Geo. A. Hormel & Co.

National Labor Relations Board - Board Decisions

Sep 20, 1976

226 N.L.R.B. 55 (N.L.R.B. 1976)

GEO. A. HORMEL & CO.
Geo. A. Hormel & Co. and Meat Cutters Local 551,
Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO I and International
Union of Operating Engineers, Local No. 501,
AFL-CIO and Sausage Makers' Union, Local No.
203, Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO .2 Cases 21-CA-
13170,21-CA-13431, and 21-CA-13941
September 20, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On April 19, 1976, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and Charging Parties
MC 551 and MC 203 filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,3 and
conclusions 4 of the Administative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Geo. A. Hormel & Co.,
La Mirada, and San Francisco, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
i Hereafter called MC 551.
2 Hereafter called MC-203.
3 In sec II , A of his Decision, the Administrative Law Judge found that
Teamsters Locals 626, 856, and 85 executed documents acknowledging
Respondents right to exclude employees from participation in the Joint
Earnings Plan if they engaged in strike activity, and that thereafter the
employees represented by these three locals received payments from the
plan for the fiscal year ending October 27, 1974. While the record shows
that employees represented by Local 626 did participate in the plan, the
record also shows that employees represented by Locals 856 and 85 did not
participate in the plan, and there is no evidence that those locals executed
such a document. -
4 There were no exceptions to the Administrative Law Judge's refusal to
defer this proceeding to arbitration.
- DECISION
STATEMENT OF THE CASE
55
GEORGE CHRISTENSEN, Administrative Law Judge: On Oc-
tober 30-31 and November 6, 1975, I conducted a hearing
at Los Angeles, California, on issues raised against Geo. A.
Hormel & Co.' The original charge in Case 21-CA-13941
was filed by Sausage Makers' Union, Local No. 203, Amal-
gamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO,2 on November 14, 1974,3 in Region
20 and assigned to Case 20-CA-9715. MC 203 later filed a
first amended charge (on December 11) and a second
amended charge (on February 3, 1975). Region 20 issued a
complaint based upon those charges on February 13, 1975.
Meat Cutters Local 551, Amalgamated Meat Cutter &
Butcher Workmen of North America, AFL-CIO,4 filed the
original charge in Case 21-CA-13170 with Region 21 on
November 20, and a first amended charge on December
30. Region 21 issued a complaint based upon those charges
on January 3, 1975. International Union of Operating En-
gineers, Local No. 501, AFL-CIO,5 filed an original charge
in Case 21-CA-13431 with Region 21 on March 3, 1975,
and Region 21 issued a complaint based upon that charge
on March 31, 1975. On March 31, 1975, Region 21 issued
an order consolidating Cases 21-CA-13170 and 21-CA-
13431 for purposes of hearing, inasmuch as common issues
were involved. On September 30, 1975, the General Coun-
sel issued an order renumbering Case 20-CA-9715 as Case
21-CA-13941 and transferring that case to Region 21. On
October 9, 1975, Region 21 issued an order consolidating
Case 21-CA-13941 with Cases 21-CA-13170 and 21-CA-
13431 for purposes of hearing in view of the common is-
sues in all three cases.
The three complaints allege the Company violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as
amended (hereafter called the Act) by excluding employees
represented by the three Unions from participation in the
Company's Joint Earnings Plan for the fiscal year ending
October 27, 1974, because they engaged in a strike against
the Company during that fiscal year. The three complaints
also alleged the Company violated Section 8(a)(1) and (5)
of the Act by deciding upon that, exclusion without prior
consultation with the Unions.
The Company denied it excluded the affected employees
because of their participation in the strike, denied it failed
to consult with the Unions prior to its decision to exclude
them, and affirmatively alleged the Board should defer to
the grievance-arbitration provisions of the contracts be-
tween it and the three Unions for determination of the
disputes. The Company also affirmatively, alleged its em-
ployees represented by MC 203 struck in violation of a
Company-MC 203 contract, and therefore should be de-
med any protection under the Act.
The issues before me for decision are:
1 Hereafter called the Company
2 Hereafter called MC 203
3 Read 1974 after all further date references omitting the year
4 Hereafter called MC 551
5 Hereafter called OE 501
226 NLRB No. 16
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Whether the Board should defer to the grievance-ar-
bitration provision of the contracts between the Company
and the three Unions for determination of the issues here
in dispute.
2. Whether the Company excluded its employees repre-
sented by the three Unions from participation in the Joint
Earnings Plan because they engaged in a strike against the
Company and thereby violated the Act.
3. Whether the Company consulted with MC 551, MC
203, and OE 501 prior to excluding its employees repre-
sented by those Unions from participating in the Joint
Earnings Plan and, if not, whether it thereby violated the
Act.
4. Whether the Company's employees represented by
MC 203 struck unlawfully and therefore should be denied
protection under the Act.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel, each of the
three Unions, and the Company.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I enter
the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The Company admitted that at times material it was en-
gaged in the manufacture, processing, and wholesale distri-
bution of meat products at La Mirada and San Francisco,
California, and that, in the 12 months preceding the is-
suance of the complaints in the three cases, it purchased
and received at each of those locations goods and products
valued in excess of $50,000 from suppliers located outside
the State of California. The Company further admitted
that at times material it was an employer engaged in com-
merce in a business affecting commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
The Company further admitted that MC 203, MC 551,
and OE 501 at times material were labor organizations
within the meaning of Section 2(5) of the Act.
Based upon the complaint allegations in each of the
three complaints set out above and the Company's admis-
sion thereof, I find and conclude that at times pertinent the
Company was an employer engaged in commerce in a
business affecting commerce and the three Unions were
labor organizations within the meaning of Section 2(2), (5),
(6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Company and MC 551 and OE 501 were parties to
separate contracts expiring October 1, 1973,6 covering two
6 The Company was also party to a contract with Local 626 of the Inter-
national Brotherhood of Teamsters covering a unit of the Company's em-
ployees at La Mirada at times pertinent. The record does not disclose the
duration provision of the Company-IBT 626 agreement
units of employees at the Company's La Mirada plant. The
Company, MC 551, and OE 501 commenced negotiations
in September 1973 for new contracts to succeed their
agreements expiring October 1, 1973. The negotiations
continued through October, November, and early Decem-
ber 1973 without settlement.
On December 1, 1973, an agreement between the Com-
pany and MC 203 covering employees represented by MC
203 and employed at the Company's San Francisco plant
expired. In negotiations between the Company and MC
203 prior and subsequent to that date, the parties from one
negotiating session to the next agreed that all terms and
conditions of the prior agreement would continue in effect
during such interim periods with the understanding any
agreement reached would be retroactive to December 1,
1973.
On December 9, 1973, MC 551 called a strike against the
Company at the La Mirada plant. When MC 551's pickets
appeared at the plant, all the union-represented employees
ceased to work, including employees represented- by MC
551, OE 501, and IBT 626.
On the same date, MC 551 picketed the Company's San
Francisco plant. The Company's San Francisco employees
represented by MC 203- respected MC 551's picket lines
and ceased to work. Not long thereafter, the Company's
San Francisco office clerical, warehouse, and trucking em-
ployees represented by Locals, 85 and 856 of the Interna-
tional Brotherhood of Teamsters also ceased to work.
MC 551's strike and picketing of Company' s premises at
La Mirada and San Francisco continued from December
9, 1973, through January 12, when a tentative settlement
was reached and ratified by MC 551's membership. The
Company's employees represented by MC 551, OE 501,
MC 203, IBT 626, IBT 856, and IBT 85 began returning to
work the next day.7
Shortly after the Company reached agreement with MC
551 on the terms of a new contract covering its La Mirada
employees represented by that organization (for a term ex-
tending from October 1, 1973, through September 30,
1976), the Company reached agreement with OE 501 on a
new contract for the same duration, and a contract with
MC 203 for a term extending from December 2, 1973, to
December 1, 1976. The record does not indicate whether
the Company's contracts with IBT 626, 856, and 85 were
open at the time nor whether new contracts were executed
between the Company and those organizations.
In the course of the negotiations between the Company
and MC 551 and OE 501 for contracts for the 1973-76
period, no mention was made by either party of the
Company's unilaterally administered Joint Earnings Plan
nor was any language concerning that plan inserted in
either agreement. In the course of the negotiations between
the Company and MC 203 for the 1973-76 agreement, Stan
Kerber, the Company's San Francisco manager, and Rob-
ert Gill, the Company's vice president in charge of industri-
al relations,8 informed Costa Vennarucci, secretary of MC
7 Not all employees were restored to work immediately, the Company
recalled them as and when it resumed operations requiring their services.
8 It was admitted and I find that Kerber and Gill at times pertinent were
supervisors and agents of the Company acting on its behalf.
GEO. A. HORMEL & CO.
203 and the leading negotiator on behalf of the MC 203,
that the strike might affect payments under the plan for the
fiscal year ending October 27. Neither company official
nor MC 203 made any proposals concerning ,the eligibility
of MC 203's members employed by the Company to par-
ticipate in the plan for the fiscal year ending October 27.
Prior to the scheduled meeting of the Company's board
of directors for review of the Company's performance dur-
ing the fiscal year ending October 27, Kerber and Clarence
Pouncey, the manager of the Company's La Mirada plant,
met with Gill and I. J. Holton, the Company's president,
at Austin, Minnesota, the Company's headquarters.' Both
Pouncey and Kerber, aware that the Company suffered
losses at its plants for the fiscal year due to the strike"'
recommended that the board of directors exclude the
Company's employees at La Mirada and San Francisco
who engaged in the strike from participation in any distri-
butions under the Company's Joint Earnings Plan."
On October 29, 1974, the Company's board of directors
met and adopted the recommendation, directing that em-
ployees at La Mirada and San Francisco who engaged in
the strike be excluded from participation in distributions
under the plan 12 on the ground their strike conduct had "a
negative impact on the earnings which other people had
generated."
On October 30-31, Gill sent telegrams to Kerber and
Pouncey stating, inter alit, "the employees who absented
themselves from work during the work interruption last
winter will not be eligible. Terms of the Plan . . . require
active employment for the entire fiscal year." Kerber and
Pouncey immediately notified MC 203 and MC 554 of the
board of directors' decision. In mid-November Pouncey
notified OE 501 13 of the board of directors' decision. The
record does not reflect when IBT Locals 626, 856, and 85
were notified (they were named in the telegrams).
In late November, Pouncey contacted OE 501 and 'of-
fered to extend the benefits of the Joint Earnings Plan for
1974 to the Company's employees represented by OE 501
provided OE 501 execute a document acknowledging the
Company's right to exclude those employees from partici-
pation in the Joint Earnings Plan if they engaged in strike
activity. A similar proposal was made by the Company to
IBT 626, 856, and 85. OE 501 refused to execute the docu-
ment in question, while IBT 626, 856, and 85 executed it.
Upon that execution, company employees represented by
IBT 626, 856, and 85 received distributions from the plan.i4
9 It was admitted and I find that Pouncey and Holton were supervisors
and agents of the Company acting on its behalf at all times pertinent.
10 The Company estimated its losses at La Mirada as $800,000 and at San
Francisco as $80,000. -
11 The Company had a highly profitable year in its overall operations with
the highest sales volume it ever achieved and a higher return per dollar of
sales than its competitors.
12 Had they participated in distribution of joint earnings, the employees
represented by MC 551 and OE 501 would have received $69,000 and those
repiresented by MC 203,$11,000.
3 The Unions protested and informed the Company its action was illegal.
The charges in this action followed
14 All company employees at all 31 plants other than La Mirada and San
Francisco, the nonumon and supervisory employees of the Company at La
Mirada and San Francisco, and the La Mirada and San Francisco employ-
B. Deferral to Arbitration
57
The Company has requested deferral to the grievance-
arbitration provisions of its agreements with the three
Unions here involved for resolutions of the issues in this
case, citing Collyer Insulated Wire, a Gulf and Western Sys-
tems Co. 192,NLRB 837 (1971) (and subsequent cases ap-
plying the teaching of that decision). The General Counsel
and the three Unions oppose deferral on the ground the
contracts between the Company and the three Unions do
not encompass the issues before me.
The arbitration provisions of all three agreements are
limited to disputes concerning the meaning and application
of the provisions of the respective agreements.
The issues before me are whether the Company violated
Section 8(a)(1) and (3) of the Act by excluding the
Company's employees represented by the three Unions
from participation in the Company's joint earnings pro-
gram for fiscal 1974 because they engaged in a strike
against the Company and whether the Company violated
Section 8(a)(1) and (5) of the Act by failing to consult with
the Unions prior to such exclusion.
None of the three contracts contains any language man-
dating payment by the Company of any joint earnings ben-
efits to the employees represented by the three Unions for
fiscal 1974 or any other year. While the Company has a
provision in its agreements with unions other than those
involved in this proceeding concerning joint earnings, the
provision in question specifically excludes from arbitration
any dispute between the Company and those unions con-
cerning the Company's administration of the Joint Earning
Plan-including questions concerning eligibility to partici-
pate, the amounts of any benefit, etc.ls
In addition, Gill unequivocally testified it- is the
Company's position that decisions of the Company's board
of directors concerning exclusion from, or inclusion in, the
plan for any fiscal year are not reviewable before any arbi-
trator under any company-union agreement or practice.
The Company nevertheless argues that its disputes with
all three Unions over the discrimination issue (Section
8(a)(1) and (3)) should be deferred to arbitration, inas-
much as its agreements with MC 551 and MC 203 provide
none of the employees covered thereby shall be ,discrimi-
nated against for activities on behalf of the two Unions,
and its agreements with all three Unions provide employ-
ees covered thereby shall not be disciplined without good
cause.
With reference to the failure-to-consult issue (Section
8(a)(1) and (5) ), the Company failed to point to any con-
tract provision which the Unions could claim was violat-
ees represented by IBT 626, 856, 85'thus participated in the plan and re-
ceived payments from it for the fiscal year ending October 27, 1974. The La
Mirada and San Francisco employees had participated in distributions from
the plan for the preceding 30 years
15
The Company contends the provision in question is in effect under the
current MC 551 and OE 501 agreements on the ground it was contained in
the 1964 agreements between the Company and predecessor unions at an-
other location (MC 274 and OE 63 at Los Angeles) and, despite its elimina-
tion in subsequent agreements between the Company and MC 551 and OE
501, remains in effect as a "past practice."
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed,16 but contends this issue should likewise be deferred to
three arbitrators under the respective agreements because
it believes it has a good defense against the arbitrator ruling
on the merits of the issue; i.e., that the former existence of
a provision in the 1964 agreements between the Company
and predecessor unions to MC 551 and OE 501 at another
location and MC 203's previously expressed awareness of,
and alleged acquiescence to; the Company's unilateral ad-
ministration of the plan constitutes a "past practice" which
the arbitrators must perforce recognize.
The purposes' the Board had in mind when it evolved the
Collyer doctrine would not be 'served by deferral in this
case; it-is highly questionable the three arbitrators before
whom these cases would have to be brought would have
sufficient authority under the limitations contained in the
three contracts to decide the issues before me; the antidis-
crimination provision is contained in only two of the three
contracts, the disciplinary provision is of doubtful applica-
tion, the recognition provision is of doubtful application,
etc. The basic thrust of the Company's argument is that it
might do better before three arbitrators in arguing they
either had no power to decide the issues in dispute or that
they were bound under the language of the plan, the con-
tracts, and alleged past practice to dismiss the three cases.
All parties are before me here in a single proceeding;
serious charges of violation of public policy embodied in a
public statute are involved; the parties have had ample
opportunity to present evidence and argument on the merits
of the dispute, which is common to all of them,• considerable
delay in bringing the dispute to hearing on the merits has
already ensued; the Board is not prevented from full con-
sideration of the issues by the language of the three agree-
ments, the plan, and past practice; and the public policy
issues involved herein warrant decision by the public agen-
cy `charged with their administration.
For the above reasons, I deny the Company's request to
defer to the arbitration process for resolution of the dis-
putes before me.
C. The Discrimination Issue
1. Motivation
The Company argues it was not discriminatorily moti-
vated in excluding its employees represented by the three
Unions from participation in the plan for 1974. Pouncey
and Kerber testified they were embarrassed and resentful
over the poor financial showing at their locations for fiscal
1974 due to ,the strike and for that reason recommended
the strikers be excluded from any distributions under the
plan because their strike caused that poor showing; Gill
testified that reasoning was adopted by the Company's
board of directors in ordering such exclusion; and the tele-
grams Gill sent to Pouncey and Kerber, announcing the
board's decision for transmission to the three Unions, com-
municated to them that the employees they represented
were excluded from participation in distributions under the
plan for fiscal 1974 because they engaged in 'a strike
16 Though therms a controversial theory that a change in a benefit not set
out in the contract without prior union consultation may be a claimed viola-
against the Company within-the fiscal year.
I therefore find and conclude that on or, about October
29, 1974, the Company excluded its employees represented
by.MC 551, MC,203, OE 501, IBT 626, IBT 856, and IBT
85 from participation in distributions under the Company's
Joint Earnings Plan for the fiscal year ending October 27,
1974, because they engaged in a strike against the Compa-
ny between December 1973 and January 12, 1974.
2. Balancing of interests
Citing Gre:z_ Dane Trailers 17 and allegedly related cases,
the Company argues that, even assuming -it excluded the
strikers from participation in the, plan because of their
strike activity, the, Company's interest in preserving its sole
and unilateral discretion under the plan to grant or deny
participation therein to any employee who engages in
strike activity outweighs any incidental invasion of such
employees' rights under the Act.
Instead of anticipated contributions to profits for fiscal
1974 from the La Mirada-and San Francisco plants .in ex-
cess of $300,000, the Company suffered losses in excess of
$500,000. Had it made a normal distribution from the over-
all profits of the Company under the plan to the employees
represented by the three Unions, they would have received
approximately $80,000. The Company seeks to recoup its
alleged shortfall in anticipated profits by excluding some 18
of the strikers from participation in distributions under the
plan for fiscal 1974.
The Board. has generally rejected attempts at such, re-
coupment.19 Every strike causes losses to both sides-the
employees in lost wages, and, the ,employer-in lost profits
and liability for fixed costs during the strike-but our pub-
lic policy is to require absorption of such losses by each
side as the price for preserving our system of free collective
bargaining.
Both the discriminatory nature of the Company's con-
duct and its impact on the Company's employees are evi-
dent.,, Not, only, did the Company discriminate between
strikers in this instance (granting benefits to IBT-repre-
sented, strikers upon their agents' accession to company
demands that they accept the Company's position it may
grant or deny benefits to strikers as it chooses and denying
benefits to strikers represented by the three Unions here
involved who refused to accept such terms), it conveyed
the clear message to all its employees, including those rep-
17 N L R.B v Great Dane Trailers, Inc, 388 US 26 (1967).
18 As earlier noted, the Company reversed its earlier decision to exclude
IBT-represented employees at the two struck locations from participation in
distributions under the plan when-the three IBTclocals signed a document
acknowledging the Company's right to exclude strikers from future distribu-
tions . In the course of the proceeding, the parties stipulated the Company
ordered distributions under the plan to strikers at its Fort Dodge, Iowa,
plant for the fiscal year ending October 27, 1972, despite'their participation
in a strike against the Company between September 9 and October 5, 1972,
and to employees at plants which had net losses in prior years" The plan
provides for pro rata reduction in benefits paid under the plan of U52 for
each week of excused or unexcused (including strike-caused), absence; the
Fort Dodge and IBT-represented strikers received payments in accordance
with this formula -
19 Cf. Jemco,.Inc, .190 NLRB 166 (1971), enfd 465 F.2d, 1148 (C A. 6,
1972); Electro Vector, Inc., 220 NLRB 445 (1975), Ramona 's Mexican Food
tion of the recognition provision of most agreements Products, Inc, 203 NLRB 663 (1973)
GEO. A. HORMEL & CO.,
resented by the Unions, that any future strike might cause
a similar exclusion , at the Company's pleasure. 0
I therefore find and conclude, on balance, that the im-
mediate and potential impact of the company conduct de-
scribed herein on employees' exercise of rights under the
Act outweighs the Company's interest in preserving its dis-
cretion to grant or deny participation in the plan to strik-
ers, rather than the contrary.
I therefore find and conclude that the Company violated
Section 8(a)(1) and (3) of the :Act by excluding its employ-
ees represented by MC 551, MC 203, and OE 501 from
participation in its Joint Earnings Plan for the fiscal year
ending 'October 27, 1974, because they participated in a
strike against the Company within that fiscal year.
D. Denial of the Act's Protection to Employees Represented
by MC 203
It is undisputed that the Company and MC 203 extend-
ed their agreement beyond its December 1, 1973, expira-
tion date to and including the,period MC 203s members
employed by the Company respected, picket lines estab-
lished by MC 551 at the Company's San Francisco plant.
That agreement, -inter alia, provided "There, shall be no
strikes, lockopts or other form of work stoppage while any
minor-dispute or grievance is under process of adjustment
or arbitration as provided for herein;" and "it shall not be
a violation of this agreement for any person covered by this
agreement to refuse to cross a legal picket hire for lawful
union purposes,, approved by the Union, or to refuse to
work- behind such a picket line."
It is clear the no-strike prohibition contained in the for-
mer provision is limited in coverage to disputes between
the Company and the Union over questions of interpreta-
tion or application of the agreement; it does not apply to
the situation at hand.
In the absence of a broad no-strike provision, the cases
relied upon by the Company are inapplicable-they stand
solely for the principle that employees subject to a valid
no-strike provision who strike in defiance thereof lose their
protection under the Act,21 a doctrine which is inapplicable
under the facts of this case.
Vennarucci testified without contradiction that the pick-
et line established by MC 551 at the San Francisco plant of
the Company was duly authorized by the International
Union, and I so find. It is clear,MC 551 stationed its pick-
ets at San Francisco in order to bring pressure upon the
Company to reach a new contractual agreement with that
Union covering the rates of-pay, wages, hours, and working
conditions, of the Company's employees represented by
that organization. It therefore appears clear that the
Company's employees represented by MC 203, IBT 85,
and IBT 686 were refusing to cross a legal picket line estab-
lished for a lawful union purpose approved by a union.
The Company contends, however, that employees repre-
20 Thus inhibiting the exercise of their rights under the Act to engage in
concerted activities for mutual aid and protection
21 Mastro Plastics Corp, and French-American Reeds Mfg Co Inc v
N.L R B, 350 U.S 270 (1956); N L R B v Rockaway News Supply Company,
Inc, 345 US 71 (1953)
59
sented by MC 203 were only protected under the contract
as individuals, and that undisputed evidence produced by it
establishes that Vennarucci urged his'menibers not to cross
the picket line rendering such activity unprotected.
Even adopting the Company's interpretation of the pro-
vision, it appears the Company's redress, if any, lies in
grievance and arbitration against the Union or a lawsuit
for damages against the Union based on-Vennarucci's ac-
tion rather than a deprivation of the employees' protection
under the Act.
I therefore find and conclude that the Company's em-
ployees represented by MC 203 are not barred from pro-
tection under the Act because they respected MC 551's
picket lines between December 1973-January 1974.
E. Refusal To Bargain
Robert Lane, president and business representative of
MC 551, and Coy Black, business representative for OE
501, testified without contradiction That no representative
of the Company at any time prior to their receipt of the
Company's; telegram informed them the Company's em-
ployees represented by their organizations, would not
participate in the Joint Earnings Plan for the fiscal year
ending October 27, 1974. Kerber, Pouncey, and Gill
corroborated their testimony that they were not informed
or consulted with concerning the Company's decision to
exclude the employees they represented from participation
in the plan for fiscal 19,74 at any time prior to such deci-
sion, including the time they negotiated with the Company
for their respective contracts, for the period October 1,
1973-September, 30, 1976. Vennarucci of MC 203 testified
the only notice he had prior to the decision was a,casual
remark by Kerber and Gill during the negotiations be-
tween the Company and. MC 20^ for the contract extend-
mg from December 2, 1973, to December 1, 1976, to the
effect the stake might affect joint earnings for the fiscal
year ending October 27, 1974.22 It is clear, neither Kerber
nor Gill had authority to exclude the company employees
represented by Local MC 203 from participation in Joint
earnings as that power is reserved solely and exclusively to
the Company's board of directors, and the, board of direc-
tors did not consider such exclusion until its deliberations
in late October 1974.
The record indicates the decision exclude the
Company's employees, represented by the three Unions
from participation from the Joint Earnings Plan for the
fiscal year ending October 27, 1974, was made unilaterally
by the Company's board of ,directors, after consultation
with the managers of its San Francisco and La Mirada
plants, without prior notice to, or consultation with, any
representatives of the three Unions.
I therefore find and conclude that the Company at no
time prior to October 1974 notified or consulted with the
three Unions concerning its decision to exclude its employ-
ees represented by the three Unions from the Joint Earn-
ings Plan for the fiscal year ending October 27, 1974.
22 The remark might reasonably be construed as an expression of fear the
strike would cause such losses no profits would be made overall to generate
payments under the plan
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company contends that the fact that the three
Unions did not seek to bargain with the Company con-
cerning its decision between the date they were notified
thereof and the date they filed charges with the Regional
Office bars any finding of violation of Section 8(a)(5) of
the Act. The Company additionally contends that, inas-
much as there- is no provision in the collective-bargaining
agreement requiring the Company to include the employ-
ees represented by the three Unions in its Joint Earnings
Plan, it had no obligation to bargain concerning exclusion
therefrom.
In its descriptive material concerning the Joint Earnings
Plan, the Company-describes it as part of the annual earn-
ings of its employees; it was a benefit which the employees
received without interruption over many years prior to
1974 and which both the Company and they considered a
part of their overall wages for the year. A benefit continued
over such a long period requires bargaining prior to its
discontinuance, particularly when its discontinuance is dis-
criminatorily motivated 23
I therefore find and conclude that the Company violated
Section 8(a)(1) and (5) of the Act by excluding its employ-
ees represented by MC 551, MC 203, and OE 501 from its
Joint Earnings Plan without prior consultation with those
organizations. - -
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce
and MC 551,-MC 203; •OE 501, IBT 626, IBT 85, and IBT
856 were labor organizations, as those terms are defined in
Section 2(2), (5), (6), and (7)`' of the Act.
2. At all times pertinent Holton, Gill, Kerber, and Poun-
cey were supervisors and agents of the Company acting on
its behalf.
3. The Company violated Section 8(a)(1) and (3) of the
Act by excluding its employees -represented- by MC 551,
MC 203, and OE 501 from participation in the Company's
Joint Earnings Plan for the fiscal year ending October 27,
1974, because -they participated in a strike against the
Company during that- fiscal year.,
4. The Company' violated -Section 8(a)(1) and (5) of the
Act by such exclusion without prior consultation with MC
551, MC 203, and OE 501.
5. It would not effectuate the purposes of the Act to
defer,to the grievance-arbitration provision of the contracts
between the Company and MC 551, MC 203, and OE 501
for determination of the issues in this proceeding.
6. The Company's employees represented . by MC 203
are not barred from receiving an appropriate remedy in
this case by virtue of their respecting picket lines estab-
lished by MC 551 at the Company's plant between Decem-
ber 1973-January 1974.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.-
THE REMEDY
Having found the Company engaged in unfair labor
practices mviolation of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend the Company be ordered to cease
and desist from excluding from participation in its Joint
Earnings Plan for any fiscal year those employees who en-
gage in a strike or other protected concerted activities
against the Company during the fiscal year and from de-
ciding to so exclude without prior consultation with the
Unions representing the employees affected by such a deci-
sion. I shall further recommend the Company be directed
to distribute to'its employees represented by MC 551, MC
203, and OE 501 the sums of money they would have re-
ceived-in distributions under the Company's Joint Earn-
ings Plan for the fiscal year ending October 27, 1974, but
for the Company's decision to exclude them from partici-
pation in such distributions for that fiscal year,'with inter-
est upon the -sums paid at the rate of 6 percent per annum,
for a period extending from the date such distributions
would normally have been-made to the date they are made.
Pro rata reductions in such distributions, in accordance
with `normal practice in 'excused or unexcused absences
(1 /52 for- each ' week of absence), shall be made. '
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I recommend the issuance of the 'following
recommended:
ORDER24
The Respondent, Geo. A. Hormel & Co., La Mirada and
San Francisco, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Excluding from participation in its Joint Earnings
Plan for any fiscal year those employees who engage' in a
strike or other protected concerted activity during that fis-
cal year.
(b) Ordering such exclusions affecting employees repre-
sented by MC 551, MC 203, OE 501 or any other labor
organizations duly authorized to represent units of its em-
ployees without prior consultation with such union or
unions.
23 Toffenetti Restaurant Company, Inc, 136 NLRB 1156 (1962), enfd 311
F.2d 219 (C.A. 2, 1962), cert. denied 372 U S. 977, rehearing denied 373 U.S.
919. Nor does the fact the Unions chose to file unfair labor practice charges
without a prior request for bargaining constitute a bar, the decision to ex-
clude preceded notice to the Unions. Gas Machinery Company, 221 NLRB
862 (1975).
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
GEO. A. HORMEL & CO.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Pay to each of its employees represented by MC 551,
MC 203, and OE 501 the money they would have received
in distributions under the Joint Earnings Plan for the fiscal
year ending October 27, 1974, but for the Company's deci-
sion to discriminatorily exclude them from such distribu-
tion, with interest at 6 percent per annum for the period
dating from the date such distributions would have nor-
mally been made to the date such distributions are actually
made, with appropriate reductions based upon the length
of any excused or unexcused absences during the fiscal
year.
(b) Post at its premises copies of the attached notice
marked "Appendix." 25 Copies of said notice on forms pro-
vided by the Regional Director for Region 21, after being
duly signed by an authorized representative of the Compa-
ny, shall be posted by it immediately upon receipt thereof
and maintained by it for at least 60 consecutive days there-
after , in conspicious places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Company to ensure that such
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
the Company has taken to comply herewith.
25 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board," shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
61
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT exclude from participation in our Joint
Earnings Plan for any fiscal year those employees who
engage in a strike or other concerted activity for their
mutual aid or protection during that fiscal year.
WE WILL NOT exclude our employees represented by
Meat Cutters Local 551, Amalgamated Meat Cutters
& Butcher Workmen of North America, AFL-CIO;
Sausage Makers' Union, Local No. 203, Amalgamated
Meat Cutters & Butcher Workmen of North America,
AFL-CIO; International Union of Operating Engi-
neers, Local 501, AFL-CIO; or any other labor orga-
nization duly authorized to represent any units of our
employees, from participation in our Joint Earnings
Plan for any fiscal year because they engage in a strike
or other protected, concerted activity during that fis-
cal year without prior consultation with the Union
representing the employees affected by such exclusion.
WE WILL pay to our employees represented by the
three Unions named above the moneys they would
normally have received in distributions from our Joint
Earnings Plan for the fiscal year ending October 27,
1974, but for our decision to exclude them from parti-
cipation in such distribution because they engaged in
a strike against the Company between December
1973-January 1974, together with interest on the
amounts distributed for the period dating from the
date such moneys would normally have been distrib-
uted to the date they are actually distributed.
GEO. A. HORMEL & CO.