Chanticleer, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1966

161 N.L.R.B. 241 (N.L.R.B. 1966)

CHANTICLEER, INC. 241
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.
If members have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 500 Book Building, 1249 Washington Boulevard,
Detroit, Michigan 48226, Telephone 226-3200.
Chanticleer , Inc. and Meat Cutters , Packinghouse Workers &
Food Handlers District Union Local #657, Amalgamated Meat
Cutters & Butcher Workmen of North America , AFL-CIO.
Cases 12-CA-3267 and 3323. October 21, 1966
DECISION AND ORDER
On March 2, 1966, Trial Examiner Owsley Vose issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and finds merit in certain of the exceptions filed. We
therefore adopt the Trial Examiner's findings, conclusions, and
recommendations, with the following additions and modifications.
'In view of our conclusions herein, we find that the Respondent 's withdrawal of the
discount meat-buying privilege , the change of employee Dozier's reporting time , and the
change of employee Rams' work shift, violated Section 8(a) (5), as well as Section
8(a) (1), of the National Labor Relations Act, as amended.
161 NLRB No. 19.
264-188-67-vol. 161-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found that the Respondent withdrew its
employees' privilege to purchase meat at a discount in retaliation for
engaging in union activities, thereby violating Section 8 (a) (1) of the
Act. We agree.
Shortly after the employees signed union cards, according to
employee Thomas Howell's credited testimony, General Manager
Kreske told him that "the boys had messed up everything and the old
man (Armistead) won't let you purchase any more meat." Employee
Jerome Dozier testified that he asked Supervisor Simek why the
employees could no longer purchase meat at a discount and Simek
replied, "I don't know, there is a big mess on up in the office and the
place is all messed up." Employees Victor Rams, James Fulton 2
Bernado Ruano, and Willis Brown also testified to the same effect.
It is clear from the record evidence that, prior to the Union's
request for recognition and bargaining, the Respondent's employees
had enjoyed, for a considerable period of time, the privilege of buy-
ing meat at a discounted price, and that this privilege had never been
withdrawn for any reason. The record further establishes that this
privilege was considered by the employees to be, and in fact was, of
appreciable monetary value, amounting to approximately a 15 to 20
percent discount.
In view of the foregoing, including the fact that the withdrawal of
the meat-buying privilege was unprecedented, that the withdrawal
occurred shortly after the Respondent became aware of the union
activity, and that both General Manager Kreske and Supervisor
Simek referred to a "big mess .... up in the office," we agree with
the Trial Examiner that Respondent's conduct was in retaliation
against its employees for seeking union representation and, accord-
ingly, violated the Act.
2. The record shows that shortly after Dozier was employed,
arrangements were made for him to report at a later time than the
regular work shift 2 days a week, because of his church duties as a
practicing minister, and that Dozier had exercised this privilege for
almost 2 years. After the Union submitted its demand with photo-
copies of union authorization cards, including Dozier's, Respondent
canceled this arrangement. Dozier testified without contradiction that
Simek attributed this cancellation to a big mess going on up in the
office ...."
The Trial Examiner concluded that Dozier's testimony was too
cryptic to support the alleged violation in the absence of antiunion
threats and open hostility toward the Union. However, in view of the
2 Fulton testified that "the day before I went out on strike I got some meat to take it
home and he ( Supervisor Hussey ) said that I couldn't take it home ." Fulton asked Hus-
sey why and Hussey told him that ". . . we wouldn't be able to buy any more meat from
the company."
CHANTICLEER, INC. 243
timing of the revocation of Dozier's long-established privilege and
the fact that Simek's aforestated reason was identical to Kreske's
explanation to employee Howell for canceling the employees' meat
discounts, we find that the Respondent's action constituted a reprisal
against Dozier for engaging in union activities, in violation of Sec-
tion 8 (a) (1) of the Act.
3. The Trial Examiner also found the evidence too cryptic to estab-
lish that the Respondent unlawfully changed the work shift of
employee Victor Rams. We do not agree.
The Respondent makes changes in its work shift assignments as its
business needs require. The record shows, however, that, in rearrang-
ing work schedules in the past, Respondent made an effort to ascertain
and accommodate the shift preferences of the individual employees,
and not until the case of Victor Rams did Respondent ever direct an
employee either to work a different shift or quit. Rams testified that
Simek told him on this occasion, "I'm going to tell you this once and
for all. Victor, come over here. I am going to put you on the night
shift and if you like it its [sic] all right and if you don't like it .. .
you can go home." Rams was the principal employee proponent of the
Union, and Simek's ultimatum to him occurred shortly after the
Union had submitted Rams' and other employees' authorization cards
in support of its requested recognition. As in the incident involving
Dozier, Rams' testimony was not contradicted by the Respondent or
otherwise discredited by the Trial Examiner.
The Respondent's conduct toward Rams, following shortly after
the Union's bargaining demand, manifests a clear departure from its
past practice of accommodating to employee shift preference. We are
of the opinion that this was another instance of retaliation by
Respondent because of, and to discourage further union membership
and activity. Accordingly, we find that the change of Rams' work
shift was violative of Section 8(a) (1) of the Act.
4. The record establishes, and the Trial Examiner found, that as of
June 7, the Union represented a majority of the Respondent's employ-
ees in the appropriate unit, and that on that date it requested recog-
nition. Without deciding whether the Respondent was justified in
refusing to extend recognition on June 7, the Trial Examiner found
that when a majority of the employees struck and picketed on and
after June 18, the Respondent could not validly assert a good-faith
doubt regarding the Union's representative status. Therefore, he con-
cluded that the Respondent violated Section 8(a) (5) on and after
June 18. While we agree with the Trial Examiner's conclusion that
the Respondent's refusal to recognize and bargain with the Union was
not in good faith, we find that such unlawful conduct dates from
June 7 when the Union's initial demand was made.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that upon receipt of the Union's recognition
demand, accompanied by photocopies of authorization cards proffered
as proof of majority status, the Respondent embarked on a course of
retaliatory action because "the boys had messed up everything," such
conduct constituting a "consistent and flagrant pattern of unlawful
conduct" 3 which had a significant impact on the entire employee com-
plement.4 Thus, Respondent unlawfully changed the respective
reporting time and work shift assignment of two union supporters
and it also withdrew, for antiunion reasons, the substantial discount
privileges of all employees. In addition to the foregoing, the granting
of preferred treatment to the nonstrikers and striker replacements and
the failure to immediately reinstate strikers upon their request fur-
ther manifest a pattern of discriminatory actions taken against those
employees who supported the Union. Accordingly, we find that the
Respondent's refusal to recognize and bargain with the Union on
June 7 was not motivated by a good-faith doubt, but by rejection of
the collective-bargaining principle, and a desire to gain time within
which to undermine the Union and dissipate its majority through
unlawful action. Accordingly, we find that the Respondent violated
'Section 8(a) (5) of the Act when it refused to recognize and bargain
with the Union on June 7.5
5. We also find, in agreement with the Trial Examiner, that the
Respondent violated Section 8(a) (1) and (5) of the Act respecting
the change in wages and working conditions of the nonstrikers and
striker replacements; that the strike was an unfair labor practice
strike caused by Respondent's unlawful refusal to bargain; and that
Respondent violated Section 8 (a) (3) by its delay in reinstating
strikers and further violated 8(a) (1) and (5) by dealing with the
individual strikers in these respects.
The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Amend 1(e) of the Recommended Order to read as follows.
[" (e) Discontinuing its employees' privilege of buying meat at a
discount, or any other employee privilege, and changing its employ-
ees' work shifts or reporting time because of the employees' union
activities."
[2. Add the following as paragraph 2(c), the present paragraphs
2(c), (d), and (e) being consecutively relettered:
["(c) Reinstate the employees' privilege of purchasing meat at the
discount which existed prior to the advent of the union activity."
See United Mineral & Chemical Corporation , 155 NLRB 1390, footnote 9.
Compare Hammond & Irving, Incorporated, 154 NLRB 1071, and Harvard Coated
Products Co., 156 NLRB 162.
5 N L R.B. v. Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F.2d 732 (C A.D.C.), cert.
denied 341 U.S. 914.
CHANTICLEER, INC. 245
[3. Amend paragraph 4 of the Appendix to read as follows :
[`VE WILL NOT discontinue our employees' privilege of buying
meat at a discount, or any other employee privilege, and change
our employees' work shifts or reporting times because of their
union activities.
[4. Add the following as a new paragraph to the Appendix:
[IVE WILL reinstate the employees' privilege of purchasing meat
at the discount which existed prior to the advent of the union
activity.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These cases , heard before Trial Examiner Owsley Vose in Miami, Florida, on
November 11 to 14, 1965, pursuant to charges filed on the preceding June 18 and
July 30, 1965, and a consolidated complaint issued on August 4, 1965, present
questions as to whether the Respondent refused to bargain collectively with the
Charging Party (hereinafter called the Union), in violation of Section 8(a)(5)
and (1 ) of the National Labor Relations Act, and whether it refused to reinstate
unfair labor practice strikers , in violation of Section 8(a)(3) and (1) of the Act.
Upon the entire record , including my observation of the witnesses , and after
due consideration of the briefs filed by the General Counsel and the Respond-
ent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Florida corporation , is engaged in the wholesale distribution
of meat, poultry, and provisions at Miami , Florida. The Respondent annually
purchases more than $50,000 worth of products and supplies from points located
outside of Florida. Upon these facts, I find , as the Respondent admits, that it is
engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Meat Cutters, Packinghouse Workers & Food Handlers District Union, Local
657, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, the Charging Party, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Background
1. The 1962 representation proceeding
On July 12, 1962 , in a representation proceeding initiated by the Union (Case
12-RC-1483 ), the Regional Director issued a Decision and Direction of Election
in which he determined the following bargaining unit of the Respondent 's employ-
ees to be appropriate for the purposes of collective bargaining:
All employees of Employer at its Miami , Florida, plant, including truck
drivers , platform men (shipping clerks and warehousemen ), and meat depart-
ment employees , but excluding salesmen , office clerical employees , guards and
supervisors as defined in the Act.
In his Decision and Direction of Election , the Regional Director ' considered
whether several employees were supervisors , including two whose supervisory
status is in issue in this case , Paul Simek and Howard Hussey. After stating the
facts with respect to their supervisory status as adduced in that case , the Regional
Director determined that they were not supervisors.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union won the election and was duly certified as the exclusive bargaining
representative of the employees in the above-described unit. In the bargaining
which followed, the Union did not succeed in obtaining a collective-bargaining
contract.
2. The 1965 organizational activity
About the middle of May 1965, Victor Rams, a butcher employed by the
Respondent, consulted Gerald Greenfield, the president of the Union, about
organizing the Respondent's employees. Greenfield gave Rams about 20 bargain-
ing authorization cards and told him that the signatures of a majority of the
Respondent's employees would have to be obtained before the Union would take
any further action.
Rams and other employees to whom he gave cards were successful in obtain-
ing signatures on 11 cards by May 25, 1965. One of these was the card of Wal-
ter Dials which was signed on Dials' behalf by Jerome Dozier at Dials' request.
The employees from whom bargaining authorizations were obtained are as
follows:
Willie Brown Thomas Howell James Scott
Walter Dials Abraham Johnson Bernardo Ruano
Jerome Dozier Victor Rams Lawrence Slappy
Willie Hill Alex Smith
The Respondent concedes the authenticity of the signatures on the cards of all
of the employees above-mentioned except Walter Dials. The Respondent con-
tends that the validity of Dials' card "is seriously suspect" because of the con-
fusion in the testimony concerning the circumstances under which it was signed.
However, I conclude that Dials' testimony regarding the signing of the card is
entitled to credit, and that Dials' card thus signed by Dozier in Dials' behalf
constituted a valid authorization card. In any event, in the view of this case here-
inafter taken by me, it is immaterial whether Dials' first card be taken into con-
sideration, since he openly displayed his adherence to the Union by ceasing work
with the other striking employees on June 18 and by participating in the
picketing.
B. The refusal to bargain collectively in violation of
Section 8(a) (5) of the Act
1. The Respondent's refusal to recognize the Union
a. Sequence of events
On June 5, 1965, Greenfield, the union president, sent the following letter to
Madison Armistead, the Respondent's president.
Dear Mr. Armistead:
In accord with existing rules, regulations and procedures as promulgated
by the National Labor Relations Board we take this means of advising you
that the above named labor union represents a majority of the employees in
your employ who would come under the jurisdiction of this local union. In
order to avoid the problems encountered in the previous case 12-RC-1483
we are enclosing copies of the original union authorization cards which have
been properly signed by your employees. These would clearly indicate that
your employees have designated the Meat Cutters and Packinghouse Work-
ers Union Local #657 (see letterhead above) to represent them as sole bar-
gaining agent with respect to wages, hours, and other terms and conditions
of employment.
I would also like to point out that we are seeking immediate recognition
of the union as the first step in collective bargaining procedures and that we
also seek the same, type of bargaining unit previously upheld by the Board;
namely; ALL EMPLOYEES OF THE EMPLOYER AT ITS MIAMI PLANT,
INCLUDING TRUCK DRIVERS, PLATFORM MEN (shipping clerks) and
(warehousemen), and meat department employees, but excluding salesmen,
office clerical employees, guards and supervisors as defined in the Act.
In order that you have a -reasonable opportunity to study this request for
recognition and bargaining rights I have set aside the entire day of Mon-
day, June 14th 1965 for proposed meetings on the subject matter contained
herein. I have set aside a meeting room at the Hotel Everglades but would
be willing to meet with you at another place that you might suggest. Will
you kindly advise my office by telephone, telegram or letter what time would
CHANTICLEER, INC. 247
be most convenient for you. If I am unavailable for the telephone our office
secretary has the authority to make any necessary change in time or meet-
ing place.
I would further suggest that you refrain from any unlawful or illegal inter-
ference in regard to employees ' rights as guaranteed by law, such as; offering
changes in wages, hours, and other conditions of employment ; or by an
intimidation , threats or coercive actions and that the status quo be main-
tained pending further correspondence and discussion between us. May I
hear from you as soon as possible regarding these requests.
Enclosure : copies of 11 Union authorization cards.
Very truly yours,
Gerald Greenfield
This letter, which was received by the Respondent on June 7, contained photo-
copies of the 11 cards designating the Union "as sole bargaining agent" of the
signers thereof . By its terms, the Union 's letter of June 5 constituted a continuing
request for recognition and bargaining.
As of June 7, 1965, there were 19 employees in the appropriate unit, accord-
ing to the Union's position regarding the unit, or 21 employees in the appro-
priate unit, according to the Respondent 's position . The disagreeiment between
the parties revolves around the status of Paul Simek and Howard Hussey, who
were found by the Regional Director in the 1962 representation proceeding, to be
nonsupervisory employees.'
Armistead replied to Greenfield 's letter of June 5, on June 10. The text of his
letter follows:
Dear Mr. Greenfield:
I have your letter of June 5th, 1965, with your request that I sit down
and talk to you about a contract.
You say that you have cards signed by a majority of my employees and
on this basis believe that you represent them . As you and I both know, cards
such as you sent me-so-called authorization cards-are notoriously unre-
liable to indicate employees ' true wishes. Also it is my understanding that
there are many factors which must be considered in determining whether
the cards were even validly signed.
I hope you agree with me in my feeling that the best way to determine
the true wishes of my employees is to hold a secret election conducted by
the NATIONAL LABOR RELATIONS BOARD. In this regard , I might
suggest you file a petition for an election , or if you for any reason don't
want to, please let me know and I will contact the NATIONAL LABOR
RELATIONS BOARD concerning an election.
Very truly yours
CHANTICLEER, INC.
(S) Madison Armistead
MADISON ARMISTEAD,
President
On June 14, Greenfield answered Armstead's letter as follows:
Dear Mr. Armistead:
Thank you for your letter of June 10, 1965.
I strongly disagree with your feelings that an election conducted by the
NLRB is the best way to determine whether this Union has been selected the
bargaining agent for your employees. The authorization cards we sent you
were freely and voluntarily signed by a majority of your employees, and an
election can only duplicate what these cards were intended to do, that is prove
to you our majority status.
Since you have indicated nothing but general feelings and opinions about the
validity of authorization cards, we do not believe that you can have any bona
fide doubt as to the validity of these cards. For this reason we again demand
recognition and offer to meet with you at any reasonable time and place.
I understand that Alex B. Smith was fired by you last week. Since he was
one of our strong Union adherents and since you have no just cause for dis-
charging him, we demand his immediate reinstatement with back pay.
1 Subsequently, after consulting with its attorney, the Respondent took the position
that an additional employee, Joan Falk, was a plant clerical employee, and as such was
in the appropriate unit making a total of 22 employees in the unit as of this date, ac-
cording to the Respondent.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unless positive action is taken on these demands by the end of this week,
we will be forced to use whatever remedies the law allow us.
Yours truly,
Gerald Greenfield, President
In a letter written to Greenfield the next day, Armistead again expressed doubts
about the reliability of authorization cards, stating the belief that they frequently
resulted from the union "pressure" and not from any true desire for union repre-
sentation, and again suggested an NLRB election. Armistead offered in the letter to
discuss Alex Smith's dishcarge with Greenfield.
Greenfield and Al St. Germain, a representative of the Union, went to the
Respondent's office on June 16 and talked with Armistead. Greenfield brought up
two matters for discussion. The first was the reinstatement of Alex Smith, whom
Greenfield asserted had been discharged for union activity. Armistead denied this
and explained the Respondent's reasons for discharging Smith.2 Greenfield then
stated he thought that by this time that the Union had demonstrated that it repre-
sented a majority of the Respondent's employees 3 and again requested recognition
of the Union. Armistead again stated that he did believe that the Union rep-
resented a majority and that he.wanted an NLRB election. Greenfield refused this
suggestion, saying that the Union,had been through this process before and was not
going to do it again. Greenfield then stated to Armistead that if he wanted any fur-
ther proof of majority status he could call the employees in the office and ask them
whether they wanted union representation. Armistead refused to do S0.4 Greenfield
inquired as follows: "If this isn't satisfactory what do I have to do, Mr. Armistead,
call them out on strike in front so you can count them in order for you to believe
that we do represent a majority." Armistead replied, "You do what you think is
right and I will do what I think is right." However, Armistead agreed that he
would consult his attorney and call Greenfield the next day.
The next afternoon, Thursday, June 17, Armistead called Greenfield on the tele-
phone and informed him that the Respondent would neither reinstate Smith nor
recognize the Union. Greenfield replied that in that event "we have no alternative
but to take action to enforce our demands."
In the meantime Ray Muller, the Respondent's attorney, had filed with the
Board's Miami, Florida, Branch Office a petition for an election. This was received
by the Branch Office on June 17.
On the evening of June 17 Greenfield held a union meeting in a vacant parking
lot across the street from the plant. In attendance were all 11 of the original sign-
ers of authorization cards, including Alex Smith, who had been terminated on June 10.
In addition, James Fulton and 'Leroy Lester, two other of the Respondent's
employees, were also present. Both Fulton and Lester signed authorization cards
at this meeting. It became known at this meeting that Walter Dials had not per-
sonally signed the card which had been submitted to the Respondent in his behalf,
but that Jerome Dozier had done so at Dials' request. At the suggestion of Green-
field and Victor Rams, Dials signed another card at this meeting on June 17.
Greenfield informed the men at the meeting that the Respondent had refused to
recognize the Union that, "they had reached the end of -the line" and that "there
was no further way to enforce their demand" than "to go out on strike and to once
and for all prove to Armistead that we represented the employees." Greenfield sug-
gested that the employees go out on strike the next morning, Friday, June 18. A
vote was taken among the employees and they voted unanimously to go out on
strike early the next morning. Since two of the drivers were scheduled to leave the
plant on their runs around 3 a.m., it was decided that all of the union adherents
would meet at the plant at 3 a.m.
Pursuant to this understanding, all 12 employees who had signed cards and had
attended the meeting the night before, plus Alex Smith who had been terminated
on June 10, appeared at the plant at 3 a.m. on Friday, June 18. The drivers who
were scheduled to go to work around 3 a.m. did not go into the plant.
2 Although the Union had alleged in its original charge that the discharge of Alex
Smith violated Section 8(a) (3) and (1) of the Act, the General Counsel, after investiga-
tion declined to include any allegation respecting Smith in his original complaint
3 This was apparently a reference to the fact that pursuant to Greenfield's suggestion
at a union meeting on June 14, a number of the employees had been wearing union but-
tons in the plant for a day or so.
4 This is Greenfield's testimony. Armistead testified that lie did not think that Green-
field had suggested calling the men in in order to ascertain their desires for union
representation. I believe that Greenfield's recollection is more accurate on this point.
CHANTICLEER, INC. 249
Driver Hill and Brown walked back and forth adjacent to the plant delivery plat-
form. The other 10 union adherents were either sitting in cars in the area or mil-
ling around in the street in front of the plant.5
Howard Hussey, the shipping clerk in charge of shipping at night notified Armi-
stead of these developments. Armistead hurried to the plant and arrived between 4
and 4:30 a.m. After first checking in the plant office, Armistead approached both
Hill and Brown. Union President Greenfield was standing nearby. Armistead asked
each man if he were going in to work. Each said no, explaining , "I am with the
Union." Greenfield interjected as follows to Armistead, "Now, do you believe that
we represent a majority of the people." Armistead turned around, walked' in to the
plant without making any comments
Later that morning picket signs were obtained and the strikers commenced car-
rying them. The picket signs read as follows: "Chanticleer Employees on Strike,
Please Help us Win, Meat Cutters Union Local 657."
Later on June 18, Union President Greenfield filed a charge with the Miami
Branch Office of the Board alleging that the Respondent had refused to bargain
collectively with the Union in violation of Section 8(a)(1) and (5) of the Act, and
had discharged Alex Smith in violation of Section 8(a)(3).
The following week pickets passed out copies of a mimeographed letter explain-
ing the reasons for the strike and the Union's various goals for the employees. In
this letter, which was the first of a series, the Union stated' among other things, as
follows, "When the employer of Chanticleer consistently refused to bargain with
the Union and when he refused to reinstate a worker whom we have charged was
fired for joining the Union, we had no alternative but 'to go out on strike.' "
Three weeks later, on July 8, 1965, the Union put out a second letter publicizing
the strike and appealing to the Respondent's customers not to patronize it during
the strike. Among the statements contained in this letter the following appears:
"This is not a fight over wages and hours. This company has consistently refused
to bargain with the union chosen by its employees." A third letter issued by the
Union, after the Board had issued its original complaint on August 4, reiterates this
same theme.
The picketing of the plant continued during the rest of June, all of the month
of July, and most of the month of August. All •12 of the employees here involved
participated in the picketing at the beginning and carried picket signs. At some
undisclosed time during the strike, Victor Rams, Bernardo Ruano, and Willie
Brown obtained other employment. The Respondent stipulated at the hearing that
of the 12 employees who had signed union authorization cards by June 17, 1965,
all except Walter Dials, Bernardo Ruano, and Willie Brown 'participated in the
strike. The undisputed testimony clearly establishes that all three walked the picket
line and carried picket signs. President Armistead admitted that after he observed
Walter Dials wearing a union button in the plant on June 17, the day before the
strike began, he "didn't have too much doubt about Walter Dials."
I find that ai of June 18 the Respondent was appraised that 12 of its employees
in the appropriate unit had selected the Union as their exclusive collective-
bargaining representative. The Respondent had previously had a chance to scruti-
nize photocopies of the authorization cards of 10 of these employees (the 11 sent
with the Union's letter of June 5 minus the card of Alex Smith who was lawfully
terminated on June 10). Although one of these cards was the one signed by
Jerome Dozier on Dials' behalf which Aririistead characterized at the hearing as
a "phoney," the Respondent did not raise any questions concerning Dials' card in
its correspondence and conversations with the Union concerning its request for
recognition. Any doubts the Respondent might originally have entertained concern-
ing Dials' designation of the Union should have been dispelled by his wearing of a
union button in the plant and participating in the strike. The remaining two union
adherents were James Fulton and Leroy Lester, who signed cards on June 17 and
participated in the strike on June 18, thereby demonstrating to the Respondent
Alex Smith, who was among the card signers, was also present. Smith is not included
among the 12 union adherents referred to above because, having been lawfully terminated
on June 10 , he was not in the appropriate unit.
0 Armistead testified as follows concerning this incident : "And Mr. Greenfield inter-
rupted and said, 'I didn ' t ask them to come out.' And I said, 'I am sorry, I am not talking
to you right now.' And the two men said nothing further and so I immediately went back
in." Armistead must have misunderstood Greenfield, for his version is completely incon-
sistent with the uncontradicted testimony concerning the sequence of events loading up to
the strike and the reasons for the strike. I credit Greenfield 's testimony.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their selection of the Union as bargaining agent. These 12 employees constituted a
majority of the employees in the appropriate unit on June 18, even if Simek, Hus-
sey, and Fulk are included in the unit. According to the Respondent's position,
there were 22 employees in the appropriate unit on June 18, including Simek,
Hussey, and Fulk. In the General Counsel's view, excluding these three, there
were 19 employees in the unit, of whom 12 had signed authorization cards and
otherwise demonstrated their support of the Union by June 18.
As found above, the Union by letter dated June 5 had requested the Respondent
to recognize the Union and to commence bargaining with it. It had reiterated this
request in its letter of June 14. Greenfield had orally renewed this request at the
meeting at the plant on June 16, and had in effect again requested recognition early
in the morning of June 18, just after the strike began (when Greenfield spoke to
Armistead as the latter briefly questioned Hill and Brown as to whether they were
going in to work). Yet the Respondent at no time since the 1965 request has
recognized or bargained collectively with the Union.
b. Conclusions
The amended consolidated complaint alleges that commencing on June 7, 1965,
the Respondent refused to bargain collectively with the Union as the exclusive bar-
gaining representative of the employees in the unit described above, which is the
unit found by the Regional Director to be appropriate in the 1962 representation
proceeding. As found above , it is undisputed that the Respondent expressly refused
the Union's original request for recognition and bargaining which it received on
June 7. This request as I have found, was repeatedly renewed in the period between
June 7 and 18. Even after 12 of the Respondent's employees ceased work on
June 18 and participated in the picketing of the plant which began that day, the
Respondent has at no time recognized and bargained collectively with the Union.
With the exception of the question whether Paul Simek and Howard Hussey are
supervisors and should be excluded from the unit for this reason and the question
whether Joan Fulk should be excluded from the unit as an office clerical employee,
questions which I need not decide in view of my ultimate decision in this case,
there is no dispute in this case as to the appropriate unit.
There is a dispute concerning the Union's majority status in the appropriate unit
on June 7, when the Respondent received the letter requesting recognition. The
Respondent contends that it was justified in questioning the Union's majority status
as of June 7 for the reason that the Union, to demonstrate its majority status, had
sent with its letter photostatic copies of only 11 authorization cards, including that
of Walter Dials, which, in the Respondent's opinion and in fact, had not been
signed by Dials. At this time, according to the Respondent, there were 21 employ-
ees in the appropriate unit, including Simek and Hussey, and 22 if Fulk be included.
As justification for including Simek and Hussey in the unit, the Respondent points
to the fact that the Regional Director in the prior representation proceeding had
determined that Simek and Hussey were nonsupervisory employees who were
entitled to vote in the election.
The General Counsel urges that the Respondent's entire course of conduct,
including its conduct after the commencement of the strike, shows that the
Respondent's refusal to recognize the Union from the very beginning was not
motivated by a good-faith doubt as to the Union's majority status.
It is not necessary for me to resolve the question whether the Respondent was
justified in questioning the Union's majority status on the basis of the showing
made by it in its letter of June 5, for, in any event, on and after June 18, when
a majority of the Respondent's employees, even including Simek, Hussey, and Fulk
(12 out of 22), ceased work and commenced picketing the plant, the Respondent
could no longer validly claim that it had a good-faith doubt regarding the Union's
majority status. In the circumstances of this case, in my opinion, even if it be
assumed that the Respondent's initial challenge of the Union's majority status to
have been in good faith, once a majority of the employees had ceased work and
carried picket signs in front of the plant in association with Union President Green-
field, as was done on June 18 and the following days, thereby concretely demon-
strating their adherence to the Union, the Respondent could no longer assert, and
did not in fact have, a good-faith doubt as to the Union's majority status. The
observation of Judge Parker in N.L.R.B. v. Harris-Woodson Company, Inc. 179
F.2d 720, 723 (C.A. 4), is pertinent here: "The contention that the company was
in doubt as to the union's representing a majority of employees is little short of
CHANTICLEER, INC. 251
absurd in view of the fact that practically all of the employees went out on strike
in an attempt to compel the company to bargain with the union." Judge Learned
Hand commented to the same effect in N.L.R.B. v. National Seal Corporation, 127
F.2d 776, 777 (C.A. 2). See also Lebanon Steel Foundry v. N.L.R.B., 130 F.2d
404, 407 (C.A.D.C.); Seven-Up Bottling Company, of Miami, Inc., 92 NLRB 1622,
1623, 1638, modified in other respects, 196 F.2d 424 (C.A. 5), reversed and
enforced, 344 U.S. 343; Southern Pine Electric Cooperative, 104 NLRB 83d, 845,
enfd. 218 F.2d 824 (C.A. 5), cert. denied 350 U.S. 830, 1. Taitel & Son, 119 NLRB
910, 924; M. Benevento Sand & Gravel Co., 131 NLRB 358, 368; Sunrise Lumber
& Trim Corp., 115 NLRB 866, 876, enfd. 241 F.2d (C.A. 2), cert. denied 355 U.S.
818; Brewery and Beverage Drivers Local No. 67 International Brotherhood of
Teamsters v. N.L.R.B., 257 F.2d 194, 196, footnote 2 (C.A.D.C.); Preston Feed
Corporation, 134 NLRB 629, 641-642.
The Respondent defends its failure to bargain collectively after June 18 on the
following grounds:
The Union at no time advised of its attempt to cure the Dials' card situation.
It made no attempt to advise Respondent of the two additional cards (Fulton
and Lester) obtained subsequent to the last demand and last rejection. And of
course, the Union did not renew its demand based on the changed
circumstances
Regarding the latter point, I have found that the Union's original request for bar-
gaining was a continuing one and that it was repeatedly renewed, including one
last time on the morning the strike began. As to its alleged lack of knowledge of
Dials', Fulton's, and Lester's designation of the Union, their presence on the picket
line on repeated occasions carrying picket signs, in my opinion, adequately brought
home to the Respondent their desire for union representation. The Respondent fur-
ther urges that the language on the picket signs, which read, over the name of the
Union, "Chanticleer Employees on Strike, Please Help us Win," indicated an inten-
tion "to abandon its claim of majority and, instead, resort to economic pressures
to `better the working conditions.' " I cannot follow the reasoning underlying the
Respondent's contention in this regard. In any event, the letters distributed by the
strikers during the strike stated very clearly that the Union was on strike because
of the Respondent's refusal to recognize and bargain with it. In my opinion
none of the grounds relied upon by the Respondent as justification for its claim
of a continuing doubt as to the Union's majority status after the strike began has
merit. I conclude that the Respondent, by refusing to recognize and bargain collec-
tively with the Union on and after June 18, 1965, has violated Section 8(a)(5) of
the Act 7
7 Since in the view which I have taken of this case the Union represented a majority
of the employees In the appropriate unit on and after June 18, even if Simek, Hussey, and
Fulk be included in the unit, It is unnecessary for me to resolve the controversy concern-
ing their Inclusion or exclusion from the unit. However, since the Board may disagree
with my view of the case, it may be helpful briefly to set forth below the basis for my
conclusions that Simek, Hussey, and Fulk each should be excluded from the appropriate
unit.
Simek, a salaried employee in the meat department, has his own office in the meat de-
partment and gives most of the instructions to the employees in the department. Simek
substitutes for General Manager Kreske when be is absent, and occasionally countermands
orders previously given by Kreske to meat department employees. Simek disciplines em-
ployees, effectively recommends the hiring and firing of employees, and effectively recom-
mends for or against giving of pay raises to employees. I conclude that Simek is a super-
visor within the meaning of Section 2 (13) of the Act.
Hussey, the salaried shipping clerk, is in charge of the Respondent's shipping at night.
After Armistead leaves around 8 to 10 p.m., no other person having any supervisory powers
over the men is present. Hussey directs the driveis and the platform and warehouse em-
ployees in the performance of their duties. Hussey determines how long the men will work
at night, authorizes drivers to hire helpers, and effectively recommends pay increases for
employees. I conclude that Hussey is a supervisor within the meaning of Section 2(13)
of the Act.
Fulk, a clerical employee, works in the same office as the other clerical employees who
are concededly office clericals. Fulk is designated on the Respondent's timecards as an
"office" employee. Fulk performs the same duties as some of the other office employees ;
however, she works at night while the others work In the daytime. I conclude that Fulk
should be excluded from the appropriate unit as an office clerical employee.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2, The Respondent's unilateral grant of higher wages to nonstrikers and
to striker replacements
Payroll records produced by the Respondent show that after the strike began
the Respondent raised the wages of L. C. Roundtree and Charles Trim, two of its
employees who did not join the strike, from $1.28% per hour to $1.50 an hour.
In addition, these payroll records show that the employees hired to replace the
Respondent's drivers, all of whom joined the strike, were each paid $1.50 per hour,
and their rate schedules provided for time and one-half for all hours over 40. Only
two of the Respondent's striking drivers, Hill and Lester, were paid as much as
$1.35 before the strike. The rest received but $1.25 per hour. Before the strike, the
Respondent's drivers were paid straight time for overtime.
The rate changes discussed in the preceding paragraphs were all put into effect
without notice to or bargaining with the Union. I have found that on and after
June 18 the Respondent could no longer validly question the Union's claim of
majority status and was obligated to recognize and bargain collectively with the
Union. In these circumstances, the Respondents unilateral action with respect to
the wages of both nonstriking employees and striker replacements was clearly vio-
lative of Section 8(a)(5) of the Act. N.L.R.B. v. Ciompton-Highland Mills, Inc.,
337 U S. 217; N.L.R.B. v. Exchange Parts Co., 339 F.2d 829 (C.A. 5); St. Clair
Lime Company, 133 NLRB 1301, 1308.
Furthermore, the Respondent's grant of wage increases to nonstriking employees
and to striker replacements brought home in concrete fashion to those employees
who were aware of it that it did not pay to become associated with the Union.
Such conduct, therefore, interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act and violated Section
8( a)(1) of the Act, as well.
C. The Respondent's refusal to reinstate the strikers in violation of
Section 8(a)(3) of the Act
On August 17, while the strikers were still outside the plant, picketing, the Union
mailed the following letter to the Respondent:
Dear Mr. Armistead:
On behalf of your striking employees we hereby unconditionally request
that you put the men back to work in their same or substantially similar jobs.
Since the National Labor Relations Board is now processing our charges
against your company, the men feel that the dispute which gave rise to the
strike will be resolved by the Board rather than by striking.
Accordingly we ask that you put the men back to work and let the dispute
be taken care of by the National Labor Relations Board as it is now appar-
ently doing. We await your reply.
Very truly yours
Gerald Greenfield
President
The Respondent sent the following letter in reply on Wednesday, August 18.
Dear Mr. Greenfield:
I have your letter of August 17, 1965, relative to the desire of the certain
strikers to return to work.
If these employees will apply for reinstatement at the Company premises, I
will be glad to discuss this matter with them.
Yours very truly
CHANTICLEER, INC.
(S) Madison Armistead
MADISON ARMISTEAD,
President
This letter presumably was received by the Union on Thursday, August 19.
According to President Armistead, not having received any response to his let-
ter from the Union by the next afternoon, Friday, August 20, he commenced
approaching the strikers individually and questioning them about returning to work.
Armistead, who was accompanied by his attorney, Ray Muller, spoke first to
Thomas Howell, James Fulton, James Scott, and Jerome Dozier, who were on
picket duty that afternoon. Armistead asked each man individually if he would go
back to work under the conditions prevailing before the strike. The strikers replied
that they were part of a group and would have to think it over before giving him
CHANTICLEER, INC. 253
a definite answer. On Monday, August 23, Armistead, again accompanied by Attor-
ney Muller, spoke to Willie Hill, Abe Johnson, and Leroy Lester, who were picket-
ing the plant on this occasion . He again asked each striker individually whether he
would go back under the same conditions as before . The answer given was that
"we would like to go back as a group because we came out as a group ." Between
August 20 and 24 or 25 Armistead, accompanied by the Respondent's secretary-
treasurer , contacted the remaining five strikers either at their, homes. or the places
which they were then working regarding returning to work . It is clear from subse-
quent events in this case that Armistead in his conversations with employees did
not intend to offer each one immediate reinstatement but was merely ascertaining
their availability for work.
On Monday , August 23 , having been informed of Armistead 's overtures to the
employees individually, Greenfield wrote Armistead a -letter in which he protested
against his attempting to deal with the employees individually , insisted upon being
recognized as the spokesman for the striking employees , and renewed the strikers'
unconditional offer to return to work . About the same time Greenfield instructed
the strikers to report en masse to the plant, in accordance with Armistead 's request
contained in his letter of August 18.
The strikers,, with the exception of Victor Rams, Willie Brown, and Bernardo
Ruano, who were working . at the time, all reported at the plant on the afternoon
of August 26. They selected Thomas Howell and Walter Dials to be their spokes-
men. Armistead and Attorney Muller received them in the back of the plant. At this
time Armistead offered to put three drivers back to work promptly and the rest,
as Howell understood it, when business picked up. Howell and Dials told Armi-
stead that they would think it over. Howell and Dials then joined the rest of the
strikers and they decided to resume picketing . Later Armistead came out and asked
them whether they had made up their minds . They said no. Still later Howell and
Dials went into the plant and inquired whether the Respondent would reinstate
three drivers and a butcher right away. Armistead refused to do so. Howell, Dials,
and the rest thereupon resumed picketing.
That same afternoon , August 26, the Respondent sent to the strikers, at their
home addresses , the following statement on the letterhead of the Respondent:
TO THE STRIKING EMPLOYEES:
Confirming my conversation with striking employees today, I offer rein-
statement to L. Slappy, W. D. Hill and Leroy Lester to start work Wednes-
day, September 1, 1965. Further, I told you I would schedule to come back
to work the rest of the strikers thereafter. This rescheduling back to work
would be done over a two-week period.
It is my understanding that the group , including Slappy , Hill and Lester,
will not return to work unless I take back four strikers on Wednesday and
the rest the following week.
If this is not correct, please let me know.
Very truly yours,
CHANTICLEER, INC.
(S) Madison Armistead
MADISON ARMISTEAD,
President
The next day Greenfield sent the Respondent a telegram stating that the Respond-
ent's bulletin of August 26 to the striking employees inaccurately reflected the
substance of Armistead's offer to Howell and Dials on August 26, but neverthe-
less agreeing to have the strikers report for work in accordance with the schedule
set forth in said bulletin.
With respect to the reason for his delay in offering the men reinstatement,
Armistead testified as follows:
To take these men back I would have had to let go employees who were
working and I hated to turn them out on a minute's notice . It was much
easier to take them back in groups of two or three certainly so as to be
completed in two weeks . I didn't feel it was unreasonable and I felt an
obligation to those other people.
Slappy, Hill, and Lester reported back for work on September 1 as scheduled.
Thereafter, the Respondent notified the Union by telegrams to have the remain-
ing nine striking employees report for work at spcified times within the next 10
days.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence set forth above concerning the events before and during the
strike clearly establishes that one of the main reasons for the strike was the
Respondent's refusal to recognize and bargain collectively with the Union, which
I have found to be an unfair labor practice on and after June 18, when a
majority of the Respondent's employees, by ceasing work and picketing the plant,
demonstrated to the Respondent that they were supporting the Union in its
requests for recognition and bargaining. As unfair labor practice strikers, the
striking employees were entitled to reinstatement upon request. Although the
Union on August 17 made an unconditional request on behalf of the striking
employees for reinstatement, the Respondent, by its letter of August 18 to the
Union, parried the Union's request, stating only that if the strikers would person-
ally apply for reinstatement the Respondent would discuss the matter with them.
Thereafter, the Respondent, ignoring the fact that the Union was the chosen
representative of the strikers, bypassed the Union, approaching certain strikers
individually and inquiring as to their availability for reinstatement. None of the
strikers was reinstated promptly after the request for reinstatement was made in
-their behalf. As to some , the Respondent delayed over 3 weeks in offering them
reinstatement. The Respondent's only explanation for its delay is that it did not
want to suddenly discharge the employees whom it had hired to replace the
-strikers. But this is not a tenable explanation. As unfair labor practice strikers,
the strikers here involved were entitled to reinstatement upon request. The
Respondent's delay in offering them reinstatement constituted discrimination
against them because of their strike or union activities and violated Section
8(a)(3) of the Act. Furthermore, the Respondent's bypassing of the Union in
-connection with its offers of reinstatment to individual employees breached its
,duty to deal exclusively with their chosen representative, the Union, and tended
to undermine the employees' support of the Union. Such conduct constituted a
further violation of Section 8(a)(5) of the Act and violated Section 8(a)(1) of
the Act as well.
D. The Respondent's alleged acts of interference, restraint, and coercion in
violation of Section 8(a) (1) of the Act
The amended consolidated complaint alleges that the Respondent violated Sec-
tion 8 (a)(1) of the Act "by unilaterally discontinuing the right of employees to
purchase meat directly from Respondent." The record shows that for some time
the Respondent had permitted its employees to buy meat from it at a discount and
had allowed them to pay for it out of subsequent pay checks. From time to time,
because of losses incurred on the credit sales, the Respondent had discontinued
sales on credit, but had continued to sell meat to the employees for cash.
Thomas Howell testified that "after the signing of the cards" General Manager
Kreske told him "that the boys had messed up everything, and the old man
(Armistead) won't let you purchase any more meat." Several other employees
gave testimony concerning the Respondent 's discontinuance , for a time at least,
of the sale of meat to employees either on credit or for cash.
At the time this privilege was withdrawn the Respondent 's supervisors were
refraining from the normal pleasantries in which they customarily engaged with
employees in the plant , and were speaking to the employees only when the needs
of the business required it.
General Manager Kreske was not called as a witness . Armistead testified that
the employees were never forbidden to purchase meat for cash and that if "they
misunderstood it for any reason [he didn't] know about it." While the employees'
testimony about the Respondent 's stopping the sale of meats to its employees is
not altogether free from confusion , I find, in accordance with Howell 's testimony
quoted above, that after the Union requested recognition , the Respondent did for
a time deprive the employees of the privilege to buy meat even for cash.
The Respondent's unprecedented withdrawal of the meat buying privilege at a
time when the Respondent was challenging the Union's assertion of majority
status , I find , constituted an act of retaliation against its employees for seeking
union representation . Such conduct necessarily interfered with, restrained, and
coerced the Respondent's employees in violation of Section 8 (a) (1) of the Act.
The amended consolidated complaint contains allegations to the effect that the
Respondent further interfered with its employees in the exercise of their rights
under the Act (a) by requiring an employee to come to work earlier than he had
been accustomed to on Wednesday and Friday nights and (b) by unilaterally
CHANTICLEER, INC. 255
assigning a day shift employee to the night shift. These incidents are alleged to
have taken place after the Respondent received the Union's request for recogni-
tion.
In support of (a) the General Counsel relies on the testimony of Jerome
Dozier, as follows:
He [Paul Simek] asked me, am I going to be early tomorrow night, and I
said, I could come in earlier if you want me to but I planned to go to my
church. And he said, "Well, come in early because there was a big mess
going on up in the office and all this late coming in had to be cut out."
and he told me to come in early tomorrow night and I said, "Okay, I will
come in early."
Regarding (b), the General Counsel cites the testimony of Victor Rams, quoted
below:
He [Paul Simek] say, "Victor, come over here." And he called me then
inside the little office and he say to me, "I am going to put you on the
night shift and if you like it it's all right and if you don't like it, . . . you
can go home."
The foregoing testimony of Dozier and Rams, in my opinion, is too cryptic to
constitute a basis for a finding of unlawful interference, restraint, and coercion
under the circumstances of this case. The record in this case is barren of anti-
union threats and open expressions of hostility to the Union. In view of this
background and the further fact, as the record shows, that changes of assign-
ments are frequently made in the course of the Respondent' s business, I conclude
that these allegations of the complaint should be dismissed.
CONCLUSIONS OF LAW
1. All of the Respondent's employees at its Miami, Florida, plant, including
truckdrivers, platform men (shipping clerks and warehousemen), and meat depart-
ment employees, but excluding salesmen, office clerical employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of the Act.
2. On and at all times since June 18, 1965, Meat Cutters, Packinghouse Work-
ers & Food Handlers District Union Local #657, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, has been the exclusive bargain-
ing representative of the employees in the aforesaid collective-bargaining unit.
3. By refusing on and after June 18, 1965, to recognize and bargain collec-
tively with Meat Cutters, Packinghouse Workers & Food Handlers District Union
Local #657, Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, as the exclusive bargaining representative of the employees in an appro-
priate bargaining unit, the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(S) and (1) of the Act.
4. By unilaterally changing the wage rates of nonstriking employees and
striker replacements the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(5) and (1) of the Act.
5. By approaching the striking employees individually concerning their return
to work instead of communicating with the Union, their designated bargaining
representative, the Respondent has engaged in further unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act.
6. The strike, in which some of the Respondent's employees engaged commenc-
ing on June 18, 1965, was precipitated by and prolonged by the Respondent's
unfair labor practice in refusing to recognize and bargain collectively with the
Union.
7. By refusing the Union's unconditional requests for the reinstatement of the
striking employees and by delaying in offering them reinstatement, the Respond-
ent has discriminated in regard to the hire and tenure of employment of the
striking employees, thereby discouraging membership in Meat Cutters, Packing-
house Workers & Food Handlers District Union Local #657, Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO, in violation of Section
8(a)(3) and (1) of the Act.
8. By discontinuing the employees' privilege of buying meat at a discount dur-
ing the organizing campaign the Respondent has interfered with, restrained, and
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, thereby engaging in unfair labor practices in violation of Section 8(a)(1)
of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, my
Recommended Order will direct that the Respondent cease and desist therefrom
and 'take certain affirmative action to effectuate the policies of the Act, including
bargaining collectively with the Union, upon request.
• I have found that the Respondent unlawfully delayed in offering reinstatement
to strikers who had unconditionally offered to return to work after a strike
caused and prolonged by the Respondent's unfair labor practices. My Recom-
mended Order will provide that the Respondent make its striking employees
whole for their losses resulting from the Respondent's delay in offering them
reinstatement, by payment to each of them of a sum of money he would nor-
mally have earned as wages from August 19, 1965, the date on which the Respond-
ent received the Union's letter offering to return all the strikers to work uncon-
ditionally, until the date the Respondent's subsequent offers of reinstatement were
to become effective, together with interest, less net interim earnings. Since the
record in this case shows that the Respondent ultimately offered reinstatement
through the Union to each of the striking employees here involved, no reinstate-
ment provisions will be included in my Recommended Order.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
The Respondent, Chanticleer, Inc., Miami, Florida, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with Meat Cutters, Packing-
house Workers & Food Handlers District Union Local #657, Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive rep-
resentative of the employees in the appropriate unit stated in paragraph 1 of the
Conclusions of Law above.
(b) Changing the wage rates, or other terms and conditions of employment of
its employees without first notifying Meat Cutters, Packinghouse Workers & Food
Handlers District Union Local #657, Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, and giving said labor organization an oppor-
tunity to bargain collectively with it concerning such proposed changes.
(c) Negotiating directly with individual striking employees concerning their
return to work.
(d) Discouraging membership in the above- named , or any other labor organiza-
tion, by refusing to reinstate, or delaying the reinstatement of, employees because
of their union or strike activities, or in any other manner discriminating in regard
to hire or tenure of employment, or any term or condition of employment.
(e) Discontinuing its employees' privilege of buying meat at a discount or any
other employee privilege because of the employees' union activities.
(f) In any like or related manner inteifering with, restraining, or coercing its
employees in the exercise of the right of self-organization, to form labor organiza-
tions, to join or assist Meat Cutters, Packinghouse Workers & Food Handlers Dis-
trict Union Local #657, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection or
to refrain from any or all such activities.
2 Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Upon request, recognize and bargain collectively with Meat Cutters, Pack-
inghouse Workers & Food Handlers District Union Local #657, Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit set forth in paragraph 1 of
the Conclusions of Law above.
(b) Make whole Willie Brown. Walter Dials, Jerome Dozier, James Fulton,
Willie Hill, Thomas Howell, Abraham Johnson, Leroy Lester, Victor Rams, Ber-
nardo Ruano, James Scott, and Lawrence Slappy for any loss of pay they may
CHANTICLEER, INC. 257"
have suffered by reason of the Respondent 's delay in offering them reinstatement
in the manner prescribed in the section above entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports , and all other records necessary to analyze the
amounts of backpay due.
(d) Post at its Miami, Florida, plant copies of the attached notice marked
"Appendix ." 8 Copies of said notice, to be furnished by the Regional Director for
Region 12 , after being duly signed by an authorized representative of Respondent,
be posted by the Respondent immediately upon receipt thereof and maintained by
it for a period of 60 consecutive days thereafter in conspicuous places, including all,
places where notices to employees are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 12, in writing , within 20 days from
the receipt of this Recommended Order, what steps the Respondent has taken to
comply herewith.9
s La the event that this Recommended Order Is adopted by the Board the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
OIn the event that this Recommended Order Is adopted by the Board , this provision
shall be modified to read. "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT change the wage rates or other terms or conditions of employ-
ment of our employees without first notifying Meat Cutters , Packinghouse
Workers & Food Handlers District Union Local # 657, Amalgamated Meat
Cutters & Butchers Workmen of North America, AFL-CIO, and giving it an
opportunity to bargain collectively with us concerning such proposed charges.
WE WILL NOT negotiate directly with our employees individually.
WE WILL NOT discourage membership in Meat Cutters, Packinghouse Work-
ers & Food Handlers District Union, Local # 657, Amalgamated Meat Cutters
& Butcher Workmen of North America, AFL-CIO , or any other union, by
refusing to reinstate or delaying the reinstatement of unfair labor practice
strikers , or by discriminating against employees in any other manner in regard
to their hire or tenure of employment or any term or condition of employment.
WE WILL NOT in discontinue our employees ' privilege of buying meat at a
discount or any other employee privilege because of their union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist Meat Cutters, Packinghouse Workers &
Food Handlers District Union , Local #657, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO , or any other labor organi-
zation, to bargain collectively through representatives of their own choosing
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities.
WE WILL, upon request, recognize and bargain collectively with Meat Cut-
ters, Packinghouse Workers & Food Handlers District Union Local #657,
Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of all our employees , including truck-
drivers and platform men (shipping clerks and warehousemen ) and meat
department employees , but excluding salesmen, office clerical employees,
guards, and supervisors as defined in the Act.
2 6 4-18 8-6 7-v o f 161-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole Willie Brown, Walter Dials, Jerome Dozier, James
Fulton, Willie Hill, Thomas Howell, Abraham Johnson, Leroy Lester, Victor
Rams, Bernardo Ruano, James Scott and Lawrence Slappy for their losses
resulting from our delay in accepting their unconditional offers to return to
work.
CHANTICLEER, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any questions concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 706
Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-
7711, Extension 257.
John Langenbacher Co., Inc. and Carl Blum . Case 2-CA-10806.
October 21,1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner Arthur M. Goldberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. The Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that those allegations be dismissed.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
1 On p. 24, 1. 26, of the Trial Examiner's Decision delete "United Steel Workers of Amer-
ica, APL-CIO" and substitute therefor "Local 34, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Ind.)."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 18, 1965, by Carl Blum , an individual , the com-
plaint herein issued on December 30, 1965, alleging that John Langenbacher Co.,
161 NLRB No. 20.