Farmbest, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1965

154 N.L.R.B. 1421 (N.L.R.B. 1965)

FARMBEST, INC. 1421
Farmbest, Inc.' and Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO 2 and Crawford County In-
dustrial Labor Union and Crawford County Industrial Labor
Union, Unit No. 1,3 Party to the Contract
Crawford County Industrial Labor Union and Crawford County
Industrial Labor Union , Unit No. 1 and Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO and
Farmbest, Inc., Party to the Contract . Cases Nos. 18-CA-1666
and 18-CB-°13. September 03,1965
DECISION AND ORDER
On February 4, 1965, Trial Examiner James T. Barker issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that Respond-
ent Farmbest had not engaged in other unfair labor practices, and
recommended that the allegations of the complaint pertaining thereto
be dismissed. Thereafter, Farmbest and Amalgamated filed excep-
tions to the Trial Examiner's Decision and supporting briefs, the
General Counsel filed cross-exceptions and a supporting brief, and
Farmbest filed an answering brief.
The, National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions, cross-
exceptions, and briefs, and the entire record in these cases, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following modifications.
1. On January 30, 1964, employee Janning distributed copies of an
official magazine of Amalgamated in the plant. Later that day,
Plant Manager Crabb remarked to Janning : "Well, I hope you don't
bring any more of these in because we have a contract with the local
union here." The complaint alleges that this remark is violative of
Section 8(a) (1) of the Act as a reprimand to Janning because of his
1 Herein called Farmbest.
2 Herein called Amalgamated.
Herein called Unit No. 1.
154 NLRB No. 146.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities , and that it also constituted the promulgation of an
invalid no -distribution rule in further violation of Section 8 (a) (1).
The Trial Examiner found , and we agree , that the remark did not con-
stitute a reprimand in violation of Section 8(a) (1). But, in view of
the somewhat ambiguous wording of Crabb's statement , we cannot
agree with the Trial Examiner 's finding that a rule was promulgated
in this isolated and innocuous exchange . Accordingly , we shall dis-
miss this allegation of the complaint.
2. The Trial Examiner found that Farmbest discharged employee
Janning for his activities in insisting upon strict conformity to the
provisions of the collective -bargaining agreement between Farmbest
and Unit No . 1, in violation of Section 8 (a) (3). We agree . The Trial
Examiner further found , without discussion , that "in the circum-
stances here existing ," the discharge also violated Section 8(a) (2) of
the Act. Janning was only seeking to force Farmbest to adhere to
the letter of its contract provisions-provisions which Unit No. 1 had
bargained to obtain , and the enforcement of which could only be of
benefit to the employees it represented . Absent a showing that Unit
No. 1 sought Janning's discharge , or that he was pursuing a course
detrimental to, or unwanted by, Unit No . 1, we cannot agree that his
discharge assisted Unit No. 1 in violation of Section 8(a) (2) of the
Act.
3. We do not agree with the Trial Examiner that in the circum-
stances of this case Farmbest violated Section 8(a) (2) of the Act by
compensating employees serving as officers of Unit No . 1 for time
spent attending certain monthly meetings with management during
nonworking hours. Grievances are not settled at these meetings, nor
are the meetings used to discuss matters solely of importance to Unit
No. 1 or the employees . Rather, the meetings are called for the pur-
pose of allowing Farmbest to present its future plans and aims for
the Company , and to discuss daily problems of production and proce-
dure. Farmbest points out that the meetings are held during non-
working hours in order to preserve the continuity of production and
as a convenience to Farmbest-a convenience for which it feels it
should pay . By merely paying such employee representatives at their
regular rate of pay for time spent in such meetings, Farmbest cannot
be said to exercise control over Unit No. 1; nor, in view of the minimal
character of the compensation , can it be said that Farmbest is granting
assistance such as we would find to be unlawful. In the circumstances
of these cases , we find that the compensation in question was not viola-
tive of Section 8(a) (2) of the Act.
4. The Trial Examiner concluded that, by entering into and main-
taining the "automatic termination of policies , benefits and provi-
sions " clause in their collective -bargaining agreement , Farmbest vio-
lated Section 8(a) (1) and (2 ), as alleged, and Unit No. 1 violated
FARMBEST, INC. 1423
Section 8(b) (1) (A) and 8(b) (2) by attempting to cause Farmbest
to discriminate against its employees. We agree. However, as the
matter was not alleged or litigated as a violation of Section 8(a) (3),,
we do not adopt the Trial Examiner's finding that Farmbest thereby
further violated Section 8(a) (3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondents, Farmbest, Inc., Denison,
Iowa, its officers, agents, successors, and assigns, and Crawford
County Industrial Labor Union and Crawford County Industrial
Labor Union, Unit No. 1, Denison, Iowa, its officers, agents, and rep-
resentatives, shall take the action set forth in the Trial Examiner's
Recommended Order,4 as so modified :
1. The paragraphs designated in the Trial Examiner's Recom-
mended Order as A, 1, (a), and A, 1, (b), are hereby deleted. The
first word ["Or"] in the paragraph designated as A, 1, (e), is hereby
deleted. The paragraphs designated as A, 1, (c), (d), and (e) are
redesignated as paragraphs A, 1, (a), (b), and (c), respectively.
The notice marked "Appendix A," attached to the Trial Exam-
iner's Decision, is hereby amended by deleting the third para-
graph , beginning : "WE WILL NOT maintain or enforce any rule pro-
hibiting...."
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations not found herein.
'Although we have, contrary to the Trial Examiner , dismissed certain of the alleged
violations of Section 8(a)(2) of the Act, we nevertheless adopt his recommendation that
Farmbest be ordered to withdraw and withhold recognition of Unit No. 1, and that Unit No.
1 be ordered to cease acting as the collective-bargaining representative of Farmbest's em-
ployees, in view of our finding that the Respondents have violated the Act by entering
into and maintaining an unlawful termination-of-benefits clause which clearly coerces
Respondent Farmbest' s employees in their right to change their bargaining representative
at an appropriate time , should they so desire.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed in Case No. 18-CA-1666 on July 18, 1963, by Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-CIO, hereinafter referred
to as Amalgamated , and an amended charge filed on September 4, 1963, by Amal-
gamated , the Regional Director of the National Labor Relations Board for Region 18,
on November 18, 1963, issued a complaint and notice of hearing designating Farm-
best, Inc.,' as Respondent and alleging violations of Section 8(a)(1), (2 ), and (3)
of the National Labor Relations Act, as amended, hereinafter called the Act.
Similarly, upon a charge filed in Case No. 18-CB-213 on November 29, 1963, by
Amalgamated , the Regional Director on December 6, 1963, issued a complaint and
notice of hearing designating Crawford County Industrial Labor Union as Respondent
and alleging violations of Sections 8(b) (1) (A) and 8 (b) (2) of the Act.
i The caption appears as amended at the hearing.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 6, 1963, the Acting Regional Director issued an order consolidating
cases for hearing, by which order Cases Nos. 18-CA-1666 and 18-CB-213 were con-
solidated for the purposes of hearing.
Pursuant to notice , a hearing was held before Trial Examiner James T. Barker on
December 17 through 20, 1963, and Januaiy 14 through 17 and April 15 through 17,
1964. All parties were represented at the hearing and were afforded full opportunity
to be heard, to introduce relevant evidence, to present oral argument, and to file
briefs with me. The parties waived oral argument and on June 29, 1964, briefs were
filed with me by the General Counsel, Respondent Company, and Respondent Union.
Upon consideration of the entire record and the briefs of the parties, and upon my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF FARMBEST, INC.
Farmbest , Inc., hereinafter called Farmbest , is, and at all times material herein has
been, a corporation engaged in the business of hog slaughtering and cutting and
related activities . It maintains its principal place of business at Denison , Iowa. In
the course of its business operations during the year preceding the issuance of the
complaint in Case No. 18-CA-1666, Farmbest purchased merchandise from points
outside the State of Iowa having a value in excess of $900,000. During the same
period Farmbest's sales of merchandise to points outside the State of Iowa were in
excess of $ 20 million.
Upon these facts, which Farmbest in its answer admits, I find that Farmbest, Inc.,
is, and at all times material has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of North America , AFL-CIO,
and Crawford County Industrial Labor Union were admitted by the parties to be
labor organizations within the meaning of Section 2 ( 5) of the Act , and I so find.
Ill. THE UNFAIR LABOR PRACTICES
The complaint in Case No. 18-CA-1666 alleges that Respondent Farmbest inter-
fered with, restrained, and coerced its employees by reprimanding employee John
Janning, in January or February 1963, for engaging in concerted activities on behalf
of Amalgamated; in March 1963 reprimanding Janning for protesting on behalf of
himself and other employees Respondent's failure to post jobs for employee bidding;
giving an unauthorized absence warning to Janning for the reason that he had engaged
in protected concerted activities on behalf of Amalgamated; maintaining a collective-
bargaining agreement with Crawford County Industrial Labor Union which by its
terms provided for the termination of all benefits automatically in the event of a
change in the "representation status for the employees" of Farmbest; compensating
employees who were officers and/or representatives of Crawford County Industrial
Labor Union for attending monthly conferences and meetings with Farmbest repre-
2 The General Counsel and Farmbest have filed motions to correct the record in the
instant proceeding . No oppositions thereto have been received . The motions which
have been marked Trial Examiner 's Exhibits Nos 2 and 3 , respectively, and placed In the
exhibit file of this proceeding are granted , except wherein they seek the following
corrections:
General Counsel: Page 1525 , lines 1 and 2 ; page 1579 , line 11 ; page 1586, line 6;
page 1596, line 8; page 1670 , line 24 ; page 1674 , last line and page 1675 , line 4.
Farmbest • Page 1523 , lines 15 and 19; page 1524 , line 13 ; page 1527, line 15;
page 1669 , line 24 and page 1673 , line 20.
Additionally , In accordance with requests contained in the brief of Farmbest , and after
careful study of my extensive notes taken at the hearing , the following corrections are
granted:
Page 1405 : Respondent Company's Exhibit No. 7 identified at page 1507 and re-
ceived in evidence at page 1509.
Respondent Company's Exhibit No . 8 received In evidence at page 1527
Page 1575: Respondent Company's Exhibit No. 9 received in evidence at page 1577.
Page 1596 , lines 8 and 9' Change to read , " told him `John , its got nothing to do
with the Union '. And I told him that if he wished he should feel free to go and
talk to Frank about this and".
FARMBEST, INC. 1425
sentatives during nonworking hours; and in violation of Section 8(a) (3) and (1) of
the Act discriminating and taking reprisals against John Janning because of his
concerted activities on behalf of Amalgamated and because of his other union or
concerted activities, by (a) transferring him to a lower paid job in March 1963,
(b) failing to pay him certain sick leave pay in April 1963, and (c) by discharging
him on May 3, 1963. It is the further contention of the General Counsel that in
maintaining the alleged proscribed paragraph in its collective-bargaining agreement
with Crawford County Industrial Labor Union, by paying employee-officers of said
labor organization for attending monthly conferences during nonworking hours and
by transferring, discharging, and failing to compensate Janning in the manner and
circumstances aforesaid, Respondent Farmbest illegally assisted Crawford County
Industrial Labor Union in violation of Section 8(a) (2) of the Act.
The complaint as amended at the hearing additionally alleges that in February
1963, Farmbest, acting in concert with Crawford County Industrial Labor Union,
procured an employee to engage in surveillance of Farmbest employees engaged in
union activities in behalf of Amalgamated, and that this conduct was violative of
Section 8(a) (1) and (2) of the Act.
The complaint in Case No. 18-CB-213 alleges that by maintaining a collective-
bargaining agreement with Respondent Farmbest which, as outlined above, provided
for the termination of all benefits automatically in the event of a change in the "repre-
sentation status for the employees" of Farmbest, the Respondent Union violated
Section 8(b)(1)(A) and 8(b)(2) of the Act. The complaint, as amended at the
hearing, further alleges that the Respondent Union, by its agent, Ernest Raun,
threatened employees that they would be discharged by Farmbest and would be
unable to get work elsewhere if they supported Amalgamated. Additionally, as
further amended at the hearing, the complaint in Case No. 18-CB-213 alleges that
the Respondent Union, by and through its agent, Ernest Raun, during August and
September 1963, demanded that an employee of Farmbest furnish him with a copy
of an affidavit that said employee had given to an agent of the Board during the
investigatory phases of the instant proceeding; that on or about January 13, 1964,
said Ernest Raun demanded that an employee of Farmbest disclose the content of
an affidavit said employee had given a Board agent during the investigation of the
instant pioceeding, and further demanded that this employee disclose testimony that
he would be giving at the hearing then pending, that on or about January 13, 1964,
said Ernest Raun interfered with an employee of Farmbest then under subpena by the
General Counsel, by interrogating him (a) concerning the facts and information he
had furnished the Board during the investigatory phases of the proceeding, and (b)
concerning the testimony this employee would be giving at the hearing then pending.
The respective Respondents contend that complaints should be dismissed, asserting,
principally, that the General Counsel's proof fails to sustain the allegations against
them Moreover, the Respondents, individually, raise other defenses to certain of
the allegations of the respective complaints, which defenses are considered in detail
below.
A. Background
1. Farmbest's relationship to Consumers Cooperative Association
Farmbest, Inc., is a cooperative organized under the laws of the State of Kansas
and qualified to do business in the State of Iowa Its earnings are distributed in the
form of patronage refunds to farmers who are stockholders in Farmbest. Approxi-
mately 2,490 farmers own shares of stock in Farmbest. Management of Farmbest is
by a board of directors consisting of 9 individuals, 4 of whom are nominated by
Consumers Cooperative Association, which owns 4,500 shares of stock of Farmbest.
Consumers Cooperative Association furnishes working capital for the operation of
Farmbest, and Consumers Cooperative Association insurance, retirement, workmen's
compensation, and other programs are in effect at Farmbest, and extend to and
include employees of Farmbest. The president, the secretary, and the treasurer of
Consumers Cooperative Association, respectively, hold identical officers in Farmbest.
Four individuals who are directors of Consumers Cooperative Association similarly
are directors of Farmbest.
2. Prior Board representation proceedings
On September 30, 1958, a representation election was conducted in Case No. 18-
RC-3715 involving the employees of Crawford County Packing Company, a prede-
2 06-446-g 0-vol. 154-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
censor company to Farmbest , Inc.3 In the election of approximately 66 eligible
voters, 64 valid votes were cast, of which 33 were cast for United Packinghouse
Workers of America and 31 were cast for Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO.
Thereafter , an election was held on January 20 , 1960, in Case No. 18-RD-211
involving the employees of Crawford County Packing Company, and the tally of
ballots ieflects that of approximately 96 eligible voters, 1 void ballot was cast, 11
ballots were challenged , 7 ballots were cast for United Packinghouse Workers of
America, AFL-CIO, 3 ballots were cast for Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, and 72 ballots were cast for "No Union." 4
With respect to the circumstances leading up to the decertification election, Louis
Thiede credibly testified that in 1959 a strike called by the United Packinghouse
Workers occurred at the plant which caused the plant to close, commencing the
second week of October 1959. In search of a method of achieving the strike's termi-
nation, Thiede , then an employee of Crawford County Packing Company and the
president of the Packinghouse Workers local at the plant , sought the advice of Ernest
A. Raun, an attorney in Denison , Iowa, where the plant is located . In response to
Thiede's inquiry as to the best means of getting the employees back to work, Mr.
Raun advised him that it would be necessary , in the circumstances , to decertify the
United Packinghouse Workers . As a consequence , Thiede retained Raun and Raun
assisted him in drawing up a decertification petition which Thiede filed with the
Regional Director for Region 18, which decertification petition led to the decertifica-
tion of the Packinghouse Workers. Thiede borrowed the money necessary to enable
him to make the trip from Denison, Iowa, to Minneapolis , Minnesota , from Richard
Knowles, the editor of the Denison Review, a newspaper published in Denison, Iowa.5
3. The January 1960 country club banquet
On January 23, 1960, a banquet was held at the Denison Country Club, sponsored
by Farmbest a Attending the meeting were Andy Anderson , the then general man-
ager of Farmbest ; Gene Frye , who at the time of the meeting was assistant manager
of Farmbest , Fred Claxton , then director of personnel of Consumers Cooperative
Association; Harry Shopen, director of safety for Consumers Cooperative Associa-
tion, Gene Clements, insurance manager of Consumers Cooperative Association;
Jack Salocker , who held a managerial position with Farmbest ; Ernest A. Raun; and
75 or 80 employees of Farmbest and their wives. At the banquet , in the course of
after-dinner remarks to the assemblage by Gene Frye, Frye stated , in substance,
that he "was very happy " that management would be able to announce some benefits
to which the employees were entitled , and observed that management 's "hands were
untied to the point . where [it] could give . . . [the employees ] some benefits "
Additionally, General Manager Andy Anderson spoke to the employees and Ernest
Raun similarly addressed them. The speech on safety was given by Harry Shopen,
and Gene Clements explained to the employees the insurance benefits available to
them as employees of Farmbest through Consumers Cooperative Associatoin.
As the meeting progressed , discussion turned to management 's "future plans" for
the employees in light of the decertification of the United Packinghouse Workers.
During the course of the meeting an "organization" was mentioned and Anderson
spoke with Fred Claxton and Gene Frye , expressing his desire that the employees
select a committee with which he could meet and to which he could outline the
Company' s policies and future plans. Anderson 's wishes in this matter were com-
municated to the employees , and members of management of Farmbest and of Con-
sumers Cooperative Association thereupon left the banquet room and retired to a
8 The parties stipulated at the hearing that in "approximately" September 1961, the
name of Crawford County Packing Company was changed to Farmbest, Inc.
4A-11 of the foregoing is predicated upon the stipulations of the parties entered Into at
the hearing.
These findings ale based upon the credited testimony of Louis Thiede
G For purposes of clarity , no distinction is hereinafter made between Crawford County
Packing Company and Farmbest , Inc., the Respondent Company . Consumeis Coopera-
tive Association acquired Crawford County Packing Company in 1959, but the corporate
name was not changed until 1961 . No issue of successorship responsibility is here
involved
FARMBEST, INC. 1427
basement area of the country club .? After management representatives left the
banquet hall , the employees proceeded to select Louis Thiede , Ralph Joe Kimson,
Alvin Bandow , and Arnold Wulf as members of the committee to meet with man-
agement. After this was accomplished , the committee met in an upstairs room at
the Denison Country Club with Anderson , Frye, and Claxton . Additionally, Gene
Clements attended the meeting and at one juncture during the meeting explained to
the committee the Consumers Cooperative Insurance benefits. During the course of
the meeting wage benefits , vacations , insurance benefits, and a guaranteed workweek
were discussed . Ernest Raun was in attendance during a portion of the meeting.
As a result of the meeting , wage increases were granted to all of the employees.8
After the meeting between management and the employee committee adjourned,
sheets of paper on which were written job classifications and new wage rates were
circulated among the employees and the employees were, in this manner , informed
of the wage increases that had been granted .9
The following Monday, January 25 , the employee committee met and designated
additional employees to be members thereof.10
4. The Crawford County Industrial Labor Union formally organized
On or about January 25, 1960, the 10 employees of Farmbest who constituted the
employee committeee executed articles of incorporation which had been prepared
by Attorney Ernest Raun in consultation with the committee. The 10 employees
comprising the committee were designated in the article of incorporation as incor-
porators, and a president, vice president, secretary, and treasurer were also designated.
Louis Thiede was designated as president.
Further, at the request of the employee committee, bylaws were prepared by Attor-
ney Raun, and in late February or March 1960, the document which Raun prepared
was subsequently executed by the members of the employee committee in Raun's
office.
Subsequently, in September 1960, employees of Farmbest executed documents
circulated by representatives of the Crawford County Industrial Labor Union, some-
times referred to hereafter as the Union, which designated the Union as bargaining
agent and which constituted a request of the Union to represent the signatory
employees as "bargainmg agents in negotiations and making a contract with
jFarmbest]." 11
7 The foregoing findings are predicated upon the credited testimony of Andy Anderson,
Gene Frye, Walter Kortmann, Louis Thiede, and Wayne Randall. Additionally, I have
considered the testimony of John Janning and credit it to the extent that it is consistent
with the testimony of Frye and Anderson.
While the record is ambiguous with respect to the circumstances attending the dis-
cussion relating to the course to be followed by the employees in their relationship to
management in the light of the decertification, as well as to the discussion of a need to
form an "organization," the testimony of Anderson and Frye suggests, and I find, that
these two matters were discussed in open meeting, the employees participating
8 The foregoing is predicated upon the credited testimony of Gene Frye as supported by
the testimony of Andy Anderson and Louis Thiede. I find consistent with the testimony
of Anderson and Frye, but contrary to Thiede, that Claxton attended this meeting.
0 This finding is predicated upon the testimony of Thiede, Kortmann, and Janning. I
do not credit the testimony of John Janning to the effect that at the banquet cards were
circulated among the employees which had the purpose or effect of authorizing or desig-
nating the employee committee and/or the Respondent Union as bargaining agents of
Farmbest's employees. This testimony has no other record support, and, indeed, credited
testimony of Thiede, Randall, and Kortmann refutes the testimony of Janning in this
respect.
i0 The credited testimony of Thiede. The record does not reflect where the meeting
was held.
"The foregoing is predicated upon the credited testimony of Kortmann and pertinent
documents in evidence. Kortmann testified that the bylaws above-referred to were
executed a month or two after the articles of incorporation were executed. I have also
considered and credit Kortmann's testimony that at a later date the bylaws were amended
in light of the formation of a unit of employees represented by Crawford County Indus-
trial Labor Union at the separate beet plant of Farmbest, a plant and unit of employees
not here involved.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this period, Gene Frye issued a document dated March 15, 1960, which
was addressed to "all employees" of Farmbest. The document contained the fol-
lowing introductory statement:
This statement contains the policies and agreements which have been worked
out between the Crawford County Packing Company and the employees Advis-
ory Committee for the employees at the Denison, Iowa, plant. It is the intent
of the parties herein to provide an understanding of the proper and necessary
working agreements to provide for the orderly and harmonious relationship
between the employer and employee It is the intent of the parties to meet
periodically to examine the success of this operation and to make any necessary
changes and adjustments to ensure an efficient operation. It is recognized that
the employers operation must proceed on the basis of efficiency; however, it is
recognized that the welfare of the employees must and will be considered and
that sound personnel practices will be followed.
The document thereafter contained provisions relating to seniority, vacation, holi-
days, jury duty, funeral leave, rates of pay, life insurance benefits, hospitalization and
surgical insurance, retirement program, hours of work, an employees advisory com-
mittee, rest periods, and sick leave. Following the substantive provisions of the
document, but preceding the signature of Manager Frye were the following two
paragraphs:
The above agreement will serve as a statement of working conditions agreed
upon by the Employee Advisory Committee and provided by the employer and
will remain in full force and effect until such agreement may be changed or
terminated by mutual agreement of the Employees Advisory Committee and
employer.
Any suggestion or recommendation offered by any employee should be pre-
sented to the appropriate member of the Employees Advisory Committee. It
will then be the responsibility of the Employee Advisory Committee to present
such suggestions or recommendation to management.
The document was a product of several meetings between Frye and the employee
committee and the terms thereof had been the subject of negotiation between Frye,
on the one hand, and the committee, on the other. During the period of negotiations
the committee had consulted with and received the counsel and advice of Attorney
Raun.
Subsequently, on September 1, 1960, a document bearing the signature of Manager
R. E. Frye was issued to all employees of Farmbest. By its terms the document
supplemented the statement of policies in practices dated March 15, 1960, which
Manager Frye had previously issued. The statement dealt with holiday compensa-
tion, funeral leave, overtime pay for Sunday work and work performed in excess of
32 hours per week, penalties for unauthorized absences from work, and equipment
to be furnished by the Company. Additionally, this supplemental statement con-
tained the following:
All policies, benefits and provisions of the agreement between the Company
and the Employees Advisory Committee shall be automatically terminated if
there is any change in the representation status for employees of the Company.
Further the statement contained a provision that its terms would remain in effect
until changed or terminated by mutual agreement of the Company and the employees
advisory committee.
Thereafter, on October 11, 1960, there were transmitted to Manager Frye the
documents bearing employee signatures authorizing the Union 12 to serve as their
bargaining representative, and a certificate of recognition in blank. The following
day, October 12, 1960, Ernest Raun dictated a letter which Manager Frye, in the due
course of the mails, received, wherein a demand for recognition and bargaining was
made upon Farmbest by the Union. On October 20 Manager Frye executed the
certificate of recognition which provided recognition to the Union as exclusive bar-
gaining agents of Farmbest's production and maintenance employees.
Some 5 weeks later, on November 28, 1960, a comprehensive collective-bargaining
agreement between Farmbest and the Union was executed. The agreement was to
remain in effect for 1 year, recognized the Union as the collective-bargaining repre-
is Hereinafter, the term Union refers to the Crawford County Industrial Labor Union.
FARMBEST, INC. 1429
sentative of Farmbest's employees during the term of the agreement, and contained
provisions for a checkoff, and terms relating to management prerogatives, hours of
work, wages, overtime pay, holidays, leave, penalties for unauthorized absence,
equipment to be furnished employees by the Company, rest periods, lunch periods,
vacation and holidays, life and hospital insurance, retirement, safety and health,
incentive system, a grievance procedure, seniority, miscellaneous provisions relating
to other conditions and terms of employment, and a provision pertaining to company
meetings with employees.
With respect to the company meetings provision, the agreement contained the
following:
At all business meetings of management and employees authorized to represent
the Union with which the Company agrees to meet, said employees so attending
the meeting shall be paid at regular straight-time hourly rates, excepting, how-
ever, said employees shall not under any circumstances be paid for time devoted
to settling grievances.
A year later, on December 7, 1961, a 1-year agreement, similarly comprehensive
in its terms, was entered into between Farmbest and the Union. Like the previous
one, this agreement contained a clause providing for the automatic termination of
"all policies, benefits and provisions" of the agreement in the event of any change
in the representative status for employees of Farmbest, and a provision identical to
that contained in the 1960 agreement relating to compensation of employees repre-
senting the Union at meetings with the Company.
5. 1962 contract negotiations
The agreement further contained a wage reopener providing for wage negotiations
on or after May 28, 1962. Pursuant thereto wage negotiations were conducted com-
mencing in mid-May 1962 between representatives of Farmbest and representatives
of the Union. At the several meetings that transpired, Farmbest was represented
principally by Edward Schwarzkopf, then manager of employee relations at Con-
sumer Cooperative Association, who attended all but the final meeting, and by
Manager Frank Crabb. The Union was represented by Ernest Raun and by employ-
ees fanning, Drilling, Jackson, Thompson, Bandow, and Morgan.
Prior to meetings with management, Raun and the employee committee met and
formulated wage demands, and as the negotiations proceeded it was their practice
to discuss and endeavor to achieve a consensus with respect to bargaining objectives,
demands, and decisions.
At the first meeting between the Company and the Union wages were discussed.
The Union initially demanded a 26-cent-per-hour wage increase effective across-the-
board from May 26, 1962, and for the balance of the contract term. The Company
objected and the Union thereafter countered with an additional proposal of a 5-cent-
per-hour wage increase immediately, and for a 51-cent-per-hour total wage increase
to be allocated over a 3-year period.
The Company offered a counterproposal of an 8-cent-per-hour increase across-
the-board for a 6-month period and a 26-cent-per-hour wage increase for a 3-year
term. Unlike the Union's proposal aforesaid, the Company's counterproposal did
not contain a cost-of-living provision.
Thereafter, the parties met at five or six bargaining sessions. During the negotia-
tions that ensued the Union offered another wage proposal of 25 cents per hour for
a 6-month term or in the alternative a package of a 50-cent-per-hour spread over a
3-year term. The Union's proposal included a cost-of-living provision. The Com-
pany countered with a proposal of 16 cents per hour for a 6-month contract, or in
the alternative a total of 28 cents per hour for a 3-year contract. The Company's
proposal did not include a cost-of-living provision. Subsequently, at the next to last
meeting, the Company adhered to its previous wage proposal but added a cost-of-
living provision. At the final meeting wage terms were settled on the basis of a
30-cent-per-hour total wage increase to become effective in stages over a period of
3 years. A cost-of-living provision was included. The agreement consummated at
the final collective-bargaining session was a 3-year contract to be effective from
May 28, 1962, until May 28, 1965. It was a comprehensive collective-bargaining
agreement covering a broad range of subject matter having to do with the wages,
hours, and terms and conditions of employment of employees. Included in the
contract as article 10 was a provision identical in wording to that contained in the
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1961 and 1962 agreements relating to the compensation of employee representatives
of the Union for attendance of meetings with management . Under article 6 of
section I was the following provision: 13
All policies , benefits and provisions of the Agreement between the Company
and the Union shall be automatically terminated if there is any change in the
representation status for the employees of the Company.
6. Amalgamated efforts to organize Farmbest employees
a. 1962 activities
In late June or early July 1962 Rocco Roti, International representative of Amalga-
mated, possessed of information that employees at Farmbest desired to affiliate with
Amalgamated , came to Denison , Iowa, for the purpose of conducting an organiza-
tional campaign among Farmbest 's employees Initially, he met with John Janning
at Janning 's home. Roti and Janning on this occasion discussed the contract nego-
tiations that were then taking place between Farmbest and Crawford County Indus-
trial Labor Union. Janning inquired if Amalgamated could advise the Union in this
respect, and they arranged for a meeting , tentatively to be held in the "next night or
two," to explore interest in possible future affiliation of the Farmbest local union
with Amalgamated . This meeting occurred at employee Ed Drilling 's home and was
attended by Drilling , Janning, and Roti At this meeting the groundwork or prelimi-
naries for the ensuing organizational effort were formulated . Discussed also were
the provisions of the then current agreement between Farmbest and the Union which,
by its terms, contained a 6-month wage reopener , which agreement , as found above,
was in the process of renegotiation between Farmbest and the Union.
Durmg the 3 months that followed , Roti conducted an organizational campaign
among the employees , meeting with a total of 50 or 60 of them in small groups, and,
singly at their homes or at other places in the environs of Denison . John Janning
accompanied Roti on approximately one-half of these visits On the occasions of
his meetings with employees , Roti would compare the benefits accorded the Farmbest
employees under the Farmbest contract with those offered under agreements he,
Roti, had negotiated and would, on these occasions , advocate affiliation with
Amalgamated.14
In the summer of 1962 John Janning was informed by Ed Drilling of a "rumor"
in the plant that Janning was going to be discharged . Janning approached Jack
Salocker seeking to ascertain the validity of the rumor . Salocker answered, "Yes,
if you heard it, it is true . From now on I advise you to watch yourself." 15
la The foregoing is predicated upon the credited testimony of Edward Schwai zkopf and
the document in evidence as Respondent Union ' s Exhibit No 1 and Respondent Union's
Exhibit No 2. I have also considered the testimony of John Janning , and to the extent
that it is in agreement with that of Schwarzkopf with respect to the contract negotiations,
I credit it . I specifically reject Janning ' s testimony to the effect that not until late in
the negotiations-and at a time immediately following the meeting discussed below among
Attorney Raun , the employee executive committee , and Amalgamated Organizer Rocco
Roti-did the Company offer a 3-year contract and higher wage rates. Not only was
Schwarzkopf ' s testimony credible with respect to when the Company offered a 3-year
contract , but Janning 's testimony on cross-examination revealed he possessed no clear
recollection in this respect.
I have also considered the testimony of Schwarzkopf to the effect that at a juncture
during mid-negotiations the Union , through Ernest Raun, informed Schwarzkopf that it
refused to meet with him because he was endeavoring to "railroad " the Union into an
agreement and that he was not giving the Union sufficient time , and was not treating their
representatives with the proper respect due them I credit Schwarzkopf 's testimony. I
further find , based on Schwarzkopf ' s credited testimony , that lie met with the Union for
collective-bargaining purposes at least one time subsequent to the lodging of this com-
plaint and that at the final collective -bargaining session the Company was represented
by its manager , Frank Crabb.
14 The foregoing is based upon the credited testimony of John Janning and Rocco Roti.
16 John Janning so credibly testified without contradiction . However , in repeating the
conversation on direct examination , Janning added that Salocker warned him that his
termination would result if he didn 't "quit talking to the guys from Amalgamated." I
do not credit this testimony Rather , I interpret this as a manifestation of Janning's
propensity , disclosed frequently in the proceedings , to attribute all ills that befell him
to his interest in affiliating with Amalgamated
FARMBEST, INC. 1431
b. Raun and Roti meet
In late June or early July 1962, Roti attended a meeting of the employee committee
comprised of the officers of the Union. The meeting was held a tthe office of Ernest
Raun, and Roti had been invited to attend the meeting by John Janning, Ed Drilling,
and Jim Gorman, members of the employee committee. Ernest Raun was not aware
that this invitation had been proffered nor, I find, had Roti been informed in advance
of meeting the employees preparatory to going to the meeting, that Raun would be
in attendance. Neither, I also find, was Roti aware that the meeting had been called
for the purpose of discussing the seeming lack of progress in the collective-bargaining
negotiations that were then taking place between the Union and Farmbest.
Pursuant to previous arrangements Roti met Janning and others at a designated
meeting place and proceeded to Raun's office. In attendance at the meeting were
Ernest Raun, Janning, Drilling, Gorman, and three other employees comprising the
employee committee. Upon observing Roti's presence Raun expressed surprise and
inquired as to the purpose of Roti's presence at the meeting. Roti, in response,
stated that he was under the impression that he was to meet with the executive board
of the Union and was not aware Raun would be present. Raun asserted that had he
known Roti was to be present he did not think he would have attended. He further
stated that he did not believe that "the group needed" Amalgamated and expressed
his opinion that the employees did not want Amalgamated. Roti answered that this
was a matter for the employees to determine. In this context, Raun asserted that
the Crawford County Industrial Labor Union was still young and growing and that
eventually could do more for the employees than Amalgamated Moreover, he
wagered that the Union would secure for the employees benefits as favorable to
them as the Amalgamated could secure at a plant in Perry, Iowa, which Amalgamated
was then endeavoring to organize. The conversation turned to a discussion of tech-
niques of securing information and data to assist in negotiations, and to other matters
relating to negotiation of wages. Roti, in effect, declined to discuss these matters
with Raun and stated his purpose in coming to the meeting was to discuss employee
affiliation with Amalgamated. On this note the meeting terminated. The meeting,
which had lasted approximately 30 minutes, was harmonious and lacking in acri-
mony. After Roti's departure from the meeting, the committee and Raun continued
their deliberations concerning the progress of contract negotiations 16
c. 1963 organizational efforts
After the completion of a 3-month organizational effort in the summer of 1962,
Rocco Roti left Denison to undertake other assignments. However, he periodically
kept in touch with key employees, including John Janning, and would meet with
employees occasionally when his travels took him through Denison. In late Janu-
ary 1963, Roti returned to Denison to undertake a further organizational campaign.
At that time he joined Louis Daniels, International representative of Amalgamated,
who had come to Denison approximately 2 weeks prior to Roti's return to that city
for the resumption of the organizational effort. Soon after Roti returned to Denison
he and Daniels met with John Janning and the new officers of the Independent.17
Thereafter, for a period of some 3 months, Roti and Daniels kept in contact with
employees of Farmbest, meeting with them either individually at their homes, or at
meeting places throughout the city, or in small groups at informal meetings, as well
as at formally planned gatherings of larger groups of employees.
One meeting of employees was held in mid-January when Roti and Daniels met
with a group of 12 or 15 employees, including Robert Jackson and James Thompson.
John Janning was not present. At this meeting there was an expression of employee
dissatisfaction with the manner in which the Union was functioning, and the employ-
16 The foregoing is predicated upon the credited testimony of John Janning and Rocco
Roti. With respect to the occurrences at the meeting itself, I place principal reliance
upon Janning's testimony for he impressed me as having a more complete and accurate
recollection of the events than did Rot!. However, I do not credit the testimony of John
Tanning to the effect that his first meeting in 1962 with Rocco Roti occurred at the meet-
ing in Raun 's office.
17 The parties stipulated that the 1963 slate of officers were * James Thompson , Robert
Jackson, Wayne Randall, Gordon Gosch, Leslie Campbell, Wallace Auen, and Alvin
Ilandow. Election of officers in the Union is accomplished in mid -January.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees discussed with Roti and Daniels means of affiliating with Amalgamated. This
meeting was held at the Denison Hotel, and at its completion a subsequent meeting
was scheduled for the following week.18
d. Amalgamated telegram intercepted
The scheduled meeting did not transpire. During the afternoon of the day on
which the meeting was scheduled , a rumor spread among the employees on the kill
floor concerning a "document" (or telegram) of Amalgamated that had come into
company possession . 19 Within a day or two of the transmission of the telegram to
Denison, its contents became known to Manager Frank Crabb, and at approximately
this juncture a copy of the telegram was placed on the employees bulletin board at
Farmbest by an individual unknown. Daniels and Roti appeared at the designated
meeting place but employees did not appear.20
Between the cancellation of the meeting and May 3, 1963 , neither Roti nor Daniels
met in a formal , convened meeting with groups of employees , but called on employees
individually as their travels brought them to Denison.21
B. Conduct within the 10 (b) limitations period
1. fanning distributes Butcher Workman magazine
In the meantime, on January 29, 1963, fanning first met and conversed with Lou
Daniels On this occasion Daniels requested that he distribute copies of the Butcher
Workman, an official publication of Amalgamated, to employees of Farmbest. In
accordance with this request, fanning took 140 to 150 copies of the magazine to the
plant with him the following morning. He placed the box containing the magazines
in front of his locker in the employee lockerroom, and upon being asked by a fellow
employee concerning the contents of the box, fanning showed him a copy of the
magazine . In a matter of a few minutes copies of the magazme had been circulated
throughout the lockerroom and were in the possession of employees.22
is The foregoing is predicated upon the credited testimony of Rocco Roti. To the ex-
tent that Robert Jackson's testimony is inconsistent with that of Roti's testimony with
respect to this meeting , I do no credit it . This phase of Jackson's testimony impressed
me as being evasive and equivocal. However, Roti's testimony that he returned to
Denison in February to join Daniels is in error, as other evidence shows that this
occurred in January Similarly erroneous is his testimony that the meeting with the
group of 12 or 15 employees at the Denison Hotel took place in mid-February it
occurred , according to other credible evidence, in mid -January.
19 The "document" was a telegram bearing the signature of Russell E. Dresser , Interna-
tional vice president of Amalgamated. It was addressed to Louis Daniels at the Denison
Hotel in Denison , Iowa , and was received at the Western Union office in the Denison Hotel.
The body of the telegram consisted in its entirety of a suggested form of employee
authorization of affiliation.
21 All of the foregoing is predicated upon the credited testimony of Rocco Roti, as
supported , in part, by the credited testimony of Louis Daniels and John Janning. How-
ever, I do not credit Roti 's testimony to the effect that on the evening of the scheduled
meeting Daniels, in his presence, conversed with Robert Jackson by telephone and en-
deavored to arrange a meeting with him. Roti 's recollection as to the identity of the
individual whom Daniels allegedly contacted by telephone was hazy and his account of
the manner in which he became apprised of Daniels alleged conversation with Jackson
raised grave doubts as to the bona fides of his testimony in this respect Rather, with
respect to this aspect of the incident , I credit Robert Jackson's testimony denying receipt
of the Daniels ' telephone call. Jackson 's testimony on direct examination in his regard
was credible and his testimony was unshaken on cross-examination.
21 The credited testimony of Rocco Rot! . I do not credit Roti 's testimony that ap-
proximately 3 weeks after the scheduled meeting , which failed to materialize because of
the telegram incident, he had a chance meeting with Bob Jackson and Jim Thompson,
wherein they Informed him of the layoff of a group of employees and expressed the belief
that the layoff was for "union activities " Both Jackson and Thompson deny having
had such a meeting and conversation , and I credit them Moreover , Roti , who had engaged
in numerous organizational campaigns at many plants involving many employees, im-
pressed me as a witness whose recall of names and identity of Amalgamated adherents at
Farmbest was blurred by the passage of time.
22 The foregoing is predicated upon the credited , uncontradicted testimony of John
Janning.
FARMBEST, INC. 1433
At approximately this point in time, in the late afternoon after the working day
had been completed, Janning went to the office of Frank Crabb to converse with him
concerning a letter which he desired Crabb to write in support of his brother's claim
for unemployment insurance. Crabb agreed to do so. At this point in the meeting
Crabb referred to a bundle of the Butcher Workman which was in his office, and
asked Janning if he knew anything about it. Janning replied, in substance, that he
had been receiving the magazine, that he had accumulated copies of the magazine
in his basement at home, and had decided to clean them out. He asserted further
that he had brought the last issue to the plant to give it to employee Jim Thompson,
who had been newly elected president of the Crawford County Industrial Labor
Union. Upon being informed of this, Crabb stated, "Well, I hope you don't bring
any more of these in because we have a contract with the local union here."
The magazines remained in Crabb's office until the next day, when Crabb per-
sonally took the magazines to the incinerator and threw them in. Crabb had been
informed that the magazines were in the men's lockerroom and had, himself, walked
down to the lockerroom, picked them up, and carried them to his office.23
2. The Roti-Knowles incident
In early February 1963, in the lobby of the Denison Hotel, Richard Knowles,
editor of the Denison Review, approached Roti at approximately 10:30 p.m. and
asked him if he were Louis Daniels. Upon being informed by Roti that he was not,
he asked Roti's identity and then inquired of Daniels whereabouts. Roti informed
him that he had gone to his room and was "probably in bed." Thereupon Knowles
proceeded to the elevator and directly to Daniels' room in the hotel. Roti followed.
Knowles knocked at the door of Daniels' room. Through the closed door, Roti
informed Daniels that Knowles, the "editor of the local paper," wanted to talk with
him. Daniels inquired if Knowles could not wait until the morning to see him, as
he had retired. However, Knowles was insistent. Roti credibly testified concerning
the balance of the incident as follows:
Mr. Daniels opened the door. Mr. Knowles asked him point-blank, "What
in the hell are you doing in town?" Mr. Daniels answered him. He said, "I
see no reason why I have got to tell you what I am doing in town or where I am
going or any other-that is strictly my personal business."
He said, "I don't believe what you fellows"-He said, "You are trouble
makers. You are going to start trouble in town. Why don't you let the people
from Farmbest alone? They don't need no union."
I said, "It is strange that you are deciding for the people." I said, "The people
have the right to decide for themselves." 1 said, "You mean to tell me that even
if the people decide they would want the Amalgamated, you still would step
into the picture?"
He said, "If they want the Amalgamated, we have got ways of taking care of
that " He said, "I still want to know what you people are doing in town "
By that time I was getting a little irritated. I said, "Look. I'll tell you this
much. I am on my way to Sioux Falls, S. Dak, with Mr. Daniels " With that,
Mr. Knowles said, "Both of you are liars." I opened the door and Mr. Daniels
threw him out of the room.
About 15 minutes later, I went downstairs to get a cup of coffee and a pack
of cigarettes, and Mr. Knowles, unknown to me, was sitting in the lobby, and
I stepped outside, smoking a cigarette, and Mr. Knowles came out to me.
He said, "Why don't you fellows leave us alone and go about your business?"
I told Mr. Knowles, "Peddle your papers, take care of your papers. Your job
is the newspaper. We are in the labor movement. We are quite capable of
knowing what we are doing and where we are going from here," and with that
I left and I hadn't seen Mr. Knowles until a few weeks later when I had occasion
to come back to Denison one afternoon.
Approximately a month later, Roti met Knowles at the Denison Hotel. Roti
credibly testified concerning this conversation as follows
He greeted me. I greeted him. He asked me to have a cup of coffee with
him. He also told me, "This is a hell of a time for you to be in town " I asked
Mr. Knowles specifically what did he have reference to. I wasn't aware of any
zs The foregoing is predicated upon the credited testimony of Frank Crabb To the
extent that John Janning's testimony concerning the reason for his presence in Crabb's
office on this occasion, and his testimony concerning the substance of the conversation
is at variance with that of Frank Crabb, I do not credit it.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular reason why I shouldn't have been in town. He said, "I may as well
tell you, you'll find out. I have got a pretty nasty editorial about the Amalga-
mated in today's edition."
In further reference to this conversation Roti credibly testified that Knowles men-
tioned the Printer's strike then in progress in the East and characterized the Printers
as "hoodlums and roughnecks." He observed that Amalgamated was not going to
be any different. He further asserted that they were coming into the community
and disrupting it and suggested that Amalgamated leave the community alone. Roti
credibly testified that Knowles also said, "We all have an interest in this plant as a
community project ... we are going to fight to see no outside union comes into the
plant."
3. Ernest Raun and Richard Knowles speak to assembled employees
On February 14, 1963, Ernest Raun addressed a written communication to Frank
Crabb, manager of Farmbest . The written communication was in letter form, but
appears to have been hand-delivered to Crabb. The communication asserted that a
"matter has come up that in my opinion requires immediate attention , and I would
like to impose upon you in requesting an audience with all of the employees of your
plant on Friday , February 15, in the morning at such time as you may designate."
By letter of February 14, Frank Crabb acknowledged Raun's communication,
responding , in part, in the following terms:
Inasmuch as we will in all probabilities be killing less than the minimum guaran-
teed week , you are granted permission to hold such meeting not to exceed one
hour.
On the morning of February 15, 1963, during normal working hours, a meeting
of employees of Farmbest took place , at which Ernest Raun and Richard Knowles
spoke 24 The meeting commenced when Kill Floor Superintendent Leonard Tierney
caused the production lines to be stopped and instructed employees to congregate
for a meeting. Ernest Raun first spoke to the employees . He stated that he had just
come from Frank Crabb's office and had received permission to speak to the employ-
ees He spoke to the employees from a bench and stated that he had information
that indicated that the Farmbest plant would be subjected to a secondary boycott
by Amalgamated in support of its labor dispute in Sioux City , Iowa. He stated that
there were two individuals "from Chicago" who were in Denison representing Inter-
national unions and stated that they were present in Denison for the purpose of
closing down the Farmbest plant and taking jobs away from Farmbest employees,
and were not working in the interest of Farmbest employees , but were "looking out
for their own men" in Sioux City . Raun further asserted that the Sioux City plant
was on the verge of closing and that the " independent union could do more by far
[for the Farmbest employees ] than an International ever could ." Raun further
requested that employees having knowledge of other employees talking to the repre-
sentatives of Amalgamated informed him of the identity of these employees so that
he could contact and talk with them.
Richard Knowles then spoke to the employees . He recounted the occasion when
he had been ejected from Daniels' hotel room at the Denison Hotel.
The meeting lasted approximately 45 minutes.25
24 This finding is predicated upon the stipulation of the parties entered into at hearing.
Those proceeding it with respect to this incident are based upon exhibits in evidence
ss The foregoing is predicated principally upon the credited, undisputed testimony of
John Janning, as supported in minor details by that of Gilbert Morey and Robert Jack-
son. The testimony of Frank Moore and Harold Frank concerning the remarks made by
Raun and Knowles is fragmentary and tentative and I do not place reliance upon it
In context of his testimony with respect to this incident, Janning testified credibly that
in the summer of 1962, Raun had explained the provisions of a retirement plan soon to
go into effect to employees assembled in the plant lockerroom. He also testified that in
1962, during working hours on the plant floor, he had secured an employee's signature
on an authorization card of the Union ; that this occurred at a time when Supervisor
Tierney was "standing off to the left there" ; that Tierney lodged no objection , and that
he, Tanning , had observed Ed Drilling solicit signatures at the plant during working
hours. While I credit this testimony, I place no reliance upon it as showing company
acquiesce in the practice, for company knowledge of these incidents is too imprecisely
shown to support an affirmative finding.
FARMBEST, INC. 1435
4. The affidavit of nonaffiliation
During this period, in the month of February, Ernest Raun prepared an affidavit
for signature of the employees of Farmbest, to the effect that they had not signed
authorization cards of Amalgamated or the United Packinghouse Workers of America.
Thereafter, Raun brought the affidavit to the plant, and after speaking briefly with
Curtis Scott, cutting floor supervisor, the employees on the kill floor were assembled.
The employees were informed as to the content of the affidavit and were asked by
Raun to sign the affidavit. Raun asserted, however, in effect, that any employee who
favored Amalgamated or had associated with Amalgamated should not sign the
affidavit, as the purpose was to separate the "chaff from the wheat." Approximately
30 employees signed the affidavit on this occasion ad
5. The alleged surveillance request
Aware that employees of Farmbest were endeavoring to affiliate with Amalgamated,
Ernest Raun, Bob Jackson, and Jim Thompson discussed securing an employee who
would endeavor to observe the efforts of other employees to bring about the affiliation
of Farmbest's employees with Amalgamated. Between them, Jackson and Thompson
selected Gil Morey and took him to the law office of Attorney Raun, where the request
was made of him to observe and "check on" employee contacts and associations with
Amalgamated. Morey was informed that he would be compensated for expenses
incurred in carrying out this request. No specific names were given Morey, but,
rather, the request was a general one.
After conferring with Thompson, Jackson, and Raun for approximately an hour,
Morey, Thompson, and Jackson left Raun's office and stopped for coffee at a
nearby restaurant. There Morey, jokingly, raised the question of the worth of his
activities to the Union. No additional compensation was offered him.27
Morey testified that the following *morning during his break, he was going upstairs
and passed Manager Crabb on the stairway. Both men were in a hurry and Crabb
stopped briefly and allegedly said to Morey, "About that, it is O.K. by me." Crabb
testified that he did not recall such an incident occurring. I have carefully con-
sidered the evidence of record pertaining to the special relationship that at this time
existed between Crabb and Morey, which required Crabb to remain apprised of
Morey's activities and well being, and have further carefully considered the testimony
of Frank Crabb, Robert Jackson, and James Thompson, which, in effect, refutes
the thrust of Morey's testimony with respect to Crabb's alleged involvement in the
Union's surveillance request. Additionally, I have considered the circumstances
surrounding Morey's termination from employment at Farmbest and, in sum, am
convinced that Morey was either mistaken in his interpretation of Crabb's remarks
to him on the stairway, or was influenced through bias against the Company to
expand his testimony in a manner tending to be detrimental to the Company's
interest.
20 The foregoing is predicated upon the credited, undisputed testimony of Robert Jack-
son and Frank Moore, as supported by the statement of record of Ernest Raun How-
ever, I do not credit the testimony of Moore that on this occasion Raun stated, with
reference to signing the affidavit, "By God, boys, you had better sign it." As discussed
more fully at footnote 56, snfre, Moore did not impress me as a credible witness.
21The foregoing is based upon the credited testimony of Jackson, Thompson, and
Morey. To the extent that Morey testified that he was given the name of Janning and
two other employees to observe, or, conversely, during the meeting in Raun's office, he
was instructed to undertake surveillance of several named employees ; and, further, that
during the meeting Ernest Raun endeavored unsuccessfully to reach Manager Crabb by
telephone, I do not credit him. His testimony in these respects is refuted by the testi-
mony of Thompson and Jackson, which I credit. Moreover, with respect to the alleged
discussion of surveillance of specific individuals, Morey's testimony on cross-examination
was contradictory of that on direct. Additionally, I reject Morey's testimony to the
effect that after he, Jackson, and Thompson left Raun's office, he was offered an additional
$100 in compensation for his surveillance activities, and that he endeavored on at least
three occasions to secure payment of this additional compensation. His testimony in
this regard is refuted by the testimony of both Jackson and Thompson,-and I credit them
in this respect. I do not credit the testimony of Frank Moore to the effect that in late
February or early March he overheard Morey ask Thompson at their work places, "When
are you going to give me the hundred dollars." As found infra, footnote 56, Moore's
uncorroborated testimony is not deemed reliable
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Employment history of John Janning
John Janning , a married man of approximately 30 years of age, resided during
times material herein at Carroll, Iowa, a community located approximately 30 miles
from Denison . He was first employed by Respondent Farmbest in November 1959,
and he remained in Farmbest's employ until May 3, 1963, when he was terminated.
Initially, for a period of some 3 to 4 months, Janning was employed in the hook-
room, in the kill department. He was then transferred to a torch operator's assign-
ment in the same department, and was employed in this capacity for approximately
6 or 7 months. From this point until he was terminated, virtually all of Janning's
working time was spent either at the torch or the ham-shaving assignment. In the
latter part of March it was decided by Supervisor Tierney that Janning's formal
designation was and should remain torch operator, and this determination was upheld
by action of the seniority board. His designation thereafter remained that of torch
operator during the balance of his employment at Farmbest. In the six pay periods
from March 23 until May 3, when he was terminated, however, Janning performed
the work of a ham-shaver during two full pay periods and in excess of one-half of
another pay period. Like the hook job, which Janning first performed and the
torch operator's assignment, the ham shaver's assignment was in the kill department,
which was supervised by Leonard Tierney. The ham-shaving job is compensated at
a rate of 20 cents per hour more than the torch job.
During the period in which Janning served as a ham-shaver, Harold Frank was
the designated number 1 ham-shaver. Additionally, during this period of Janning's
service with Farmbest, when a second ham-shaver was needed, Wayne Christensen
was utilized, if available. Frank considered Christensen the number 2 ham-shaver,
and indeed , when Christensen was not employed in a ham-shaving capacity, he per-
formed other shaving assignments which carried the same rate of hourly compensa-
tion. During the period of 1961 to May 1963, Christensen missed considerable work
because of illness and in the winter of 1962 underwent surgery and was in an
Omaha hospital.28
At the hearing the parties stipulated that during the period of Janning's employ-
ment at Farmbest, commencing July 2, 1960, until his termination on May 3, 1963,
he was employed as follows:
Pay period commene,ng Number of hours
torch operator
Number of hours
employed ham-shaving
July 1960---------------------------------------------- Full time
July 9------------------------- ------------ --------- -- -do---------- -----
July 16------- ---------------- -------------- -----------
July 2'^ ---------------------------------------- - ------
40% ho irs
Full time
3 hours
Juls- 30 -------------------------------------------------- ----- do----------------
Aupist r ----------------------------- ---- --------------
August I,- - - - - - - - - - - - -- - - --------------- -----------
----- do----- ----------
_ __ _do ----------------
August 20-----------------------------------
August 27- --------------------------------------------- Full tile-------------
40 one-half hours
Septcmbc' 3---------------------------------------------
S3pteinter 10--------------- ---------------------------- Full tine-------------
Full time
September 1--------------------------------------------
September 24, 1960 through Jaly 22, 1961, mciesive (44
weeks)
9 hours**______________ Do
July 29, 1065--------------------------------------------- Full time-
August 5---------- ------------- -----------------------
August 12 _______________
33 hours_______________
Full time- _
3 hours
*3fiscellaneous assignment to trolley room-7^L hours
**Trolley room-45i hours
28 The foregoing is predicated upon the credited testimony of Harold Frank and John
fanning. The record establishes to my satisfaction that Christensen's illnesses were
matters of common knowledge among his coworkers and I place reliance upon and credit
the testimony of Prank and Tanning with respect thereto in support of my finding as to
Christensen' s illness , although this testimony has hearsay aspects Tanning's testimony
that after the seniority board meeting, considered hereinafter, and his transfer to the
torch job, he worked as a ham-shaver for only a week or 10 days is in error
FARMBEST, INC. 1437
Pay period commencing Number of hours
torch operator
Number of hours
employed ham-shaving
August 19, 1961 through May 5, 1962 inclusive (38 weeks) _
May 12- -------------------------------
May 19__ ---------------
------------------------
Full time_____________
----- do----------------
Full time
May 26__ ------------------------ Do.
June 2--- ----------------------- 26% hours--- --------- - 13 hours.
June 9---- ---------------------
June 16----------------- ---------------
------------------------
Full time-------------
Full time
June 23------------------------------------------
June 30 through August 11, 1962, inclusive (7 weeks)_____
------------------------
Full time-------------
Do.
August 1S------- --------------------
August 25 -----------------------------------------------
September 1--------------------------------------------
------------------------
Full time_____________
----- do-----------------
Do.
September 8--------------------------------------------- ------------------------ Do.
September 15------------------------------------------- 1% hours______________ 36 hours.
September 22 through March 16, 1963, inclusive (27
weeks)
March 23------------------------------------------------
------------------------
Full time_____________
Full time.***
March 30------------------------------------------------ Do.
April6-------------------------------------------------- ------------------------ Do.
April13------------------ -
April 20 through May 3, 1963, inclusive------------------
17 hours ---------------
Full time_____________
213 hours.
***Includes 2 weeks' vacation compensated at ham-shaving rate
7. Janning lodges job posting complaints
In January 1963 John Janning was one of three employees selected as members
of the seniority board. The Company was represented on the board by three man-
agement members.
After Janning became a member of the seniority board several employees inquired
of Janning concerning the Company's job posting policy, and others stated their dis-
pleasure over the failure of the Company either to fill a job vacancy after the job
had been bid, or the Company's failure to post a job opening for bidding. None of
the complaining employees filed a formal grievance with the grievance committee,
and, as a consequence, none of the complaints came before the seniority board
for consideration. However, Janning voiced his complaint that the Company was not
properly posting and filling job vacancies to Manager Crabb and Supervisor Tierney.29
8. Janning and Knowles converse concerning job postings
In March 1963 Janning was called by Richard Knowles on a Saturday evening.
Knowles stated, in substance, that he understood that Janning had been complaining
about procedures at the plant and requested Janning to meet with him and discuss
the matter. An appointment was made for a meeting in Carroll, Iowa, at 3 p.m.
on the following Monday. Knowles, accompanied by another individual whose
identity was not known to Janning, met Janning at the appointed time and place.
Knowles assured Janning that their discussion would be kept in the "strictest con-
fidence" and went on to state that he had heard that Janning had "a lot of gripes
and complaints about things not being handled right at the pinat." Knowles asked
Janning to specify what the complaints concerned. Janning proceeded to articulate
his complaints about the failure of the Company to fill jobs that had been posted
and the Company's failure to post vacant jobs for bidding. At this juncture the
conversation appears to have turned to specific provisions of the collective-bargaining
agreement between Farmbest and the Union, and Knowles asked Janning if he did
not think the collective-bargaining agreement was a "good one." Janning agreed
that it was, whereupon Knowles asked Janning why he had changed his mind and
was now lodging so many "complaints and gripes." Janning answered, "As long
as there is one party to the contract or agreement that doesn't live up to the contract,
11 The credited testimony of John Janning and Harold Frank.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract is no good." Janning asserted that that was what was happening with
respect to the failure of the Company to post jobs. Whereupon Knowles stated,
"You don't realize, John, how much we put into this. This independent union is
going to be something in time. It is still young. It has a lot of possibilities of
growing and doing more for the employees, if the members just work with it."
Knowles thereupon asked Janning if he realized that after the United Packinghouse
Workers of America had organized the Farmbest plant, that they had closed down
the plant and put men out of work. Knowles went on to assert that at that time
many of the employees had come to him and inquired what they could do in order
to reopen the plant and receive back their jobs. Knowles further stated to Janning
that he had given these employees money to assist them in traveling to the Board's
Regional Office to file a petition seeking to decertify the United Packinghouse
Workers of America. Knowles then informed Janning that Rocco Roti had told
him that Janning had signed an Amalgamated authorization card. Janning answered
that he had not and Knowles remarked that he "was just asking." 30
9. Janning and Crabb meet concerning job posting
Soon thereafter, on an occasion in March 1963, as Manager Crabb was passing
through the plant, he was stopped by John Janning, who informed him that there
was dissatisfaction among employees concerning the failure to properly post and
fill jobs, and that there was "a lot of talk around" about the matter. Crabb answered
that he would hold a meeting that evening in his office with the seniority committee
and stated that he would "get the management people" and "find out what was
wrong." 31
The following day, March 19, 1963, during the afternoon, Leonard Tierney
informed Janning that there would be a meeting held in Frank Crabb's office after
work. Janning attended the meeting , and also present were employee Jim Gorman,
Superintendent Bud Twedell, Supervisor Leonard Tierney, and Manager Frank Crabb.
Crabb commenced the meeting by inviting Janning's comments . Janning outlined
the nature of his complaint, stating that some of the employees were not assigned to
their proper jobs, and that the Company had failed to fill job vacancies. Janning
additionally commented that this had been a matter of some widespread discussion
and noted that Richard Knowles had talked with him regarding the problem recently.
At this point Crabb stated to Janning that this was a matter that could be taken
care of within the plant and was not a subject that should be discussed "uptown"
with persons "that had nothing to do with it." Crabb thereupon solicited Tierney's
comments, asking if Janning's assertions were correct. Tierney admitted that they
were , and asserted that the problem had been rendered acute by the recent loss of
key plant personnel. Crabb then stated that he wanted the problem taken care of
immediately because he wanted the employees to be satisfied, and he scheduled a
meeting for 1 month later, at which time progress in solving the problem under
discussion would be evaluated 32
Prior to the meeting in Manager Crabb's office, the subject of job posting had
been a subject of widespread discussion among employees, both at the plant during
working hours , and in the employees ' conversation away from the plant and at union
meetings . Additionally, Janning and Frank Christensen, in discussions with Leonard
Tierney, had claimed conflicting priority to the ham-shaving job. The morning
following the meeting several jobs were posted on the bulletin board 33
so The foregoing is based upon the credited , unrefuted testimony of John Janning,
which, with respect to this incident was, on the whole, believable, and I am inclined to
credit it. Although it is seemingly implausible that Roti would inform Knowles that
Janning has executed an Amalgamated authorization card, it is entirely possible that
Knowles used this statement as a ploy to gain information from Janning and that, as a
consequence , Knowles made the comment to Janning that Janning attributes to him.
21 The credited testimony of Frank Crabb.
82 The foregoing findings are predicated principally upon the credited testimony of
Frank Crabb and Leonard Tierney, as supported in substance by that of John Janning.
I credit the testimony of Frank Crabb, which has record support in the testimony of
Leonard Tierney, that he first became aware of Janning's conversation with Richard
Knowles concerning job posting complaints when informed by Janning of the conversation
at the meeting in question. Thus, I do not credit Janning's contrary testimony that
Crabb, rather than he, Janning , raised the issue at the meeting.
sa The foregoing is based upon the credited testimony of John Janning, as supported
by that of Harold Frank and Leonard Tierney.
FARMBEST, INC. 1439
10. Janning disputes assignment to torch job
Subsequently, commencing March 30, Janning was designated to perform the job
of torch operator, and for a period of some 2 weeks did not work as a ham-shaver.
He was notified that he should work at the torch job by Leonard Tierney, who
informed him, in substance, that as he, Janning, had been complaining about the
improper assignment of jobs, management was going to straighten out the matter as
Janning had requested, and in so doing Janning's assignment would be included.
Tierney then informed Janning that the ham-shaving assignment was not his but
but belonged to Frank Christensen, who, like Janning, was employed in the kill
floor section of the production department. Jannmg disputed this, asserting that
he had been on the ham-shaving job for over 2 years; whereupon Tierney stated
that the job was not his in the first instance but was Christensen's; that Janning's
assignment to the ham-shaving job had been temporary and that his proper assign-
ment was that of torch operator.34 Janning contended that this was incorrect under
the collective-bargaining agreement, in that his plant seniority and job seniority
exceeded that of Christensen. At this point Tierney suggested that a meeting of the
seniority board be held to decide the issue. Janning protested, stating that he felt
this to be an unfair means of settling the issue in that he, Janning, was an officer
of the seniority board. As an alternative Janning suggested that a six-member com-
mittee-preferably from the beef plant-be convened to hear and decide the issue
of proper job assignment.35
11. The seniority Board meets
In late March 1963, a meeting was held between management and the employee
members of the seniority board, at which a decision was made to award the ham-
shaving job to Wayne Christensen. The meeting had been rescheduled three times,
as At the hearing Tierney explained the basis of his decision as follows
A. It goes back quite aways. It goes back to before we had a contract. At that
time Wayne Christensen was on the ham shaving job and John Janning was on the
torch, torch operator and when the [1960] contract was signed it was agreed be-
tween the company and the union that any man who was on these jobs, doing the
job, would be froze or would be their permanent job [article 25, section I]. From
then on in order to get off this job you would have to bid on a job, a new job that
was open The job was put on the board and you bid on it. That is the only
way you move off a job.
Q. I see. Are you familiar with the seniority list Mr. Witness?
A Yes
Q. And I hand you General Counsel's Exhibit No. 8-A. Do you know that accord-
ing to that list Mr. Janning has more seniority than Mr. Christensen, is that correct?
A. That is right. That is correct.
Q. Is it your testimony the seniority list is wrong?
A. No.
Q. Are you familiar with the contract, Respondent Union's No. Exhibit 1?
A. Yes.
Q. Do you know that in case of a transfer-let me ask you this. Mr. Janning
and Mr Christensen worked in the same department, isn't that correct?
A. That is correct.
Q. Both worked in the production department. I direct your attention to
articles 2, entitled, "Seniority." Both Mr. Christensen and Mr. Janning in March
of 1963, previous years worked in the production department?
A. Yes.
Q. And both worked in the kill floor section?
A. Yes.
Q. And you are familiar with the contract, are you not, in the case of a reduction
of department or section employees will be permitted to exercise the right to any
department or section where he has had previous service?
A. Yes.
Q. And that if Mr. Janning had higher seniority in the same department and same
section then he would have preference to the ham shaving job?
A No, that don't say that It says, "If he had senioiity in another department."
He's in the same department ; always been in the same- department.
i5 The foregoing is based upon the testimony of John Janning which I credit, as sup-
ported in skeletal aspects by the testimony of Leonard Tierney. Tierney's testimony
with respect to the transfer conversation is less detailed but is not at variance with that
of John Janning.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
twice at management's behest and once to serve the convenience of Janning. Present
at the meeting were employees John Janning and Jim Gorman, members of the
seniority board, and management representatives Leonard Tierney, Curley Scott, and
Bud Twedell. Also present were Wayne Christensen and Robert Pester, an employee
in the kill department. Neither Christensen nor Pester were employee-members of
the seniority board. One employee-member of the board was not present, and as
the meeting was commencing Janning called this to the attention of Curley Scott,
inquiring as to the whereabouts of the third member. Scott answered that he
probably went home but that he didn't think it made much difference.
At the commencement of the meeting Leonard Tierney summarized the occurrences
leading to the convening of the seniority board, alluding to the pendency of his deci-
sion to transfer Janning from the ham-shaving job to the torch operators assignment,
and his reasons therefore, and referring to past precedent in analogous, conflicting,
job-claim circumstances. Jim Gorman, in effect, asserted that John Janning was
wrong in his contention as to the propriety of the pending job assignment and
asserted, in effect, that Janning was contending against the validity of a collective-
bargaining agreement. Janning answered that, in his opinion, it was necessary for
each of the parties to live up to the terms of the contract in order for it to have
any validity and worth. Gorman thereupon, in a loud voice, said that if Janning
"didn't like [his] lob ... [he] could leave any time and there would be a lot of fellows
to help [him] out the door." Gorman further asserted that Janning "didn't have to
stay." Gorman added that he "didn't think [Janning] was worth a damn."
Tierney at this point explicated his position with respect to the dispute, asserting
further that while it didn't "make the least bit of difference" to him "who was
up there" he felt that the job was Christensen's. Superintendent Bud Twedell,
who had been asked for a statement of his position with respect to the issue, stated
that that while he did not know "too much about it and wasn't familiar with the
case," and added that he felt that he had to "go along with" Tierney on the decision.
The voice vote was taken at this juncture and all, save Janning, voted in favor
of awarding the assignment to Wayne Christensen.
After the seniority board decision had been reached, John Janning registered
no further dissent.36
12. Janning takes sick leave
John Janning was absent from work at Farmbest on Tuesday, April 16, through
Monday, April 22. He testified that he had been bothered for "some time" prior
to April 16 with a hip ailment and that, as the soreness had worsened and he felt
incapable of properly performing his work at the plant. he decided to take sick
leave.37 He testified further that on the morning of April 16 he notified employee
Roscoe Sapp. a fellow employee and a member of his car pool, of his intention to
take sick leave. and requested him to inform management of his decision to absent
himself from work because of illness 38
Janning credibly testified, however, that twice on Thursday, April 18, and once
on Saturday, April 20, he endeavored to obtain an appointment with a doctor.
He was unsuccessful in his two attempts on Thursday, but on Saturday, April 20,
was able to make an appointment to see Dr Morrison at his office in Carroll, Iowa,
for Monday morning, April 22. Janning testified that he visited Dr. Morrison on
33 The foregoing is predicated upon the credited testimony of John fanning, supplemented
by that of Leonard Tierney. I do not credit John Janning's testimony to the extent that
it is susceptible of the interpretation that no vote was taken on the issue before the board.
Rather, I credit the testimony of Leonard Tierney in this respect
37 The period of Janning's absence from work is not in dispute. While I credit Janning's
testimony to the extent of finding that he had been troubled with a soreness in his hip
and that the soreness existed when he absented himself from work, I do not accept
Janning's testimony as establishing that this was the true reason for his absence from
work.
38I do not credit Janning's testimony in this respect. Although Janning's testimony
was not contradicted directly by testimony of other car pool members, the testimony of
Tierney, which I credit, casts doubt upon the accuracy of Janning's testimony. Addi-
tionally, and determinatively, on direct examination of fanning this element of the overall
incident was glossed over, and on cross-examination Janning demonstrated no clear
recollection of when he allegedly instructed Roscoe Sapp to inform management of his
intention to absent himself from work, and this facet of his testimony was evasive. More-
over, the General Counsel made no effort to reinforce its case by interrogating Roscoe
Sapp either as its own witness, on cross-examination when he appeared as a witness on
behalf of the Union, or in rebuttal after Tierney had testified in a manner contradictory to
Janning.
FARN21BEST, INC. 1441
Monday and was examined by him, and was advised to have a thorough dental
checkup before further treating his hip ailment. Dr. Morrison gave Janning a
written, signed statement on a prescription form bearing Dr. Morrison's name and
address, which statement, upon his return to work, Janning gave to Leonard Tierney go
Additionally, Janning credibly testified that during his 5-day absence from work
he undertook self-treatment of his hip ailment in order to relieve the pain.
13. Tierney investigates Janning's absence
On Tuesday, Aplil 16, the first day of Janning's absence from work, Tierney was
informed by an employee member of Janning's car pool that he had stopped by the
Jannmg's residence and, having seen no light, assumed that Janning was not coming
to work that day. The following morning, Tierney was informed by employee Herb
Beck that Janning was working on a new home that he was building in Carroll, Iowa,
and that Janning was not ill. That afternoon, Tierney went to Carroll and was
directed by one Burt Sawyer to the site of the home which Janning was building.
It was raining and no one was at the construction site.
Thereupon, Tierney went to the residence of Janning's parents and there talked
with Janning's sister, who stated that Janning was not home, that he had not been
feeling well and that he had gone to see a doctor. From there Tierney drove past
Jarining's home in Carroll and observed no automobile parked on the premises.
He did not stop at Janning's residence. Thereafter, Tierney drove back to Denison.
Manager Crabb was out of town during the week of April 15, and when he
returned on Monday, April 22, Tierney related the substance of the foregoing
events to Crabb.
14. Janning receives unauthorized absence warning
When Janning reported to work on Tuesday, April 23, Tierney handed him an
unauthorized absence slip, dated April 23 and bearing Tierney's signature. It read
as follows: 40
This is to advise you, John Janning, that this is your first warning for an
unauthorized absence on the date of April 16, 1963. You are entitled to three
warnings. The second one shall result in a one day suspension from work with-
out pay, and a third shall result in termination and severance from employment.
On payday, Thursday, April 25, Janning received no paycheck for the preceding
week. He inquired of Bud Twedell, whom he observed passing out paychecks, if
Twedell had a check for him. When Twedell answered in the negative and inquired
if Janning had a check coming, Janning told Twedell that he had been ill the
previous week. Twedell instructed him, in substance, to see the bookkeeper.
Janning went to the office and spoke with the bookkeeper, who stated that he
should talk with Tierney concerning the matter. He instructed Janning to conie
back in 15 minutes. Janning did so, and upon his return to the office was told by
3° The statement was as follows
The above named [John Janning] was examined by me and advised to have addi-
tional dental work performed , chiefly extractions . This should be done as soon as
conveniently possible.
40 The foregoing is based upon the credited testimony of Leonard Tierney, and the
document in evidence as General Counsel's Exhibit No. 7 I have carefully considered
the conflicting testimony of Tierney and Janning concerning the date on which Janning
received the unauthorized absence slip from Tierney I credit Tierney. Not only was
Tierney convincing in his testimony that he gave Janning the slip immediately upon
Jammng's return to work, but the slip bears an April 23 date Moreover, Janning's
testimony with respect to the verbal exchange between him and Tierney at the time
Tanning testified the unauthorized absence slip was given him impressed me as somewhat
overdrawn and self-servicing Nor does the evidence warrant an empirical determination
that the slip was given Janning on April 30, as Janning testified While it is established
that management , on April 23, contemplated further investigation of the circumstances
underlying Janning's absence-a factor supporting issuance of the slip on April 30-
the evidence also shows, and I find, that Janning failed to inform Tierney of his inten-
tions to absent himself from work, Tierney had conducted an investigation prior to
April 23 conceining Janning's absence and had been given information concerning Jan-
ning's activities, which could reasonably have cast doubt upon the validity of Janning's
absence These consideiations tend to support the testimony of Tierney that the slip was
issued on April 23.
206-446-66-vol 154-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bookkeeper to speak with Tierney. Janning went to Tierney's office and asked
Tierney about his paycheck, and Tierney, who had in his possession a check made
out to Janning, stated that he was going to investigate "a little further" into the
matter before giving Janning his paycheck. When asked by Janning the meaning
of his statement that he was going to investigate further, Tierney withdrew from his
desk drawer a newspaper clipping from a Carroll newspaper concerning a bowling
match in which a John Janning was reported to have achieved a high bowling
score on the evening of April 15. Questioning Janning about the clipping, Tierney
observed that "it doesn't look like your hip was too sore for that but it was too
sore to come to work." Thereupon Jannmg informed Tierney that the clipping
related to Janning's counsin, who possessed the same given and last name Janning
further stated to Tierney that he had bowled only once or twice in the past year.
At this point Tierney stated to Janning that he would inform Frank Crabb of
Janning's explanation of the bowling clipping. Tierney further stated that Crabb
desired to "check with [Janning's] doctor" and that until a further investigation was
accomplished, the paycheck would not issue. Tierney stated, in effect, that if the
investigation sustained Janning's statement, Janning would receive the check.41
15. Manager Crabb conducts further investigation of Janning's absence
In the meantime , on Thursday, April 25, Tierney had informed Frank Crabb of
Janning's request for sick leave payment, and Crabb had instructed Tierney to with-
hold the payment until he had discussed the matter of Janning's illness with Dr.
Morrison at the Rotary meeting in Carroll the following Monday evening. Crabb
did discuss this matter with Dr. Morrison on the following Monday evening, April 29,
and was informed by Dr. Morrison, in substance, that Janning was suffering from no
physical disability that would require him to miss work, that he felt that all Janning
needed to do was to have his teeth fixed. Dr. Morrison further informed Crabb
that he desired to refresh his recollection concerning the Janning illness, and
requested that Crabb call him later in the weeK Thereafter, on Thursday after-
noon, May 2, Crabb did telephone Dr. Morrison, who informed Crabb that he had
checked his records and that they substantiated what he had told Crabb on the
previous Monday evening. Dr Morrison then reiterated what he had informed
Crabb during their previous conversation concerning the Janning illness, and addi-
tionally stated that the needed work on Janning's teeth could be accomplished during
his day off from the plant.42
16. Amalgamated instructed to accelerate organizational efforts
On April 23, Janning attended a meeting of Amalgamated at Storm Lake. In
attendance were Jack Lloyd, executive vice president of Amalgamated, Rocco Roti,
and Lou Daniels. Lloyd instructed Roti, Daniels, and Janning to "step up" the
Amalgamated organizational campaign at Farmbest and further instructed Janning
to endeavor to obtain a seniority list and information concerning Farmbest truck
destinations.
The next day Janning related these details to Bob Jackson and Jim Thompson,
and requested them to endeavor to arrange employee meetings. Thompson informed
Janning that he would "let him know" during the ensuing week. Janning tried on
three or four occasions to set up meetings with Jackson and Thompson, but to no
avail. While Janning assisted in endeavoring to set up group meetings during the
period of 1963 prior to his May 3 discharge, he made only a single call to a home
of an employee in the company of Amalgamated representatives during this period.
After his discharge he made many such calls.43
17. John Janning discharged
The morning following his conversation with Dr. Morrison, Frank Crabb tele-
phoned Fred Claxton, the assistant general manager of Consumers Cooperative
Association in charge of personnel. He informed Claxton of Janning's absence from
work, of his effort to collect sick pay, and of the matters disclosed in the investigation
41 The foregoing is based upon a composite of the credited testimony of John Janning
and Leonaid Tiernev I make no resolution of the conflict in the testimony of Janning
and Tierney with respect to whether or not a discussion between them concerning Janning's
paycheck occurred in the presence of the bookkeeper I do find that the check did issue,
that T'ieinev received possession of it. and that it became the subject of a discussion
between Janning and Tierney as set forth above.
42 The foregoing is based upon the credited testimony of Frank Crabb and Leonard
Tierney.
i3 The foregoing is based upon the credited , unrefuted testimony of John Janning.
FARMBEST, INC. 1443
which had been conducted. Crabb stated his understanding that employdes abusing
sick leave policy were subject to discharge. Claxton confirmed this and expressed
his opinion that Janning should be discharged Crabb and Claxton discussed the
wording of the discharge notice with a view to its effect upon the future employment
prospects of Janning, his ability to collect unemployment compensation, its implica-
tions, strategically, in the event of a state proceeding under a "service letter suit"
or an arbitration proceeding. It was decided that Janning should be discharged as
"an undesirable employee."
After discussing the matter telephonically with Claxton, Crabb called Supervisor
Tierney into his office and informed Tierney that John Janning was to be discharged
thot evening as "an undesirable employee." it
That afternoon, after Janning had completed his work, Tierney conversed with
Janning on the kill flooi near the time clock. Tierney informed Janning that he
was "going to have to discharge [him] as an undesirable employee." Janning inquired
if this had "something to do with [his] union affiliation." Tierney responded by
stating, "John, its got nothing to do with the union." He told Janning that he
should feel free to talk with Manager Crabb about the discharge 45
44 The foregoing is predicated upon the credited testimony of Frank Crabb and Fred
Claxton.
45 Tile foregoing is predicated upon the credited testimony of Leonard Tierney. In
instances wherein Janning's testimony is at variance with that of Tierney, I do not credit
Janning. Specifically, to the extent th-it Janning's testimony ascribes to Tierney a state-
ment in explanation of Janning's discharge to the effect that the Company had been
having trucks stopped and their trucking interfered with, and that this constituted a
positive factor in his discharge, I do not credit Janning.
I have considered and reject Frank Moore's testimony that a few days after Janning's
discharge he asked Tierney why Janning was discharged and Tierney answered that it
was because Janning was "talking against the Local tUnion], because he had complained
to State officials concerning Farmbest's technique of sewage disposal and because Janning
was generally undesirable " For reasons stated 2nfra, footnote 56, I do not consider
Moore 's testimony credible.
I have, however , considered and credit Janning's undenied testimony that soon after
his discharge he was told by Gordon Gosch that his termination resulted from Janning's
complaints about Farmbest 's method of sewage disposal and because of his activities on
behalf of Amalgamated. Moreover, I credit Janning's testimony that at the May 16
meeting of the Union 's committee in Rain's office , Gosch reiterated his comment to those
present. However , while I give consideration to Gosch's comments in arriving at my
ultimate finding as to company motivation , I find that Gosch 's remarks reflected merely
his own impression and were not based upon statements made to him by any agent of
Farmbest and were not, accordingly, attributable to Farmbest
I have also considered and credit the testimony of Roscoe Sapp, Lawrence Steffes, and
Don Bauer to the effect that on May 3, 1963, as members of John Janning's car pool,
they rode in an automobile with Janning from the Farnibest plant in Denison to Vail,
Iowa , where they stopped at a tavern and engaged in a discussion of Janning ' s discharge
and the effects thereof. I credit their testimony that during the conversation Janning
stated that his discharge occurred a week sooner than he expected , and that there would
now be an accumulation of nondeliverable meat at the plant. Further, I credit Roscoe
Sapp's testimony to the effect that during the conversation at the Vail tavern Janning
stated that on an occasion during his recent absence from work on sick leave, he observed
Leonard Tierney outside his home and that he had "had someone go out and tell him
that be was at the doctor's or he wasn't there at the present time." Additionally, I
credit Sapp's testimony that, as he alighted from the car pool automobile at a point east
of Denison , he made a statement to the effect that "You think you had troubles before.
You will have it now." I credit Janning's testimony that he was met on this occasion
by Rocco Roti and Lou Daniels. With respect to the foregoing testimony of Sapp, Steffes,
and Bauer, I further find that the Vail tavern conversation, which occurred after Jan-
ning's discharge, did not come to the attention of any of Respondent Farmbest's super-
visory personnel until at least a week after Janning's discharge, when Steffes Informed
Leonard Tierney of the substance of the conversation. While the, Company appears
to have been apprised of these events at the time of the May 25 grievance meeting, sub-
sequently considered , and may have considered them as factors in denying Janning's
subsequently filed grievance, as hereinafter considered, this information, in the nature of
things, played no part in Farmbest's decision to terminate Janning. However, I have
considered and weighed Janning's expression of anticipated discharge, but find it lacks
value as an indication of company motivation, for upon this record Janning's expression
was as consistent with an awareness of his vulnerability for sick leave offenses as with
belief or knowledge that union or concerted activities were to bring about his termination.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18. Janning files grievance
On May 8, 1963, Janning filed a written grievance pertaining to his discharge with
Robert Jackson, then newly designated president of Crawford County Industrial
Labor Union Additionally, on May 9 by certified mail he served Farmbest with a
copy of the grievance40 Soon theieafter Janning received a letter from Ernest A.
Raun, in which Raun stated that it was his understanding that Janning had filed a
grievance against Farmbest and that the Union was willing to cooperate with
Janning in "pressing these charges." The letter invited Janning to meet with the
committee on Thursday, May 16. The letter further requested Janning to inform
Raun by telephone or return mail if he wished to "press the charges."
19. Janning meets with union executive committee
A meeting of the union committee with Janning was subsequently held on May 16
at Ernest Raun's office. In attendance, in addition to Janning and Raun, were the
employees comprising the executive board of the Crawford County Industrial Labor
Union, including Robert Jackson, Gordon Gosch, Alvin Bandow, Wayne Randall,
and Leslie Campbell. The meeting was held in the library at Raun's law office, and
the individuals attending the meeting seated themselves around a large library table.
The proceedings of the formal meeting were recorded on tape and the recording was
later reduced to a typewritten transcript 4i The meeting lasted in excess of 1 hour.
Ernest Raun commenced the meeting by making a brief opening statement concern-
ing the purpose of the meeting, which he stated as being "to obtain from [Janning]
all the information that he has available concerning his claim of unlawful discharge
in order to better represent him and to see that he received fair treatment and a
fair hearing before a joint meeting of union and management, and, if need be,
before a board of arbitration." In his opening statement Raun further informed
Janning that the Union had made a preliminary investigation concerning his dis-
charge and, in effect, invited Janning's "full discussion" concerning the matter of
his discharge. The balance of the meeting consisted in its entirety of Raun posing
questions to Janning and of Janning answering them. Questions were posed by
Raun and answers given by Janning as to the reason given by management for
Janning's discharge, Janning's conversation with Tierney upon being discharged on
May 3, the steps taken by Janning in perfecting the filing of his grievance, whether
or not the steps taken complied with the provisions of the Union's bylaws, the means
employed by Janning in notifying management concerning his intention to take sick
leave, the duration of his absence from work, the extent of his illness or incapacity,
his activities during his sick leave absence, his efforts to obtain medical attention and
advice, his efforts after his return to work to receive sick leave compensation, his
meetings and conversations with representatives of Amalgamated, information fur-
nished by Janning to those representatives relating to the operations of Farmbest,
and extensive interrogation concerning his affinity to Amalgamated and the extent
of his allegiance to Crawford County Industrial Labor Union48
After the meeting Janning requested Raun to furnish him with a copy of the
transcript of the grievance meeting, and on May 23 made a written request for the
transcript in a letter to Ernest Raun. Raun responded by letter of May 27 asserting,
46 The grievance read as follows:
The undersigned employee hereby files his grievance pursuant to Article 22 of the
Agreement between Farmbest, Inc , of Denison, Iowa and the Crawford County In-
dustrial Labor Union of Denison, Iowa
(1) The Company has violated the contract by discharging the undersigned
employee without just cause on May 3, 1963
(2) The Company has refused to pay the undersigned employee sick leave to
which he is entitled under Article 13 from April 16 to April 22, 1963.
(3) In view of the foregoing, the undersigned employee requested full rein-
statement to his former job, backpay from the date of discharge to the date of
reinstatement, and full sick leave for the period set forth above.
The document entitled "Grievance" was executed by Janning.
44 The transcript was received in evidence as Respondent Union's Exhibit No. 9 The
General Counsel contends that the evidence pertaining to this incident reveals the extent
of the Union's involvement in a scheme with Farmbest to exclude Amalgamated from the
plant, as well as the failure of the Union to properly represent its members in disputes
with management
48 The foregoing is predicated upon the testimony of fanning at the hearing and the
transcript of the May 16 meeting as reflected in Respondent Union Exhibit No 9
FARMBEST, INC. 1445
in substance, that he had never refused to provide Janning with a copy of the
transcript but that he refused "to provide a copy to the adverse union, Amalgamated
Meat Cutters...." However, in the letter Raun stated he would provide Janning
with a copy of the transcript for his own use and not for that of Amalgamated, if
Janning would come to his office.49
20. The May 25 grievance meeting
On May 23, 1963, Ernest Raun directed a letter to Manager Frank Crabb, the
text of which is as follows:
This is to inform you that John Jannings [sic], together with the executive
committee desires to meet with you and the foreman of your kill floor to discuss
the grievance charges filed by John Jannings [sic], all as provided for in Article
23 of our contract.
I would like to be informed as to some satisfactory dates for this purpose in
the near future.
By letter of May 24 Manager Crabb responded as follows
This to acknowledge receipt of your letter of 5/23/63 on the John Janning
case.
This case has not, to date, been handled according to our contract, inasmuch
as it has not been processed as a grievance should be, according to Article 23.
It has not been handled through the 1st and 2nd Step [sic] of the Grievance
Procedure.
You, as the attorney for the Crawford County Industrial Labor Union, of
Denison , Iowa, and John Janning, as a past president, know that the deadline
for filing a grievance elapsed prior to the date of your letter.
Notwithstanding the foregoing, a grievance meeting was held on June 25.50
The meeting was held in the office of Manager Frank Crabb, and in attendance
were John Janning; Manager Crabb; Fred Claxton and Ed Schwarzkopf, representing
Consumers Cooperation Association; Supervisor Lawrence Tierney; Ed Tracey,
46 The foregoing is based upon credited testimony of John Janning and documents in
evidence.
so At approximately the time corresponding to the exchange of letters between Raun
and Crabb relating to the scheduling of a grievance meeting , Ed Drilling, then president
of 'Crawford County Industrial Labor Union , posted on the bulletin board a document
over the signature of "The Committee " which read as follows
NOTICE TO EMPLOYEES OF FARMIJEST, INC.
AT THE REQUEST OF YOUR PRESIDENT, ED DRILLING, I SUBMIT TO YOU
THE LAW CONCERNING THE RIGHT OF MANAGEMENT TO DISCHARGE
EMPLOYEES IN BRIEF AS FOLLOWS:
1 THE NLRA DOES NOT INTERFERE IN ANY WAY WITH EMPLOYERS
USUAL OPERATION OF HIS BUSINESS ALL IT DOES IS FORBID HIM FROM
THWARTING HIS EMPLOYEES RIGHTS TO ENGAGE IN OR REFRAIN FROM
ENGAGING IN UNION ACTIVITIES IT DOES NOT PREVENT HIM FROM DIS-
CHARGING HIS WORKERS FOR JUST CAUSE OR FOR NO CAUSE AT ALL IT
MERELY PREVENTS SUCH ACTION IF THE REASON FOR IT IS ANTI-UNION
OR PRO UNION
2. AN EMPLOYEE MAY BE DISCHARGED FOR THE FOLLOWING CAUSES
AND OTHERS: A IN CITING [sic] A WILD CAT STRIKE, B. UNSATISFACTORY
JOB ATTITUDE, C DISLOYALTY, D FILING OF FAKE CLAIM FOR WORK-
MEN'S COMPENSATION, E. FAILURE TO REPORT FOR WORK, F. ABSENT
WITHOUT NOTICE, G. FAINTING [sic] ILLNESS, H AND FOR ANY OTHER
REASON OTHER THAN UNION ACTIVITIES OR AGITATION FOR COLLECTIVE
BARGAINING.
JOHN JANNINGS [sic] HAD BEEN NOTIFIED TO REPORT TO THE COM-
MITTEE FOR THE PURPOSE OF CONTINUING THE GRIEVANCE PROCEDURE
WITH MANAGEMENT, AND MANAGEMENT HAS BEEN NOTIFIED THAT A
MEETING IS DESIRED BETWEEN THE COMMITTEE AND MANAGMENT
A GENERAL MEETING WILL BE CALLED CONCERNING THE JANNINGS' [sic]
CASE WHEN WE HAVE ADEQUATE INFORMATION TO PRESENT. IN THE
MEANTIME, AS TO WELT PROGRESS IS BEING MADE CAN BE OBTAINED
FROM THE PRESIDENT OR AT THE OFFICE OF THE ATTORNEYS FOR
THE, UNION [sic]
The Committee
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager of Respondent Company's Iowa Falls beef plant ; Ernest Raun; and the
members of the union executive committee , including Ed Drilling, Bob Jackson,
Wayne Randall, and Gordon Gosch.51
I find that Respondent Company's Exhibit No. 2 accurately reflects the events of
record that transpired at the meeting and I incorporate this exhibit by reference into
the findings of this case. But more specifically, after carefully studying this exhibit,
hearing the transcription from which the exhibit was prepared, and weighing the testi-
mony at the hearing of Fred Claxton and of John Janning relating to the meeting,
I have distilled the following findings, which I consider to encompass the more signifi-
cant of the events that occurred, and with respect to the meeting, have reached the
following salient conclusions:
At the meeting full and ample opportunity was accorded the Company, Janning,
and the Union to state their respective positions regarding the merits of the Janning
grievance and to give testimony in support thereof. Through Attorney Raun, Janning
was given opportunity to detail the extent of his activities on behalf of Amalgamated
and to assert his opinion that his union activities had been the cause of his discharge.
Testimony of John Janning and of Supervisor Tierney relating to the terminal con-
ference between them was developed, as was Manager Crabb's recount of the investi-
gation conducted into the circumstances surrounding Janning's week-long absence
from work.
Of paramount significance, as evidence bearing upon the issue of motivation for
Janning's discharge, the following statement was made on behalf of the Company by
Fred Claxton;
I would say that the reason for the discharge is this falsification, this misrepre-
sentation of the sick-leave plan. Further extenuating circumstances here would
be the work record that John had established here. We don't know whether it
was union activity or not, but he did cause considerable interruption with opera-
tions here, interrupting other employees and disturbing the place of here. We
maintain that this was unnecessary interference with operations
Claxton then invited Foreman Tierney to remark concerning this. Tierney responded
as follows:
Well, the one thing is on seniority. John always was fussing a lot on the job
that he had was running the torch. He said wasn't his job that the job Wayne
Christiansen had shaving was his job and according to the contract it was the
other way around. The torch job was John's and shaving was Christiansen's, and
he was continually arguing the point-causing confusion.
On seniority is the thing. For quite a while, John's regular job was running the
torch, and he wanted to learn another job, so I trained him as a shaver so he
shaved, and then when the time came to put him back on the torch again, he
always contended that that shouldn't be his job-the shaving should be his job.
The regular shaver, Wayne Christiansen, that was his job and the torch was
John's job, and he always wanted to work the thing around that he would be the
shaver, and he was continually causing confusion and arguing that point but
according to the contract, the shaving job was Christiansen's and the torch job
was John's. But he never would settle for that.
At this point in the meeting the following colloquy occurred:
MR. RAUN: Well, wasn't John on the Seniority Board?
RED TIERNEY: Yes.
MR. RAUN : Did you have meetings of the Seniority Board concerning this
particular matter?
RED TIERNEY' Well, we, the last meeting we had on Seniority we did settle
it then at that time that he would have to stay on the torch-that that was his
job, and at that time he did go back on the torch.
JOHN JANNING: I want to ask you this, Red. You stated that was the reason
of interference or considerable amount of arguing or discussion, but actually at
this same time, I don't think this ever caused the slowdown at the plant or caused
the period at the plant where you were getting less production.
m The General Counsel asserts that In a manner similar to that displayed with respect
to the earlier May 16 meeting in Raun's office, the Union cooperated with the Company
In Its efforts to remove Janning from the plant because of his adherence to Amalgamated,
and was a willing accomplice in giving Janning's grievance less than full, objective
consideration.
FARMBEST, INC. 1447
FRED CLAXTON : We did have complaints from other employees of John's
interfering with ... well, you state what you know about it.
JOHN JANNING: Yes, uh, and I want to have Red clarify this. After we had
this meeting with the Seniority Board discussed this, taken care of and agreed
on, I never brought it up again , did I, Red?
RED TIERNEY' Not after that time. No.
JOHN JANNING: I never did
RED TIERNEY: Not after that time. No.... In other ways where we would
have a man on the job John would go to them that they were being mistreated-
that they didn't have the job they were supposed to have or something about
that was wrong, and they were continually wondering whether they were being
treated right because of this. We have several cases of that.
FRED CLAXTON: How often would this happen?
RED TIERNEY: I wouldn't know how many times, but we had several cases.
JOHN JANNING: Well, if I made this statement. When was this or what time
was that) Was that when I was president of the Union?
RED TIERNEY: No.
JOHN TANNING: Don't you probably think some of these people probably had
confidence in me and asked me, ah , information or help on some of these things
after being President of the Union?
RED TIERNEY: They never stated that to me.
JOHN JANNING: They never stated it.
Following a recess, Tierney and Claxton further explicated the position of the
Company with respect to the disruptions caused by Janning's complaints concerning
job assignments . Claxton, in summarizing Tierney's remarks, stated "then he defi-
nitely created a disturbance in the minds of other employees. That is the point we
are trying to establish here." Noting that this statement was cast in conclusionary
terms, Raun asked for an explanation of the nature of these disturbances . In response
to this Tierney answered as follows:
Well, some things like if you put an employee on the job and he would, in some
cases tell them that they weren't on the right job, or that they should have some-
thing else-that we weren't handling the thing right.
Fred Claxton responded to Raun's question as follows:
He was creating in the minds of these employees , Ernie, that the terms of the
contract were not being lived up to by the Company. That they were being
mistreated under the terms of this contract which carried on day to day and
week after week causes loss of faith and the way that you can manage a plant
and with this type of thing going on you can't. You just lose the benefit of
having an established contract. Again pointing out the fact that we didn't rely
on our grievance procedure which is very clearly spelled out where we can take
these things up in an orderly manner and at times that would not interfere with
production. This is the basic part of operating under the provisions of the
contract. That is part of the benefit that we get from it, is the fact that we do
establish orderly procedures , here and that we don 't have to have employees
disturbed in the performance of their job even for a few minutes a day. This
effects their overall plant operations and efficiency . That is the reason we have
established the procedures we have. We are saying that John, being fully aware
of the provisions of this contract, did not live up to it. Even though he had
been a party to the negotiations of the contract.
As the meeting neared its close , Claxton again summarized the Company's position
as follows:
Well, I would simply re-state the basis of the discharge is the falsification of a
claim for paid sick-leave which has not been substantiated by a doctor's certifi-
cate , and such misrepresentation by this employee, or any other employee, in
our minds would constitute grounds for discharge . We would further deny the
application of any further provisions of the grievance procedure in this case due
to the fact that the grievance procedure has been ignored entirely . It has not
been followed . If there were extenuating circumstances that should have been
brought to our attention , the time to do that was in Step I of the grievance pro-
cedure , and this has not been done, and I do not believe that we can provide the
benefits either to the employer or to the employee provided under this contract
by knowing the disregarding of the provisions of this contract. So in view of
this we would deny this grievance in its entirety.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A recess was then taken during which the respective participants in the grievance
meeting, i e., management and the Union, and their respective representatives,
caucused separately to consider the matter The members of the union executive
committee , following extensive discussion , decided against taking the issue to arbitra-
tion. Raun did not advise or endeavor to influence the members of the committee
with respect to their decison 52 The grievance meeting then resumed and Claxton
stated that the Company denied the grievance Drilling, president of the Union,
stated that decision had been reached by the committee not "to continue any further."
The meeting then closed with a reaffirmation by Drilling that the decision of the
committee was not to carry the matter to arbitration 53
I further find that during the course of the meeting its continuity was interrupted
on three occasions . The first interruption, a recess, took place somewhat early in
the meeting and followed a discussion of whether the Janning grievance had complied
with the contractual provisions governing the filing of grievances , and of Janning's
statement that he had received legal advice concerning his grievance from an attorney
representing Amalgamated. Janning credibly testified that during the recess, employee
members of the committee, including Drilling, Gosch , and Randall , criticized him for
failing to assist the committee in the prosecution of the grievance . Attorney Raun
accused Janning of "holding back" on the committee . Gosch and Janning exchanged
heated words concerning Janning's affinity to Amalgamated. From the context of
Janning's testimony , I find that the criticism of the employees and the admonition of
Raun emanated from a belief on their part that Janning had not fully disclosed to
theirs the extent of his resort to Amalgamated for advice and assistance in the initia-
tion and prosecution of his grievance.
A further interruption in the meeting occurred when, according to Janning's
credited testimony, Manager Crabb absented himself from the meeting and returned
with a report that he had invited Amalgamated Representative Daniels, who was wait-
ing on the company premises in an automobile, to leave company property. Crabb
further reported to the meeting that he had called the police to enforce his request
and the meeting resumed after Crabb reported bnefly on the incident involving
Daniels.
Subsequently , another cessation in the meeting occurred when a company secretary
interrupted to inquire if anyone present had called the police.
21. Raun seeks Board affidavit of Gil Morey
In the fall or early winter of 1963, at a joint meeting of representatives of units of the
Union representing both the pork plant and the beef plant employees of Farmbest-
a so-called meeting of the Mother Corporation-attended by approximately 12 people,
including Drilling, Campbell, Gosch, and Morey, representing the pork plant, a con-
versation arose among the employees from the Farmbest pork plant with respect to
statements that had been obtained by Board agents pertaining to the instant pro-
ceeding, then pending. Gosch commented that he had given a statement but hadn't
signed it. At this point Morey answered that he had given a statement and had
signed it.54 Gosch requested Morey to show the group his statement but Morey
declined. Thereupon, Raun stated that Morey should bring him the statement that
he had given to him. However, Morey answered that he had been informed by the
Board representative , in effect , that the statement was for his own use and was not
to be shown to other persons. Raun then asserted that it was Morey's "obligation
to the Union" to bring the statement to Raun "because it was an important thing."
Prior to this incident , in the early phases of the investigation , Raun had instructed
members of the Union , including Gil Morey, to cooperate with the representative of
the Board seeking statements , and to give him truthful statements.55
52 Ed Drilling so credibly testified without contradiction.
53 The foregoing is predicated upon Respondent Company's Exhibit No 2 and the testi-
mony of John Janning with respect to the June 25 grievance meeting.
64 His testimony establishes that during the investigatory phases of this proceeding he
had given a statement to an agent of the Board
65 The foregoing is based upon the credited testimony of Gil Morey and Gordon Gosch,
as supported in minor details by testimony of Carl Miller. I specifically credit Gosch's
testimony that lie requested Morey to show his statement to the employees present at the
mother corporation meeting Otherwise I credit the testimony of Miller and Gosch only
to the extent that it is not inconsistent with that of Morey. I do not rely on the testi-
mony of Virgil Ladde as to the substance of the conversation at this meeting, for he
appeared to have no clear recollection of the detatils of this incident.
FARMBEST, INC. 1449
22. The Red Lantern meeting
On December 13, 1963, a meeting of Crawford County Industrial Labor Union
took place at the Red Lantern restaurant in the environs of Denison , Iowa. The
meeting was in the evening and was attended by the officers and members of the
Union and by Ernest Raun, counsel for the Union . Female as well as male employees
of Farmbest who were members of the Union were in attendance Ernest Raun
conducted the meeting and was seated at the head table, as were President Ed Drilling
and other officers of the Union . At the meeting a general discussion or "gripe
session" was conducted . At the completion of this phase of the meeting Ernest Raun,
from his position at the head table, stood up and in a loud voice addressed employee
Frank Moore , then serving a temporary appointment as chief steward , and said to
him, "I hear you are having affairs with the Amalgamated Union." Moore answered
in the negative , whereupon Raun stated "You lied to me last night in my office."
Moore retorted that Raun was "not going to lay this at [his] feet" and added that
there were "four or five other employees right in this room here who are also seeing
Amalgamated ." The colloquy continued with Raun making a general declaration
that before the plant was built in Denison persons seeking employment found it
necessary to leave the community and go elsewhere in search of employment. He
stated that it had been necessary for persons to seek employment on the west coast
and added that the plant had been built in order to provide employment for local
residents , that it was a community project and had the " 100 percent" backing of the
"people uptown ." He added that in the event the "big unions " ever got in and the
plant closed that the employees would have a "hard time finding a job in the com-
munity" because the "big unions " were interested in promoting operations of plants
in the large cities with the large labor market 56
The evening prior to the Red Lantern meeting , the officers had met with Ernest
Raun in Raun 's office. At that time Raun had questioned Moore with respect to
whether or not he had signed an authorization card for Amalgamated . At that time,
Moore had denied having done so 57
During the meeting at the Red Lantern, Moore , Drilling, and other employees
conversed among themselves at Moore's table. Drilling informed Moore that if he
knew any employee who had "signed up with Amalgamated" he would "like to have
° The foregoing is predicated principally upon a composite of the testimony of Paul
Blume and Robert Jackson as supported in some aspects by the credited testimony of
Walter Kortmann, Ed Drilling, and Leona Reeser. I rely upon the testimony of Frank
Moore with respect to this incident only to the extent that Moore's testimony is Sup-
ported by independent testimony of the witnesses aforesaid, whom I have credited with
respect to the incident in question. Where Moore's testimony is at variance with that
of credited witnesses I reject it for upon my observation of Moore, as he testified at the
hearing, he impressed me as a witness bearing deep hostility both to the Crawford County
Industrial Labor Union and to Ernest Raun personally. He showed marked tendencies
to expand his testimony when, in his view, it seemed to serve the interests of supporting
the General Counsel's case. Illustrative of this is Moore's testimony, denied by credited
testimony of Thompson and Drilling, regarding the identity of the individual who posted
Charging Parties' Exhibit No. 9 and Moore's role therein , and lloore's alleged conversa-
tion with Thompson and Jackson during the hearing relating to the payment of $100
to Gil Morey I specifically reject his testimony with respect to the choice of language
used by Raun in addressing him in the open meeting.
Contrary to the urgings of the General Counsel in his brief, I do not rely upon the
affidavit of Ronald Blume introduced by the General Counsel after impeaching Blume's
surprised testimony in reaching findings of fact with respect to this incident Although
Ronald Blume's testimony at the hearing differed in many aspects from that which he
recorded in his affidavit an evening earlier, and although, after he executed his affidavit
he met, as found hereafter, with Attorney Raun and Union Officer Jackson and discussed
his testimony with them, he was adamant at the hearing in insisting that in light of his
discussion with Jackson, and "different people" in the plant as well as his own critical
Introspection with respect to the accuracy of his recollection, he could not testify truth-
fully-as he evaluated the truth-as to disputed details of the Raun-Moore verbal
exchange.
In the circumstances, in the light of such patent ambivalence and transitory certitude,
I am unable to place reliance either upon Blume's recorded recollection or his oral testi-
mony at the hearing. See also 3 Wigmore Evidence § 1018 (3d ed. 1940) , N L P B. v
Quest-Shon Mark Brassiere Co , Inc, 185 F 2d 285, 288-289 (C A 2)
er I credit this testimony of Frank Moore which was developed, principally, on cross-
examination by the counsel for the Respondent Union.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their name." Drilling further said that if Moore would "put forth as much activity
as he [had] in him that [he] thought he would make a heck of a good chief steward
for reelection again."
A month later, on January 13, 1964, the executive board of the Union met in the
office of Ernest Raun. Raun was present and during the preparation of a suggested
slate of officers to be offered to the union membership for consideration, Raun
expressed the opinion to the executive board that they should select individuals who
preferred the Union to someone who was associated with another union. Raun asked
Moore "which side of the fence [he was] on" and if he had "signed a card with
Amalgamated." Moore answered, in effect, that he had signed with Amalgamated
but that he had endeavored to meet with Raun at his office with respect to the matter,
but Raun was not in. Raun then asked Moore if "he had faith in the independent
union" and Moore answered him in the affirmative. The matter was dropped at this
juncture. Frank Moore was not elected to succeed himself permanently in the chief
steward's job.58
23. Ernest Raun discusses testimony with Blume brothers
On January 13, 1964, Ronald Blume was interviewed by a Board agent and
executed an affidavit containing his statement. Later the same evening, while the
instant proceeding was in evening recess, Ronald Blume conversed with Ernest Raun
with respect to the pendency of his testimony at the January 14 session of this pro-
ceeding. Blume had been informed by Raun that Raun desired to meet with him
and he did so at the Red Lantern Restaurant in the company of his brother, Paul,
Union President Robert Jackson, and Les Campbell, a union committeeman. Raun
stated that he knew each of the employees present were to testify at the hearing and
advised them to testify only to those matters which they knew to be true and not to
testify to matters of which they were not certain. Raun then asked Ronald Blume
directly whether he had been subpenaed to testify at the hearing and Blume stated
that he had. Raun further asked Blume if he had given a statement to a Board agent
and Blume answered that he had. Raun then inquired of Blume what testimony he
was going to give at the hearing, and Blume proceeded to relate to Raun the testimony
that he anticipated giving. Blume's summary of testimony was "pretty similar" to
that which he had related to a Board agent earlier in the evening and which had been
reduced to affidavit form, which affidavit Blume executed. The meeting with Raun
lasted approximately one-half hour.59
ss The foregoing is predicated principally upon the testimony of Robert Jackson. I
do not find upon the evidence of record that Raun asked Moore to withdrawn as a
candidate to succeed himself. Nor do I credit the testimony of Moore to the effect that
Raun threatened him with loss of his job if he continued to support Amalgamated or to
be active on its behalf.
9 The foregoing is based upon the credited testimony of Ronald Blume, With respect
to Paul Blume, the General Counsel by its evidence established merely the presence of
Paul Blume at the meeting in question, but did not elicit evidence in support of its sub-
sequently amended complaint covering the alleged violation flowing from the January 13,
1964, interrogation by Raun All testimony the General Counsel endeavored to develop
with respect to Paul Blume was excluded by me upon timely motion of the Respondents
made at a juncture in the hearing before the General Counsel amended the complaint
with respect to this alleged violation.
The testimony of Ronald Blume was adduced at the January 14 hearing session as a
product of counsel for the General Counsel's effort to impeach Blume's surprise testimony.
The amendment alleging a violation of the Act was offered and granted during the Jan-
uary 15 hearing session. The counsel for the General Counsel at that time averred, in
substance, that he was relying upon evidence already in the record to support the allega-
tion. Subsequently, Robert Jackson testified as a witness called by the Union, and his
testimony was not at variance with that of Ronald Blume with respect to matters of
substance He testified the meeting was of shorter duration than Blume had stated.
However, on cross-examination of Jackson by the counsel for the Charging Party, Jack-
son made denials pertaining to elements of the incident in question not touched upon by
the General Counsel's interrogation of its witness, Ronald Blume. On the final day of
hearing, the General Counsel offered a rebuttal witness, Leslie Campbell, for the purpose,
inter aria, of rebutting designated aspects of the testimony of Robert Jackson. I per-
mitted examination of Campbell for this limited and specified purpose, but sustained
objections to testimony which, although inconsistent with that given by Jackson, related
to details of the meeting not covered in examination of General Counsel's witness Blume,
FARMBEST, INC.
24. Joint meetings between Farmbest and Crawford County Industrial
Labor Union
1451
During times material in this proceeding , joint meetings between representatives of
Farmbest and representatives of Crawford County Industrial Labor Union were held.
For reasons of convenience the meetings were held at the office of Ernest Raun. The
joint meeting between Farmbest and the Union was generally preceded by a general
meeting of the membership of the Union. Representatives of management were not
present at this preliminary meeting. The joint meeting which followed immediately
the general meeting of the Union was attended by Ernest Raun and four officers of
the Union, the president, vice president, secretary-treasurer, and committeeman.
Representatives of Farmbest usually in attendance were Ed Schwarzkopf, Frank
Crabb, Leonard Tierney, and Curly Scott. Employees who were members of the
Union and who desired could attend the meeting as observers, but could not partici-
pate in the deliberations that transpired.
The meetings were held aftei working hours and the four union officers comprising
the union executive committee were each compensated at the hourly rate of pay each
was receiving for work performed in the employ of Farmbest for the time spent in
attendance at the joint meeting between management and the Union. The meetings
varied in length, lasting from 45 minutes to 2 or 3 hours.
At the joint meetings a variety of subjects were discussed and decisions made with
respect thereto. Management plans with respect to such topics as expansion, acqui-
sition of equipment, and safety were discussed, as were topics such as avoiding litter
of the premises, cleanliness of restrooms and lockerrooms, and grievances relating to
individual employees or a group of employees.60
The collective-bargaining agreement between Farmbest and the Union which was
entered into on July 27, 1962, and which is effective until May 28, 1965, provides
as follows:
Article 10
Company Meetings
In the event that a general meeting of employees or group meetings of employ-
ees shall be called by the Company, the hours spent in such meeting shall be
considered as hours worked and shall be paid for as such. If an employee is
called in to attend a general or group meeting by the Company on any day on
which he would not otherwise work, then he shall be entitled to pay for all of
the hours spent at said meeting. At all business meetings of management and
employees authorized to represent the Union with which the Company agrees
to meet, said employees so attending the meeting shall be paid at regular straight-
time hourly rates, excepting however, said employees shall not under any circum-
stances be paid for time devoted to settling grievances.
c. Conclusions
1. Prefatory discussion and conclusions
This case revolves around incidents occurring in connection with the operation of
a meatpacking plant in the rural environs of Denison, Iowa, a town of some 5,300
people located in agricultural Iowa. The events which became full-blown during the
first 6 months of 1963 had their essential genesis in events which transpired some
3 years earlier when, in January 1960, following a strike that had led to apparent
widespread disenchantment among employees over the established order of union
representation, the employeees by a decisive vote decertified their bargaining repre-
sentative, the United Packinghouse Workers of America, and in an atmosphere and
circumstance made conducive by management's receptivity, turned to a new order
of representation which quickly became the beneficiary of the Company's hospitable
but which had been the subject of cross-examination of Jackson by the counsel for the
Charging Party. My ruling excluding this testimony and denying the General Counsel's
offer of proof was founded upon the conclusion that this evidence was properly Introduca-
ble only in the presentation of the General Counsel's case-in-chief. I adhere to my ruling
and affirm my rejection of the General Counsel's offer of proof. See 6 Wigmore, Evidence
$ 1873 (3d ed. 1940).
Except to the extent that Robert Jackson's testimony is supported by that of Ronald
Blume with respect to this incident, I do not credit it, for Jackson revealed a lack of
recollection concerning details of the incident which dilutes the value of his testimony as
an aid in arriving at findings of fact with respect to this occurrence.
60 The foregoing is based upon the credited testimony of John Janning
1452 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
approval. While the evolution of the new entity from committee to fully organized
union encompassed some 8 months, from its first beginnings, the record establishes,
the new entity enjoyed a higher status on the scale of management preference than
did its predecessor. But in the 2 years that followed its formation, the Crawford
County Industrial Labor Union evolved from its early endowed state into a viable
organization, not dependent, so far as the extensive background evidence of record
reveals, upon the benevolence or largess of management for its existence and capacity
to function. With the evolution of time its essential effectiveness as a bargaining
representative proved bona fide, as shown by the fact that in mid-1963 it demonstrated
itself capable of hard bargaining at arms length over the terms of a comprehensive
collective-bargaining contract which, even by the appraisal of John Janning, an
advocate of Amalgamated, was a "good one "
The new entity was not alone welcomed by management, for it had the approval
of significant elements of the business community of Denison, whose interests lie in
retaining and perpetuating the economic benefits that flowed to the entire community
from the operations of the plant which these business elements had been instrumental
in attracting in the first instance. Richard Knowles, editor of the local newspaper,
was one whose efforts were directed to this end, and while, on occasions, as the record
establishes, he intervened in support of the common interests of the community in
events at the packing plant, he served not as an agent of Farmbest, as the term agent
is universally interpreted in the parlance of the law, but as a self-styled protectorate
of what he conceived to be the broader community interest. Often, I find, as with
respect to his conversation with Amalgamated representatives Roti and Daniels, and
his meeting with Janning regarding job postings, he acted unilaterally without Farm-
best's knowledge or approval, tacit or actual. On at least one occasion, however,
when he appeared together with Ernest Raun before the employees at the Farmbest
plant and recounted the Roti-Daniels incident, his remarks were made in circum-
stances establishing Farmbest's approval through acquiesence If his appearance at
the plant with Raun was a surprise to top management-and the evidence strongly
suggests that it was-this indicia of ready access to the plant underscores the identity
of interest bteween Farmbest and community representatives which found common
bond in opposition to the intrusion of "big unions "
Ernest Raun, counsel for Crawford County Industrial Labor Union, shared. I find,
the views exemplified by Knowles that the interests of the community would be better
served by the exclusion of International unions from the plant. But I find additionally
that his actions were not alone motivated by these convictions, but were dictated
also by standards of full, conscientious, and effective professional representation of
his client, the Crawford County Industrial Labor Union, which were designed, I find,
to perpetuate its existence and strengthen it as an organization Illustrative of this
were his efforts in achieving the full, formalized organization of the Union, his efforts
in consultation and advice with respect to the Union's collective-bargaining agree-
ments with the Company; his ardent defense during his meeting with Rocco Roti of
the capabilities of the Union to represent and advance the interests of the employees;
and his acquisition of Gil Morey to undertake surveillance of the union activities of
Farmbest employees for the purpose of protecting the Union against incursive action
by Amalgamated.
Often his actions on behalf of the Union tended to serve the end desired by man-
agement, the perpetuation of the Union and the exclusion of Amalgamated; but, in
general, such coincidence of purpose as is reflected in the record resulted from this
identity of interest and not from a conspiracy, formal or tacit, between Farmbest and
the Union. Raun's seeming preoccupation at the May 16 meeting over Janning's
affinity to Amalgamated and his essentially prefunctory representation of Janning at
the May 25 grievance meeting exemplify this, and were premised on Raun's belief
and conviction that Janning's promotion and advocacy of Amalgamated was at
variance with the long-term interests of the employees-as he interpreted those inter-
ests-and threatened the Union as an institution. I find no warrant for concluding
that Raun in his position as counsel for the Crawford County Industrial Labor Union
was simultaneously serving a dual role as an agent for the Company. Accordingly,
his acts are not herein found to be attributable to Farmbest, except wherein Farm-
best's own activities with respect to a given incident establishes acquiesence or ratifi-
cation. Thus, in this specific regard, the record establishes that in granting him access
to the plant in February 1963 to speak in favor of the Union and against the renewed
organizational effort of Amalgamated, and in permitting Raun to circulate the affi-
davit of nonaffiliation on company time and premises, the Company granted privileges
to the Union which reveal Farmbest's hostility to Amalgamated and preference to
Crawford County Industrial Labor Union, which I find existed, and to which I have
given close scrutiny in fashioning a remedy herein.
FARMBEST, INC. 1453
In this latter regard, the General Counsel contends that there subsists an "improper
and illegal relationship" between Faribest and the Union and, in proof, points to the
alleged fruits of this purported relationship cognizable within the statutory 6-month
limitations . To dissipate this relationship and to accord to employees of Farmbest a
free choice in the selection of their bargaining representative , the General Counsel
urges a broad remedy and asks full vent be given in fashioning a remedy to events
that transpired outside the limitations period.
The validity of the General Counsel's thesis is now scrutinized.
2. The alleged violations of the Act
a. Termination of benefits provision
Carried through the documents governing the wages , hours, and working conditions
of Farmbest's employees-from September 1962 to and including the present agree-
ment-is a clause providing for the automatic termination of "policies , benefits and
provisions" of the agreement in the event of "any change in the representation status
for employees of the Company."
The General Counsel alleges that the existence of this clause in the contract pres-
ently in force between Farmbest and the Union violates Section 8(a)(1), 8(a)(2),
8(h) (1) (A), and 8 (b) (2) of the Act
Farmbest contends, in substance, that notwithstanding the atypical wording of the
clause, in actuality and legal effect the clause is indistinguishable from "unquestion-
ably proper" successorship provisions frequently employed by contracting parties
prohibiting assignment of the agreement and limiting its effect to the parties and
not to their successors. Additionally, contends Farmbest, the clause provides no more
than that neither the Union's successor in representative status nor the Company is
to be bound by the terms of the agreement upon the succession of a new and different
bargaining representative , but that the new bargaining representative and the Com-
pany are both to be, in that eventuality, free to negotiate a new agreement either
different from or identical to the former agreement. The Respondent Union, in
effect, joins in this contention . Additionally , Farmbest contends that just as it is not
unlawful for an employer to insist during bargaining upon a contract termination
date to coincide with the termination of the certification year, as in Lloyd A. Fry
Roofing Company, 123 NLRB 647, or as in American Laundry Machinery Company,
107 NLRB 1574, to seek a provision waiving the contract as a bar to the represen-
tation election , so it is not unlawful for the parties to provide , as here, for the termi-
nation of their agreement upon a change of bargaining representative . Further, the
Company contends that as the provision in question has never been applied nor its
assertedly ambiguous terms interpreted , in the circumstances , an assumption of
legality should be indulged.
Initially, with respect to the analogy which Farmbest would draw between (a) "an
unquestionably proper" successorship clause and the challenged provision , and (b)
between Lloyd Fry and American Laundry on the one hand and the assertedly tainted
provision on the other , it is essential to observe that a distinction must be drawn
between the employer's legal obligation not to alter or discontinue existing employee
benefits for discriminatory reasons and the latitude that is accorded employers in
terminating the formal terms of contracts with labor organizations no longer the
certified or majority represeentative . Although the typical lawful union successor-
ship clause may limit the binding effect of the contract terms to the contracting party
and not to their successors, as Farmbest asserts, they do not, and may not legally
provide, as here, that a change in bargaining representatives would be accompanied
by the termination of employee benefits. Likewise (ignoring for our purposes here
other points of distinction that appear) although in the two cases cited, Lloyd Fly and
American Laundry, the employers were seeking , in effect, to impose a limitation, as
in Lloyd Fry, upon the normal contract term, and, in American Laundry, to qualitfy
the normal legal effect of the agreement-both on grounds related essentially to the
continued majority status of the contracting labor organizations-in neither case did
the employer seek the additional affirmative provision for automatic termination of
employee benefits as distinct from the effectiveness of the formal piovisions of the
agreement . It is upon this obvious yet basic point of distinction that the Respondents'
contentions are misplaced.
While the Board has held, as observed in Lloyd Fiy, that the term or duration of
an agreement , like its substantive provisions , is a bargainable issue, and while, with
the advent during the contract term of a new and legally selected bargaining repre-
sentative ( as in instances wherein a contract because of its' duration is no longer a
bar, or because of a decertification of the prior incumbent union, or in the event of
a schism or defunctness ), the employer having the obligation to treat with the new
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative and no other 61 must cease giving effect to the recognition clause of
the agreement 62 and may, with the permission of the new bargaining representative,
for nondiscriminatory reasons abrogate in favor of new provisions a part or all of the
prior agreement with the deposed bargaining representative,63 it is settled law beyond
dispute that the abrogation may not be taken punitively as retribution for supporting
the newly designated bargaining representative. Yet, read literally, the provision in
question is calculated to have precisely such proscribed, punitive effect.
Is the provision to be given its literal meaning or is a presumption of legality to be
indulged? I find that in the circumstances pertaining a literal interpretation must be
given. The evidence with respect to the emergence of the questioned provision re-
quires a finding, which I make, that inclusion of the questioned clause in the parties'
current agreement and those antecedent to the present one, was purposeful and the
choice of terms intentional to serve a prophylactic if not prohibitory purpose against
labor organizations other than the incumbent Crawford County Labor Union. Its
inclusion being intentional and not accomplished through a mistake, the parties to
the agreement must be presumed to have intended the clear and unambiguous mean-
ing of the provision and there is no warrant for interpretation of the provision's
meaning.84
In light of the foregoing, I find that the presence of the disputed clause in the
existing agreement between the Respondents is calculated to lead employees of Farm-
best to believe that any change in their current bargaining representative, Crawford
County Industrial Labor Union, would be followed not by those adjustments in terms
and conditions of their employment which the application of relevant, nondiscrimi-
natory business judgment of management might dictate, but by wholesale, invidious
changes. I further find that the clause constitutes a patent, clear impediment to a
free exercise of the rights guaranteed employees by Section 7 of the Act and that by
including the provision in the current agreement between them, the Respondents
have respectively violated Section 8(a) (1) and 8(b) (1) (A) of the Act. Moreover,
because the provision clearly implies to employees that their existing benefits may be
secured to them only through the continued representation of the incumbent Crawford
County Industrial Labor Union, it additionally violates Section 8(a) (2) of the Act.
The question remains whether the inclusion of the clause in the current collective-
bargaining agreement additionally violates Section 8(b)(2) of the Act.
The current collective-bargaining agreement between Farmbest and the Union
encompasses a wide range of subject matter relating to the terms and conditions of
employment of Farmbest employees, including seniority, life insurance, vacations,
retirement, and hospitalization. It is axiomatic, as above observed, that an employer
would violate Section 8 (a)(3) if this class of employee benefits were canceled in
retribution against the employees' choice of a bargaining representative.65
The Board has further held that "a labor organization is responsible for illegal
discrimination that derives from an agreement to which it is a party, and that it
violates Section 8(b)(2), as well as Section 8(b)(1)(A) of the Act when it executes,
maintains or enforces a collective bargaining agreement containing provisions which
have the effect of imposing discriminatory conditions of employment." 66 Similarly,
the Board held in Acme Mattress Company, Inc., 91 NLRB 1010, that by the act of
executing a contract containing unlawful union-security provisions, with the intention
that such provisions be enforced, the unions therein had joined the employer "in
creating the conditions which would result in future discrimination, and that they
thereby [had] attempted to cause the [employer] to discriminate against employees, in
violation of Section 8(a)(3) of the Act, thereby violating Section 8(b)(2)."
ei N L R.B. v. Jones & Laughlin Steel Corporation, 301 U S. 1.
62 See Modine Manufacturing Company v. Grand Lodge International Association of
Machinists, Local Union 1382, Machinists, 216 F 2d 326 (C.A. 6).
63 See American Seating Company, 106 NLRB 250, 254-255
of See Imperial Wire Company, Inc, 118 NLRB 775, Heating, Piping and Air Condition-
ing Contractors, etc., 102 NLRB 1646; ef. United Cement Lime and Gypsum Workers,
Local 291, AFL (Monolith Portland Cement Company), 94 NLRB 1358, 1364-1365
0 See also Krambo Food Stores, Incorporated, 106 NLRB 870; Local 170 , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL
(Anchor Motor Freight, N.Y. Corporation), 110 NLRB 850; Jandel Furs, 100 NLRB 1390,
1392-1393
se See Local 140, Bedding, Curtain & Drapery Union, United Furniture Workers of
America, CIO (The Englander Company, Inc ), 109 NLRB 326, 342, and cases cited therein
at footnote 11 ; see also Local 138, International Union of Operating Engineers, AFL-
CIO and Thomas A. Eichacker (Nassau and Suffolk Contractors' Association, Inc ), 123
NLRB 1393, 1406-1407.
FARMBEST, INC. 1455
In analogy to Acme Mattress, although the collective-bargaining agreement between
the Respondents herein does not contain a defective union-security clause, the parties
have entered into an agreement containing, nonetheless, a provision which, if applied,
would result in discrimination against employees on the basis of their union mem-
bership and thus be violative of Section 8(a) (3) of the Act.67 Moreover, the parties
to the agreement, I find, intended that the provision would be applied in the exigency
of the Union's loss of majority status. Accordingly, in this circumstance, the Union
quite clearly joined Farmbest "in creating conditions which would result in future
discrimination" against Farmbest employees.
In all the circumstances, including the intrinsic illegality of the challenged clause
and the violations of the Act that would flow axiomatically from an attempt to enforce
and implement the literal terms of the clause, the Respondent Union by becoming a
party to the current agreement with Respondent Farmbest containing the clause in
question is attempting to cause Farmbest to violate Section 8(a)(3) of the Act and
is violating Section 8(a) (2) of the Act.68
b. Compensation of employees for meeting attendance
In response to the General Counsel's contention that Farmbest has violated and is
violating Section 8(a)(2) and 8(a)(1) of the Act by compensating employees serv-
ing as officers of the Union for time spent in monthly meetings and conferences with
management during nonworking hours, both Respondents reply, in effect, that in
light of the limitations placed upon the number of employees compensated; the
employer's use of the meeting to communicate its own policies, plans, and programs;
and the minimal character of the compensation, the practice constitutes nothing more
than cooperation of a variety which has been given decisional approval, and is not
the type of assistance proscribed by the Act. Further, the Respondents contend that,
in point of fact, the holding of the meetings during nonworktime is of benefit and
convenience to the Company in that a continuity of production is thus realized with
a consequent saving in costs. The Respondents also contend that these considera-
tions motivated the Company to hold meetings during nonworking time rather than
working hours, when, under the Section 8(a)(2) proviso, such meetings would be
permissible.
In support of the Respondent's thesis, it is to be observed the precedent has estab-
lished the principle that not all acts of cooperation fall within the proscription of
Section 8(a) (2), and that "neither mere cooperation, preference nor possibility of
control constitute unfair labor practices; and, the Board may not infer conduct that
is violative of the Act from conduct that is not, unless there is a substantial basis, in
fact or reason, for that inference." 69
The Board, with court approval, however, has found payments made to employees
for attendance of union meetings with management to be an aspect of control,70
and has found Section 8(a)(2) to have been violated when, in context with other
acts of assistance to a labor organization, an employer compensates employees for
attendance at union meetings with management both during 71 and after 72 working
hours.73
67 Radio Officers' Union, etc. (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17.
08 Acme Mattress Company, Inc., 91 NLRB 1010, enfd. 192 F. 2d 524 (C.A. 7) ; Radio
Officers' Union, etc. v. N.L.R.B., supra.
00 Chicago Rawhide Manufacturing Company v. N.L.R.B., 221 F. 2d 165, 168 (C.A. 7) ;
See also N.L.R.B. v. Valentine Sugars, Inc., and Valite Corp., 211 F. 2d 317 (C.A. 5) ;
Coppu8 Engineering Corporation v. N.L.R.B., 240 F. 2d 564 (C.A. 1) ; Remington Arms
Company, Inc., 62 NLRB 611, 614; Signal Oil and Gas Company, 131 NLRB 1427, 1432;
Fender Electric Instrument Company, Inc., 133 NLRB 676; H. H. Erikeon and Erik E.
Erikson, co-partners , d/b/a Detroit Plastics Production Company, 114 NLRB 1014, 1021-
1022 ,1025-1026.
70N.L.R.B. v. H. E. Fletcher Co., 108 F. 2d 459 (C.A. 1) ; Holland Manufacturing Com-
pany, 129 NLRB 776, enfd. 292 F. 28 840 (C.A. 3).
71 See, e.g., General Shoe Corporation, 90 NLRB 13230; Pacemaker Corporation, 120
NLRB 987; Han-Dee Spring & Mfg. Co., Inc., 132 NLRB 1542.
'a See, e.g. , Boyce Machinery Corporation, 141 NLRB 756, 759-760; Holland Manu-
facturing Company , 129 NLRB 776, 785.
7$ Cases prohibiting compensation for time spent in attendance at union meetings held
apart from management at which no representative of management is present are not in
point.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel correctly contends that precedent sanctioning payments to
employees for conferring with management during working hours on the ground that
such payments are within the Section 8(a)(2) proviso are not apposite, for, even
assuming the literal language of the Section 8(a) (2) proviso is not alone a sufficient
distinguishing factor,74 there is involved in those situations, contrary to the practice
here followed, no dual or extra compensation for serving in the capacity of a union
official or representative in meeting with management.
While viewed in isolation the compensation of a small number of employees for
time spent in meetings with management, under the circumstances outlined by Farm-
best, may be said to be an insubstantial form of assistance and, if this were all, might
warrant no remedial order, this practice does not stand alone during the 6-month
limitation period as the only conduct indicative of the assisted nature of the Union,
nor may events beyond the 6-month period which shed light upon the formation,
structure, and functioning of the Union, and its dealings and relationship with man-
agement, be ignored.75 Considering this background evidence, together with the
existence during the Section 10(b) period of the proscribed termination of benefits
clause in the collective-bargaining contract agreement between the parties, and con-
sidering also the freedom accorded the Union, through Attorney Raun, to address
employees and circulate the affidavit of nonaffiliation, and, as found below, the impo-
sition of an invalid no-distribution rule and the discharge of Janning for his concerted
activity-all factors revealing aid and, in the latter event, assistance to the Union-
I find the evidence supports a determination that by compensating employees for
attending meetings with management at which matters pertaining to employee work-
ing conditions as well as employee grievances have been discussed, Respondent Farm-
best has and is under Board precedent, according unlawful support to the Union and
is violating Section 8(a)(2) of the Act.
c. The alleged unlawful reprimands of John Janning
(1) The Butcher Workman
That John Janning was known by management as an advocate and adherent of
Amalgamated for a year prior to his May 3 discharge is conceded by Farmbest, and
indeed his activities in behalf of Amalgamated were common knowledge among the
employees and was well-known to the officers of the Union. The first of the allegedly
unlawful reprimands by an agent of Farmbest involved John Janning's distribution
of the magazine Butcher Workman. The evidence establishes and I have found that
during a conversation relating to another matter , Manager Crabb inquired of Janning
concerning the presence of the magazine in the plant and stated, "Well, I hope you
don't bring any more of these in because we have a contract with the local union
here."
The General Counsel contends that Janning's distribution of the magazine during
nonworking hours in a nonworking area of the plant, and the admonition of Crabb,
had the effect of establishing an invalid no-distribution rule violative of Section
8 (a) (1) of the Act. I find, in agreement with the General Counsel, that Manager
Crabb articulated on a somewhat restrictive basis a no-distribution rule presumptively
invalid on its face under the rule of the Board's Stoddard-Quirk decision,76 as its
reach was not limited to working time or to working areas of the plant. Farmbest
made no showing at the hearing in justification of the broad rule and, contrary to
Farmbest's contention in its brief, the mere fact that employees in the confines of
their locker room may have displayed exuberance in an attempt to secure a copy of
the magazine, this falls short of the justification requisite under the Stoddard-Quirk
decision.77 Nor does justification for the rule derive from the fact that Farmbest
had a collective-bargaining agreement with the Union. I find therefore that by this
conduct, which falls within the allegations of the complaint relative to Section 8(a) (1)
violations, Respondent Farmbest has violated Section 8(a) (1) of the Act. But
contrary to the General Counsel, I do not find that Manager Crabb's statements to
Janning on this occasion constituted a reprimand violative of Section 8(a)(1).
74 See Wyman - Gordon Company ( Ingalls Shepard Division ), 62 NLRB 561, 567, enfd.
153 F. 2d 480 (C.A. 7) ; The Carpenter Steel Company, 76 NLRB 670, 688.
75 See McCulloch Motors Corporation , 120 NLRB 1709, 1712-1713; Edmont, Inc., 139
NLRB 1528, 1536.
,6 Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621.
TT See also General Aniline & Film Corporation , 145 NLRB 1215 (IR).
FARMBEST, INC. 1457
(2) The job posting "reprimand"
I am unable to conclude that at the meeting of March 19, Manager Crabb repri-
manded Janning with respect to his activities on behalf of himself and other employees
in protesting the Company's failure to promptly post and fill job vacancies. The
credited testimony of record with respect to the meeting in Crabb's office fails to
sustain the General Counsel's version of the incident, which is based upon elements
of Janning's testimony, which I reject. Crabb's comment made in context of Jan-
ning's volunteered reference to his earlier conversation with Richard Knowles con-
stitutes nothing more than a mild admonition favoring discreet settlement of plant
personnel problems, and falls far short of a reprimand intended or calculated to
interfere with, restrain, or coerce Janning, or any other employee, in concertedly
lodging complaints or grievances concerning working conditions at the plant.
d. The discharge of John Janning
There remains the question whether Farmbest discriminated against Janning by
discharging him for his union or concerted activities, using his alleged unauthorized
absence as a pretext, as well as the related questions of whether Farmbest's issuance
of an unauthorized absence warning to Janning and its refusal to compensate him
for sick leave were, similarly, discriminatory acts.
As I view this matter, contrary to both the General Counsel and Farmbest, the
Company did not discharge Janning for engaging in activities on behalf of Amalga-
mated per se, but did so because Janning had become an advocate of strong enforce-
ment of the terms of the collective-bargaining agreement between Farmbest and the
Union, and in so doing had fomented unrest among Farmbest's employees. The dis-
charge of Janning, I find on the record before me, was partially for cause on the
grounds of Janning's unauthorized absence and his accompanying effort to collect
compensation under the Company's sick leave program. But I am convinced that
this was not the sole motivating cause, but that Janning's activities in seeking enforce-
ment of the terms of the collective-bargaining agreement was a moving cause.
In findings that Janning's pro-Amalgamated propensities per se were not a ground
for his termination, I am mindful, of course, that the record is replete with evidence
establishing Janning's activities on behalf of Amalgamated; and of Farmbest's pref-
erence for Crawford County Industrial Labor Union, and its opposition to Amalga-
mated. However, management has been well aware of Janning's affinity to Amal-
gamated and his efforts on its behalf for at least a year prior to his termination.
Further, Janning's activities in 1962 were more broad-gauged and overt than were
his 1963 undertakings. Moreover, the 1963 effort of Amalgamated to organize
Farmbest's employees was but a continuation 1962 efforts, and the effort of 1963
had not proven preceptively more successful in attracting employee support than
had former ones.
As management had tolerated Janning's pro-Amalgamated activities for at least
a year and had visited no retributions upon him; I am unable to accept the General
Counsel's thesis that Farmbest would suddenly depart from its past attitude of toler-
ance and discharge Janning for his efforts on behalf of Amalgamated, without the
development of some overriding reason.
The General Counsel, however, contends that Janning's discharge followed closely
the directive of Amalgamated Executive Vice President Jack Lloyd to accelerate the
pace of Amalgamated's organizational effort at the Farmbest plant, and the request
given Janning at that meeting to learn the destination of Farmbest's meat shipments
These instructions were communicated, the General Counsel contends, to officers of
the Crawford County Industrial Labor Union by Janning, and, according to the
General Counsel, the inference is warranted that this intelligence was conveyed by a
representative of the Union to management. I find this too tentative a foundation to
support the superstructure of motivation which the General Counsel seeks to impose.
Initially, this contention is weakened by the failure of evidence to indicate beyond
mere surmise that management ever became apprised of the instructions which
Janning had received at his meeting with Jack Lloyd. Nor is the evidence sufficient
to establish boycott activity by Amalgamated prior to the discharge of Janning, or
management awareness of Janning's actual or prospective complicity in such alleged
activity. Nor is the General Counsel's allegation of anti-Amalgamated motivation
on the part of Farmbest strengthened by evidence of postdischarge speculation, as
illustrated by employee Gosch's remark to Janning that Janning's discharge was
caused by his union activity, for such comments by employees amounts to nothing
more than a variety of employee speculation normally expected following the termi-
206-446-66-vol. 154-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation of a leading union adherent. Finally, I attach little weight to the evidence
respecting Jack Salocker's 1962 remark to Janning made in answer to Janning's
question concerning his own rumored discharge. Salocker's statement, on the record
before me, might just as readily be interpreted as having reference to,Janning's "work
record" as to his union activities In all the circumstances, I find that the General
Counsel's proof fails to establish the emergence of positive factors sufficient to move
Farmbest to terminate Janning because of his activity on behalf of Amalgamated.
But in evaluating the question of motivation, it is to be remembered that Janning's
week-long absence from work initiated the chain of events which eventually led to his
discharge. I am convinced that the investigation into Janning's illness was undertaken
in the first instance by Supervisor Tierney upon information sufficient to raise doubts
in his mind as to the reason for Janning's absence from work. The further investiga-
tion undertaken by Manager Crabb, which included conversations with Janning's
doctor, were sufficient, I find, to give the Company a, reasonable ground for believing
Janning's illness was of insufficient gravity to warrant his absence; and that the oral
statement of members of Janning's car pool, which came to Crabb's attention during
the investigatory period, were of a character sufficient to lead the Company to believe
that Janning's absence was for personal convenience, and thus was not justified under
the Company's sick leave program A confrontation of Janning with these facts and
an opportunity accorded him for explanation might have given added dimension to
the investigation, but Crabb's abstinence from seeking an explanation from Janning
must be viewed in light of the testimony establishing that Janning was possessed of
the professional evaluation of the attending physician of Janning's capacity to have
performed work during his absence.
I am unable to conclude that the investigation undertaken by the Company was
sham or perfunctory, or that it was commenced in the first instance to serve as a cloak
for Janning's discriminatory discharge. Rather I am convinced that for a period
after his return to work, but before Crabb completed his investigation, Janning's
future employment status was in a state of equipoise. Had the investigation revealed
Janning's absence justified, the Company, for want of a tenable explanation for its
desired discharge of Janning for his job posting complaints (with which Manager
Crabb and Fred Claxton had by this time become disenchanted) would have abided
by the finding and compensated Janning in accordance with the sick leave program.
When, however, the investigation revealed that Janning had abused sick leave, Man-
ager Crabb and Claxton made the decision to terminate Janning.
That his complaints to management over the Company's failure to post and fill job
vacancies in accordance with the collective-bargaining agreement constituted a posi-
tive factor in his discharge is established by the statement of Fred Claxton and of
Supervisory Tierney made at the May 25 grievance hearing.
While these statements reveal a concern on management's part over the impact
upon continuity of production and efficiency of operation which Janning's activities
wrought, a careful analysis of them- in total context establishes that such adverse
effects as did result flowed not from Janning's failuie properly and timely to perform
his work or to observe rules of plant discipline-or the failure of other employees so
to do-but from the critical and questioning attitude of employees with management
which found its stimulus in Jannmg's complaints, and which was calculated to move
management to a more circumspect observance of contract terms. In light of this,
the principle enunciated in such decisions as Cateipiller Tractoi Company v. N.L.R.B.,
230 F. 2d 357 (C.A. 7), and Cleaves-Brooks Mfg. Corporation V. N L R B, 264 F.
2d 637 (C.A. 7), that. "The Act does not protect activity during working hours
which disrupt the efficient operation of the Company's business." is not here
applicable.78
Significantly, these efforts by Janning to require the Company to adhere strictly
to the provisions of its collective-bargaining contract with the Union, of course,
had implications beyond the mere observance of one provision of the contract, for
it was readily discernible to management that Jannmg's success as a stimulant and
impetus for employee insistence upon full adherence to the provisions of the con-
tract posed a potential threat to the balance that had been established between it
and the Crawford County Industrial Labor Union, an entity which it preferred to
perpetuate as a bargaining representative of its employees. While the Union had
been an effective, positive force in the maintenance and securing of employee
benefits, it had been, as the job posting incident revealed, passive in policing contract
terms and was foreseeably less likely than "big unions" to intrude into those areas
deemed by management to be refuges of its prerogatives. Thus, I am convinced,
78 Cf. Joanna Cotton Malls V. N.L R B., 176 F. 2d 749 (C.A. 4).
FARMBEST, INC. 1459
that when its investigation into the sick leave claim of Janning revealed his abuse,
the Company used this as a pretext for discharging Janning for his concerted activities
in insisting upon strict conformity to the provisions of the collective-bargaining
agreement and advancing objections to the job-posting policy of the Company on
behalf of himself and other employees similarly situated.
The activities which I find Janning undertook on his own behalf and that of other
employees are protected, concerted activity within the meaning of the Act and'
his discharge for engaging in them violates Section 8(a)(1) of the Act 79 and like-
wise violates Section 8(a) (3).80
In the circumstances, I conclude and find that John Janning was discharged by
Farmbest for having engaged in concerted activities by lodging complaints with
management on behalf of himself and other employees concerning the failure of the
Company to post and fill jobs in accordance with the terms of the collective-bargaining
agreement between the Company and the Union, and that his discharge violated
Section 8(a)(1) and (3) of the Act, and, in the circumstances here existing, Section
8(a)(2).
However, for reasons above stated, I find that the Company did not, as alleged by
the General Counsel, discharge John fanning because he had engaged in activities
on behalf of Amalgamated or discriminate against him by failing to pay him sick
leave for his week-long absence from work.
e. Determination of Janning's claim to ham-shaving assignment
Further, I find that the Company's earlier designation of the torch job as Janning's
proper permanent assignment in lieu of ham-shaving was not done for discriminatory
reasons. Janning's claim to the ham-shaving job gave rise to the decision by Tierney
and the subsequent convening of the seniority board, whose determination, as well
as Tierney's prior decision, the General Counsel is now challenging. Tierney's
initial decision was, in effect, a resolution of conflicting claims between Frank
Christensen and fanning. The resolution was made necessary by Janning's actions
detailed above, which led to the meeting with Manager Crabb. In light of the
existence of an active dispute between Christensen and Janning to the job assign-
ment and Crabb's instruction to Tierney for immediate rectification of all job
assignment disputes, I am unable to conclude, as the General Counsel asserts, that
in immediately singling out the Janning claim for remedy Tierney was acting in
retribution. As the Janning-Christensen claim had been a viable one actively dis-
cussed by the claimants with Tierney, it was reasonable that Tierney would move
to an immediate determination of it. In reaching his decision, Tierney was guided
solely, I find, by his convictions of Christensen's superior claim, and his convictions
were well founded. The evidence establishes that Christensen's service as a ham-
shaver preceded Janning's, and, indeed, Janning's initial assignment to the job was
temporary to permit him to learn a new skill. Christensen was recognized by fellow
employees, including Harold Frank, the No. I ham-shaver, to be next in line to
Frank. Moreover, Janning served as a ham-shaver only in periods of Christensen's
absence (albeit, because of Christensen's illness, often prolonged) or when the
services of three ham-shavers were required. Tierney's interpretation of the 1960
agreement as freezing job seniority on the basis of then existing incumbency, and
as giving weight to plant and departmental seniority only in event of interdepart-
mental transfers and reductions in force was not unreasonable and appears to have
been the accepted interpretation. I find that the terms of the 1960 agreement gov-
erned this dispute and that it was invoked in good faith by Tierney. I further find
that when Tierney was challenged by Janning to live up to the contiact and to
resolve the conflicting claim of Christensen and himself, Tierney did so by invoking
his recollection and knowledge concerning the order of incumbency in the ham-
shaving job-which recollection the evidence establishes to have been correct-
and applied the provisions of the 1960 agreement as he understood them. I find upon
the evidence that this decision was reasonable and based upon objective criteria. I
find further that while at this point in time, because of the effect upon other
employees of his job posting complaints fanning had incurred the displeasure of
management, which displeasure was later to lead to his discharge, Tierney, who
PGullet Gin Company, Inc., 83 NLRB 1, enfd. as modified 179 F. 2d 499 (C.A. 5),
reversed on grounds not here pertinent 340 U.S. 361; Sherry Manufacturing Company, Inc.,
128 NLRB 739; Thomas W. Dent, Robert E. Dent, et at., d/ b/a Dant & Russell, Ltd,
92 NLRB 307, enforcement denied on other grounds 195 F. 2d 299 (C.A. 9), reversed 344
U S. 375, enfd. on merits 207 F. 2d 165 (C.A. 9) ; see also Joanna Cotton Mills Co. v.
N.L.R.B., supra.
60 Gullet Gin Company, Inc., supra ; Dent & Russell, Ltd., supra.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alone made the determination respecting Janning's job assignment, was not influenced
by a desire to punish Janning either for his union activities or his concerted activity
in registering complaints concerning job posting and job placement or, as the Gen-
eral Counsel in his brief contends, by personal animosity toward Janning because
his claims pointed up to Manager Crabb Tierney's derelictions respecting job posting.
Evidence which supports this conclusion, but which does not form the entire pred-
icate for it, is found in the fact that after the March determination was made by
Tierney, when production required and, indeed for more than one half of his total
working time thereafter, Janning was utilized in the ham-shaving assignment.
With respect to the convening and decision of the seniority board, the General
Counsel further contends that the decision of the board was biased, effected by
mutual desire to do injustice to the Amalgamated adherent, Janning, and that its
deliberations were infected by procedural irregularities and by personal hostility
against Janning. The evidence establishes employee Gorman's disenchantment with
Janning, and it similarly reveals that the meeting was conducted without the presence
and participation of one employee-member of the board. Such evidence as may
suggest support for the General Counsel's conspiracy theory may, I am convinced,
.more reasonably be viewed as establishing apathy on the part of the board, born of a
.conviction on the part of the participants generally of the innate frailty of Janning's
claim and the essential correctness of Tierney's decision, which a convocation domi-
nated more by procedural correctness would not have upset. In short, I find that
the evidence does not warrant a finding that the Respondent, through Tierney or
any other agent, timed the meeting or influenced the bona fides of its consideration
of Janning's claim for the purpose of visiting retribution upon him for his union or
concerted activities.
I find, in all the circumstances, that the General Counsel failed to establish by
the preponderance of the evidence that Farmbest's determination that Frank Christen-
sen and not John Janning was entitled to the ham-shaving job was made for dis-
criminatory reasons and was violative of the Act.
f. The unauthorized absence warning notice
The General Counsel contends that the warning slip issued to Janning upon his
return to work following a week's absence was issued in retribution against him for
his concerted activities on behalf of Amalgamated, and was issued in circumstances
wherein such warning slips were not issued to other employees. I find that the
record does not support these contentions. Rather, I find that Janning made no
effort to inform the Company of his intentions to absent himself from work, and that
Supervisor Tierney was possessed of information which reasonably supported a
conclusion that Jammng's absence was for personal convenience rather than because
of illness. Tierney, I find, acted solely upon this ground. On prior occasions when
employees had absented themselves from work without personally informing a super-
visor of the Company, a message of affirmative intent was conveyed through a
fellow employee, but in this instance no such intention was transmitted to Tierney.
I find that the warning notice was issued for cause and was not motivated by
antiunion considerations or because Janning had engaged in concerted activities.
Accordingly, I find that the rights guaranteed by Section 7 of the Act were not
violated by the issuance of the warning slip and accordingly find no violation of
Section 8 (a) (1) of the Act flowing from this incident.
g. Alleged company involvement in Morey surveillance assignment
Nor do I find that Farmbest was in any manner an accomplice in the Union's com-
mission of Gil Morey to engage in surveillance of Amalgamated's adherents. The
credible evidence of record, and the inferences permissable therefrom, fail to support
a prima facie showing that Manager Crabb, or any other official or representative of
Farmbest, was ever consulted or informed concerning the Union's intentions, or that
they ratified the undertaking which, I find, was solely a project of the Union, secretly
and unilaterally undertaken in its own self-interest.
h. Raun's alleged threat of employee discharges and inability to secure work
I do not find that the evidence supports this allegation of the complaint, added
through amendment at the hearing. I have rejected Moore's testimony with respect
to Raun's statement and/or as to the events that transpired at the Red Lantern meet-
ing upon which this allegation was principally predicated. Moreover, I find that
the remarks which Raun did make concerning the consequences of successful orga-
nization by "big unions" were not threats but mere permissible predictions. In this
meeting of the Union in which the Company had no role, Raun was serving solely
FARMBEST, INC. 1461
as an advisor and counsel to the Union and not as an agent of the Company. There
was nothing in his statement suggesting to employees that he, Raun , possessed the
power to bring about the termination of Amalgamated adherents, or that he was
threatening union efforts to achieve this end. Rather, as advisor to the union mem-
bers present , he was predicting the likely effect upon plant operations of a successful
organizational effort by international unions.
i. Alleged efforts of Attorney Raun to interfere with Board processes
the Board has held that an employer interferes with the rights guaranteed by
Section 7 of the Act and violates Section 8 (a)(1) of the Act when he requests a
copy of the statement or affidavit which an employee has given a Board agent 81
on the premise that "(a)n employer's request for a copy of a statement which an
employee has given to a Board agent is, in substance, an attempt to engage in the
kind of interrogation which is prohibited under the [Joy Silk Mills] rule." In the
Joy Silk Mills case 82 the court observed:
An employer may question his employees in preparation for a hearing but is
restricted to the questions relevant to the charges of unfair labor practice and
of sufficient probative value to justify the risk of intimidation which interroga-
tion as to union matters necessarily entails; and that even such questions may
not be asked where there is purposeful intimidation of employees. Such a
standard assumes that interrogation of employees concerning their union activ-
ities is, of itself, coercive, but fairness to the employer requires that a limited
amount of such questioning be permitted despite the possible restraint which
may result.
Additionally, the Board, in W. T. Grant Company, supra, has found that employer
requests for a copy of a statement which an employee has given to a Board agent
constitute serious interference with Board processes, violative of Section 8(a)(1)
of the Act, on the premise that:
The Board's ability to secure vindication of employee rights depends in large
measure upon the ability of its agents to obtain relevant information and
supporting statements from employees. Knowledge by an employee that his
employer may obtain copies of his statement serves only to inhibit that employ-
ee's willingness to give a statement at all or to disclose all matters of which he
has knowledge for fear of incurring the employer's displeasure and possible
reprisal. For this reason , statements furnished by employees are, and must be
treated as confidential unless the employee is called to testify at subsequent
proceedings, at which time upon proper demand, the statement is made avail-
able to the employer.
It is upon the latter ground of interference with Board processes that I find
the Union, through Attorney Raun, has transgressed against employee rights under
Section 7 of the Act and has violated Section 8 (b) (1) (A) of the Act.
In Hilton Credit Corporation, supra, the Board observed:
"Clearly inherent in employees statutory rights is the right to seek their vindica-
tion in Board proceedings." Better Monkey Grip Company, 115 NLRB 1170.
It is quite obvious that the Board's ability to secure such vindication depends in
large measure upon the ability of its agents to conduct effective investigations
of matters alleged to be unfair labor practices, and to obtain relevant informa-
tion and supporting statements from employees.
This employee right under Section 7 of the Act may be denied and the ability of
the Board to conduct effective investigations may be circumscribed by action of a
labor organization, as well as by employer action, and the standard for determining
interference with employee rights under Section 7 would not be different.83 Specifi-
cally, there may arise, as I find existed in this proceeding, circumstances wherein the
request of an agent of a labor organization that an employee furnish him with a
copy of his pretrial affidavit which he has given to a Board agent may have inhibitory
effects similar, if not identical, to those referred to by the Board in the W. P. Grant
decision. Thus, at the time of Raun's requests to Morey and to Ronald Blume, the
Union had been designated as a Respondent in a formal Board proceeding which
ex E.g., W. T. Grant Company , 144 NLRB 1179; Edro Corporation, et al., 144 NLRB
876; Winn-Dixie Stores, Inc., etc., 143 NLRB 848; Halton Credit Corporation, 137 NLRB
56; of . Montgomery Ward & Co., Incorporated, 146 NLRB 76.
05Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.
ss See Joy Silk Mills, Inc. v. N.L.R.B., supi a, 743-744.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved allegations pertaining to the alleged assisted nature of the Union and acts
of reprisal taken against an employee-known to both Morey and Blume-which
reprisals allegedly were, taken because of that employee's" support of and adherence
to a rival union. In this context, employees faced with a request to disclose the
contents of the affidavits which they had given to an agent of the Board might well
conclude that the relationship between the union and the employer is such as to,
engender the displeasure of the union, leading to possible future reprisals brought
about either through union-caused influence or pressure, or through union-employer
cooperation.
In view of the foregoing, therefore, it is clear that there existed at the time of
Attorney Raun's request of Morey and of Ronald Blume circumstances from which
it may reasonably be said that each request tendedto interfere with employee rights
guaranteed under Section 7 of the Act. I find-that these requests exceeded the
bounds of permissible interrogation in preparation of the Union's defense in the
instant proceeding. Moreover, the. requests and the interrogation, as well, inter-
fered with rights' guaranteed employees under Section 7 of the Act in that they
interfered with Board processes and created an inhibitory effect upon the employees'
willingness to cooperate with the Board in the instant proceeding.
I do not find, however, upon the evidence of record that Raun interrogated Paul
Blume in the same manner as he did his brother, Ronald Blume, or that he made a
similar request of Paul Blume to disclose the contents of his affidavit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of Farmbest, Inc., described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent, Farmbest, Inc., and Crawford County Indus-
trial Labor Union, Unit No. 1, have engaged in certain unfair labor practices, I
shall recommend that they, and each of them, be ordered to cease and desist from
such conduct in the future and to take certain affirmative action designed to effectuate
the purposes of the Act 84
Having found that Respondent Farmbest has discharged John Janning for engaging
in protected, concerted activities, I shall recommend that Respondent Farmbest rein-
state him to his former employment and make him whole for any loss of earnings
he may have suffered by reason of the discrimination against him.
I have found that within the 6-month period preceding the issuance and service
of the charge herein, Respondent Farmbest has unlawfully assisted the Crawford
County Industrial Labor Union, Unit No. 1, by giving effect to a collective-bargaining
agreement containing a provision providing for the termination of benefits in the
event of "any change in the representation status for employees of the Company;"
by compensating employees of Farmbest who are officers of the Union for attendance
at meetings with representatives of management; and by discharging John Janning
because of his concerted activities in protesting Farmbest's failure to post and fill
job vacancies in accordance with the provisions of its collective-bargaining agreement
with Crawford County Industrial Union, Unit No. 1, and for seeking to require
Farmbest to give full effect to provisions of the collective-bargaining agreement
between it and the Union. In fashioning a remedy herein I have carefully considered
conduct of both Respondents occurring outside the Section 10(b), as is sanctioned
by precedent. Lundy Manufacturing Corporation, 136 NLRB 1230, enfd. 315 F. 2d
921 (C.A. 2). I am of the opinion that an order disestablishing the Crawford County
Industrial Labor Union, Unit No. 1, is not appropriate to the facts of this case, and,
indeed , a disestablishment order is not sought by the General Counsel. However,
I shall require that Respondent Farmbest cease and desist from unlawfully assisting
and supporting Crawford County Industrial Labor Union, Unit No. 1, and require
it to withdraw and withhold recognition of the Union, or its successor as the
collective-bargaining representative of its employees unless and until such labor
organization shall have been certified by the Board. Further, I shall require that
Respondents cease giving effect to their current collective-bargaining agreement and
not to execute any agreement, or carry out any practice, which would either incor-
84 The reach of the remedial action recommended herein Is limited solely to Crawford
County Industrial Union, Unit No. 1, the named Respondent Union herein, and not to
any other unit or local of the Crawford County Industrial Union.
FARMBEST, INC. 1463
porate or give effect to the unlawful provision providing for the automatic termina-
tion of policies , benefits and provision of the collective -bargaining agreement between
them in the event of "any change in the representation status for employees of the
Company," or to a provision which, except to the extent authorized, by the proviso
to Section 8(a) (2) of the Act, provides for the compensating of employees authorized
to represent the Union for their attendance of meetings with management . Nothing
in'this recommendation , however, shall be deemed to require Respondent Farmbest
to vary those wages,'hours of employment, rates of pay, seniority, or other substan-
tive provisions in its relations with its employees , which said Respondent has
established in the performance of its agreement with Respondent Crawford County
Industrial Union, Unit No. 1, or to prejudice the assertion by any employee of
Farmbest of any rights that he or she may have thereunder.
As the nature and extent of the unfair labor practices committed show clearly
an attitude of opposition to the purposes of the Act in general ; it will therefore be
recommended that the Respondents be ordered to cease and desist from, in any
manner, infringing upon the rights guaranteed employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Farmbest , Inc., is an employer within the meaning of Section 2(6) and (7)
of the Act.
2. Crawford County Industrial Labor Union, Unit No. 1, and Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By entering into and maintaining a collective -bargaining agreement which
contains a provision that all "policies , benefits and provisions " of the agreement
are to be automatically terminated in the event of "any change in the representation
status of employees of the Company ," the Respondents , Farmbest, Inc., and Craw-
ford County Industrial Labor Union, Unit No. 1, are, respectively, engaging in
unfair labor practices within the meaning of Section 8 ( a)(1), (2), and (3) and
8(b)(1)(A) and (2) of the Act.
4. By compensating its employees who are officers of the Crawford County Indus-
trial Labor Union, Unit No. 1, for attending meetings during nonworking hours at
which members of its management are in attendance , Respondent Farmbest , Inc., is
,engaging in conduct violative of Section 8(a)(1) and (2) of the Act.
5. By promulgating , maintaining , enforcing , and applying a no-distribution rule
forbidding distribution of literature in nonworking areas of the company premises
during nonworking time, Respondent Farmbest has engaged in conduct violative of
Section 8 (a) (1) of the Act.
6. By discharging John Janning because he engaged in concerted activities in
protesting the failure of Farmbest , Inc., to post and fill job vacancies in accordance
with provisions of the collective -bargaining agreement between Farmbest and Craw-
ford County Industrial Labor Union, Unit No. 1, and the failure of Farmbest, Inc.,
to give full effect to provisions of the collective -bargaining agreement between it and
said Union , the Respondent Farmbest , Inc., has engaged in unfair labor practices
within the meaning of Section 8 ( a) (1), (2), and (3) of the Act.
7. By requesting its members who are employees of Farmbest , Inc., to furnish its
agent and representative with copies of pretrial statements which they had given to
agents of the General Counsel, and by interrogating an employee concerning the
content of the testimony he anticipated giving at a formal Board proceeding , Respond-
ent Crawford County Industrial Labor Union, Unit No. 1, has interfered with the
processes of the Board and has additionally and thereby inteifered with, restrained,
and coerced employees in the exercise of the rights guaranteed them by Section 7
of the Act, and violated Section 8 (b) (1) (A) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions and the entire record in
the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended , it is recommended that the Respondent:
A. Farmbest, Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Compensating its employees for attending meetings during nonworking hours
at which representatives of management are present.
(b) Promulgating, maintaining , enforcing , or giving effect to a no-distribution
rule which forbids distribution of union literature in nonworking areas on company
premises during nonworking time.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Assisting in any manner violative of Section 8(a)(2) of the Act, Crawford
County Industrial Labor Union, Unit No. 1, or any successor thereto, or any other
labor organization of its employees.
(d) Discouraging membership in Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, or any other labor organization of its employees
by terminating the employment of, and refusing to reinstate , any of its employees
because of their concerted activities in protesting its failure to properly post and fill
job vacancies in accordance with the collective- bargaining agreement to which it is a
party, and because of their concerted activities in seeking adherence to lawful terms
of collective-bargaining agreements to which Farmbest, Inc., may be a party.
(e) Or in any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form, join, or assist any labor
organization , to bargain collectively through representatives of their own choosing,
or to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Cease giving effect to the current agreement between it and Crawford County
Industrial Labor Union, Unit No. 1, or its successors, and withdraw and withhold
recognition from Crawford County Industrial Labor Union, Unit No. 1, as the
collective-bargaining representative of any of its employees for the purpose of
dealing with the Respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms or conditions of employment until and
unless said labor organization has been certified by the Board.
(b) Offer John Janning immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he may have suffered as a
result of the discrimination against him, with interest at the rate of 6 percent per
annum, consistent with the principle enunciated in Isis Plumbing and Heating Co.,
138 NLRB 716, computed on the calendar quarterly basis set forth in F. W. Wool-
worth Company, 90 NLRB 289.
(c) Notify employee John Janning, if presently serving in the Armed Forces of
the United States, of his right to reinstatement as provided herein in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agent, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyse
the amount of backpay due under the terms of this Order.
(e) Post at its plant in Denison, Iowa, copies of the attached notice marked
"Appendix A," 85 and, upon receipt, copies of the letter from Crawford County
Industrial Labor Union, Unit No. 1, as provided hereinafter. Copies of said notice,
to be furnished by the Regional Director for Region 18, and of said letter, shall, after
being duly served upon the Respondent, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices and letter are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 18, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.8°
B. Crawford County Industrial Labor Union, Unit No. 1, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Acting as the collective-bargaining representative of any of the employees
of Farmbest, Inc., unless and until certified by the Board, and from enforcing the
terms of the current collective-bargaining agreement with Farmbest, Inc.
85 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
8G In the event this Recommended Order is adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith."
FARMBEST, INC. 1465
(b) Attempting to cause Farmbest, Inc., to discriminate against its employees in
violation of Section 8(a)(3) of the Act, as amended, by entering into a collective-
bargaining agreement with Farmbest, Inc., which provides for the automatic termina-
tion of all "policies, benefits and provisions" of the agreement of "any change in
the representation status for employees of, the Company," or any like or similar
provision.
(c) Requesting employees to furnish copies of any pretrial' statements which they
have given or may give to the General Counsel, and interrogating employees con-
cerning the content of testimony they anticipate giving at a formal Board proceeding.
(d) In any other unlawful manner restraining or coercing the employees of Farm-
best, Inc., or any other employer, in the exercise of the rights guaranteed them in
Section 7 of the Act
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Notify Farmbest, Inc., in writing, that Crawford County Industrial Labor
Union, Unit No. 1, does not desire, and in the event of a change in the duly designated
collective-bargaining representative of the employees of Farmbest, Inc., it shall not
demand, nor take any economic action designed to enforce, implementation of the
provision of the collective-bargaining agreement presently in effect between Farm-
best, Inc., and Crawford County Industrial Labor Union, Unit No. 1, providing for
the automatic termination of policies, benefits, and provisions thereof in the event
of any change in the representation status for employees of the Company. Addi-
tionally, notify Farmbest, Inc., that if in the event it is subsequently certified by
the Board as the bargaining representative of Farmbest's employees, it will not seek
the inclusion in future collective-bargaining agreements between them, of any
provision similar in effect or wording. Sufficient copies of this communication are
to be furnished the Company for posting as hereinabove provided with respect to
the posting of Appendix A.
(b) Post at its offices and meeting halls at Denison, Iowa, copies of the attached
notice marked "Appendix B," 87 and of the letter to Farmbest, Inc., referred to above.
Copies of said notice, to be furnished by the Regional Director for Region 18, shall,
after being duly served upon the Respondent, be posted, together with the afore-
mentioned letter, by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 18, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.88
87 See footnote 85, supra..
sa In the event this Recommended Order is adopted by the Board, this provision' shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, you are notified that:
WE WILL NOT give unlawful support or assistance to Crawford County Indus-
trial Labor Union, Unit No. 1, or any successors thereto, or any other labor
organization of our employees.
WE WILL cease giving effect to the collective-bargaining agreement presently
in effect between us and Crawford County Industrial Labor Union, Unit No. 1,
and withdraw and withhold recognition of Crawford County Industrial Labor
Union, Unit No. 1, as the representative of any of our employees for the purpose
of dealing with us concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or any other term or condition of employment, until and
unless Crawford County Industrial Labor Union, Unit No. 1, has been certified
pursuant to an election conducted by the National Labor Relations Board.
WE WILL NOT maintain or enforce any rule prohibiting our employees during
nonworking time, from distributing literature in nonworking areas of the
plant in support of Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or any other labor organization.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer immediate and full reinstatement to John Janning to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of earnings resulting
from his discharge.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act.
All of our employees are free to become or remain , or refrain from becoming or
remaining , members of Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or any other labor organization.
FARMBEST, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No. 334-2611,
if they have any questions concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL OUR MEMBERS AND TO
ALL EMPLOYERS OF FARMBEST, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that.
WE WILL NOT act as the collective-bargaining representative of Farmbest's
employees unless and until we have been certified by the National Labor Rela-
tions Board.
WE WILL NOT enforce or seek to enforce the terms of the collective-bargaining
agreement between us and Farmbest, Inc., which is currently in effect.
WE WILL NOT attempt to cause Farmbest, Inc., to engage in discrimination
against its employees within the meaning of Section 8(a)(3) of the National
Labor Relations Act, as amended, by entering into a collective-bargaining agree-
ment with Farmbest, Inc., or any other employer, which provides for the
automatic termination of all policies, provisions, and benefits of the agreement
in the event of any change in the representation status for employees of the
Company.
WE WILL NOT request employees to furnish copies of any pretrial statement
which they have given or may give to the General Counsel of the National Labor
Relations Board, or interrogate employees concerning testimony they anticipate
giving at a hearing of the National Labor Relations Board.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees of Farmbest, Inc., or any other employer, in the exercise of the right to
self-organization, to form labor organizations, to join or assist any labor organ-
ization, including Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
CRAWFORD COUNTY INDUSTRIAL LABOR UNION, UNIT No. 1,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
ROCHESTER DAIRY COOPERATIVE 1467
Employees may communicate directly with the Board 's Regional Office , 316 Fed-
eral Building, 110 South Fourth Street , Minneapolis , Minnesota , Telephone No.
334-2611 , if they have any questions concerning this notice or compliance with its
provisions.
Rochester Dairy Cooperative and Southeastern Minnesota Milk
Haulers Association , Petitioner. Case No. 18-RC-6319. Sep-
tember 23,1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c.) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Charles J. Frisch. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. The Em-
ployer and the Petitioner filed briefs.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner claims to represent employees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Petitioner seeks to represent a unit consisting of 18 individuals
engaged in hauling milk for the Employer under contracts which they
hold either individually or as partnerships. The parties agree that
the unit should not include certain other drivers who work for and are
hired by the contract haulers.
In Case No. 18-RC-43311 the Board, on July 13, 1960, found that
the same group of individuals herein sought to be represented were
independent contractors and not employees of the Employer. We have
considered both the present record and the record in Case No. 18-RC-
4331. As the present record does not reveal any substantial or mate-
rial change in the relationship between the Employer and the indi-
viduals involved from that which existed at the time of the earlier
proceeding, we find, in accord with the determination in that proceed-
ing, that these individuals are independent contractors 2 and not
employees within the meaning of the Act. Accordingly, we hereby
dismiss the petition.
3 The record in Case No. 18-RC-4331 was Introduced In evidence In the present pro-
ceeding as an exhibit by the Employer.
2 In view of our determination set forth above, we find it unnecessary to consider the
issue as to whether the haulers may be supervisors within the meaning of the Act.
154 NLRB No. 124.