Chicago Beef Co.

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 1039 (N.L.R.B. 1990)

CHICAGO BEEF CO. 1039
Chicago Beef Company and Local 26, United Food
and Commercial Workers Union , AFL-CIO-
CLC. Cases 7-CA-28294, 7-CA-28436, and 7-
CA-28637
June 29, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 21, 1989, Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief. The Respondent also filed an
answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and' briefs and has
decided to, affirm the judge's rulings , findings," and
conclusions as modified and to adopt the recom-
mended Order as modified. and set forth in full
below. • -
' 1. We agree with. the judge .that the strike, which
began on.July 18, 1988,2 was at its inception an
economic strike.3 We also agree with - the judge
that the Respondent violated Section 8(a)(3) and
(1) by requiring striking employees to resign from
the Union as a condition of reinstatement, thereby
converting the economic strike into an unfair labor
practice strike. However, contrary to the judge, we
find that the conversion occurred on July 28, not
on July 18.
As the Board noted in C-Line Express, 292
NLRB 638 (1989), an employer's unfair labor prac-
tices. during an economic strike do not ipso. facto
convert it into an unfair labor practice strike.
Rather, the • General Counsel must ' prove that the
unlawful conduct was a factor (not necessarily the
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Regarding the Board's jurisdictional requirements, we note that par. 4
of the amended complaint was amended at the hearing to allege direct
inflow rather than direct outflow . Thus, the Respondent admitted that
during the year ending December 31, 1987 , a representative period, in the
course and conduct of its business operations , it purchased and had
shipped to its facility at Detroit , Michigan , products valued in excess of
$50,000 that were shipped directly from points outside the State of
Michigan.
All dates refer to 1988 unless otherwise indicated.
No exceptions were filed to the judge 's findings that the Respondent
did not bargain to impasse on nonmandatory subjects of bargaining or
unilaterally implement its nonmandatory proposals. •
sole or- predominant one) that caused a prolonga-
tion of the work stoppage. In demonstrating this
causal nexus , the General Counsel may rely on
both subjective and objective factors.
In the instant case, the judge found that the Re-
spondent's creation and distribution of union resig-
nation forms consitutued "an unlawful gratuitous
solicitation" that discriminatorily interfered with
the employees' union membership, representation,
and activities. He concluded that the Respondent's
conduct in creating and distributing the forms went
beyond providing the employees with lawful infor-
mation on how to resign because such conduct was
based on nothing more than alleged rumors of pos-
sible retaliation by the Union against members who
crossed the picket line. Thus, he found that the
strike was converted to an unfair labor practice
strike on the first-day, "coincidental with the Re-
spondent's July 18 gratuitous distribution of the
forms providing for employee resignation from the
Union." -
We find, however, that the mere distribution of
forms, regardless of the date or dates of distribu-
tion, did not constitute an unfair labor practice and
therefore did not convert what began as an eco-
nomic strike into an unfair labor practice strike.
The Board has long held that an employer's distri-
bution of resignation forms, even without employee
prompting through expressions of desires to, resign
or related comments, is not by itself unlawful. Per-
kins Machine Co., 141 NLRB 697 (1963). Accord:
Cyclops Corp., 216 NLRB 857, 858 (1975). Conse-
quently, the gratuitous nature of the Respondent's
creation and distribution ' of the forms, on which
the judge heavily relied to find a violation,. did-not
render the Respondent's conduct unlawful.4
Rather, it was the Respondent's further act of con-
ditioning reinstatement on resignation from the
Union that constituted the unfair labor practice 5
and that, as discussed below, prolonged the strike.
Regarding the date on' which the Respondent un-
lawfully conditioned reinstatement, the following
facts are established by the. judge 's findings as well
as *by the uncontroverted testimony at the hearing.
At least 11 employees signed resignation .forms
4 For this reason, we reject the judge 's finding and modify his Order
insofar as they suggest that absent evidence of a basis for its conduct, the
Respondent's creation and distribution of the forms was a per as violation
of Sec. 8(a)(1).
5 In so finding , we, like the judge , rely on Manhattan Hospital, * 280
NLRB 113, 114 (1986), enfd . mem. 814 F.2d 653 (2d Cir. 1987), cert.
denied 483 U.S. 1021 ( 1987), in which the Board held that it is unlawful
to.go beyond merely providing employees with information on how to
resign from the union by attempting "to ascertain whether employees
will avail themselves of this right . . . offer[ing] any assistance, or other-
wise creat [ing] a situation where employees would tend to feel peril in
refraining from such revocation" (quoting R. L White Co., 262 NLRB
575, 576 (1982)).
298 NLRB No. 156
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bearing typed dates of either July 18 or July 27,
which were addressed to Union President Ghazi;
additionally , three employees hand dated their
forms July 28 , July 29 , and August 1, respectively.
The judge found that the documents were executed
by the employees on various dates in July 1988 de-
spite the typed date appearing on the forms. The
judge further found that 5 weeks after the strike
began , the Respondent 's general manager , Aretakis,
told employee Libertazzi that he would have to
sign a resignation form if he wanted to work, and
that about 10 days after the strike began Aretakis
told employee Miller that he had to sign the with-
drawal slip to get back to work .6 Additionally,
Daskus, the Respondent 's comptroller , testified that
the forms were given to the striking employees
when they offered to return to work . According to
Director of Purchasing Schmatz , Daskus requested
his help in distributing the forms to the striking em-
ployees about 1-1/2 weeks after the strike began.
Based on the above , and relying particularly on the
testimony of Schmatz and Miller, we find that the
Respondent unlawfully conditioned reinstatement
beginning about July 28-10 days after the strike
began.
We further find that the Respondent 's unlawful
conduct prolonged the work stoppage , and there-
fore converted the strike into an unfair labor prac-
tice strike . See C-Line Express, above . Regarding
the striking employees ' subjective motivations, Li-
bertazzi testified that he did not want to sign the
resignation form and that he refused to cross the
picket line because he had to sign the paper. Addi-
tionally, Miller testified on cross-examination that
"everybody" on the picket line was discussing the
forms , and acknowledged that it was a matter of
great importance and interest to the striking em-
ployees . That the resignation forms caused conster-
nation among the striking employees is further sup-
ported by the more objective fact that several em-
ployees attempted to add individual understandings
that their . resignations were only temporary, and by
the Respondent 's- posting and sending a notice on
August 8 in an effort-albeit an unsuccessful one-
to inform employees that it had not conditioned re-
instatement on resignation from the Union . Similar-
ly, as an objective matter, the Respondent 's unlaw-
ful conditioning of reinstatement is comparable in
effect to conduct such as an unlawful withdrawal
of recognition during an economic strike-an
unfair labor practice that, by its nature , has a rea-
sonable tendency to prolong the strike . See C-Line
Express, above, fn. 4 and cases cited there ., Thus,
the Respondent 's conduct undermined support for
° Miller also testified on cross-examination that he saw a resignation
form the first day of the stoke.
the Union during the course of bargaining, and was
"likely to have significantly interrupted or bur-
dened the course of the bargaining process ." Id. at
638. We further find that the Respondent 's conduct
would necessarily delay resolution of the strike by
creating an issue to be resolved individually by
striking employees who had made or were willing
to make unconditional offers to return to work;
whether the employee should sign the form in
order to make such an offer acceptable to the Re-
spondent. Accordingly , we find that the economic
strike converted to an unfair labor practice strike
on July 28.
Finally, we agree with the judge that the strike
did not revert to an economic strike on August 8.
Despite the statement in the Respondent's August 8
notice to employees that "there is no requirement
(and never has been) that any employee resign
[from the Union ] to work at Chicago Beef," that
notice did not mention the previously imposed con-
dition on strikers of resigning their union member-
ship to obtain reinstatement . Given the lack of a
specific reference to the Respondent's past action,
those strikers on whom the condition had been im-
posed, or those who knew of its imposition, might
reasonably have been left in doubt about the no-
tice 's application to them . Further, in the case of
Libertazzi, the imposition of the resignation condi-
tion apparently occurred after the appearance of
the notice. Thus, the August 8 notice did not un-
equivocally repudiate and rescind the Respondent's
unlawful actions , and we therefore find, as did the
judge, that it did not cure the unfair labor practice
or otherwise remove it as a factor in prolonging
the strike . We note, moreover, that the Respondent
continued thereafter to violate the Act by refusing
to reinstate unfair labor practice strikers who made
unconditional offers to return to work . For these
reasons, we further find that the strike did not
revert to an economic strike on August 8. See
Trumbull Memorial Hospital, 288 NLRB 1429
(1988) (distinguishing Trident Seafood Corp., 244
NLRB 566 (1979)). See also Gloversville Embossing
Corp., 297 NLRB 182 (1989).
2. Having determined that the strike converted
on July 28 and that the remaining strikers had the
status of unfair labor practice strikers as of that
date, we find that only those strikers who made un-
conditional offers to return and who were not per-
manently replaced prior to conversion are entitled
to immediate reinstatement with backpay . See Rose
Printing Co., 289 NLRB 252 (1988). With this limi-
tation, we adopt the judge's findings concerning
the Respondent 's unlawful refusal to reinstate strik-
ing employees. We shall amend the recommended
CHICAGO BEEF CO. 1041
conclusions of law, remedy, and Order according-
ly, and issue a new notice.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
6and8.
"6. On July 28, 1988, the strike was converted
into an unfair labor practice strike by the Respond-
ent's causing and requiring its striking employees to
resign from the Union as a condition of reinstate-
ment by the Respondent, thereby discriminating
against them because of their union membership
and discouraging membership in the Union, all in
violation of Section 8(a)(3) and (1) of the Act."
"8. By refusing to reinstate those of the employ-
ees named in the judge's Conclusion of Law 7 who
were not permanently replaced as of July 28, 1988,
following the unconditional request of the Union
on behalf of the striking employees made on
August 29, 1988, and by treating such strikers as
economic strikers, the Respondent engaged in, and
is engaging in, unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act."
AMENDED REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices within the meaning
of the Act, we shall order it to cease and desist and
to take certain affirmative action designed to effec-
tuate the policies of the Act. We have found that
the Respondent violated Section 8(a)(3) and (1) of
the Act by requiring its employees to resign from
the Union as a condition of reinstatement. The eco-
nomic strike that began on July 18, 1988, was con-
verted to an unfair labor practice strike on July 28,
1988, as a result of this violation. We have further
found that the Respondent violated Section 8(a)(3)
and (1) by refusing to reinstate unfair labor practice
strikers following their unconditional offer to
return to work on August 29, 1988. Accordingly,
we shall require the Respondent to immediately re-
instate to their former positions or, if not available,
to substantially equivalent positions, all strikers
who were not permanently replaced before July
28, 1988, without impairment of their seniority and
other rights and privileges. 7 In order to make room
for them, the Respondent shall dismiss, if neces-
sary, all persons hired after July 28, 1988. If, after
such dismissals, there are insufficient positions
available for the remaining former strikers, those
7 The Respondent has the burden of proving whether any of the stnk-
ers were permanently replaced Under the circumstances of this case, and
noting that in its answer to the amended complaint the Respondent raised
the affirmative defense that it had hired permanent replacements, we shall
permit the Respondent to offer proof at the compliance stage of this pro-
ceeding that it had hired permanent replacements and the dates of hire
and number of such replacements.
positions which are available shall be distributed
among them without- discrimination because of
their union membership or activities or participa-
tion in the strike, in accordance with seniority or
other nondiscriminatory practice utilized by the
Respondent. The remaining former strikers who
were not replaced prior to conversion, as well as
those former strikers who were permanently re-
placed prior to conversion, for whom no employ-
ment is immediately available, shall be placed on a
preferential hiring list in accordance with their se-
niority or other nondiscriminatory practice utilized
by the Respondent, and they shall be reinstated
before any other persons are hired or on the depar-
ture of their preconversion replacements. See Rose
Printing, above; Ashe Brick Co., 280 NLRB 1383
(1986).
The employees entitled to immediate reinstate-
ment shall be made whole for any loss of earnings
they may have suffered by reason of the Respond-
ent's refusal to reinstate them in accordance with
their unconditional request to be reinstated. Back-
pay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that
the Respondent, Chicago Beef Company, Detroit,
Michigan , its officers , agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Requiring striking employees to resign from
the Union as a condition of reinstatement.
(b) Failing and refusing to reinstate unfair labor`
practice strikers on their unconditional application
to return to work who were not permanently re-
placed prior to the strike's conversion from an eco-
nomic strike.
- (c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Of the following employees who were en-
gaged in an unfair labor practice strike, offer those
who were not permanently replaced before July
28, 1988, immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges, discharg-
ing, if necessary, any replacements hired on or
after July 28, 1988; and make them whole for any
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
loss of earnings they may have suffered as a result
of the discrimination against them in the manner
set forth in the remedy section of the decision.
Richard Miller Bob DeCook
Donald Broadnax Curt McNabb
James Franz David Hawkins
Jonnie Cecil Emilio Libertazzi
Wilson Morrison Peter Wynne
Robert Post
(b) Place the remaining former strikers who
were not replaced before July 28, 1988, as well as
those former strikers who were permanently re-
placed before July 28, 1988, for whom no employ-
ment is immediately available, on a preferential
hiring list in accordance with their seniority or
other nondiscriminatory practice utilized by the
Respondent and offer them employment before any
other persons are hired or on the departure of any
replacements hired before July 28, 1988.
(c) Preserve and; on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Chicago, Illinois, copies
of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT require striking employees to
resign from the Union as a condition of reinstate-
ment.
WE WILL NOT fail and refuse to reinstate unfair
labor practice strikers who were not permanently
replaced prior to conversion of the strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer the following employees engaged
in an unfair labor practice strike who were not per-
manently replaced before July 28, 1988, immediate
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, discharging, if necessary, any
replacements hired on or after July 28, 1988; and
make them whole for any loss of earnings they
may have suffered as a result of the discrimination
against them, with interest:
Richard Miller Bob DeCook
Donald Broadnax Curt McNabb
James Franz David Hawkins
Jonnie Cecil Emilio Libertazzi
Wilson Morrison Peter Wynne
Robert Post
WE WILL place the remaining former strikers
who were not replaced before July 28, 1988, as
well as those former strikers who were permanent-
ly replaced before July 28, 1988, for whom no em-
ployment is immediately available, on a perferential
hiring list in accordance with their seniority or
other nondiscriminatory practice utilized by the
Respondent and offer them employment before any
CHICAGO BEEF CO. 1043
other persons are hired or on the departure of any
replacement hired before July 28, 1988.
CHICAGO BEEF COMPANY
Richard F. Czubaj, Esq., for the General Counsel.
A. David Mikesell, Esq. and Jonathan Tukel, Esq, (Honig-
man, Miller, Schwartz & Cohn), of Detroit, Michigan,
for the Respondent.
DECISION
ROBERT W. LEINER, Administrative Law Judge. This
matter was heard on March 13, 15, and 16, 1989, in De-
troit, Michigan. The General Counsel's consolidated
amended complaint' alleging in substance that Respond-
ent violated Section 8(a)(1), (3), and (5) of the National
Labor Relations (the Act) by:
(a) On or about July 13, 1988, unlawfully bargaining to
impasse on nonmandatory subj1ects of bargaining.
(b) On or about July 18, 1988, unlawfully implement-
ing bargaining proposals.
(c) Unlawfully requiring as a condition of reinstate-
ment following a strike that employees engaged in the
strike resign their membership in the Union.
(d) On or about August 29, 1988, Respondent failed
and refused to reinstate employees to their former condi-
tions of employment after they had made an uncondition-
al offer to return to their former positions of employ-
ment.2
Respondent's timely answer admitted certain allega-
tions of the complaint, as further amended at the hearing,
denied others, and denied the commission of any unfair
labor practices.
At the hearing, all parties were represented by coun-
sel, given full opportunity to call and examine witnesses,
submit oral and written evidence, and to argue on the
record. At the close of the hearing, counsel for the par-
ties waived final argument and reserved the right to
submit posthearing briefs. General Counsel and Respond-
ent submitted timely posthearing briefs.
1'The consolidated amended complaint is dated December 21, 1988
The Charge in Case 7-CA-28294 was filed and served by the Charging
Party, Local 26, United Food and Commercial Workers Union, AFL-
CIO-CLC (the Union) on or about July 22, 1988 The Charge in Case 7-
CAr28436 was filed by the Union on September 7, 1988, and served on
or about September 8, 1988 In Case 7-CA-28637 , the original charge
was filed and served on Respondent by the Union on November 16, 1988,
and', the amended charge was filed and served on Respondent by the
Union on or about December 15, 1988.
2 Other allegations of the complaint , concerning violations of Sec.
8(a)(5) in Respondent 's failure and refusal to execute an agreed-upon col-
lective-bargaining contract , were settled at the hearing and served from
the complaint in a separate settlement agreement In fact , the parties exe-
cuted a collective-bargaining agreement on October 3, 1988 (Tr 13). The
parties , however, were explicit in theii desire to (Tr. 13 et seq.) litigate
the issues of whether an unlawful impasse occurred , whether the ensuing
strike was an unfair labor practice strike, and whether, in particular, the
strikers were unfair labor practice strikers or economic strikers The par-
ties also placed on the record a side understanding concerning language
in the contract. This understanding was that the parties agreed that a
maximum of two "receiver" employees would be considered confidential
and excluded from the bargaining unit (Tr. 15-16)
On the entire record, including the briefs, and on my
particular obeservation of the demeanor of the witnesses
as they testified, I make the following
FINDINGS OF FACT
1. RESPONDENT AS STATUTORY EMPLOYER
Respondent, a Michigan corporation, maintaining its
sole office and place of business in Detroit, Michigan, at
all material times has been engaged in the wholesale and
nonretail business of cutting, processing, and packaging
meat and meat products. During the year ending Decem-
ber 31, 1987, a representative period of its operations
generally, Respondent purchased and shipped from its
Detroit, Michigan plant products valued in excess of
$50,000, which were shipped directly to points outside
the State of Michigan. Respondent concedes, and I find
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
H. THE UNION AS A STATUTORY LABOR
ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Local 26, United Food and Commercial Workers
Union, AFL-CIO-CLC has been and is a labor organi-
zation within the meaning of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Notwithstanding the allegations of the amended con-
solidated complaint , the parties , at the hearing , reached
agreement with regard to the appropriate unit. Respond-
ent now admits that at all material times the following
employees " at its Detroit, Michigan facility constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act: '
All employees who are engaged in receiving,
boning, breaking , cutting, grinding , slicing, curing,
preparing, processing , sealing, wrapping , bagging or
prefabricating of all meat products, sausage, poul-
try, fish and seafood products , whether such prod-
ucts are fresh , frozen, chilled, cooked, cured,
smoked or barbecued including those employees op-
erating equipment used in wrapping , tubbing, or
tenderizing of such meat products and who per-
forms such duties in all areas where such products
are prepared , including janitors.
Furthermore, at the hearing, Respondent admitted that
since at least 1964, and at all times material , the Union,
pursuant to Section 9(a) of the Act has been the desig-
nated exclusive collective -bargaining representative of
the employees in the above unit, and since that date has
been recognized as such by Respondent in successive
3 Respondent conceded at the hearing that Frank Vogel, its bargaining
consultant ; Mary Anna Daskas, its comptroller, and Mike Aretakis, its
general manager, at all material times , have been and are its supervisors
and agents , respectively within the meaning of Sec 2(11) and (13) of the
Act
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreements, the most recent of
which was effective by its terms for the period May 1,
1985, through May 1, 1988.
As above noted, Respondent, a wholesaler in the meat
processing business, employs a total of about 65 employ-
ees, 23 of whom are in the above appropriate unit. The
parties, as early as March 30, 1988, commenced collec-
tive bargaining with a view toward the May 1, 1988 ex-
piration of the existing contract. About a dozen sessions
took place between March 30 and July 13, 1988, at
which time the General Counsel alleges, and Respondent
agrees, that the parties bargained to impasse. Further ma-
terial collective-bargaining sessions of July 18 and 26 oc-
curred. It was on the morning of July 18, 1988, that unit
employees engaged in a strike which lasted until on or
about August 29, 1988, when the Union, on behalf of the
strikers, made an unconditional offer to return work on
August 30, 1988 (G.C. Exh. 2). Respondent concedes
that it has refused to treat the 12 employees named in the
complaint, as unfair labor practice strikers and has re-
fused to reinstate at least 9 (G.C. Exh. 3) of them to their
former positions of employment which they held prior to
the strike.4 The General Counsel alleges that during the
alleged unfair labor practice strike Respondent hired re-
placements for the employees who tendered uncondition-
al offers to return to their former positions of employ-
ment.
Respondent's negotiating team consisted of Supervi-
sors Mary Anna Daskas, Michael Aretakis, and Frank
Vogel a consultant to Respondent. The Union's bargain-
ers were principally its shop steward Jim Franz, employ-
ees Bob DeCook and Kirk McNabb, Union Business
Agent Robert Dreaver, newly elected Local Union
President Ghazi Ghazi, and Jim Fuchs, an assistant to
the international Union's regional director. Other union
negotiators were Heinz Dungs and Noe Gomez.
B. Bargaining on Mandatory and Nonmandatory
Subjects; Impasse
There are four allegations in the complaint, as amend-
ed at the hearing, relating to violations of Section 8(a)(5)
of the Act by virtue of Respondent's positions in bar-
gaining in or about July 13 and 18, 1988. In substance,
paragraph 11 of the complaint, as amended at the hear-
ing, alleges that on July 13, 1988, during collective bar-
gaining for a new agreement to exclude regular part-time
employees from the unit, and to other provisions chang-
ing the scope of the unit by excluding the seafood em-
ployees, receivers, and janitors. Next, by paragraph 12 of
the complaint, General Counsel alleges that on July 13
4 Respondent admits a refusal to reinstate nine strikers The General
Counsel alleges 12 (pars 18 and 19 of the complaint) Contrary to
Daskas' testimony, I find that previously laid-off employees Peter Wynne
and Robert Post were recalled to employment effective on July 18, the
first day of the strike. They refused to cross the picket line I conclude
that, as General Counsel alleges, they are employees and were recalled
on July 18, and became strikers on that date The activities of a 12th al-
leged striker, Bob Adams, appear nowhere in the record Although Re-
spondent, by its admission of the allegations in par. 19 of the complaint,
admits that Adams was an employee, there is no evidence that he en-
gaged in a strike on July 18 The complaint allegations as to Bob Adams
as an alleged discriminatee (an unfair labor practice striker denied rein-
statement) must be dismissed
Respondent bargained to impasse with the Union on pro-
posals which included the elements above-described: the
exclusion of part-time employees, seafood department
employees, receivers and janitors, with such exclusions
forming a condition of reaching contractual accord.
Moreover, by paragraph 13 of the complaint, General
Counsel alleges that on July 18, 1988, Respondent unilat-
erally implemented its bargaining proposals,-9 including
the items concerning the four elements named above.
Lastly, by paragraph 14 of the complaint, General Coun-
sel alleges that Respondent bargained to impasse on per-
missible subjects of bargaining rather than mandatory
subjects of bargaining. General Counsel alleges that this
conduct violated Section 8(a)(5) and (1) of the Act.
As above noted, the complaint (par. 8) alleges and Re-
spondent admits that the appropriate unit, at all material
times included "all employees . . . engaged in receiving,
boning, cutting, . . . slicing . . . preparing, processing or
prefabricating all meat products . . . fish and seafood
products . . . including janitors." Neither in past prac-
tice, bargaining history, arbitration awards, or otherwise,
does it appear that part-time employees, certainly regular
part-time employees, otherwise arguably included in the
unit of "all employees" are to be excluded. The particu-
lar matters litigated, under the above-bargaining allega-
tions, related to the Respondent's alleged attempt to ex-
clude part-time employees, seafood, receiver, and janitor
employees from the existing appropriate unit and, indeed,
bargaining to impasse on such attempted exclusion.
Prior to the first collective-bargaining meeting of
March 30, 1988, the Union hand-delivered its contract
proposals (G.C. Exh. 8; Mar. 17, 1988) to Respondent.
The Union proposed a 3-year contract to expire April
30, 1991, with yearly wage increases totaling $3.50 per
hour for the period May 1988 through May 1990 with
the first wage increase of $1.50 per hour effective on
May 1, 1988 the effective date of the contract. It also
sought, inter alia, return of the cost-of-living allowance,
elimination of the "semi-cutter" status from the contract
to bring all meatcutters up to the "meat cutter" pay rate,
increase of sick pay, personal holidays, additional holi-
days, vacation benefits, and other substantial economic
benefits. At the collective-bargaining session of April 5,
1988, the Company submitted its contract proposals
(G.C. Exh. 9), the document in evidence being received
only for the typewritten materials, excluding writings
and cross-outs (Tr. 165). By paragraph 1 of this proposal,
Respondent suggested the deletion of the classifications
of "receiving" and "janitor" because "these have been
are [sic] non-unit positions." Respondent's particular eco-
nomic desire was to withdraw from a multiemployer
pension plan to introduce a company pension plan. The
Respondent's April 5, 1988 proposal and its explicit state-
5 There is no dispute that the Respondent's final offer to the Union was
implemented on July 18, 1988, including the wages and other terms and
conditions of employment contained in the Respondent's final position of
July 13 It should be noted, however, that even after the commencement
of the July 18 strike, following impasse, the Employer did not employ
part-time employees, did not change the "receiver" classification of the
Janitor or seafood classifications Thus, the General Counsel has not
proved implementation of any nonmandatory elements in the July 18 im-
plementation Howard Electrical & Mechanical, 293 NLRB 472 (1989)
CHICAGO BEEF CO
ments made it clear that elimination of the current pen-
sion program was vital. The Respondent insisted on sub-
stituting a less expensive pension program (Tr 169). Fi-
nally, the April 5 company proposal included the right
of Respondent to hire "temporary or casual employees"
who would "not be covered under the terms of the labor
agreement nor will they be eligible for any benefits in-
cluding pension."
By the sixth collective-bargaining session, the parties
having failed to reach agreement on their prior propos-
als, Respondent, on or about April 29, submitted a fur-
ther "economic and non-economic" proposal (G.C. Exh.
10) which, again, proposed the deletion of the classifica-
tions of "receiving" and "janitor" because they were
"non-unit positions." In addition to the economic propos-
als previously made, the Company again repeated (par.
10, G.C. Exh. 10) its proposed right to hire temporary or
casual employees who would not be covered by a collec-
tive-bargaining agreement or eligible for any benefits in-
cluding pensions. At the April 29 meeting, the Union
agreed to a 1-week extension of the contract which was
to expire on May 1, 1988. A meeting for May 3, 1988,
was scrubbed because Respondent did not have sufficient
further information by that time to continue bargaining
and by May 6, with the end of the contract extension
period, the Company requested a 90-day extension to
arrive at a contract offer. The Union agreed to a 45-day
extension (Tr. 189).
As early as the April 5 collective-bargaining session,
Mary Anna Daskas recalled that the Company not only
objected to the Union's proposal of increasing the pen-
sion, but Respondent explicity told the Union that it
wanted to hire, as part-time employees, three employees
who were about to or had recently retired. She recalls
that the Company offered to show the Union its books to
show the Respondent's poor economic condition. Daskas
recalled that, at the April 29 collective-bargaining ses-
sion, the Respondent again notified the Union as to why
it wanted part-time employees, perhaps 1 to 2 days a
week. She did not recall that the Union made any re-
sponse to the Company's request for part-time employ-
ees.
On June 8, 1988, the parties met at the Roma Cafe in
Detroit, Daskas recalls that the Company repeated to the
Union that it was in poor financial condition. The
Union's principal bargainers at that time, Secretary-
Treasurer Robert J. Dreaver, and newly elected Presi-
dent Ghazi Ghazi, said that, with regard to the Compa-
ny's request for part-time employees whom the Company
wanted a couple of days a week, it would be okay for
Respondent to have the three newly hired employees
work part time so that they could supplement their pen-
sions. She also recalled that when Respondent's other
principal bargainer, consultant Frank L. Vogel Jr., said
that the Union could either put them in or out of the unit
as long as these part-timers did not have full benefits.
Dasksas recalled that Dreaver thought it was a very
good idea and said he did not care if they were in or out
of the Union.
1045
Seafood Employees
With a diminution of meat consumption, Respondent
started a new operation, the processing and sale of sea-
food in July 1987 with one employee. By May 1988 it
had six seafood- employees. Daskas said that the union
shop steward (Franz) and Dreaver both knew of their
existence in the plant although the seafood employees
worked in an area separate from the meat processing em-
ployees.
At the April 5 collective-bargaining session, Daskas,
an experienced certified public accountant, examined the
union proposal and told Dreaver and Ghazi that the
union proposal of March 30 contained cost increases
which the Respondent could not afford; that the Re-
spondent had to diversify and place fish on the trucks to
get its foot in the seafood door. She recalled that
Dreaver told her (and Dreaver did not deny in any later
testimony) that he "really didn't care about the fish
people." The matter of seafood employees was not there-
after discussed until the collective-bargaining session of
July 13, 1988.
Janitors
There is no dispute that Respondent in 1988 employed
no janitors and had not employed janitors for a 3-year
period preceding that. In 1987, the Union filed a griev-
ance wherein it desired to have two of Respondent's
"clean-up" people placed in the unit. The grievance was
settled in 1987 by the Respondent and the Union agree-
ing that an employee, Bob Schmidt, an assistant supervi-
sor, be in the Union and in the unit. By this device, there
is no dispute that all greivances were settled. Thus, in
the March 30, 1988 first collective-bargaining session,
when Dreaver advised Respondent that it had a "griev-
ance" regarding "receivers" and "janitors," it is undis-
puted that Respondent Bargainer Vogel responded by
saying that the matter of janitors had been settled in the
August 1987 agreement directing that Schmidt be consid-
ered in the Union and in the unit. Dreaver, according to
Daskas, answered that he did not care about the janitors
because Respondent did not employ any of them
anyway. There is no dispute in the testimony, even from
the General Counsel's witnesses, that any janitors were
then employed. The matter of janitors was never dis-
cussed again although the Respondent did propose to
remove janitors from the recognition clause. Daskas tes-
tified, however, that in subsequent collective-bargaining
sessions, Union Business Agent Dreaver repeated that
the Union had no objection to the deletion of janitors be-
cause there was no janitor employed by Respondent and,
at an August 30 collective-bargaining session, Dreaver
said that if the Company ever had them, the Union
would talk about them at that time.
Receivers
Respondent, by Daskas, takes the position that, like
"janitors," the problem of "receivers" in the unit was
settled in August 1987 with the admission of Schmidt
into the Union. As above noted, in the Respondent's
April 5, 1988 proposal, it provided for the elimination of
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
both receivers and janitors . When the matter of elimina-
tion of receivers was raised at an April 19 collective-bar-
gaining session , the Respondent (by Mike Aretakis)
stated that there had been only one receiver who had
been in the Union in 35 years; a bargaining unit employ-
ee who was there temporarily because the regular re-
ceiver (the employee who signed for the receipt of meats
in Respondent 's warehouse) was not available . That tem-
porary receiver , McNabb , filled in for a short time 10
years ago . The parties were in agreement that it was nec-
essary for Respondent to have a nonunion receiver, an
employee responsible for the value of the product enter-
ing and leaving Respondent 's premises . The receiver
deals with union drivers and could reveal Respondent's
costs. The Union made no response to Aretakis' state-
ment. At no time in the June 15 or the July 13 and 26
collective-bargaining sessions did the question of "receiv-
ers" being excluded from the unit ever arise.
Union Secretary-Treasurer Dreaver testified that the
matter of seafood department employees arose in the
very first collective -bargaining session of March 30,
1988. He testified that the Union took the position that
the seafood department was new and both the Union and
the Company were inexperienced with regard to seafood
employees . 6 With regard to whether "receivers" were to
be included in the unit, Dreaver, during April collective
bargaining , told Respondent that the "receiver" issue
should be resolved and that receivers either should be in-
cluded or excluded from the unit; that the matter should
be the subject for bargaining.
The Collective-Bargaining in June 1988
At the June 15 collective-bargaining session , Respond-
ent submitted a complete proposed collective-bargaining
agreement bearing the date of July 6, 1988 (G.C. Exh.
11). That document used the term "part-time" employee
rather than the previous usage of "temporary" employee.
After June 15, Dreaver was on vacation until July 13
and did not attend the collective -bargaining sessions of
June 28 and 30 and July 6, 1988.
The testimony of Daskas regarding the June 28 and 30
collective-bargaining sessions is not disputed by any
General Counsel testimony . At the June 28 collective-
bargaining session, she first met Union Bargainer James
Fuchs, the Union 's International representative and as-
sistant to the Union 's regional director . She testified that
Local Union President Ghazi brought him to the meet-
ing; that Fuchs told her that there were only two basic
issues to clear up and pulled out a piece of paper from
which he read off five or six economic items: pensions
(Respondent's desire to withdraw from the multiemploy-
er pension plan), health and welfare (the Company was
not interested in the self-funding union plan); the man-
agement-rights clause (the Union had a problem on sub-
contracting by Respondent especially with regard to
"boxed meat"); wages (the cutters wanted a wage in-
crease and the Union wanted the semicutters raised to
the status of cutters with the same wage scale); and the
6 The expired collective-bargaining agreement described seafood em-
ployees as within the unit but there is no pay scale in the agreement with
regard to seafood employees
Company's desire for a two-tier wage scale (to which the
Union objected). Daskas credibly testified without con-
tradiction that no other issues were discussed at the June
28 meeting . At a June 30 meeting, the union bargainers
were not familiar with the Company's plenary contract
offer of June 15 (G.C. Exh . 22) and the Company alleg-
edly repeated its need for three recent retirees as part-
time employees.
Daskas places Dreaver as present at the July 6 collec-
tive-bargaining session whereas Dreaver said he was not
present until July 13. In any case , Daskas testified, with
regard to the Company 's desire to employ part-time em-
ployees, that she asked Dreaver if the part-time employ-
ees would have to pay union dues and receive benefits
and Dreaver said he was not sure but would look into
the matter . At this meeting , Respondent 's bargainer,
Vogel , asked Union President Ghazi if he wanted a final
company offer . Respondent , on July 6, then presented
this final offer (G.C. Exh . 15). According to Daskas,
Ghazi said that the proposal would never "fly" because
there was no increase in wages for the meatcutters.
Union 's July 8 Rejection of the July 6 Offer; Strike
Vote of July 8; and the Collective-Bargaining
Session of July 13, 1988
President Ghazi having already asserted on July 6 that
the Company 's July 6 offer would not "fly ," at a union
meeting of July 8, a strike vote was taken . Of the 23-24
unit employees, 17 employees appeared at the union
meeting to vote on the July 6 contract offer and a strike.
By a vote of 16-1, the unit employees voted to reject the
Company's proposal (the "Requested Final Offer" of
July 6, i.e., G.C. Exh . 15). This "Requested Final Offer,"
a modification of Respondent 's proposal of June 15, 1988
(G.C. Exh. 11), offered a wage freeze for the 3-year con-
tract term, accepted the Union 's vacation pay demand in
part, and suggested a fringe benefit freeze and substitu-
tion of a company pension plan for the current pension
plan. Apart from these economic proposals , the Re-
spondent , inter alia , insisted on its proposal with regard
to article 2.1 of the June 5 offer. That proposal sought
not only the elimination from the unit of fish and seafood
employees , janitors, and receiving employees , but also
specified that (G.C. Exh . 11, p. 23) "the Company re-
serves the right to hire part-time employees. Part-time
employees shall not be covered under the terms of the
labor agreement nor will they be eligible for any benefits
including pension ." The employees also voted to reject
as a ' part of the requested final offer, the Respondent's
pension plan proposal which essentially eliminated the
employer-funded plan (G.C . Exh. 18). The details of the
new company pension plan offer, including its cost and
other details, were unknown to the Union (having not
been furnished by Respondent) at the time of the vote.
In addition to voting to reject the Company 's proposals,
the unit employees voted 17-0 to strike . On completion
of the strike vote, the Union notified Respondent (R.
Exh. 3) that the Union intended to strike on July 18,
1988.
The sole witness with regard to what the unit employ-
ees voted on in rejecting the requested final offer and
CHICAGO BEEF CO. 1047
voting to strike was the Union's shop steward, Jim
Franz.
Franz' testimony concerning contract rejection and the
strike vote was not only not contradicted, although un-
corroborated by any other employee, but was not in-
quired into on cross-examination. In any event, with
three of Respondent's documents in hand (G.C. Exhs. 11,
15, and 18), Franz testified, and contrary to Respondent's
reasonable argument that Franz has a monetary interest,
I do not find that to be an implicit reason to discredit
him. By far, I was more concerned with General Coun-
sel's failure to corroborate his testimony with that of any
of the other 16 employees present at the strike vote. He
testified, nevertheless, that among the matters discussed
and matters on which the employees were voting were
the proposed changes in the recognition clause. He testi-
fied that the employees went through the Respondent's
entire offer and "read it word for word" (Tr. 323). Al-
though he testified that there were many elements in the
offer that caused the offer to be rejected, with regard to
the recognition clause, Franz testified that the employees
"felt at that time that that was taking away our union
right, busting up the union." (Tr. 323.) I conclude that
the word "that" in the above-quoted statement, refers to
the recognition clause and that, under Franz testimony,
one or more of the employees felt that the recognition
clause was "taking away our anion right, busting up the
Union." The economic elements which caused rejection
of the contract and the strike vote included the manage-
ment-rights clause and a guarantee on boxed meats (Tr.
324).
The July 13 Collective-Bargaining Meeting
After Respondent received the Union's July 8 notice
of a strike to commence on July 18, the parties held a
further meeting on July 13, commencing at 2 p.m. in the
presence of two commissioners of the Federal Mediation
and Conciliation Service. The parties first met face-to-
face, reached no agreement and caucused separately.
After the parties separated, one of the Federal mediators
(Hatchett) told Respondent that the issues separating the
parties were management rights; the Company's two-tier
wage system; the failure of Respondent to make a wage
increase; the Respondent's pension plan; and the provi-
sions regarding boxed beef. The parties then met face-to-
face without reaching agreement. During the meeting,
Shop Steward Franz told Daskas that he had left the
"fish people alone" and that Respondent should give the
meatcutters more money.
Sometime prior to 7 p.m., Daskas asked Dreaver to
identify what the Union had a problem with. Dreaver
said that the two-tier wage proposal was unacceptable;
that the Union wanted no replacement of existing em-
ployees; that with regard to the use of part-time employ-
ees paying their dues or not was not the real issue; only
that part-timers not replace regular employees. Daskas
recalled that Union Bargainer DeCook said that the
whole issue of part-timers was not really an issue; merely
that part-timers not replace laid-off employees. Dreaver
also objected to the Company's management-rights posi-
tion and the fact that the Union wanted the rate for
"semi-cutters" brought up to the cutters rate. Daskas
asked Dreaver whether these were in the "open" issues
and he said that they were. She then repeated in the
presence of all the union bargainers and the two media-
tors whether these were the only issues and Dreaver said
that they were.
By 7 p.m. on July 13, in response to Dreaver's state-
ment, Respondent produced its "Last Best Final Offer"
(G.C. Exh. 12). This two-page document, on its face, in-
cludes all the items in Respondent's July 6, 1988 "Re-
quested Final Offer" together with the plenary offer of
June 15 (G.C. Exh. 11) and a modification made by Re-
spondent on June 30 (R. Exh. 5).7
In Respondent's "Last Best Final Offer," it repeated its
insistence on reserving the right to hire part-time em-
ployees who would not be covered by the collective-bar-
gaining agreement or eligible for benefits but, acceding
to the Union's objection, agreed that part-time employees
would not be used to replace laid-off employees. It also
provided that full-time employees would not lose any po-
sition or be replaced by part-time employees in the two-
tier wage rate proposal. This "Last Best final Offer" in-
cluded insistence on a management-rights provision, a
continuation of the semicutter classification, and other in-
creases with regard to pay of cutters and semicutters.
The Union received Respondent's last best final offer,
reviewed it and by about 8:45 p.m. returned with coun-
terproposals (G.C. Exh. 13). Dreaver also proposed ad-
journing the meeting at that time because the employees
had to work the next day. His request for the adjourn-
ment was refused and the parties caucused, with Re-
spondent reviewing the Union's counterproposals. Re-
spondent quickly returned and told the Union that the
terms of the counterproposal were not acceptable; that
the Respondent's position was firm.'
When the union bargainers stated that they wished to
avoid a work stoppage on the following Monday (July
18), Respondent's bargainers said that the company posi-
tion was firm, and that the Union could strike for a year
but the Employer would not change its position on the
pension. At that meeting, Respondent's bargainer, Vogel,
said that they had reached an impasse; that the Respond-
ent would implement its final offer on Monday, July 18;
and that Respondent would continue to operate.
Dreaver testified that as far as the Union was con-
cerned the question of "receiver" employees was not
talked about and was not a prominent issue. The promi-
nent unresolved issues at the July 13 meeting were the
Company's proposed two-tier wage offer and the Com-
pany's pension proposal. Dreaver also testified, that the
Respondent's proposed exclusions from the existing unit,
particularly the seafood classification, was not discussed
and had last been discussed earlier in July. The Union
wanted the seafood classification maintained and the
Company wanted them out, but Dreaver said it was not
a major issue being discussed. Similarly not resolved was
the question of the receiver employees. With regard to
janitors, the Union agreed that the classification of jani-
tor did not exist anymore but Dreaver said'' that the
7 R Exh. 5, its June modification, includes the statement that the modi-
fied economic offer is contingent on, the Union's acceptance of all Re-
spondent's "noneconomic and economic proposals "
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union took the position that it wanted the classification
maintained.
The July 18, 1988 Strike
Prior to July 18, in anticipation of the strike, Respond-
ent recalled two employees who had been on layoff
(Peter Wynee and Bob Post) who were to commence
work on July 18. Notwithstanding the recall, they did
not cross the picket line and never engaged in work.
The strike started at midnight July 17-18. At or about
4 a.m., Teamsters Business Representative Charles Isom
appeared at the Local 26 picket line. Teamsters Local
337 represented Respondent's 2 dispatchers and 12 truck-
drivers in a separate unit. By 7:30 a.m., he spoke to
Union President Ghazi and Shop Steward Franz and
asked them what it would take to resolve the matter be-
cause the drivers were reluctant to cross the picket line.
Isom said that Ghazi and Franz told him that there were
four or five problems to resolve: the pension, bonuses,
wages, and a classification in the grinding room (TR.
483). Isom recalled no other issues, identified by the
union officials, as separating the parties.
July 18, 1988
Early in the morning of July 18, with the strike and
picketing in progress, Dreaver spoke to the Teamsters
business agent and discovered that the Teamsters drivers
would cross the Union's picket line. He, Ghazi, and the
unit employees went to the union hall to draft a new
"bare bones" union offer. Thereafter, through the Team-
sters and Federal mediation, a further collective-bargain-
ing session was convened at 2:30 p.m. The Union gave
its "bare bones" offer (G.C. Exh. 14) to the mediators
and discussed the items. The mediators left to discuss the
offer with Respondent and returned in a half hour. The
new offer was not given to or shown to Respondent's
bargainers. The mediators told Daskas and Vogel that
the issues to be resolved were: bereavement pay, addi-
tional holidays, pension, vacations, two-tier pay scale,
the signing bonus, the management-rights clause, and
temporary employees. With regard to temporary em-
ployees, the Union agreed to Respondent's concession
that it should be limited to the hiring of three temporary
employees. The mediators said that everything else was
okay. The mediator had read these items from a list not
shown to the Respondent's bargainers. Respondent re-
jected the Union's proposals.
The mediators, returned to the Union and said that
there was no reason to renew negotiations or submit the
Union's offer to Respondent because the Respondent's
position was firm. Dreaver told the mediators that the
Union had expected to negotiate and had been mislead.
July 26 Collective Bargaining
By July 26, Jim Fuchs (assistant to the Union's region-
al director) had become the Union's chief spokesman.
Similarly, Frank Vogel Jr . was Respondent 's chief
spokesman. The parties were scheduled to meet at Fed-
eral mediation, but prior to the meeting, Fuchs and
Vogel met privately in the Union's office. Fuchs testified
that he noted that an NLRB complaint on unit issues had
already issued (the charge in Case 7-CA-28294 had been
served on July 22, 1988; the first complaint did not issue
until September) and that when he told Vogel that sea-
food, janitorial, and receiving employees should be in-
cluded in the unit, Vogel would not discuss it, saying
that the exclusion of seafood employees was a "strike
issue" for Respondent and that seafood employees had
not been included in the bargaining and were not paying
union dues. Fuchs offered to file a unit clarification peti-
tion with the NLRB to permit the Board to determine
whether the seafood employees should be excluded from
the unit.
On part-time employees, Fuchs said that he insisted
that they too remain in the unit as part of the "all em-
ployees" inclusion but a ratio of part-timers could be
worked out. The Company's position on "receivers" was
that they should not be in the unit, but that it was not a
big issue because Respondent needed only one receiver
and he should not be in the Union.
Of the half-hour private meeting, Fuchs recalled that
the majority of time was spent on the unit issue, al-
though pension (Respondent favored a defined contribu-
tion with no defined benefit; the Union wanted assurance
of a defined benefit) was a major issue they discussed.
On cross-examination, however, Fuchs admitted that
in an NLRB sworn statement of August 3, 1988, 1 week
after this meeting, he said that there were six issues occu-
pying this half-hour meeting: management rights; subcon-
tracting; the two-tier wage rate; limitations on the hiring
of part-time employees; the pension plan; and seafood
employees.
Daskas (who was only at the subsequent meeting with
the Federal mediators) recalled that at the later July 26
meeting, Fuchs repeatedly suggested a formula for the
hiring of part-time employees and Daskas insisted that
there was no need for a sophisticated formula because
she wanted to hire only three retirees; and that although
Fuchs said part-time employees are covered in the unit
description, he did not insist that they remain in the unit.
With regard to seafood employees, Daskas testified
without contradiction that at the April 5 meeting, when
she rejected the Union's wage increase proposal as too
costly, and she told Dreaver that Respondent had to di-
versify into the fish business (the expiring collective-bar-
gaining agreement unit covered fish employees but con-
tained no wage scale and they were not union members
although the shop steward knew of their employment),
Dreaver told her that he "didn't care about the fish
people." The fish employees were not thereafter dis-
cussed until Shop Steward Franz, at the July 13 meeting
told her to give the meatcutters a wage increase and that
he had "left the fish people alone." At the July 26 ses-
sion, she recalled that Fuchs asked: "What about the fish
people?" When Vogel answered that it was a "new
thing" and that Respondent did not know if it would
"catch on," Fuchs answered that the Union would file a
unit clarification petition and "it's not a strike issue
anyway" (Tr 573). Thus, it appears that Respondent was
willing to make the exclusion of fish employees "a strike
issue" but the Union was not.
CHICAGO BEEF CO. 1049
With regard to janitors, Daskas recalled that nothing
was mentioned at the July 26 meeting; that at the March
30 meeting, Respondent took the position that the matter
had been settled and Dreaver said that he did not care
about janitors, because Respondent did not have any.
"Receiver" never came up at the July 26 meeting.
At the conclusion of the half-hour private meeting
with Vogel, Fuchs met with his union bargaining com-
mittee. The committee told him that there were 10 "lan-
guage issues" to be resolved in addition to the 6 issues
Vogel and Fuchs had discussed privately. The record
fails to show what these 10 "language issues" were. The
Union presented all 16 issues to Respondent and the par-
ties separated to caucus. Respondent thereafter returned,
rejected further bargaining with the statement that it had
given the Union its final offer, and had implemented it.
August 30 Meeting
At the August 30 meeting, Respondent agreed to a
contract consisting of the expired agreement, the pro-
posed agreement, the requested final offer, and the last
best offer but also agreed to continue seafood, janitorial,
part-timers, and receivers in the unit. There was no
signed agreement at that time, however, because of Re-
spondent mistakenly inserting matters which had been
agreed on as deletions.
Discussion and Conclusions with Regard
to Bargaining
As noted above, by paragraphs 11-14 of the com-
plaint, as amended at the hearing, General Counsel al-
leges that on July 13, Respondent proposed the exclusion
of regular part-time employees, seafood employees, jani-
tors, and receivers from the bargaining unit; that on July
13 Respondent bargained to impasse with the Union on
subjects, inter alia, including the above matters; and that
the above matters on which impasse was reached were
matters merely of permissible subjects of bargaining
rather than mandatory subjects of bargaining.8
The parties appear to be in agreement that impasse oc-
curred on July 13. This conclusion may well be correct
although any such impasse was necessarily broken in
view of the parties' July 18 bargaining where the Union
made a further concession on the hiring of three part-
time employees. When Respondent rejected this further
(July 18) offer, impasse again occurred. I do not regard
the matter as critical, much less dispositive, since imple-
mentation did not occur until July 18 and the parties po-
sitions on the economic, implemented elements were
deadlocked on both July, 13 and 18.
On the recent Boise Cascade Corp. v. NLRB, 860 F.2d
471 (D.C. Cir. 1988), enfg. 283 NLRB 462 (1987), the
8 To the extent that par. 13 alleges that commencing July 18, Respond-
ent unilaterally implemented its bargaining proposals including the de-
mands described in par 11 (the exclusion of certain unit categories and
the exclusion of regular part-time employees from the unit) the evidence
fails to demonstrate that these nonmandatory subjects of bargaining were
actually implemented notwithstanding that the wage rates, pension, and
other elements were implemented. Dasl as' testimony that there has never
been implementation of the nonmandatory unit exclusion is credited To
that extent, par 13 of the complaint is dimissed as unproven Cf Howard
Electrical & Mechanic, 293 NLRB 472 (1989).
court agreed with the Board that a respondent proposal
to change unit scope was a nonmandatory subject of bar-
gaining and that respondent violated Section 8(a)(5) and
(1) of the Act by insisting to impasse on that proposal.
Impasse is ordinarily permitted only on mandatory bar-
gaining subjects: wages, hours, and other terms and con-
ditions of employment. NLRB v. Borg-Warner Corp., 356
U.S. 342 (1958). It is well settled that the scope of the
employees' bargaining unit is not a mandatory subject of
bargaining . Cf. Shell Oil Co., 194 NLRB 988, 999 (1972),
enfd. sub nom. Oil Workers v. NLRB, 486 F.2d 1266,
1268 (D.C. Cir. 1973); Newspaper Printing Corp. v.
NLRB, 625 F.2d 956, 963 (10th Cir. 1980), cert. denied
450 U.S. 911 (1981). Unilateral changes in unit descrip-
tion were unlawful because a union has the right to have
its authority recognized in collective-bargaining agree-
ment and because the existence of a defined unit is a pre-
requisite to bargaining over terms and conditions of em-
ployment, for parties cannot bargain unless they know
which employees a union represents. To allow a party to
unilaterally determine the scope of the bargaining unit
whether following bargaining to impasse or otherwise,
would subvert the authority of the Board to make bind-
ing determinations regarding the appropriateness of bar-
gaining units. Boise Cascade Corp. v. NLRB, supra. On
nonmandatory subjects, particularly unit scope, the par-
ties may not bargain to otherwise "good faith" impasse
before employer unilateral implementation; the employer
must first gain the union's consent. Howard Electrical,
supra.
In Idaho Statesman v. NLRB, 836 F.2d 1396 (D.C. Cir.
1988), the court stated:
The scope of the bargaining unit represented by a
union is a permissive subject of bargaining; regard-
less whether the recognized unit has been certified
by the Board pursuant to the procedures of Section
9 of the NLRA, 29 U.S.C. § 159, or as in the case,
the unit has been voluntarily agreed upon by the
employer and the Union. If it were a mandatory
subject, an employer could use its bargaining power
to restrict (or extend) the scope of union representa-
tion in derrogation of employees guaranteed right
to representatives of their own choosing.
The court goes on to explain footnote 2, citing New-
port News Shipbuilding Co. Y. NLRB, 602 F.2d 73, 76 (4th
Cir. 1979), that the labor organization is the 9(a) and (b)
exclusive representative of all the employees in the unit.
Yet, the court observes, it is not unlawful for a party to
raise and bargain on nonmandatory subjects of bargain-
ing; it is only where a party conditions agreement on a
nonmandatory subject to the point of impasse that the
violation occurs Thus, the Board has taken the position
that, in evaluating whether the parties have insisted to
impasse on a particular nonmandatory subjects of bar-
gaining, it would first determine whether agreement on
the mandatory subjects of bargaining is conditioned on
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement on the nonmandatory subject of bargaining.
Taft Broadcasting Co., 274 NLRB 260, 261 ( 1985).9
Under these principles , I do not conclude that, in spite
of Respondent 's persistent oral or written proposals for
the exclusion of part-time employees , seafood employees,
Janitors, or receivers from the unit, such proposal in fact,
reached the point of Respondent 's conditioning agreement
on the mandatory subjects of bargaining on the elimina-
tion of these unit categories from the existing unit. Put-
ting aside the testimony of Mary Anna Daskas, whose
credibility from time to time left something to be desired,
the testimony of Union Secretary -Treasurer Dreaver
demonstrated that the seafood classification was discussed
only desultorily in July with the conclusion that the
Union wanted the seafood classification to remain in and
the Company wanted them out, ending with Respondent
saying that the matter would be worked out and was not
a major issue. Daskas' undenied and credited testimony,
in addition , was that Dreaver, on April 5, said the Union
was not interested in the fish people. On July 13, Franz
said the same . With regard to receivers, where the matter
was discussed , it was never resolved notwithstanding Re-
spondent said that it wanted the receiver to be outside
the unit because it regarded him as a confidential em-
ployee. Lastly, with regard to janitors, Dreaver testified
that while he wanted them to remain in the unit, he rec-
ognized that Respondent employed no janitors . Daskas
recalled he said he did not care about janitors. Receivers
were discussed neither on July 13 or 18. On June 15, the
Union placed it on "hold" and asked Respondent to pass
over the issue. I conclude , therefore , that up to the strike
of July 18, whether the parties reached impasse on the
preceding July 13 or even on July 18, the General Coun-
sel failed in sustaining his burden , Taft Broadcasting Co.,
274 NLRB 260, 261 (1967), to prove that the Respondent
conditioned agreement on the mandatory subjects of bar-
gaining on the nonmandatory change in the unit (pro-
posed by Respondent ) concerning the exclusion of part-
time employees , seafood employees , receivers , and jani-
tors. For as the court noted in Latrobe Steel Co. v.
NLRB, 630 F .2d 171, 181 fn . 9 (3d Cir. 1980), cert.
denied 454 U.S. 821 (1981 ), on which the Board relied in
Taft Broadcasting Co., supra at 261:
Nor are we bound by the dictum [in Marine & Ship-
building Workers v. NLRB, 320 F.2d 615, 618 (3d
9 To the extent General Counsel relies on the Board's original position
in Latrobe Steel Co., 244 NLRB 528 (1979), that the presence of unwith-
drawn, nonmandatory elements renders the impasse unlawful as to the in-
sisting party, such reliance is misplaced Judge Barban's observation that,
with such a factual matrix, "we have no way of testing this argument be-
cause [the Employer] did not withdraw from these impermissible posi-
tions prior to impasse," was expressly rejected by the court, Latrobe Steel
Co v NLRB, 630 F 2d 171 (1980) The court held that the record should
be examined to determine whether, if the Employer dropped its nonman-
datory proposals, impasse would still have occurred If so, the nonmanda-
tory proposals did not trigger the impasse-notwithstanding the rule that
insistence on a nonmandatory proposal need not be the sole cause of the
impasse, cf Soule Glass & Glazing Co v NLRB, 652 NLRB F 2d 1055
(1st Cir 1981), merely a contributing factor What is significant is that in
Taft Broadcasting Co., 274 NLRB 260, 261 (1985), the Board favorably
cites the court of appeals position in Latrobe Steel, implicitly acquiesing in
the court's position whether agreement on the mandatory subjects of
bargaining was conditioned on agreement on the nonmandatory subjects
of bargaining
Cir. 1963) that] ". . . any other rule would permit
insistance upon a nonmandatory item so long as
there were any disputes as to mandatory
topics.. . ." Any dispute on a mandatory subject is
not sufficient to protect a party's insistence to the
point of impasse on a non-mandatory subject. The
dispute over the non-mandatory subject must itself rise
to the level of impasse. [Emphasis added in the last
section.]
The most that can be said with regard to the Respond-
ent's persistent proposal to exclude part-time employees,
seafood employees, receivers, and janitors from the exist-
ing, agreed-upon unit is that the parties' dispute on the
nonmandatory subjects was never resolved prior to im-
passe on July 13.
The three exclusions were not prominently discussed
at the July 13 or 18 collective-bargaining sessions at
either of which impasse was reached. Dreaver's own tes-
timony demonstrates that the nonmandatory matters re-
mained open insofar as the Union was concerned and
were certainly not impasse issues.
The Union Continuously Agreed to Bargain on the
Nonmandatory Subjects and Never Foreclosed
Bargaining on them Up To and After impasse
At any point in the bargaining, before July 13 (or July
18) impasse, the Union was free to take the position that
Fuchs testified he took on July 26 (after impasse): that
the Union was unwilling to discuss the "recognition
issues" (seafood, janitors, and receivers) or part-time em-
ployees (the recognition clause included "all" employ-
ees).
1. Dreaver, as early as March 30, agreed to discuss the
janitor classification after Respondent said there was no
one working in that classification. The five (or more)
April and May bargaining sessions appear to have been
devoted to the issue dominating both parties: Respond-
ent's demand that it escape from the alleged high-cost
pension obligation. Franz confirms that the pension plan
was the major subject of discussion along with the two-
tier wage proposal and the sickness and accident pro-
gram. In fact, the Respondent, according to Franz, made
all its proposals conditioned on the Union's acceptance
of its pension plan. It was, he said, Respondent's impasse
issue. At the July 13 meeting, Franz recalls that Vogel
told the Union, in rejecting the Union's counteroffer
(G.C. Exh. 13) that Respondent would not accept any
offer that failed to include Respondent's pension propos-
al-and the Union could strike for a year. Daskas recalls
that she raised the part-time issue as early as the April 5
meeting, and continually thereafter, without union re-
sponse, other than Dreaver saying that he did not care
whether the part-timers were in the Union. She credibly
testified that although part-timers were mentioned on
June 15 (when Respondent produced its plenary contract
offer), at the June 28 and 30 and July 6 meetings, the
parties discussed economic issues: pension, health and
welfare, management rights, and wages rates and the
two-tier wage schedule. On June 30, Union Bargainer
CHICAGO BEEF CO. 1051
Noe Gomez was unfamiliar with the part-time issue and
the matter was dropped.
On July 13, I credit Daskas' recollection that Dreaver
said that the use of part-timers was not in issue ; only that
they not replace regular employees. Union Bargainer
DeCook said that it was not an issue. Dreaver told
Daskas that the Union's problems were: two-tier wage
scales; management rights; nondiscrimination; and the
semicutters wage rate. It was in response to this Dreaver
statement that Respondent drafted its last best final offer
(G.C. Exh. 12) which the Union rejected with its imme-
diate counteroffer (G.C. Exh. 13). I further credit
Daskas' undenied testimony that after April 5 (when
Dreaver said he did not care about the fish people) there
was no mention of fish employees until July 13, when
Franz asked for a meatcutter wage increase, noting that
the Union had not interfered with Respondent's erst-
while unilateral control over the fish employees' wages
and conditions of employment.
In short, there is nothing in the record to show that
the Union, prior to July 13 (or July 18) impasse , sought
to refuse to bargain on, or even to dissuade Respondent
from demanding, changes in the unit-the persistent non-
mandatory proposal, appearing over and over in Re-
spondent's contract demands commencing with its June
15 plenary proposal. On the contrary, the Union repeat;
edly bargained on the nonmandatory unit items (part-
timers) or placed the matters on hold or told Respondent
that it was not interested (fish employees) in the issue or
that it was not a strike issue . There is certainly no sug-
gestion that, prior to the July 13 or 18 impasse, the
Union admonished Respondent that the Union, at any
time thereafter, would refuse to bargain on any of these
nonmandatory proposals for unit change, a right which
the Union could have exercised at any preimpasse time.
In view of the conclusion, which I draw, that the
Union's conduct implicitly encouraged (or at least, did
not discourage) Respondent's nonmandatory bargaining
demands, it cannot be said that the "dispute over the
nonmandatory subjects-[rose] to the level of impasse,"
Latrobe Steel Co., supra, fn. 9; or that "agreement on the
mandatory subjects of bargaining was conditioned on
agreement on the non-mandatory subjects of bargaining,"
Taft Broadcasting Co., supra at 261. It is clear that what
separated the parties were money issues (mandatory sub-
jects) and that the subsequent importance of the nonman-
datory demands (unit exclusions) were afterthoughts de-
rived from anticipated litigation.
The Union's Position of July 26
The Union's position on July 26, when Fuchs took
over the Union's bargaining helm, supports rather than
detracts from this conclusion. In the July 18 bargaining
meeting, there were seven economic issues about which
the mediators told Respondent: bereavement pay, holi-
days, vacations, pension, two-tier wage rate, signing
bonus, and management rights. On the issue of hiring
part-time employees, the Union agreed (having previous-
ly placed the issue on an investigatory "hold" rather
than simply refusing to bargain on the issue)' ° to a
three-employee limit. No mention to Respondent by the
mediators of the unit exclusions as matters separating the
parties; certainly no suggestion that the exclusions were
impasse or strike issues.
On July 26, however, the Union had a new chief bar-
gainer faced with an ongoing strike, with his unfair labor
practice charges concerning the bargaining already filed
and served. Fuchs, in his first meeting as the union
spokesman, in his preliminary private meeting with
Vogel, and later, with Vogel and Daskas, for the first
time made the unit problems (it occupied a major portion
of the half-hour meeting, with Fuchs admonishing Vogel
both that (1) the Union was not willing to discuss,the
recognition issues of the fish employees, receivers, and
janitors; and (2) "all employees" in the recognition clause
included part-time employees) into substantial issues.
Fuchs, however, was not called in rebuttal to deny
Daskas' undenied, and otherwise credible testimony, that,
at the later meeting with the Federal mediators (at which
she joined Vogel, Fuchs, and other union bargainers),
Fuchs not only offered to solve the unit problem of the
placement of the fish employees (Respondent wanted
them excluded) in a unit clarification proceeding which
the Union would initiate, but stated that the placement of
the fish employees "was not a strike issue anyway." Such
a position is consistent with Franz' July 13 observation
to Daskas that the Union had ignored the fish employees
and wanted a pay raise for the meatcutters; and
Dreaver's testimony that the unit placement of receivers
and seafood employees were not major issues. Wages,
pensions, holidays, and the other economic issues which
the Federal mediators, as late as July 18 bargaining, read
off to Respondent after speaking to the union bargain-
ers, i 1 actually separated the parties. Teamsters Agent
Isom's corroborating testimony, unrebutted and credited,
demonstrates that only economic issues, mandatory sub-
jects, separated the parties (wages, hours, and wage clas-
sification). I regard Fuchs' testimony concerning the
sudden gravity of the unit issues on July 26' as legal pos-
turing explainable by the newly filed unfair labor prac-
tice charge (July 22), and his newly acquired responsibil-
ity as the Union's spokesman faced with a strike over se-
rious economic differences.
Similarly, Respondent's agreement to various union
demands, including the retention of the unit from the ex-
pired contract (seafood employees, receivers, and jani-
tors), does not persuade 'me that the impasse of July 13
(or July 18) was even remotely caused by Respondent's
insistent unit exclusion proposal. As I perceive this
record, what actually separated the parties, was money.
Respondent's nonmandatory unit exclusion proposal at
no time prior to any impasse became a condition of
10 I must assume that Daskas' desire to employ three retirees for 1 or 2
days per week in the meat department makes them "regular part -time em-
ployees" and thus, as the Union and General Counsel argue, includable in
a unit encompassing "All employees." Cf Newton-Wellesley Hospital, 219
NLRB 699, 703 (1975), Quigley Jndustnes, 180 NLRB 486 (1969)
11 The statements of the Federal mediators to Respondent are hearsay
General Counsel did not object to Daskas' testimony on the point and it
is admissible Teamsters Local 662 (Rice Lake Creamery), 302 F 2d 909 fn
1 (D.C. Cir 1962).
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reaching 'agreement on the mandatory subjects of bar-
gaining, as required by the above-cited Board and court
authorities.
In view of this conclusion, I need not, and do not,
reach or resolve Respondent's defense (Br. p. 12) that
the Union consented or agreed to Respondent's nonman-
datory proposal on the unit. See Howard Electrical & Me-
chanical, 293 NLRB 472 (1989). It would seem, however,
that on July 13 there was agreement and "consent" on
the part-time issue.
The Strike of July 18, 1988
General Counsel asserts that the strike, from its incep-
tion, was an unfair labor practice strike. In substance,
General Counsel relies on the testimony of Shop Stew-
ard Franz (Tr. 323-325) which demonstrates that the
strike vote of July 18 included the employees' belief that
the Company's change in the "recognition clause" was
"busting the Union." This, in spite of the fact that other
items in the rejected employer proposal (G.C. Exh. 11)
dominated the Union's rejection of the contract offer and
the contemporaneous strike vote (pension plan, guarantee
on boxed meats, and management-rights clause (Tr.
324)).
As a matter of legal analysis, since I conclude on other
grounds that the July 18 strike was converted to an
unfair labor practice strike on that day, I need not decide
whether employee statements at the July 8 strike vote
demonstrated that Respondent's rejected offer of July 6,
containing, inter alia , its insistent demand for unit
change, was even a "contributing factor" in causing the
strike. That is the minimal causal criterion on which the
Board will base a finding of conversion of an economic
strike into an unfair labor practice strike. Compare North
American Coal Corp., 289 NLRB 788 (1988), with C-Line
Express, 292 NLRB 638 (1989). Nevertheless, I shall
comment on the point in order to avoid the possibility of
a remand should the Board fail to accept the ground on
which I find an unfair labor practice strike commencing
July 18.
I would be reluctant to credit Franz' testimony with
regard to the elements discussed in the strike vote. He is,
after all, the union shop steward and, more important, he
was the only witness called to testify about the subjects
at the strike vote which precipitated the overwhelming
17 to 0 vote to strike. Franz' testimony should have been
corroborated by any of the 16 other union members who
voted to strike with regard to the proposed change in
the unit as an element in causing the vote to strike.
I realize that Franz' testimony is uncontradicted and
that Respondent did not even cross-examine him on the
point. Nevertheless, I am mindful of the admonition in
Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st.
Cir. 1981), that:
[In] examining the Union's characterization of the
purpose of the strike, the Board and court must be
wary of self-serving rhetoric of sophisticated union
officials and members inconsistent with the true fac-
tual context.
While I believe that the Union, as Franz testified, at
the time of the strike vote, read through all the elements
comprising Respondent's offer and may, indeed, have
commented unfavorably on the proffered change in unit,
that was not what caused the strike vote nor was it the
element which caused the Union to conclude that Re-
spondent was attempting to "bust" the Union. Rather, it
was the Respondent's proffered wage freeze, the obdu-
rate insistence on removing the pension plan which had
been in effect while Respondent was part of a multiem-
ployer bargaining unit, the guarantee on boxed meats,
and the management-rights clause. In addition, as I
review the record, I noted that Franz continually insisted
that what caused the rejection of the Respondent's offer
was Respondent's threat to implement the contract. I
would not conclude that on July 8, the recognition
clause was a contributing element to the strike notwith-
standing Franz' testimony that it was one of the elements
contributing to the employees' conclusion that Respond-
ent was trying to "bust" the Union.
Moreover, when the strike was already in progress on
July 18, Shop Steward Franz and President Ghazi told
Teamsters Agent Isom that the matters preventing settle-
ment of the strike were bonuses, wages, and wage classi-
fication. Nothing of nonmandatory unit issues "busting
the Union."
In this regard, I am aware that there is language in
some of the cases, particularly NLRB v. My Store, Inc.,
345 F.2d 494, 498 (7th Cir. 1965), cert. denied 382 U.S.
927 (1965), which suggests that a mere recitation, and re-
lation, to union members at a strike vote meeting of
unfair labor practices followed by a unanimous strike
vote demonstrates the existence of an unfair labor prac-
tice strike. I am persuaded, however, that in the present
context, the recitation of Respondent's desire and insist-
ence on changing the unit was not even "a contributing
factor" in the strike vote, Soule Glass & Glazing Co. v.
NLRB, supra, rather, it was merely an element discussed
at the meeting but not a precipitating or even a contrib-
uting factor in actually rejecting the contract.
In this area, I am mindful of the uncontradicted and
credited testimony of Charles Isom, the Teamsters union
business agent, called as Respondent's witness. I agree
with Respondent that Isom, whose labor organization
represents the drivers and dispatchers at Chicago Beef,
should be believed, absent evidence to the contrary, to
be sympathetic with the Union. Without beating around
the bush, Isom , on the very first day of the strike and
picketing, July 18, asked Union President Ghazi and
Shop Steward Franz "what it would take to resolve the
thing because my guys were having troubles going to
work . . . and I asked them what it would take to settle
it. They told me four or five things." (Tr. 482.) Franz
and Ghazi answered, specifically: pensions, bonuses,
wages, and classifications (Tr. 483). There were no other
issues identified by Ghazi and Franz (Tr. 483). In short,
as in the above discussion concerning impasse, these
were the issues that caused the strike and these were the
issues, if resolved, which would get them back to work.
Nothing was remotely said about the Respondent' s insist-
ence on changing the unit. That was not a matter of im-
CHICAGO BEEF CO. 1053
portance to the Union and the testimony of Robert
Dreaver showing that these matters could all be worked
out in bargaining substantiates this testimony and my
conclusion. I cannot conclude that mere recitation of
nonmandatory subjects and uncorroborated generalized
statements of "busting the union" automatically make the
nonmandatory proposals a "contributing factor" in the
strike. Causality requires something more. Cf. North
American Coal Corp., 289 NLRB 788 (1988).
The strike which started on July 18 ended when, on
August 29, the Union on behalf of the employees made
an unconditional offer for its members on strike to return
to work effective August 30, 1988 (G.C. Exh. 2).12
Respondent, in paragraph 19 of the complaint, as
amended, admits that it failed and refused to treat the
employees, above-named, as unfair labor practice strikers
and has failed and refused to reinstate them to their
former positions of employment "for which replacements
had been hired during the strike."
Conversion of the Strike to an Unfair Labor
Practice Strike
I have found that the strike, based on the impasse, the
strike vote notwithstanding, in its inception on July 18,
was an economic strike. I have further found that al-
though Respondent insisted on nonmandatory terms in
the bargaining, they were not a contributing cause of the
impasse; rather the impasse would have occurred on the
economic terms notwithstanding the existence of the Re-
spondent's position on the noneconomic terms. The Gen-
eral Counsel nevertheless urges, inter alia, that, by the
conduct below described, Respondent violated Section
8(a)(3) of the Act and converted the July 18 strike into
an unfair labor practice strike; in particular, by Respond-
ent's requiring, as a condition of reinstatement, that the
strikers resign their union membership.
It is undisputed that Respondent drafted, and provided
to at least 1I employees who signed, forms bearing dates
of July 18 and 27, 1988, as follows:
Mr. Ghazi Ghazi
President
Local 26
United Food and Commercial Workers, AFL-CIO
2550 West Grant Boulevard
Detroit, MI 48208
Dear Mr. Ghazi:
I hereby resign my membership in the Interna-
tional Union, United Food and Commercial Work-
ers and Local 26 effective immediately.
Sincerely,
12 By letter dated September 12, 1988 (G C. Exh 3), Respondent noti-
fied the Union that it was confirming the names of employees who had
not returned to work The letter names nine individuals notwithstanding
that the General Counsel alleges (complaint par 18) that not only those
nine but three other employees did not return to work. two of the three
employees (Peter Wynne and Robert Post), prior to the July 18 strike
were offered employment by Respondent but, as above noted, failed to
cross the picket line. There is no evidence whatsoever with regard to
General Counsel 's allegation that Bob Adams also made an unconditional
offer to the Union to return to work and was not reemployed Thus as to
Adams, the complaint must be dismissed.
These documents were executed by employees on var-
ious dates in July 1988 notwithstanding the typed date
appearing on Respondent's form. The erstwhile striking
employees sometimes added to the printed form various
individual understandings that their resignations were
only temporary until the contract was ratified. In other
cases, the employees merely signed the form provided by
Respondent bearing dates, as above noted, of July '8 and
27 (G.C. Exhs. 6(a)-(k)).
Regarding R.,,,pondent's position concerning the circu-
lation and execution of these forms, General Counsel
provided two witnesses, Emilio Libertazzi and Richard
Miller.
- 1. The testimony of Emilio Libertazzi
Libertazzi, a union member employed by Respondent
since Febraury 1985, went on strike on July 18, 1988.
Two days later he received a phone call from Company
Supervisor Mike Aretakis and Mary Anna Daskas. Are-
takis told him that Respondent was keeping his job open
and that he had better return to work, otherwise he was
going to have no job. In this conversation, Aretakis did
not mention the execution of the provided form. Liber-
tazzi credibly testified that 5 weeks later, Aretakis tele-
phoned him (Tr. 130-131); "you want to work you got
to sign that paper. That's it,"' and that the signing of the
paper was just for his protection. Libertazzi testified (Tr.
133-134) that he refused to cross the picket line because
he had to sign the paper. He further testified that Areta-
kis told him that he had to sign the paper and that every-
one signed the paper. Libertazzi testified (Tr. 115) that
he told Aretakis that he did not think it was for his pro-
tection and that he was not going to work. He continued
to picket.
2. The testimony of Richard Miller
Miller, like Libertazzi , a meatcutter , was employed by
Respondent since 1971 and engaged in the strike com-
mencing July 18, 1988. About 10 days after the strike
began, Aretakis and Daskas approached him on the
picket line and told him that if he did not return to
work, he was not going to have a job because Respond-
ent would replace him. Such a statement , on its face,
may not lawfully describe Miller 's rights and violates
Section 8(a)(1) of the Act. Chromalloy American Corp.,
286 NLRB 868 (1987). It is, however, not alleged as a
violation and I do not pass on it.
Later on the same day Miller returned a telephone call
to Aretakis who had previously telephoned him. Aretakis
repeated that he wanted the employees to come back to
work and wanted to know if Miller was going to return
to work . Miller said that he did not know what he was
going to do. Miller then asked (Tr. 143): "Do we have to
sign , a slip to get back m?" Aretakis answered (Tr. 143):
"Yes, it will be like a withdrawal from the Union so that
you cannot be fined come later." Respondent distributed
the slips to the pickets on the picket line (Tr. 144). They
were given to the Shop Steward Jim Franz.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The testimony of Michael Aretakis
Aretakis testified that he told Libertazzi, as he did all
striking employees, that there were withdrawal notices
available and anybody who felt uncomfortable with
coming back and staying with the Union could use them,
but it did not make any difference to him (Tr. 700). Are-
takis called 10 strikers on the telephone asking them to
return to work. He testified that he said the same thing
to Libertazzi as he said to all the others that it was "not
necessary" to sign the slip (Tr . 698). It is also to be noted
that at least one employee , Schmidt, returned to work
without signing a withdrawal slip and that another,
Weidner, returned to work and signed the slip thereafter.
It should be recalled that the strike vote occurred on
July 8 and Respondent was immediately notified by the
Union's letter of July 8 of the intention to strike on July
18. It should also be noted that these forms, created by
Respondent to permit employee-members to resign from
the Union , bear dates as early as July 18, 1988. It is fur-
ther apparent from the testimony of Aretakis (Tr. 712-
713) that in conversations among Aretakis, Daskas, and
Respondent's attorneys, they decided that these with-
drawal forms should be prepared to eliminate the fear of
any of the employees that they might be fined if they
crossed the picket line and returned to work. As Areta-
kis testified (Tr. 712), these documents were created (i.e.,
commencing as early as July 18) after Respondent
"heard several rumors that people were afraid to come
back that they were going to be fined." Just how Re-
spondent learned that employees were afraid to return to
work even before the strike started does not appear on
the record. What is clear, however, is that these forms
were created based only on "rumors" that Respondent
had heard.
An employer does not violate the Act merely by pro-
viding employees with information on how to resign
from the Union "as long as the employer makes no at-
tempt to ascertain whether employees will avail them-
selves of this right nor offers any assistance , or otherwise
creates a situation where employees would tend to feel
peril in refraining from such revocation." Manhattan
Hospital, 280 NLRB 113, 114 (1986), citing R. L. White
Co., 262 NLRB 575, 576 (1982).
I conclude that:
(a) the Respondent's creation and distribution of the
resignation forms prior to the commencement of the
strike based on rumors unsubstantiated on this record,
that the Union would fine or otherwise retaliate against
employees who crossed the picket line before Respond-
ent even attempted to ask employees to cross the picket
line, is a per se violation of Section 8(a)(1) of the Act. In
this regard, I analogize this case to NLRB v. Burkart
Foam Co., 848 F.2d 825 (7th Cir. 1988). In that case, the
Board found a violation of Section 8(a)(5) of the Act be-
cause of the employer's failure to provide pertinent infor-
mation concerning replacement employees to the union
after a strike. The employer in that case based his refusal
to provide the information on a "justifiable fear" that, if
ii provided such information to the union, its employees
would be harassed. The court, citing cases, relied on the
proposition that employees may defend against a union's
request for relevant information by showing that there
was a clear and present danger that the Union would use
the information to harass employees. The rule is that the
clear and present danger defense is to be sustained where
the employer articulates a reasonable good-faith fear of
harm to strike replacements, offers to explore alternative
forms of disclosure and the Union refuses to consider
any such alternative. In NLRB v. Burkart Foam, supra,
the employer claimed that the union had repeatedly
threatened to fine and punish former members who
crossed the picket line and returned to work. In that
case, the employer relied on an alleged but unproven
threat contained in a letter sent by the union. There
were, however, no specified instances of union threats or
other evidence showing such threats. The court sustained
the Board's finding of the bargaining obligation violation
because of failure to prove the existence of a good-faith
fear of retaliation.
Moreover, the court held that even if the employer
did have a reasonable good-faith fear of union retaliation
against its employees, the employer would also have to
show that the Union was asked for and refused to pro-
vide assurances that the employees would not be har-
assed.
In the instant case the Respondent provided the forms
for employee resignation from the Union based on
rumors. No substantiation of the existence of rumors was
attempted. There was no showing of any evidence of
any acts by the Union that it would retaliate against the
employees who crossed the picket line by fines or by any
other device. Such a showing might be supremely diffi-
cult in view of the fact that the strike had not started
and no employee had been asked to cross the picket line
when Respondent decided to draft the forms. In' any
event, I would conclude that Respondent may not rely
on rumors; rather, it must prove some reasonable basis
for a "clear and present danger" that the Union threat-
ened to fine employees or otherwise retaliate. In the in-
stant case, no evidence was submitted that the union con-
stitution or bylaws or other rules or other statements by
the Union would demonstrate an intent to retaliate
against employees who crossed the picket line. Further-
more, the Company never sought any union agreement
that it would not fine or retaliate against employees who
crossed the picket line. I therefore conclude that, in the
instant case, Respondent 's creation and distribution to
striking employees of the forms for employee resignation
from the Union, without more, violated Section 8(a)(1)
and (3) of the Act as an unlawful discriminatory interfer-
ence in their right to enjoy union membership and to be
represented by the Union, and discrimination designed to
discourage union membership and support. Such creation
and distribution, based on an alleged rumor, goes far
beyond an employer merely providing lawful informa-
tion on how to resign. Manhattan Hospital, 280 NLRB at
114. It is unlawful gratuitous solicitation.
(b) In addition, contrary to the testimony of Michael
Aretakis, I find, crediting the testimony of Libertazzi and
Miller, that Aretakis went beyond merely providing in-
formation and the forms; and that he unlawfully solicited
those employees, and the other 10 employees, to resign
from the Union. It must be recalled that Aretakis testi-
CHICAGO BEEF CO.
feed that he made the same statements in conversations to
the other striking employees that he made to Libertazzi
and Miller. Both on direct and on cross-examination, Li-
bertazzi told Aretakis that he refused to cross the picket
line because to do so he would have to sign the paper;
and Aretakis told him that he must sign the paper and
that everyone had to sign the paper including Libertazzi.
The fact that Aretakis told him not to worry because it
was for his protection does not make Aretakis' conduct
any the less coercive.
Even, however, if Libertazzi's faulty command of
English discounts his testimony, there remains the cred-
ited testimony of Richard Miller. He testified unequivo-
cally that he asked Aretakis if he had to sign the slip to
get back to work (Tr. 143). Aretakis said yes and that it
would be like a withdrawal from the Union so he could
not be fined thereafter. Such Aretakis conduct cannot be
called "ministerial" assistance and must be held to have
been aimed at causing disaffection from, and discriminat-
ing against employee membership in, the Union, clearly
tending to interfere with the employees' free exercise of
Section 7 rights and violating Section 8(a)(1) and (3) of
the Act. Manhattan Hospital, supra at 114-115.
Therefore, contrary to Respondent's argument, and
consistent with General Counsel's allegations (complaint
pars. 16, 17) I conclude that even if the strike was an
economic strike when viewed from the July 8 strike
vote, and thereafter, it was converted to an unfair labor
practice strike on the very first day of the strike, July 18,
coincidental with the Respondent's July 18 gratuitous
distribution of the forms providing for employee resigna-
tion from the Union.
This, appears to me to substantially dispose of Re-
spondent's further argument that, even if the General
Counsel would prove that the strike was converted to an
unfair labor practice strike, the General Counsel's case
must fail. It would allegedly fail because although the 11
named unfair labor practice strikers were entitled to rein-
statement to their former jobs upon their August 29 un-
conditional offer to return, they would only be entitled
to such replacement if there had been no permanent re-
placements hired in their stead prior to the date of con-
version. In the instant case, the date of conversion is the
very first day of the strike, July 18, 1988. Respondent
takes the position that it was General Counsel's burden
to prove the date and hiring of replacements and wheth-
er they were permanent or not. I do not believe that the
burden of proof to show permanent replacement and the
date thereof rests with General Counsel but is rather an
affirmative defense available to Respondent. Respondent
failed to prove the date of any timely permanent replace-
ment. To do so would seem difficult since the strike was
converted to an unfair labor practice strike on July 18,
its first day.
The fact that Schmidt,, a striker, returned to work
without signing a withdrawal slip, on this record, is no
evidence that Respondent did not make it an absolute
condition for him to sign a withdrawal slip before he
was permitted to return to work. 13 In the case of
is Daskas gave him the withdrawal form when she asked him to return
on August 8 or 9, but he never signed it (Tr. 602). Daskas wanted him
- 1055
Weidner the fact that he returned to work without first
signing the slip, and only later signed the slip showing
his resignation from the Union, is inconclusive. The evi-
dence does not show under what conditions he later
signed the slip but only that he did sign the slip. Neither
Schmidt nor Weidner testified in this proceeding. I
rather rely on testimony of persons who testified with
regard to particular conversations and particular se-
quence of events rather than on inference to be derived
from hearsay conversations with Schmidt and Weidner.
Repudiation of Respondent's Unlawful Conduct
Respondent lastly argues that even if General Counsel
were to show that the strike was converted into an
unfair labor practice strike as a result of requiring em-
ployees to resign from the Union as a condition of em-
ployment, that unfair labor practice was "cured" by Re-
spondent's posting of a notice (R. Exh. 7), on August 8,
1988.
What was distributed to all employees, and indeed
posted all over the picketing area including telephone
poles outside Respondent's premises, was the following
notice (R. Exh. 4) (which was executed by all employees
of Respondent):
August 8, 1988
Notice
To All Working Employees and Striking Employ-
ees. In case there is any misunderstanding about the
position of Chicago Beef, there is no requirement
(and there never has been) that any employee resign
his/her membership in UFCW Local 26 to work at
Chicago Beef.
Respondent argues that this notification "cures" the
unfair labor practice and therefore the unfair labor prac-
tice is converted back to an economic strike. Respondent
cites Trident Seafoods Corp., 244 NLRB 566 (1979), to
support this proposition.
Trident Seafood Corp., supra, stands for the proposition
that where an employer rescinds an unlawful discharge
of economic strikers, the backpay runs from the date of
discharge to the date the employees receive a letter re,
scinding their terminations. The case does not stand for
the proposition, as Respondent argues, that the unfair
labor practice was cured and that the unfair labor prac-
tice strike was converted into an economic strike.
Rather, the appropriate Board authority governing re-
pudiation of the unfair labor practice engaged in by Re-
spondent (conditioning employment upon resignation
from the Union during a strike) is Passavant Memorial
Hospital, 237 NLRB 138 (1978). To be effective, the re-
pudiation must be timely, unambiguous specific in nature
back because he was a "good cutter" (Tr. 600). It must be recalled that it
was on August 8 that Respondent ineffectively sought to "cure" the un-
lawful prior creation , distribution, and insistence on execution of the
withdrawal forms It is no coincidence that on August 8, when Respond-
ent offered Smith the resignation form it circulated , R Exh . 4, a notice
stating that there was no requirement of union resignation in order for an
employee to work for Respondent. See the above text.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the coercive conduct, and free from other prescribed ille-
gal conduct. Furthermore, there must be adequate publi-
cation of the repudiation to the employees and there
must be no prescribed conduct on the employer's part
after publication. Finally, such repudiation or disavowal
must give assurances to employees that in the future the em-
ployer will not interfere with the existence of their Section 7
rights.
In the instant case, whatever else may be said of the
timeliness of Respondent 's notice, it is clearly a denial
that the Respondent engaged in any unlawful conduct
and, in addition, failed to give assurances that, in the
future, the employer will not interfere with Section 7
rights. The key elements here are Respondent's denial
that it committed any unlawful act; its failure to admit
any wrongdoing, and most importantly, it did not assure
employees that in the future, Respondent would not
interfere with the exercise of their Section 7 rights by
such coercive conduct. It might be noted, in addition,
that the attempted repudiation occurred on August 8,
1988, whereas the first charge in this case had been filed
and served on the preceding July 22, 1988.
For the above reasons I find that Respondent failed to
lawfully repudiate or cure its unfair labor practice. I
therefore find that the Respondent by initiating and coer-
cively requiring the execution of, a form by strikers,
commencing on the first day of the strike, causing and
requiring them to resign from the Union as a condition
of employment, as alleged in paragraphs 16 and 17 of the
complaint, violated Section 8(a)(3) and (1) of the Act.
Other unfair labor practices alleged in the complaint
are dismissed. I also sustain Respondent's objection to
General Counsel's Exhibit 14, a matter on which I re-
served decision (Tr. 234).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Neither on July 13 or 18, 1988, nor at any other ma-
terial time , did Respondent bargain to impasse on non-
mandatory subjects of bargaining in violation of Section
8(a)(5) and (1) of the Act.
4. Neither on July 18, 1988, nor at any other material
time, did Respondent unilaterally implement bargaining
proposals in violation of Section 8(a)(5) and (1) of the
Act.
5. On or about July, 18, 1988, and continuing to
August 29, 1988, certain of Respondent's employees con-
certedly ceased work and engaged in a lawful strike.
6. Commencing on or about July 18, 1988, and ending
August 29, 1988, the aforesaid was converted into an
unfair labor practice strike by Respondent' s causing and
requiring its striking employees to resign from the Union
as a condition of employment by Respondent, thereby
discriminating against such employees because of their
union membership and discouraging membership in the
Union, all in violation of Section 8(a)(3) and (1) of the
Act.
7. On or about August 29 , 1988 , the Union, on behalf
of its employees, as above alleged engaged in an unfair
labor practice strike, made an unconditional offer to
return to work on behalf of employees Richard Miller,
Broadnax, James Franz, Jonnie Cecil, Wilson Morrison,
Bob DeCook, Curt McNabb, David Hawkins, Emilio Li-
bertazzi, Peter Wynne, and Robert Post.
8. Continually, commencing August 29, 1988, and
thereafter, Respondent has failed and refused to reinstate
or offer to reinstate the above named employees to their
former conditions of employment, in violation of Section
8(a)(1) and (3) of the Act.
9. The above unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action which is
designed to effectuate the policies of the Act.
As the Respondent violated Section 8(a)(3) and (1) of
the Act by requiring its employees to resign from the
Union as a condition of employment and by failing to
offer immediate reinstatement to its unfair labor practice
strikers, above-named, following their August 29, 1988
unconditional offer to return to work , it shall be recom-
mended that they be offered immediate reinstatement to
their former positions, or to substantially equivalent posi-
tions. It will be further recommended that the named dis-
criminatees be made whole for any loss of earnings or
other benefits they may have suffered by reason of the
discrimination against them . Backpay under the terms of
this recommended Order shall be computed on a quarter-
ly basis commencing August 29, 1988 , to the date of
bona fide offers of reinstatement to substantially equiva-
lent positions, less net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and shall in-
clude interest computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]