Gooch Packing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1972

200 N.L.R.B. 1096 (N.L.R.B. 1972)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gooch Packing Company , Inc, and Gooch Blue
Ribbon Meats , a Division of Gooch Packing
Company and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO,
District Local Union P-54 Case 16-CA-4154
December 21, 1972
SUPPLEMENTAL DECISION AND
ORDER
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,4 and conclusions5 of the Administrative
Law Judge and to adopt his recommended Order
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 8, 1971, the National Labor Relations
Board issued a Decision and Order in the above-
entitled case, finding that the Respondent had
violated Section 8(a)(5) of the National Labor
Relations Act as amended, by its refusal to bargain
with the Union, the certified representative of its
employees The Board ordered the Respondent to
bargain with the Union 1
The Respondent did not comply and, on July 30,
1971, the General Counsel petitioned the United
States Court of Appeals for the Fifth Circuit for
enforcement of the Board's Order Before the court,
the Respondent contended that it was not obliged to
bargain because it had been improperly denied a
hearing on its objections to the election In support
of this contention, the Respondent alleged that it had
submitted to the Regional Director for Region 16 a
certain collective-bargaining agreement and that the
agreement constituted evidence which would have
necessitated a hearing on the objections On March
17, 1972, the Fifth Circuit remanded the case to the
Board with instructions to conduct a hearing to
determine whether the Regional Director was fur-
nished with the agreement in question and, if so,
whether there is validity in the Respondent's objec-
tion to the election 2
On May 4, 1972, the Board reopened the case and
remanded it to the Regional Director for Region 16
for further proceedings in conformity with the court's
directions On May 17, 1972, the Regional Director
directed that a hearing be held to resolve the issues
raised by the objection in question Pursuant to said
direction, a hearing was held on June 14, 1972,
before Administrative Law Judge3 Melvin Pollack
On August 7, 1972, the Administrative Law Judge
issued his Supplemental Decision, attached hereto, in
which he found that the Respondent's objection to
the election was without merit, and recommended
that the Board reaffirm its prior Order herein
Thereafter, the Respondent filed exceptions to the
Administrative Law Judge's Supplemental Decision
together with a supporting brief
Pursuant to the provisions of Section 3(b) of the
200 NLRB No 151
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby reaffirms its Order hereto-
fore entered in this proceeding on March 8, 1971,
and orders that the Respondent, Gooch Packing
Company, Inc, and Gooch Blue Ribbon Meats, A
Division of Gooch Packing Company, Abilene,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in said Order
1 188 NLRB No 127
2 457F2d361
3 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
4 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board s established policy not to
overrule an Administrative Law Judge s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
5 In conformity with the terms of the court s remand and in accord with
statements made by the General Counsel on the record at the hearing, it is
hereby found that the Texas Meat Packers Agreement, the contract in
question before the court was in fact, furnished by Respondent to the
Regional Director for Region 16 in support of its election objections
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
MELVIN POLLACK, Trial Examiner On March 8, 1971,
the National Labor Relations Board issued a Decision and
Order (188 NLRB 890) in the above-entitled proceeding in
which it found that, by refusing to bargain with the Union
certified by the Board in Case 16-RC-5435 on September
14, 1970, the Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, and
ordered the Respondent to take specific action to remedy
such unfair labor practices Thereafter, in an opinion dated
March 17, 1972, the United States Court of Appeals for the
Fifth Circuit remanded the case to the Board Pursuant to
the remand, the Board on May 4, 1972, reopened the case
and remanded it to the Regional Director for Region 16 for
further proceedings in conformity with the court's direc-
tions On May 17, 1972, the Regional Director issued an
order directing a hearing "to resolve the issues raised in the
Employer's Objection No IV filed in Case No
16-RC-5435 on May 26, 1970 " The reopened hearing was
held on June 14, 1972, at Abilene, Texas A brief has been
filed by the Respondent Upon the basis of the record
herein and from my observation of the witnesses, I make
the following
GOOCH PACKING CO 1097
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In its Objection 4 in Case 16-RC-5435, Respondent
alleged that a union organizer on the date of the election
"made substantial misrepresentations to a group of
employees as to the amount of hourly wages she was
receiving at one of the employer's competitors "
The record shows that union organizer Wanda Case at
about 12 15 p in, on May 20, 1970, the day of the election
in Case 16-RC-5435, conversed with employees Elmore
Kendrick, George Farmer, and Clifton Garrett Kendnck,
a sales employee, testified that he was present for about 3
to 4 minutes at this conversation, that he heard Case say to
Farmer that she worked at Texas Meat Packers and made
$3 85 an hour, that he was familiar with Texas Meat
Packers, a Dallas firm, which had done business with
Respondent in the past, that he did not himself "speak at
all", that he could not remember anything said by Farmer
but that Case talked about how much better off the
employees would be if the Union won the election, that he
learned Case's name on election day', and that he voted
after the conversation
George Farmer testified concerning the election day
conversation, as follows Wanda Case approached him
thinking that he was Personnel Manager Mike Peaples He
told her who he was and she asked him where he worked
He said he worked in portion control and asked her where
she worked She said she worked for Texas Meat Company
in Dallas Farmer asked her what a man in his job would
be making there She did not answer and he asked her how
much she was making there Case said she was making
$3 85 an hour Farmer commented that she was "making
pretty good money because of the cost of living " Case said
the cost of living was the same in Dallas and in Abilene
Case also said during the conversation that she did the
same kind of work as the women at Respondent's plant 2
Farmer is familiar with Texas Meat Packers and knows
that it is an independent company Farmer recalled that
Garrett, a truckdriver, and Kendrick spoke to Case, but he
could not remember what was said He could not recall
"exactly the day or the time" he learned Case's name
Wanda Case testified that at the time of the election she
was employed by the Union and on leave of absence since
February 1970 from Jacob Decker & Sons in Garland,
Texas, that she returned to Decker in June 1970 at the
same job and classification, that when she started her leave
of absence she was paid about $3 32 an hour as a slide-a-
pack operator on the bacon line, that the pay for her job
was raised to $3 76 an hour during her absence, and that
$3 76 would have been her hourly rate at Decker if she had
been working there during May 1970 She further testified
that during the week before the election she talked to many
employees of Respondent about joining the Union and
told them "exactly" about the benefits "we had in
Garland" and that she worked for Decker and made $3 76
an hour She recalled talking to employees on the day of
the election at lunchtime, but she could not recall the
1 In an affidavit given to a Board agent on June 17 1970 Kendnck
stated that he did not know the name of the union organizer but that he
would recognize her if he saw her again
2 The highest hourly wage paid to women at Respondents plant is $2
3 In the event no exceptions are filed as provided by Sec 102 46 of the
details of any conversations she had that day She denied
having any knowledge of Texas Meat Packers
The record shows that Case was employed by Jacob E
Decker & Sons, Garland, Texas, between October 26, 1964,
and August 13, 1971, that she was granted a leave of
absence on February 23, 1970, to work for the Union, and
returned to work on August 3, 1970, that at the time she
went on leave of absence she was paid $3 44 per hour as a
operator on Decker's bacon line and that she was paid
$3 76 an hour when she returned to work, which rate had
become effective on April 6, 1970
Case in fact worked at Decker and had a much higher
hourly rate than Respondent 's female employees Her
testimony to the effect that she told Respondent's
employees that the unionized Decker employees had better
working conditions , including higher rates of pay, is
therefore quite plausible Case herself impressed me as a
conscientious witness and I credit her testimony that she
had no knowledge of Texas Meat Packers and made no
mention of that concern to Respondent 's employees Her
testimony respecting her employment at Decker, however,
was in some respects inaccurate Thus, her hourly rate of
pay when she went in leave of absence from Decker was
$3 44 rather than $3 32 and she returned to Decker in
August rather than June 1970 In view of these inaccura-
cies, I credit the testimony of Farmer and Kendnck that
Case said she made $3 85 an hour The difference between
$3 76 and $3 85 an hour is not so great, however, as to
warrant a finding that Case either intentionally or
significantly misrepresented her pay
While I find, as Farmer testified, that Case said her job
at Decker was like that of Respondent's female employees,
contrary to Respondent, I see no material misrepresenta-
tion by Case The daily volume of bacon produced at
Decker is much larger than that produced by Respondent
and it appears that slide-a-pack operators at Decker check
quality in addition to their production functions The
operations of the bacon lines at both plants are essentially
the same, however, and it does not appear that the slide-a-
pack operators at Decker are paid significantly more than
the other employees on the Decker bacon line
I find no merit in Respondent 's contention that Case
should have told its employees that Decker is a national
packer whose wages are negotiated on a national scale
Case gave no assurances that the Union could obtain the
Decker wage rates for Respondent 's employees , but simply
advised them to the effect that the unionized Decker
employees had higher rates of pay
In view of the foregoing , I find no merit in Respondent's
Objection No IV and conclude that it should be overruled
Recommended Order 3
I recommend that the Board overrule Respondent's
Objection filed in Case 16-RC-5435 and that it reaffirm its
order of March 8, 1971, in this case
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