Certified Meats, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1972

199 N.L.R.B. 775 (N.L.R.B. 1972)

CERTIFIED MEATS, INC.
Certified Meats, Inc. and Local P-215, Amalgamated
Meat Cutters & Butcher Workmen of North Ameri-
ca, AFL-CIO. Case 25-CA-4428
October 17, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 21, 1972, Administrative Law Judge 1
Marion C. Ladwig issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited cross-exceptions and a brief in support of the
Decision.
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
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings I and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.'
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 as modified
below and hereby orders that Respondent, Certified
Meats, Inc., Fort Wayne, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's recommended Or-
der as modified herein.
Delete.paragraph 1(h) and substitute therefor the
following:
"(h) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act."
1 The title of "real Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 In the absence of any specific exception , we adopt the Administrative
Law Judge's finding that Respondent committed a separate violation of
Section 8(aX5) by engaging in individual bargaining with Hams Hoeffel, Sr,
over an increase in wages to be paid Hoeffel , Sr., and his two sons if they
would return to work.
3 In view of the serious nature of the unfair labor practices committed by
Respondent , we find meet in the General Counsel's request for a broad
order. Accordingly , we have modified the Administrative Law Judge's rec-
ommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
775
MARION C. LADwIG , Trial Examiner : This case was
tried at Fort Wayne, Indiana , on December 7-9, 1971,1 and
April 25 , 1972. The charge was filed by the Union on July
13 (amended November 29), and the complaint was issued
on August 31 (amended September 20 and November 30).
The primary issues are whether the Company , the Respon-
dent, (a) unlawfully interrogated and threatened employees,
(b) discharged 11 employees because of their union and/or
concerted activity , (c) again discriminatorily discharged one
of the employees after reinstating him, and (d) illegally re-
fused to recognize and bargain with the Union , in violation
of Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act.
Upon the entire record , including my observation of
the demeanor of the witnesses , and after due consideration
of the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
I JURISDICTION
The Company, an Indiana corporation, is engaged in
the boning, trimming, and bulk packaging of hams at its
plant in Fort Wayne, Indiana , where it annually ships prod-
ucts valued in excess of $50,000 directly to customers locat-
ed outside the State. The Company admits, and I find, that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II ALLEGED UNFAIR LABOR PRACTICES
A. Interrogation and Threats Preceding
Discharges
Vice President Donald Contris, the Company's sole
stockholder, also operated other meatpacking plants out-
side the State. He opened the Fort Wayne plant in Feb-
ruary, hiring an inexperienced person, Paul Aukerman, to
serve as president and plant manager , and designating As-
sistant Manager and Maintenance Supervisor George Baker
to oversee the operation. Contris thereafter hired Foreman
John Fotta to work in the boning room and supervise the
meatcutters. Because of President Aukerman's inexperience
in managing such a plant, Fotta was responsible directly to
Contris , who spent much of his time at his other plants.
By July, as testified by President Aukerman, the pro-
duction was "very good," the "men were working in fine
shape, and they were doing a nice job, and the meat was
coming through in good shape." However, employee dis-
content had arisen at the plant over working conditions and
Foreman Fotta's supervision and, on July 2 , meatcutter
Donald Freeman contacted the Union. After conferring
All dates are in 1971 unless otherwise stated
199 NLRB No. 125
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with union representatives on July 3, Freeman orally ad-
vised other employees at the plant that a union meeting
would be held after work on Wednesday, July 7. About 3:30
(quitting time) that Wednesday, before the meeting was
held at the union hall, Freeman was discharged, allegedly
for absenteeism. Foreman Fotta handed him his two final
paychecks and said he was fired. Immediately Freeman
appealed to President Aukerman and then to Vice President
Contris, who agreed *that Freeman could be given another
chance. Aukerman then went with Freeman to confer with
Fotta, who expressed his consent. Thereupon, as Freeman
credibly testified, Aukerman asked Fotta "should we tell
him the truth, the other reason why he was fired?" Hearing
no response , Aukerman told Freeman, "Don, the other rea-
son that we let you go is because it come from pretty direct
sources that you were the man responsible for organizing
the union." (Fotta did not specifically deny that this hap-
pened. Aukerman's denial that there was any discussion of
union activities at that time is discredited.) I find that Presi-
dent Aukerman's statement to Freeman constituted a threat
of discharge if employees supported the Union, and violated
Section 8(a)(1) of the Act. I also find that the statement
revealed company knowledge of the union activity.
On the following afternoon, July 8, at a bar on the way
home, Foreman Fotta asked meatcutter Jerry Garman if he
knew anything about the employees getting a union, and
why he wanted a union. As Garman credibly testified, Fotta
"was against it all the way," and said "there would be new
men hired in on Monday morning if there was going to be
a union put in there." (Fotta admitted asking Garman about
the Union, but claimed that upon hearing Garman admit
signing a card, he told Garman that it "don't make no
difference to me," and that nothing else was said.) I find
that the threat to hire new employees, and also Fotta's
interrogation about the union activity, in the context of his
stated opposition and the threat, were coercive and violated
Section 8(a)(1) of the Act.
About 6:45 the following morning, Friday, July 9,
Foreman Fotta again mentioned the hiring of new employ-
ees. As credibly testified by meatcutter Charles Frye (who
impressed me as an honest witness), Fotta mentioned "that
he talked to Don Contris Thursday, and that Don Contris
told him ... that there would be a whole new crew in, they
was going to fire the whole bunch, because he heard about
the Union and he wasn't having any union here." They
continued to bone the hams, without any other comment,
until about 10:45, when Frye asked, "What is the story on
this, John? Who is getting fired?" Fotta "didn't say
anything. He just grinned and walked away." (I discredit
Fotta's denial that he said anything about the Union that
Friday morning. He did not impress me as being a trustwor-
thy witness.) Accordingly, I find that Foreman Fotta's early
morning statement to Charles Frye was another threat of
discharge, in violation of Section 8(a)(1), and that the state-
ment further revealed company knowledge (including Con-
tris') of the union activity.
B. Discharge of 11 Union Supporters
1. Surrounding circumstances
Foreman Fotta's next mention of a new crew was
about 11:55 that Friday morning, July 9, when the employ-
ees were returning from lunch. Both meatcutters Victor
Frye and Matt Hoeffel credibly testified that they over-
heard Fotta speaking to President Aukerman about the new
crew. Victor Frye (who impressed me as an honest, forth-
right witness, with a good memory) testified that he over-
heard Fotta tell Aukerman, "I want a whole new crew in
here Monday," and Aukerman said, "0. K., John, I will
have you a new crew in here Monday." (Fotta, contrary to
Aukerman, admitted that a new crew on Monday was men-
tioned in this conversation. Fotta testified that he was in the
hallway talking to Aukerman when Victor Frye and Matt
Hoeffel came up and Victor asked for a raise. "I told him
to wait till Monday, so they went back out there for their
white coats" and Aukerman then said, "Well, heck, we'll get
a new crew Monday anyway." Aukerman's contradictory
testimony is discussed later. Neither Fotta nor Aukerman
appeared to be willing to give a forthright account of what
happened.)
Victor Frye and Matt Hoeffel immediately reported
the Fotta-Aukerman conversation to their fathers, meatcut-
ters Charles Frye and Harris Hoeffel, Sr. Then Charles Frye
(who had heard the new-crew threat directly from Fotta
earlier that morning), went toward the office, followed by
Hoeffel, Sr., and most of the other boning room employees.
Frye entered the office and asked President Aukerman,
"What is the story, what has happened? Are we all to be
fired tonight, or not?" Aukerman did not answer directly,
but told the employees to "go in the lunchroom and sit
down, and I will talk to you." In the lunchroom, Aukerman
began requesting the employees to return to work to get out
the orders. At that point, Foreman Fotta came from the
boning room and (as credibly testified by Victor Frye) or-
dered: "Punch out, all of you punch out." The employees
went to the timeclock, punched their timecards-about
12:06 p.m.-and started out to the loading dock. Fotta then
stated, "I want the Harrises [referring to Harris Hoeffel, Sr.,
and his two sons, Hams "Mike" Hoeffel, Jr., and Matt
Hoeffel], the Fryes [Charles and his son, Victor], and the
Lungs [Harry] definitely fired. I definitely want you fired."
(Fotta admitted that he discharged these six employees.)
Aukerman followed the employees to the dock, asked them
to return to work, and promised, "We'll talk about it to-
night." Eleven of the employees (the three Hoeffels, two
Fryes, and Lung, plus Donald Freeman, Jerry Garman,
William Longerbone, Lesley McLain, and John Thorpe)
refused to return to work-some of them citing complaints
about various working conditions. (They were concerned
about wages, holiday pay, overtime after 8 hours, unpaid
overtime, delayed paychecks, and harassment by Foreman
Fotta.) Then Fotta interrupted the conversation. Leaning
out the door, he angrily shouted, "They're fired and they're
staying fired." Aukerman did not countermand their dis-
charge.
Shortly thereafter, Secretary-Treasurer Sue Huffard ar-
rived. She conferred with Aukerman, and then with Assist-
ant Manager Baker who had been busy in the basement and
unaware of what was happening. Huffard telephoned Vice
President Contris, and Baker talked with some of the em-
ployees in an effort to get them to return to work. Baker
then reported the matter to the company counsel who asked
CERTIFIED MEATS, INC.
"if -there was any union activities." Baker said "I didn't
know a thing about it." (Emphasis supplied. As found
above, Fotta, Aukerman, and Contris were aware of the
union activity.) According to Baker, the attorney said, "0.
K., write out their checks and mark `Fired' on the back."
Thereupon, Baker and Huffard called the 11 meatcutters
into the office (most of them individually), listened to their
complaints, again requested at least some of them to return
to work, and discharged all of them for refusing to work-
writing on their final paychecks that they were fired that
date at 12:06 p.m. (when Fotta had ordered them to punch
out). Admittedly the 11 employees were discharged for en-
gaging in a concerted refusal to work: Huffard testifying
that the employees indicated they were going to "stick to-
gether," and Baker testifying that "they said they had just
walked out in a group," and "everyone that didn't go back
to work I fired." There was no mention of the Union.
Later that Friday afternoon, Union Recording Secre-
tary Arnold Martin telephoned President Aukerman and
asked what was the status of the employees. Aukerman first
stated that they would have to call him individually to find
out. He later said that "if they are interested in a job," they
could go to the plant on Monday and "they might get
hired."
Union Secretary Martin had mailed the Company a
letter the day before, claiming a majority and requesting
bargaining. The letter was received on Saturday morning,
July 10, at 10 o'clock when, as testified by Assistant Manag-
er Baker, "I had the postman letter and date the time he
delivered the envelope."
Early the following Monday morning, July 12, the 11
discharged employees went to the plant in an effort to re-
turn to work. While the others waited outside, spokesmen
Charles Frye and Jerry Garman went to President
Aukerman's office and asked to speak to him. He was on
the telephone and told them, "Just a moment." While Frye
and Garman were waiting in the hall, Foreman Fotta came
up and asked, "What the hell you doing in the building?"
Frye said that they were there to see Aukerman and that
Aukerman said to wait. Fotta said that they were on private
property, that they were no longer employed, to "Get the
hell out of,the building," and "either get out or I'll throw
you out." (Fotta testified that he told them, after they said
they were going to talk to Aukerman, "Well, you might as
well leave the premises because you're not allowed on the
premises now." He admitted that he felt that once he fired
them, "they were going to stay fired.") They left and re-
turned with picket signs.
The Company was in great need of the services of the
discharged employees. Following their discharge on Friday,
Foreman Fotta and three other meatcutters (Jim Martin,
George McKnight, and Mike Coble) had processed all the
meat which had been left on the tables in the boning room.
However, the Company had planned to work that Saturday
to complete a particular order for delivery on Monday
morning . The order was only about half completed, and the
customer had agreed to wait until Tuesday morning for the
order. But after most of the meatcutters were discharged,
the Company did not assign the remaining meatcutters to
work on Saturday, and replacements were not available on
Monday to complete the order in time , without the dis-
777
charged employees. As it turned out, that and another order
were not delivered until late Tuesday, and both orders were
rejected because of lateness and also spoilage, which was
apparently caused at least in part by faulty refrigeration on
the delivery truck. The Company, being unable to make
deliveries on time because of the few available replace-
ments, lost two of its customers.
It is undisputed that on Saturday evening, July 17 (a
week after the discharges), President Aukerman telephoned
Hoeffel, Sr., asked if he and his two boys would come after
working hours and bone the pork, and stated that the Com-
pany "would pay us up to five or six dollars an hour, what-
ever we wanted." (Hoeffel had been paid $3.40 an hour and
his sons, $3 an hour.) Hoeffel refused to return except "un-
der union representation."
It is also undisputed that when Vice President Contris
hired Charles Frye and Jerry Garman on September 13 to
work at one of his Ohio plants, he told them that before he
would let the Union get in the Fort Wayne plant (where
Frye and Garman had been discharged), "he'd sell the plant
or he'd give it away"-a clear violation of Section 8(a)(1).
2. Concluding findings
a. Fotta's discharges
Although the Company did not receive the Union's
formal bargaining request until Saturday morning, July
10-1 day after the 11 discharges-the Company was aware
of the union activity at least as early as Wednesday, July 7.
After work that day, immediately before the union meeting
to which meatcutter Freeman had invited the other meat-
cutters, President Aukerman informed Freeman that his
organizing of the Union was "the other reason why he was
fired ." Between that time and noon on Friday, Foreman
Fotta mentioned on three occasions the hiring of new em-
ployees. After work on Thursday, he told an employee that
"there would be new men hired in on Monday morning if
there was going to be a union put in there." Early Friday
morning, he stated that Vice President Contris (the sole
stockholder) had said that "there would be a whole new
crew in, they was going to fire the whole bunch, because he
heard about the Union and he wasn't having any union
here." (As indicated, it is undisputed that 2 months later,
Contris informed two employees that "he'd sell the plant or
he'd give it away" before he would let the Union get in.)
Then about 11:55 on Friday morning, two employees over-
heard Fotta tell Aukerman, " I want a whole new crew in
here Monday." The employees thereupon walked off the job
to inquire whether or not they were being discharged.
Faced with unfilled orders, President Aukerman plead-
ed with the employees to return to work. However Foreman
Fotta (who was responsible directly to Vice President Con-
tris) first told the employees to punch out, then stated that
he wanted the three Hoeffels, the two Fryes, and Lung
"definitely fired," and shortly thereafter-as Aukerman
continued to plead with the employees-Fotta angrily
shouted, "They're fired and they're staying fired."
Foreman Fotta admitted that he knew the employees
were organizing into a union, but he denied that he fired
them for that reason. He claimed that about 2 or 3 weeks
earlier, Hoeffel had given him notice that Hoeffel, his two
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sons , the two Fryes, and Lung were leaving on July 18, when
Hoeffel planned to open his own meat packing plant. Fotta
further claimed that he had told President Aukerman "that
we might as well start breaking in some new men," and that
on Friday morning, July 9 , Aukerman indicated that he had
been arranging for a new crew , by telling Fotta (as quoted
above), "Well, heck , we'll get a new crew Monday anyway."
Aukerman's testimony , however, contradicts these claims.
He testified that he knew when he hired the Hoeffels that
they were opening their plant, "but I had no knowledge of
when it was going to be ." (Hoeffel had advised the Compa-
ny when he was hired in February that he planned to leave
eventually when he set up his own plant . He credibly denied
ever giving any definite date for leaving . His plant opened
in December , over 5 months after the discharges . Only his
son Matt went to work for him.) When questioned about
whether anything was said on Friday , July 9, about getting
in a new crew on Monday , Aukerman testified that if Fotta
.,was going to get a new crew , I wouldn't have insisted on
them [the meatcutters ] coming back in . I would have said,
well, go, man, to .... I had nobody in mind ." (According
to Aukerman , Fotta came up and told him that Friday
morning that the Hoeffels were leaving and "We will need
some new men to train," whereupon Aukennan claimed he
answered, "Well, when the time comes we will get new men
to train." As previously found , neither Fotta nor Aukerman
appeared to be willing to give a forthright account of what
actually happened . I have credited Victor Frye's testimony
that he overheard Fotta tell Aukerman, "I want a whole new
crew in here Monday.")
Foreman Fotta further claimed that he discharged the
six employees "because they was leaving anyway ," not be-
cause they "walked off their jobs leaving the meat on the
tables ." He later testified that he fired them because they
"left the meat on the table for me and they just walked off
for no reason ." When questioned about his conflicting an-
swers , he testified that "They was going to leave . I'll just put
it that way . They was going to leave .... Right , I'm going
to stick with that ." (To say the least , he impressed me as
being less than candid.)
After weighing all the conflicting testimony , and con-
sidering the demeanor of the witnesses on the stand, I find
that before the meatcutters walked off the job , Vice Presi-
dent Contris and Foreman Fotta had discussed the replace-
ment of at least some of the meatcutters because of their
union activity . (I discredit Contris' denial of any knowledge
of the union activity .) Then , after most of the meatcutters
left the boning room and Fotta ordered them to punch out,
Fotta discharged by name the six employees who he be-
lieved would be leaving at some indefinite time in the future.
I further find that a few minutes later , when Fotta realized
that most of the meatcutters were staying out in a group, he
decided that this would be a good opportunity to discharge
all these union supporters , and shouted out the dock door,
"They're fired and they're staying fired."
I therefore find that Foreman Fotta, on behalf of the
Company , discriminatorily discharged the 11 meatcutters
because of their union acitivity , in violation of Section
8(a)(3) and ( 1) of the Act.
b. Baker's discharges
The 11 employees were placed in the position of being
discharged by their immediate supervisor , yet requested by
others in management to return to work and complete the
orders . The employees continued to express dissatisfaction
with their working conditions , and their determination to
"stick together ." Assistant Manager Baker then proceeded
to discharge them for refusing to return to work.
Of course , it is now well settled law that the discharge
of employees for engaging in protected concerted activity
violates Section 8(a)(1) of the Act. Collins Baking Co. v.
N.L.R.B., 193 F.2d 483 , 486 (C .A. 5, 1951). In its brief, the
Company concedes that "the discharges were predicated
primarily , if not solely, on the apparently collective walk-
out." The Company contends , however, that the employees'
refusal to work was an unprotected activity because "As an
apparent consequence of these events , a considerable
amount of fresh meat was spoiled, and at least one customer
was immediately lost." I reject this contention as a mere
afterthought, lacking merit . Nothing was said at the time
about the meat spoiling if the employees did not return to
work ; and it is undisputed that it would have taken only a
short time for one person to return the meat to the cooler.
Moreover, Foreman Fotta admitted that all the meat left on
the tables was processed that same afternoon . The next day,
Saturday , the Company failed to utilize the available re-
maining manpower to process more of the meat . Then on
Monday morning , when the discharged employees endeav-
ored to return to work (President Aukerman having notified
the Union that "they might get hired" if they went to the
plant that morning), Fotta ordered their spokesmen out of
the plant before they could even apply . Thereafter, the
Company's lack of sufficient manpower , preventing it from
making deliveries on time and causing the loss of business,
was self-induced. I therefore find that the refusal to work
was protected concerted activity.
Accordingly, whether or not Assistant Manager Baker
was aware of their union activity , I find that his discharge
of the 11 employees for engaging in protected concerted
activity violated Section 8(a)(1) of the Act.
c. Second Discharge of Victor Frye
On September 1 (the day following the issuance of the
complaint herein), the company counsel began writing let-
ters, offering the discharged employees reinstatement, and
requesting that they report within 1 week after receipt of the
letter. (The letters were sent to Garman and the three Hoef-
fels on September 1; to Freeman , Charles Frye, and Lung
on September 14; and to Victor Frye, Longerbone, and
Thorpe on September 24. McLain has not been offered
reinstatement .) The picketing had apparently ceased, and
several of the employees were reinstated.
By the time Victor Frye returned to work on October
5, Vice President Contris had demonstrated his continued
union animus . As found above , it is undisputed that on
September 13, Contris had told Charles Frye (Victor's fa-
ther) and Garman that before he would let the Union in the
plant, "he'd sell the plant or he'd give it away."
CERTIFIED MEATS, INC.
On October 7, Victor Frye' s third day back at work, he
spoke to Vice President Contris in the office about what
wage he was being paid . When Contris showed him that he
was being paid $1 .85 an hour, Victor questioned it and said
that President Paul Aukerman had given him some raises
which he had never received . It is undisputed that Contris
said, "Well, that's one of the reasons we got rid of Paul, is
because he got me in all this union trouble in the first place."
As the conversation continued , Contris said he could not do
anything about it because of the presidential price freeze,
but that "he would give me a ticket" and "I could confer
with President Nixon" about a raise . Finally, Contris told
Victor to return to work, and said that when the wage freeze
was over, he would give Victor $3 an hour plus an incentive.
It is also undisputed that in this conversation, Vice
President Contris "said that it wasn't his fault that we were
walking the whole summer across the street like a bunch of
morons and not making any money , and that all this b-s-
about union business was just that , b-s-, and that if the
court ordered him to pay the employees backpay that he
would divide the Company among all of us and we would
all be in his debt about $2,000." I find , as alleged in the
complaint, that this threat of plant closure if backpay were
ordered was coercive and violated Section 8 (a)(1) of the Act.
The statement also shows continued union animus.
It is likewise undisputed that at quitting time that same
day, Vice President Contris invited Victor into the office
and told him , "I am going to lay you off. And the reason
for this is , I called my attorneys , and there is one way I can
get around the presidential freeze , and that is to lay you off
so there will be a space in the bookkeeping ... of a few days
... Thursday, Friday, Saturday, and then Monday-and
then come back to work Monday ... and then we'll talk
about your raise and about giving you your job back ... I'll
have to send a letter to the NLRB office and the Wage and
Hour office ." (Contris and other company witnesses who
were present were not questioned about these October 7
conversations.)
When Victor Frye returned on Monday , October 11, he
signed a document which Secretary-Treasurer Huffard
typed and presented to him , but the Company did not give
him back his job. (There is much conflict in the testimony,
by Victor, Sue Huffard, and her brother , Steve Huffard, the
new plant manager , about what transpired on October 11,
and about what Victor signed . In the absence of expert
testimony , I do not decide whether or not the document in
evidence bears his signature-although I note that the sig-
nature appears questionable on its face , inasmuch as a
stroke for the letter "t" was evidently first written , instead
of a "c," as the third letter in the name "Victor.")
Nonetheless , regardless of what actually transpired
that Monday, October 11 , Victor Frye had already been
discharged by mail . Later that day, he received a letter from
the company counsel , dated October 7, stating that he was
discharged "as of the date of this letter ," and that:
It has been called to my attention that you demanded
a pay raise and that when you were informed that
wages were frozen by presidential order , you stated
that it was your intention to work only half as hard
since you were getting half pay. I was also informed
that your general conduct toward the other employees
has been to create difficulties with them ; and therefore,
779
it is necessary that your employment be terminated.
It is undisputed , as Victor Frye credibly testified, that
he went to the plant the next day and asked Vice President
Contris the meaning of the letter . Contris responded, "I did
call my lawyers ... and they advised me ... to lay you off
and rehire you ... but I never knew that they sent you any
letters ... they did that on their own .... I pay them too
much now , you guys got me into all this mess ." Contris
added that the attorneys "were the only person that could
get him out of all this mess and ... he don't know what they
do ... writing me letters and stuff ." Victor Frye said he was
going to ask the lawyers for a retraction in writing and also
notify the NLRB . Contris "said that if he was me , that he
would do the same thing." (When asked what he had said
on October 7 about working half as hard , Victor credibly
testified that after Contris stated how much Victor was
making, Contris said, "I want you to work ... just as fast
as you always was." Victor responded that right at that
time-after the discharge that morning of Matt Hoeffel
(who had been reinstated earlier)-Victor was his fastest
meatcutter "and the people who were half as fast as me
should be getting my money." Victor also told Contris that
Victor was showing another person how to cut the meat, and
that was the person who should be making Victor's wages.)
In view of this credited, undisputed testimony, and
Vice President Contris' repeated expressions of union ani-
mus, I find that the Company 's stated reasons for dis-
charging Victor Frye were pretextual , and that the real
reasons were Victor's union activity and the Company's
determination to keep out the Union . I therefore find that
his discharge on October 7 was discriminatory and violated
Section 8(a)(3) and (1) of the Act.
d. Alleged Refusal to Bargain
1. Majority status
I find that the following is an appropriate bargaining
unit:
All employees in the Company's plant in Fort Wayne,
Indiana , excluding office clerical employees , truckdri-
vers , guards , professional employees , and supervisors
as defined in the Act.
The parties agree that this is an appropriate unit , except
that the Company would exclude employee George Mc-
Knight . Vice President Contris named McKnight as being
a meatcutter , along with others . Secretary-Treasurer Huf-
fard testified that McKnight takes the meat from the cooler
to the boning room and back to the cooler , weighs the meat,
cleans up , and does some maintenance work . Although she
testified that she did not know if he cut meat or not, she
stated in her pretrial affidavit that after the July 9 walkout,
she saw McKnight with others (including Mike Coble)
"working at their tables in the Boning Room." (Coble was
a meatcutter who also worked in the cooler .) I would in=
clude McKnight in the unit, because of his community of
interest with the other unit employees , even if he did not cut
meat . I therefore include him.
There were 14 regular employees on the payroll (in-
cluding McKnight, Coble , and 12 others). By July 7, 10 of
the unit employees (i.e., all those discharged on July 9 ex-
cept Charles Frye, who signed on July 8 ), had signed valid
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards for representation by the Union. The
only nonsigners were McKnight , Coble , and meatcutter Jim
Martin.
In its brief, the Company concedes that on July 7 the
Union had an apparent majority.
2. Unanswered bargaining request
As previously found , the Company received the
Union's written bargaining request on July 10 , the day fol-
lowing the discharge of all 11 of the cardsigners. Having
also found that the discharges were unlawful , in violation of
Section 8(a)(1) and (3) of the Act, I find that the 11 dis-
charged employees remained employees of the Company. I
therefore find that on July 10 , the Union maintained its
majority of 11 of the 14 employees.
The Company did not respond to the Union 's bargain-
ing request.
3. Contentions and concluding findings
The General Counsel contends that the Company has
unlawfully refused to bargain on and since July 10 , that the
Company's unlawful conduct has made a fair election im-
possible , and that a bargaining order is appropriate.
N.L.R.B . v. Gissel Packing Co., 395 U .S. 575 (1969). The
Company contends that it did not commit any unfair labor
practices-except that some of Vice President Contris' un-
denied "remarks about the Union and the pending Board
action" on October 7 "may have been technically improper."
It therefore argues that a bargaining order is not appropri-
ate.
To the contrary , I find that the Company 's unfair labor
practices are "outrageous" and "pervasive," and of "such a
nature that their coercive effects cannot be eliminated by
the application of traditional remedies , with the result that
a fair and reliable election cannot be had." Gissel, 395 U.S.
at 613-614. As found above , the Company discriminatorily
discharged all 11 of the cardsigners among its 14 unit em-
ployees , after engaging in unlawful interrogation and re-
peatedly threatening the employees with discharge for
supporting the Union . About a week after the unlawful
discharges, it engaged in individual bargaining with one of
the discharged employees , concerned increased wages for
three of them (Hoeffel and his two sons ) if they would
return and work on a second shift without union representa-
tion . (I find this conduct to be a separate Section 8(a)(5)
violation.) Thereafter , the Company threatened to sell the
plant or give it away before letting in the Union , and to close
the plant if ordered to give the discharged employees back-
pay. On the same day the last threat was made , the Compa-
ny discriminatorily discharged , for a second time , one of the
reinstated employees.
Therefore , under the facts of this case, I find that the
Company violated Section 8 (a)(5) and ( 1) of the Act, that
a fair election has been made impossible, and that a bar-
gaining order is necessary . I also find that a bargaining
order would be appropriate even in the absence of a techni-
cal 8(a)(5) violation.
In addition I find that , without doubt, the Company
violated Section 8(a)(5) and (1) because its unlawful con-
duct would at least fall within the category of "less extraor-
dinary cases marked by less pervasive practices which none-
theless still have the tendency to undermine majority
strength and impede the election process ." Gissel, 395 U.S.
at 614 . It is undisputed that the Union achieved a majority
status on July 7, and I find that because of the Company's
extensive unfair labor practices , the possibility of having a
fair election is only slight at best . A bargaining order is
therefore necessary.
CONCLUSIONS OF LAW
1. By discharging 11 employees on July 9 because of
their union and protected concerted activity , the Company
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(3) and ( 1) and Section 2(6) and
(7) of the Act.
2. By discharging Victor Frye a second time on October
7 because of his union activity , the Company violated Sec-
tion 8(a)(3) and ( 1) of the Act.
3. By threatening employees with discharge for sup-
porting the Union , and by engaging in coercive interroga-
tions , the Company violated Section 8(a)(1) of the Act.
4. By threatening to close the plant before letting in the
Union, and by threatening plant closure if ordered to give
backpay to discharged employees, the Company violated
Section 8(a)(1) of the Act.
5. By refusing on and since July 10, 1971, to bargain
with the Union as the exclusive representative of its employ-
ees in an appropriate unit of all employees at its plant in
Fort Wayne , Indiana, excluding office clerical employees,
truck drivers , guards , professional employees , and supervi-
sors as defined in the Act, the Company violated Section
8(a)(5) and (1) of the Act.
6. By engaging in individual bargaining after July 10
concerning terms of employment , the Company also viola-
ted Section 8(a)(5) and (1) of the Act.
7. As a result of the foregoing unlawful company con-
duct , a fair election has been made impossible, or the possi-
bility of a fair election is only slight at best , and a bargaining
order is appropriate and necessary.
REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of the employees ' Section 7 rights, and
to take certain affirmative action.
The Respondent having failed to offer reinstatement to
Lesley McLain ( 1 of the 11 employees unlawfully dis-
charged on July 9, 1971), and also to Victor Frye (1 of the
11 employees ) after his second unlawful discharge on Octo-
ber 7 , I find it necessary that it be ordered to offer these 2
employees full reinstatement , and to make them and the
other 9 discharged employees whole for any loss of earnings
they may have suffered because of the unlawful discharges.
The backpay shall be 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 Plum-
bing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
CERTIFIED MEATS, INC. 781
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2
Respondent, Certified Meats, Inc., its officers, agesnts,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting Local P-215, Amalgamated
Meat Cutters & Butcher Workmen of North America,
AFL-CIO, or any other union.
(b) Discharging or otherwise discriminating against
employees for engaging in protected concerted activity.
(c) Threatening to discharge any employee for union
support or union activity.
(d) Threatening to close the plant before letting in a
union.
(e) Threatening plant closure if ordered to give back-
pay to discharged employees.
(f) Coercively interrogating any employee about union
support or union activities.
(g) Engaging in individual bargaining with bargaining
unit employees concerning wages or other terms of employ-
ment.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain in good faith with Local
P-215, Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, as the exclusive representative
of the employees in the following appropriate unit and em-
body in a signed agreement any understanding reached:
All employees at the Employer's plant in Fort Wayne,
Indiana, excluding office clerical employees, truck
drivers, guards, professional employees, and supervi-
sors as defined in the Act.
(b) Offer Victor Frye and Lesley McLain immediate
and full reinstatement to their former jobs or, if their jobs
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges,
and make them and the following individuals whole for
their lost earnings in the manner set forth in the section of
the Trial Examiner's Decision entitled "Remedy": Donald
Freeman, Charles Frye, Jerry Garman, Matt Hoeffel, Har-
ris Hoeffel, Jr., Harris Hoeffel, Sr., Harry Lung, William
Longerbone, and John Thorpe.
(c) Notify immediately the first two above-named indi-
viduals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon appli-
cation after discharge from the Armed Forces, in accord-
ance with the Selective Service and the Universal Military
Training and Service Act.
(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 records necessary to analyze
the amount of backpay due under the terms of this Order.
(e) Post at its plant in Fort Wayne, Indiana, copies of
the attached notice marked "Appendix."3 Copies of the no-
tice, on forms provided by the Regional Director for Region
25, after being duly signed by an authorized representative
of the Respondent, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT Is ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
2 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall , as provided in Section
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.
3 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after trial, that we unlawfully discharged most of our em-
ployees, and otherwise interfered with employee rights, after
a majority of our employees chose the Meat Cutters Union
to represent you:
WE WILL bargain upon request with Meat Cutters
Local P-215, AFL-CIO, as the exclusive representative
of our plant employees, and put in writing and sign any
bargaining agreement reached.
WE WILL offer full reinstatement to Victor Frye and
Lesley McLain, and give backpay, plus 6 percent inter-
est, to them and to the following persons we have al-
ready offered reinstatement: Donald Freeman, Charles
Frye, Jerry Garman, Matt Hoeffel, Harris Hoeffel, Jr.,
Harris Hoeffel, Sr., Harry Lung, Wm. Longerbone, and
John Thorpe.
WE WILL NOT discharge or discriminate against any
of you for supporting the Union or engaging in protect-
ed concerted activity.
WE WILL NOT threaten to close down or to discharge
any of you for supporting the Union.
WE WILL NOT threaten to close down if we are re-
quired to give backpay to discharged employees.
WE WILL NOT coercively question you about the Un-
ion.
WE WILL NOT attempt to undercut the Union by
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining with you individually for terms of employ- of the right to full reinstatement, upon application after
ment . discharge from the Armed Forces, in accordance with the
WE WILL NOT unlawfully interfere with your union Selective Service Act and the Universal Military Training
activity . and Service Act.
This is an official notice and must not be defaced by
CERTIFIED MEATS, INC anyone.
(Employer) This notice trust remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
Dated By or covered by any other material. Any questions concerning
(Representative) (Title) this notice or compliance with its provisions may be direct-
ed to the Board's Office , 614 ISTA Center, 150 W. Market
We will notify the first two above -named individuals , if Street, Indianapolis , Indiana 46204, Telephone 317-633-
presently serving in the Armed Forces of the United States, 8921.