
telling the employees that the Production Workers organiz-
ers were Steelworkers representatives; that they were from
a different local of the Steelworkers, from the union that lost
the election; that they were different representatives of the
Steelworkers; that they represented the same union that was
in before (meaning Steelworkers); that they represented a
3 "The Act" refers to the National Labor Relations Act, as amended, 29
U S C Sec 151, et seq
4 These two unions have crossed swords over three other groups of employ-
ees in the past several years
3 Unless otherwise noted , all events herein occurred in 1972.
different local but the same union as before; that they repre-
sented the union the employees previously wanted in the
factory; that the union was out to win this time without
going through an election; that a majority had already
signed ; that they represented the union the employees previ-
ously wanted in the factory; that their union received prior
permission from the Steelworkers; that the union was okay
with the Company. In addition, some five employees testi-
fied that only after they signed the cards were they told that
the cards were for Local 10, Production Workers. In their
testimony Cavazos and Serpico repeatedly stated that they
told every employee they visited that they were from Local
10 of the Production Workers union, and that when asked
by employees if they represented the Steelworkers (which
was frequent), they denied that they did and said they repre-
sented the Production Workers. In addition, through many
witnesses the General Counsel contended that the authori-
zation cards used by Cavazos and Serpico did not show
what union was involved in that ink-stamped words "Pro-
duction Workers Union Local 10" were not on the address
side of the card when the employees were presented the
cards and signed them. Serpico testified that he stamped
those words on all the cards used in the campaign just
before they started calling at the employees' homes. Cava-
zos corroborated this. As, below, I resolve these cases on the
basis of the card count, I find it is not necessary to resolve
these highly disputed questions of fact and credibility issues.
In using the Production Workers cards for making the
count, I assume , but do not hold, that they were valid cards
not unlawfully obtained.
On January 19 Respondent Union and Respondent Com-
pany signed a cardcheck agreement providing that a bank
official, Mr. Sheldon, would make a cardcheck and that if
Sheldon certified that Respondent Union represented a ma-
jority of the eligible employees, Respondent Company
would recognize Respondent Union .6 Sheldon made the
cardcheck that day and certified Respondent Union. There-
upon, in writing on January 19, Respondent Company rec-
ognized Respondent Union as the bargaining agent. While
the card count was being made and prior to signing the
recognition agreement , Respondent's executive vice presi-
dent, Arthur F. Lukowicz, read a letter dated January 17
which the Steelworkers had sent him, warning him that if
the Company recognizes any other union than the Steel-
workers, it will not be acting in the best interest of its em-
ployees and that the Steelworkers "will be forced to seek
remedy."
Beginning immediately after the recognition both the
Company and the Production Workers learned that the
Union did not have the support of the employees. On Janu-
ary 20, Lukowicz sent a letter to employees stating that the
Company had recognized the Production Workers as their
6 The Steelworkers was the only union which ever before had requested
recognition or gone to an election . In July 1969 Respondent Union had
passed out authorization cards in front of the plant for 3 days and in August
1970 the Teamsters had passed out authorization cards in front of the plant
for 3 days At the hearing Respondent Company contended it decided to
recognize the Production Workers in 1972 because it concluded that the
history of organizational acitivity convinced it that the employees wanted a
union and that it might as well recognize a union It had opposed the Steel-
workers drive in 1971 at the cost of $5,000, and lost production time. At the
hearing it was not asked why it opposed the Steelworkers in 1971.
HI TEMP INC. 755
collective-bargaining representative . At meetings with em-
ployees on January 25, 26, and 27, some of the employees
told Lukowicz that they didn't know what union had visited
them , some said that they had been visited by the Steelwork-
ers, and some objected to the Company' s having recognized
the Production Workers.
Respondent Union held its first three meetings with em-
ployees on January 27, February 10, and March 16. "Very,
very few" employees attended the first meeting . At the hear-
ing Respondent Union frankly admitted that as early as the
second meeting it was having problems getting the support
of the employees and that it felt that its bargaining position
was "terribly impaired." Its organizers "were having diffi-
culties because the people were not satisfied with our union
and wanted the Steel Workers Union." Only seven or eight
employees attended the second meeting . The Production
Workers went to the extraordinary tactic of having its very
effective general counsel call on one of the employees it
considered a leader to try to persaude him to attend the
second meeting and bring other employees with him. He did
not attend . At this meeting the Union tried to learn the
employees ' demands , and it appointed a negotiating com-
mittee of the two or three who agreed to serve . However, its
general counsel and organizers later decided that
Because there was so much friction and hostility in the
shop against our union , that it would be unfair to ask
these people to serve as our representatives , so we took
it upon ourselves to negotiate the contract on behalf of
the membership.
The contract was negotiated at two sessions , on February
16 and February 21. It was entered into on February 25, and
it contained union-security and checkoff clauses. The
union-security and checkoff provisions were not enforced at
first, according to Respondent Union's general counsel
because the Company was frankly concerned that if we
enforced the union security provisions . . . and gave
the employees 30 days in which to make up their minds,
they might not have a shop.
He explained that this meant that "a lot of employees would
be fired for failure to pay dues under the union security
clause ." The Company attorney told the Union that
... there was a lot of static . The people indicated they
wanted the Steel Workers Union as against our Union.
There was no secret about that.
Respondent Union was finally able to get these provisions
enforced , effective May 31 , just before the hearing in this
proceeding opened , by threatening the filing of a lawsuit
against the Company under Section 301 of the Act.
The General Counsel contended that a question concern-
ing representation existed at the time of the request, at the
time of recognition , and at the execution of the contract. I
hold that it is not necessary for me to decide these questions.
B. An Appropriate Unit, the Eligibles,
and Respondent Union's
Authorization Cards
The parties stipulated that an appropriate unit for the
purposes of collective bargaining consists of all production
and maintenance employees employed at the three plants,
including inspectors and shipping employees, but excluding
office clerical employees , plant clerical employees , outside
truckdrivers , professional employees , technical employees,
guards , and supervisors as defined in the Act. This was
substantially the unit used in making the cardcheck. This
being a unit consistent with many Board holdings , and there
being no evidence that it is not an appropriate unit, I hold
that the stipulated unit is an appropriate unit.
At the time of the hearing the list of eligibles in this
appropriate unit used by the person who conducted the
cardcheck could not be found . For the purposes of the
hearing, Respondent Company made up its closest approxi-
mation of the original list. This approximate list was made
up by the Company's secretary who keeps its personnel
records, pursuant to instructions to duplicate the original
eligibility list insofar as possible ; and was based upon the
employee timecards , the payroll sheets , and the "single
sheets on every person." The record showed that in some
respects this approximate list was more reliable than lists
submitted by Respondent Company to the General Counsel
earlier in the hearing pursuant to a subpoena . Upon the
entire record I hold that this approximate list is the best
evidence of what names were on the original eligibility list.
This approximate list (Employer' s Exh . 2) contained 87
names as being eligible employees . With the exception of
Annaise Boyd, all of these employees were on the payroll
on January 14 and on the day of the cardcheck, January 19.
The cardcheck agreement between Respondent Union and
Respondent Company provided for the cardcheck to be
made on January 19 and provided that " all employees per-
manently employed by the Company as of January 14,
1972, shall be on the eligibility list." The Board has long
held that employees are eligible to vote in Board elections
if they are employed during the eligibility payroll period and
on the date of the election . Choc-Ola Bottlers, Inc., 192
NLRB 1247, and cases cited in fn. 1 thereof. Such a stan-
dard is appropriately to be applied in this situation, where
there was some turnover of employees between the eligibili-
ty date and the cardcheck date.
In his brief the General Counsel urges that the name of
Edward Feiler should be added to the list of eligibles. I hold
that it was properly omitted from the list . Feiler was a high
school student whom the Company did not consider a per-
manent employee . He does odd jobs in maintenance at one
of the plants . The Company considers him a temporary
part-time employee . Feiler is supposed to work for Respon-
dent on Saturdays , and it gives him work to do on Fridays
if he comes in on Fridays. Respondent had no agreement
with Feiler as to the terms of his employment . He does not
have the fringe benefits of the permanent employees, such
as holidays , insurance, vacations . Nor does he receive pre-
mium pay for overtime, as do the permanent employees,
under the Company's overtime system . He is paid that same
hourly rate regardless of the number of hours he works in
a day or week . During January 1972 he worked the 1st week,
13-1/2 hours , the 2d week 17 hours, the 3d week 13-1/2
hours , and the 4th week 11-3/4 hours. It is Respondent
Union's uniform policy to exclude employees whose work
averages less than 20 hours per week.
The name of Timothy McCarthy was correctly omitted
from the approximate list because he also was a temporary
part-time employee , who worked even fewer hours than
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Feiler per week.
In his brief the General Counsel admitted that the name
of Salvador Ramirez was correctly included on the approxi-
mate list even though it had been omitted from the sub-
poenaed lists. Ramirez was on authorized leave of absence
from the Company for 1-1/2 to 2 months during the card-
check period, and he returned with full seniority.
Included on th approximate list that was omitted from the
subpoenaed lists was the name of Crescencio Avila. As the
approximate list was the best evidence, I hold this name was
correctly included.
Omitted from the approximate list through included on
the subpoenaed lists was the name of Carlos Rodriguez,
who worked in maintenance from January 7, 1972, until his
discharge March 24, 1972. Possibly Respondent Company
did not consider him a permanent employee. He worked less
than 90 days. In any case I hold his name was correctly
omitted because the approximate list was the best evidence.
To be excluded from the eligibility list is the name of
Annaise Boyd, who was discharged on January 14, 1972, 5
days before the date of the cardcheck, and was not therefore
on the payroll on both the eligibility date and the cardcheck
date . With this name subtracted there were 86 eligibles to
be included in the appropriate unit on the cardcheck date,
January 19.
Of these 86 Respondent Union submitted to Mr. Sheldon,
who made the cardcheck, some 46 cards (signed by employ-
ees on January 14, 15, 16, 17, and 18), a seeming majority
of three.'
C. The Dual Cards
Of these 46 employees in the appropriate unit who signed
cards for Respondent Union between January 14 and 18,
some 8 of the same employees signed authorization cards
for the Steelworkers dated January 16, 17, and 18.9 The
record established that these eight employees knew that
these cards were for the Steelworkers.
Respondents contend that these eight cards were predat-
ed, and that in fact they were signed sometime after the
recognition agreement of January 19. The General Counsel
contends that they were signed on the dates they bear.
It is not disputed that Lorenzeo Portillo signed his Produc-
tion Workers card on Monday January 17, and it is dated
January 17. By his demeanor as a witness Portillo impressed
me as an honest and credible witness. He credibly testified
that he signed his Steelworkers card "on the same Monday"
that he signed his Production Workers card. Portillo's Steel-
workers card is also dated January 17, and he credibly
testified that he filled out the entire card, including the date,
7 In all Respondent Union submitted 50 cards , 4 of which could not
properly be counted . At the hearing the parties stipulated that Salvador
Ramirez was not eligible . Ignacio Baralas quit Respondent Company's em-
ploy on January 4. Andres Rivera did not begin his employment with the
Company until January 17, which was after the January 14 eligibility date
The fourth card was that of Annaise Boyd who was discharged January 14,
as appears above.
s In addition three of them signed Steelworkers cards dated after the Com-
pany recognized Respondent Union on January 19. Two of these three cards
were dated January 22 and one was dated January 24. The accuracy of the
dates was not questioned . These three cards cannot be counted as dual cards
because they were executed after the recognition
on that day. Portillo testified also that Luis Torres gave him
the blank Steelworkers card that Monday at the plant and
told him the yellow card he had earlier signed was not a
Steelworkers card. On this testimony and the entire record
I hold that Portillo signed his Steelworkers card on January
17.
Felipe Samano, also a credible witness, testified that he
signed his Production Workers card on a Friday and that
he dated it himself. The card is dated January 14, 1972,
which was Friday. The Production Workers organizer,
Daniel Cavazos, testified that Samano signed his card on
January 14. Samano testified that the following Monday,
which was January 17, Luis Torres handed him a blank
Steelworkers card at the plant, and that Samano filled it all
out himself, including the date. It is dated January 17. On
this testimony and the entire record I hold that Samano's
Steelworkers card was signed on January 17.
Juan Marquina's Production Workers card was signed by
him but not dated on Saturday, January 15, and left at a
friend's house for Cavazos. The latter picked it up on Mon-
day, January 17, and dated it January 17. Marquina's Steel-
workers card is dated January 17, 1972. Marquina, who
impressed me as a credible witness, credibly testified that he
signed his card and dated it on the date it bears, and that
Luis Torres gave him the blank card at work on that day,
January 17. On this testimony and the entire record I hold
that Marquina signed his Steelworkers card on January 17.
Abel Brito signed his Production Workers card on Fri-
day, January 14. Another employee, Antonio Hernandez,
handed him a blank Steelworkers card in the plant and Brito
signed it and filled it all out including the date, on the date
it bears, according to Brito's credible testimony. The Steel-
workers card is dated January 17. Additionally Brito testi-
fied that he signed his Steelworkers card "soon after" sign-
ing his Production Workers card; "a day or 2 days"; "it was
almost immediately"; "three days after.... "On this testi-
mony and the entire record I hold that Brito signed his
Steelworkers card on January 17.
Another credible witness , Elias Silva Castrejon, signed his
Production Workers card on January 14. His Steelworkers
card is dated January 18. Castrejon credibly testified that
Torres gave him the Steelworkers card in the plant about
midnight (about the end of their shift) on January 17, and
that he took it home and signed it the next day. On this
testimony and the entire record I hold that Castrejon signed
his Steelworkers card on January 18.
Jose delAngel9 filled out and signed all of his Production
Workers card except the number of the local and the date.
He handed the filled-out card to the Production Workers
organizers on Sunday, January 16, and one of them wrote
that day's date on it. Another employee, Pedro Padillo, gave
del Angel a blank Steelworkers card at work, and del Angel
filled it out completely, including the date. The card is dated
January 18. Upon this testimony and the entire record I
hold that del Angel signed his Steelworkers card on January
18.
Jose Marques signed his Production Workers card on Jan-
uary 14 and it is dated January 14. His Steelworkers card
is dated January 17. The Steelworker's organizer, Eliseo
9 This name is misspelled in the transcript of the heanng.
HI TEMP INC. 757
Alicea, credibly testified that he visited Marquez on Janu-
ary 17, and that Marquez filled out the card in full in his
presence. Upon this testimony and the entire record I hold
that Marquez signed his Steelworkers card on January 17.
An eighth employee, Luis Torres, signed dual cards, that
is a card for each union . There is conflicting evidence as to
the dates of signing each card. Torres was uncertain about
the dates. He testified that he signed the Production Work-
ers card several days before the Steelworkers card, and also
that he signed both cards the same day. His pretrial affidavit
stated that he signed the Production Workers card about
January 25 or 26. His Production Workers card is dated
January 17, Monday. His Steelworkers card is dated Janu-
ary 16, Sunday.
Torres and the Steelworkers organizer, Alicea, testified
that Tones signed his Steelworkers card in Torres' home on
Sunday, early afternoon. Both testified that Torres reported
to Alicea over the phone that someone else was signing
people up into the Steelworkers. Alicea swung into imme-
diate action. He went immediately to Torres' house, and
after talking with him, had him sign a Steelworkers card and
gave him several cards to pass out among the employees and
get signed. Torres testified that he passed them out the next
day at work. As had been seen above, several employees
received cards from Torres on January 17 and executed
them that day.
Upon the preponderance of the evidence I believe and
hold that Torres signed his cards for both unions on the
same day, and that that day was Monday, January 17. Both
Production Workers organizers, Cavazos and Serpico, testi-
fied that they signed up Torres at his home about noon on
Monday, January 17, and that as they were leaving, they
saw children coming out of a nearby school for, they as-
sumed, the noon recess. Torres testified that he called Alicea
the same day he signed the card for Cavazos to check
whether, as Torres understood from Cavazos, the Steel-
workers were starting another campaign. (Torres and Alicea
had known each other during the Steelworkers 1971 cam-
paign.) It seems likely to me that Torres would have under-
taken that inquiry immediately and not have waited several
days as he testified elsewhere in his testimony. This squares
with Alicea's actions on Monday, January 17. Immediately
after hearing from Torres, Alicea went to Torres' house,
signed him up, and gave him cards to distribute. (Torres, as
I find and hold on the entire record, took the cards to the
plant where he reported for work that afternoon about 3:30
p.m.) That day Alicea also phoned the Production Workers,
told them the Steelworkers were still interested in these
workers, and asked the Production Workers to stop their
campaign. That day Alicea also wrote Respondent Compa-
ny, warning it not to recognize any other union than the
Steelworkers. That day Alicea also called on Jose Marquez
at his home and had him sign his Steelworkers card, referred
to above. This attempt of another union, as he thought, to
steal the employees he had almost won an election with,
obviously excited Alicea when he heard of it and galvanized
him into action. If Alicea heard of this on Sunday it seems
likely to me that he would have called Marquez on Sunday
and not waited until Monday; and that he would have tried
to contact the Production Workers on Sunday and not have
waited until Monday. For the purposes of this Decision it
is not necessary to decide whether the January 16 date on
Torres' Steelworkers card, which was executed January 17,
was put there by error or design. Of note in this connection
is that Tones put the date on the Steelworkers card of
Francisco Acosta and he dated it January 22. If he was
predating cards for any reason, it does not appear why he
did not date the Acosta card earlier that week and prior to
the recognition of the Production Workers.
Respondents contended that the dual cards were all
signed after recognition was granted and received on Janu-
ary 19. These contentions were based on the assumption
that these eight Steelworkers cards were predated and were
not signed on the dates they bear. As has been found above
seven of these cards were signed on the dates they bear, and
only one was predated.
D. Conclusions
Of the 46 employees in the appropriate unit who signed
cards for the Production Workers, 8 also signed cards for
the Steelworkers before the Production Workers were rec-
ognized as the exclusive bargaining agent. Under estab-
lished law these eight cannot be counted towards the Pro-
duction Workers majority.10 This left the Production Work-
ers with 38 cards. It follows that the Production Workers did
not at the time they were recognized represent a majority of
the 86 in the appropriate unit , and the Production Workers
were not, therefore , entitled to be the exclusive bargaining
agent. By granting and accepting recognition under these
circumstances Respondent Company violated Section
8(a)(1) and (2) of the Act, and Respondent Union violated
Section 8(b)(1)(A). By entering into the contract with the
union-security clause under these circumstances , Respon-
dent Company violated Section 8(a)(3) of the Act and Re-
spondent Union violated Section 8(b)(2). International
Ladies' Garment Workers' Union, AFL-CIO (Bernard-
Alt-mann Texas Corp.,), 366 U.S. 731, 48 LRRM 2251. Cf. Home
Furniture Co., Inc., 174 NLRB 788.
CONCLUSIONS OF LAW
1. By granting recognition to Respondent Union as ex-
clusive bargaining agent when the latter did not represent
a majority of the employees in an approrpriate unit, Re-
spondent Company violated Section 8(a)(2) and (1) of the
Act.
2. By accepting such recognition Respondent Union vio-
lated Section 8(b)(1)(A) of the Act.
3. By entering also into, maintaining, and enforcing a
collective-bargaining agreement containing a union-securi-
ty clause when Respondent Union did not represent a ma-
jority of the employees in an appropriate unit, Respondent
10 Intalco Aluminum Corporation, 169 NLRB 1034, enfd. 417 F.2d 36 (C.A
9, 1969), Allied Supermarkets, Inc., 169 NLRB 927
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company violated Section 8(aX3) and Respondent Union
violated Section 8(b)(2) of the Act.
REMEDY
In order to effectuate the policies of the Act, Respondent
Company will be ordered to cease recognizing or dealing
with Respondent Union as the bargaining representative of
its employees in the appropriate unit, and Respondent
Union will be ordered to cease acting as the exclusive repre-
sentative of such employees, unless and until Respondent
Union has been certified by the Board as the exclusive
representative of such employees; and both Respondents
will be ordered to cease and desist from giving any force or
effect to their collective-bargaining agreement dated Febru-
ary 25, 1972, or any extension, renewal, or modification
thereof; provided, however, that nothing herein shall be
construed as requiring Respondent Company to vary any
wage, hour, seniority, or other substantive feature of its
relations with its employees which the Company has estab-
lished in the performance of this agreement, or to prejudice
the assertion by employees of any rights they may have
thereunder.
The record established that on May 31 Respondent
Union posted on Respondent Company's bulletin boards a
notice to the effect that under the union-security clause of
the contract employees would be required to join, or begin
paying dues to, the Union by July 1, 1972, and that failure
would result in requests for discharge and discharge. In view
of this unlawful requirement Respondent Company and
Respondent Union will be required jointly and severally to
reimburse all employees of Respondent Company who
joined or began paying dues to Respondent Union as re-
quired by the agreement of February 25 for all moneys paid
by them or deducted from their earnings for initiation fees,
dues , assessments, or other obligations of membership in
Respondent Union, together with interest at the rate of 6
percent per annum.
The record established that the union-security clause of
the February 25 agreement was not enforced until July 1
because of the hostility of the employees towards Respon-
dent Union and because Respondent Company feared
many employees would not join or pay dues to Respndent
Union and would have to be discharged for their failure;
and that Respondent Union finally got this clause enforced
by threatening a Section 301 lawsuit . Under these circum-
stances some employees may have been unlawfully dis-
charged under the union -security clause . Respondent
Company will therefore be required to offer reinstatement
to any employee discharged by application of the union-
security clause, and both Respondents will be required
jointly and severally to pay any such employee backpay
computed on a quarterly basis plus interest at 6 percent per
annum as prescribed in F. W. Woolworth Company. 90
NLRB 289 (1950), and Isis Plumbing and Heating Co., 138
NLRB 716 (1962), from date of discharge to date full rein-
statement is offered.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: t
ORDER
A. Respondent Company, Hi Temp Inc., a Division of
Beatrice Foods Co., Tru Temp Inc., Steel Treating Inc., its
officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Recognizing or dealing with Respondent Union as the
bargaining representative of its employees in the appropri-
ate unit unless and until Respondent Union shall have been
certified by the Board as the exclusive representative of such
employees. The appropriate unit consists of:
All production and maintenance employees employed
at the three plants of Hi Temp Inc., Tru Temp Inc., and
Steel Treating Inc., including inspectors and shipping
employees, but excluding office clerical employees,
plant clerical employees, outside truckdrivers, profes-
sional employees, technical employees, guards and su-
pervisors as defined in the Act.
(b) Assisting Respondent Union in any other manner to
become the collective-bargaining representative of its em-
ployees in the aforesaid appropriate unit.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which I find will
effectuate the policies of the Act:
(a) Withdraw and withhold recognition of Respondent
Union as the bargaining representative of its employees in
the aforesaid approrpnate unit, and revoke its collective-
bargaining agreement with said Union.
(b) Jointly and severally with Respondent Union reim-
burse employees in the aforesaid appropriate unit who be-
came members of Respondent Union or paid it any money
in accordance with the aforesaid agreement of February 25,
1972, for all moneys paid by them or deducted from their
earnings for initiation fees, dues, assessments, or other obli-
gations of membership in Respondent Union, together with
interest at the rate of 6 percent per annum.
(c) Offer immediate and full reinstatement to their former
jobs (or, if their jobs no longer exist, to substantially equiva-
lent jobs), to all employees discharged at the request of
Respondent Union under the union-security clause of the
collective-bargaining agreement of February 25, 1972, and
pay them backpay in the manner set forth in the "Remedy"
section of the Decision of the Administrative Law Judge.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
determine the moneys or benefits due under the terms of
this Decision.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order, and all objections thereto shall be deemed
waived for all purposes
HI TEMP INC. 759
(e) Post at its three plants copies of the attached notices
marked "Appendix A" and "Appendix B." Copies of said
notices, on forms provided by the Regional Director for
Region 13, shall, after being signed by the respective repre-
sentatives, be posted by Respondent Company immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily post-
ed. Reasonable steps shall be taken by Respondent Compa-
ny to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Mail to the Regional Director signed copies of "Ap-
pendix A" for posting by Respondent Union as hereinafter
directed.
(g) Notify the Regional Director, in writing, within 10
days from the date of this Decision and Order, what steps
Respondent Company has taken to comply herewith.
B. Respondent Union, Production Workers Union, Local
10, International Union of Dolls, Toys, Playthings, Novel-
ties and Allied Products of the United States and Canada,
AFL-CIO, its officers, agents, and representatives shall:
1. Cease and desist from:
(a) Acting as the exclusive bargaining representative of
Respondent Company's employees in the aforesaid appro-
priate unit for the purposes of collective-bargaining, unless
and until it shall have been certified by the Board as the
exclusive representative of such employees.
(b) Giving any force or effect to its collective-bargining
agreement with Respondent Company dated February 25,
1972, or to any amendment, supplement, or addition there-
to.
(c) Causing or attempting to cause Respondent Company
to discriminate against employees in the aforesaid appropri-
ate unit in violation of Section 8(a)(3) of the Act and in any
other manner restraining or coercing these employees in the
exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which I find will
effectuate the policies of the Act:
(a) Jointly and severally with Respondent Company
reimburse employees in the aforesaid appropriate unit who
became members of Respondent.Union or paid it any mon-
ey in accordance with the aforesaid agreement of February
25, 1972, for all moneys paid by them or deducted from
their earnings for initiation fees, dues, assessments, or other
obligations of membership, together with interest at the rate
of 6 percent per annum.
(b) Post at its business office and meeting halls in the
State of Illinois, copies of the attached notices marked "Ap-
pendix A" and "Appendix B."12 Copies of said notices, on
forms provided by the Regional Director for Region 13,
shall, after being signed by the respective representatives, be
posted by Respondent Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
notices to its members are customarily posted. Reasonable
steps shall be taken by Respondent Union to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Mail to the Regional Director signed copies of "Ap-
pendix B" for posting by Respondent Company, as here-
tofore directed.
(d)Notify the Regional Director, in writing, within 10
days from the date of this Decision and Order, what steps
Respondent Union has taken to comply herewith."
13 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 13, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these right:
To engage in self-organization
To form, loin, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other aid
or protection
To refrain from any or all of these things.
WE WILL NOT recognize or deal with Production
Workers Union, Local 10, as the representative of our
employees unless and until it has been certified as the
exclusive representative of our employees in the appro-
priate unit by the National Labor Relations Board. The
appropriate unit consists of:
All production and maintenance employees at our
three plants, including inspectors and shipping em-
ployees, but excluding office clerical employees,
plant clerical employees, outside truckdrivers, pro-
fessional employees, technical employees, guards
and supervisors as defined in the Act.
WE WILL NOT give any force or effect to the agreement
made with Production Workers Union, Local 10, dated
February 25, 1972, or to any amendment, supplement,
or addition thereto.
WE WILL NOT assist Production Workers Union, Local
10, in any other manner to become the representative
of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL jointly and severally with Production Work-
ers Union, Local 10, reimburse our employees who
became members of that Union in accordance with the
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforesaid agreement of February 25, 1972, for moneys
paid by them or deducted from their earnings for initia-
tion fees, dues, assessments , or other obligations of
membership in Production Workers Union, Local 10.
WE WILL reinstate to their jobs with backpay any
employees discharged because they refused to Join Lo-
cal 10 or to pay money to it; and, jointly and severally
with Local 10, WE WILL pay backpay to any such em-
ployees, in accordance with the Decision of the Admin-
istrative Law Judge.
Hi TEMP INC., A DIVISION OF
BEATRICE FOODS Co.,
TRU TEMP INC,
STEEL TREATING INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Everett McKinley Dirksen Build-
ing, Room 881, 219 South Dearborn Street, Chicago, Illinois
60604, Telephone 312-353-7572
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Production Workers Union, Local 10,
and all employees of Hi Temp Inc., Tru Temp Inc., and
Steel Treating Inc.
WE WILL NOT act as the collective-bargaining repre-
sentative of the employees of Hi Temp, Tru Temp, or
Steel Treating unless and until we have been certified
by the Board as the authorized representative of such
employees.
WILL NOT give any force or effect to our collective-
bargaining agreement with Hi Temp, Steel Treating,
and Tru Temp, dated February 25, 1972, or to any
amendment, supplement, or addition thereto.
WE WILL NOT cause or attempt to cause Hi Temp, Tru
Temp, or Steel Treating to discriminate against their
employees in violation of Section 8(a)(3) of the Act or
in any other manner restrain or coerce these employees
in the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL jointly and severally with Hi Temp, Tru
Temp, and Steel Treating, reimburse their employees
who became members of our organization in accord-
ance with the aforesaid agreement of February 25,
1972, for moneys paid by them or deducted from their
earnings for initiation fees, dues, assessments, or any
other obligations of membership in our organization.
Dated By
PRODUCTION WORKERS UNION,
LOCAL 10, INTERNATIONAL
UNION OF DOLLS, TOYS,
PLAYTHINGS, NOVELTIES AND AL-
LIED PRODUCTS OF THE UNITED
STATES AND CANADA, AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , Everett McKinley Dirksen Build-
ing, Room 881 ,219 South Dearborn Street, Chicago, Illinois
60604, Telephone 312-353-7572.