Heart of America Meat Dealer Association

National Labor Relations Board - Board Decisions

Dec 12, 1967

168 N.L.R.B. 834 (N.L.R.B. 1967)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heart of America Meat Dealers Association and its
members , Arnold Bros. Meat Company, Art Meat
Company, Boyle Meat Company, Inc., Burnett
Meat Company , G. R. Fisher Meat Company,
L & C Meat Company, Lutz Meat Company, S & S
Meat Company, Snow & Company, Williams Meat
Company and Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO,
Local No. 576
Heart of America Meat Dealers Association, Art
Meat Company and Allied Meat Company and
Amalgamated Meat Cutters & Butcher Workmen
of North America, Local Union 576. Cases
17-CA-2965 and 17-CA-2992
December 12, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On April 26, 1967, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
consolidated proceeding finding that the Respond-
ents, except Respondent Allied Meat Company in
Case 17-CA-2992, had not engaged in the unfair
labor practices alleged in the complaint and recom-
mending dismissal of the complaint in its entirety
except as to Respondent Allied which was ordered
to take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed ex-
ceptions to the Trial Examiner's Decision in Case
17-CA-2965 and supporting briefs,' and Respond-
ent Association filed cross-exceptions to the Trial
Examiner's Decision in Case 17-CA-2992 and a
supporting brief. Respondent Association also filed
a brief in support of the Trial Examiner's Decision
in Case 17-CA-2965.
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
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-
exceptions, briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with
the following modifications:
The Trial Examiner failed to make any findings
with respect to the complaint allegation in Case
17-CA-2965 that Respondent S & S Meat Com-
pany violated Section 8(a)(1) of the Act by
"threatening employees with bodily harm , loss of
employment , and other reprisals" for engaging in
protected concerted activity . The General Counsel
excepted to the Trial Examiner 's failure to find a
violation based on the foregoing allegation . For the
reasons set forth below , we find merit in the
General Counsel 's exception.
The Charging Party struck Burnett Meat Com-
pany, a member of the Association , at noon on June
28, 1966 . The Association , with the exception of
two companies which did not join the lockout at all,
and two other companies which locked out their
unit employees at a later time , locked out the unit
employees at the end of the workday on June 28.
The next morning John Alexander and Gene Col-
lins, employees of S & S Meat Company, were as-
signed to picketing duty at the premises of their Em-
ployer. While they were on duty , a truck carrying
meat for S & S appeared at its driveway entrance.
Recognizing the driver, Alexander told him that it
was all right to make the delivery but that he, Alex-
ander , would have to turn the driver ' s name and
truck number in to the Union . At first , the driver
did not take the truck across the picket line. How-
ever, a short time later the truck was driven across
and unloaded . Thereafter , another truck drew up to
the picket line but drove away without unloading.
After the second truck drove off, Santo Scavuz-
zo, president of S & S , approached Alexander and
Collins and threatened to fire them if they did not
refrain from "harassing" the incoming truckdrivers.
The only evidence of contact between truckdrivers
and employees picketing at S & S is Alexander's
conversation referred to above . As far as the record
reveals, this was a brief encounter between
acquaintances , occurring without incident. Thus,
Scavuzzo threatened Alexander and Collins with
discharge for conduct which amounted to no more
than peaceful , protected picketing. Accordingly, we
find that , by the foregoing, statement, Respondent
S & S Meat Company violated Section 8(a)(1) of
the Act.
AMENDED CONCLUSIONS OF LAW
Delete paragraph 4 of the Trial Examiner's Con-
clusions of Law and substitute therefor the follow-
ing paragraphs , numbered 4, 5, and 6:
"4. By threatening employees John Alexander
and Gene Collins with discharge if they did not
cease `harassing ' truckdrivers attempting to make
deliveries, Respondent S & S Meat Company has
engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act."
' The General Counsel and the Charging Party also moved to con-
solidate the instant case with Boyle 's Famous Corned Beef Co., an unfair
labor practice proceeding bearing Case 17-CA-3038 We hereby deny
these motions since the record in each proceeding reveals that the cases
are sufficiently distinct to warrant separate consideration and disposition.
168 NLRB No. 110
HEART OF AMERICA MEAT DEALERS ASSN. 835
"5. The aforesaid are unfair labor practices af-
fecting commerce within the meaning of Section
2(6) and (7) of the Act."
"6. Respondent Association and its member
Companies , with the exception of Allied Meat
Company and S & S Meat Company , have not com-
mitted violations of Section 8(a)(1), (3), or (5) of the
Act."
tuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees
that:
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of rights
guaranteed them in Section 7 of the Act by
threatening them with discharge for engaging
in protected concerted activities.
ORDER
Pursuant to Sectie ; 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Allied Meat Company, Kansas City, Missou-
ri, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as modified below:
By deleting from paragraph 2(b) that part
thereof which reads "to be furnished" and sub-
stituting therefor "on forms provided ...."
B. S & S Meat Company, Kansas City, Missou-
ri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
Interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed
them in Section 7 of the Act by threatening them
with discharge for engaging in protected concerted
activities.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its plant in Kansas City, Missouri, co-
pies of the attached notice marked "Appendix."2
Copies of said notice, on forms provided by the Re-
gional Director for Region 17, after being duly
signed by Respondent S & S Meat Company's
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent S & S Meat Company to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 17,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
2 IIn the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the Na-
tional Labor Relations Board and in order to effec-
S & S MEAT COMPANY
(Employer)
Dated By (Title)
(Representative)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone Fr
4-5282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a charge
filed on July 6, in Case 17-CA-2965 and thereafter
amended on July 21, August 23, and November 15,
1966, by Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, Local No. 576,
hereafter referred to as the Union, Local 576, or Charg-
ing Party, the General Counsel of the National Labor
Relations Board , hereinafter called the General Counsel'
and the Board respectively, by the Regional Director for
Region 17, Kansas City , Missouri, issued its complaint
dated October 14, 1966, and an amended complaint
therein on January 12, 1967, against Heart of America
Meat Dealers Association and its named members,
hereinafter called the Respondent.
In addition upon a charge duly filed on August 10,
1966, and thereafter amended on August 16, 1966, and
on August 23, 1966, by Amalgamated Meat Cutters &
Butcher Workmen of North America, Local Union 576
in Case 17-CA-2992,2 the said General Counsel by the
Regional Director for Region 17 issued its complaint
dated October 14, 1966, against Heart of America Meat
I This term specifically includes the attorney appearing for the General
Counsel at the hearing.
2 By order dated January 12, 1967, the Regional Director consolidated
the above two cases for hearing and they were so heard. However, despite
the consolidation for hearing , the pleadings here consisted of a complaint
and amended complaint in the first case and a complaint in the second
case with appropriate answers filed to each of these documents. This
plethora of papers and documents tend to lead to confusion and to confuse
the issues . In order to simplify the proceedings and sharpen the issues, the
Trial Examiner suggests that, in cases of consolidation and of amendment,
better practice requires a single consolidated amended complaint be is-
sued hereafter.
386-845 o - 70 - 54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dealers Association, Art Meat Company, and Allied
Meat Company, hereinafter called the Respondents.
These complaints and amended complaint allege that
Respondents had engaged in and were engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, herein
called the Act.
Respondents duly filed various answers to these com-
plaints and amended complaints admitting certain allega-
tions thereof but denying the commission of any unfair
labor practices.
Pursuant to notice, a consolidated hearing thereon was
held in Kansas City, Missouri, on February 14, 15, 16,
and 17, 1967, before this Trial Examiner. All parties ap-
peared at the hearing, were represented by counsel and
afforded full opportunity to be heard, to produce, ex-
amine, and cross-examine witnesses and to introduce
evidence material and pertinent to the issues. At the con-
clusion of the hearing, oral argument was waived. Briefs
were received from General Counsel and Respondents
on April 10, 1967.
Upon the entire record in the case and from the obser-
vation of the witnesses, the Trial Examiner makes the fol-
lowing findings of fact:
1. THE BUSINESS OF RESPONDENTS
The various complaints alleged, Respondents admitted,
and the Trial Examiner finds:
Respondent Association is a multiemployer group of
individuals, corporations, companies, and others engaged
in the processing and sale of meat on a wholesale basis in
the Greater Kansas City, Missouri, and Kansas City,
Kansas, area which engaged in collective-bargaining on
behalf of its members with various labor organizations.
At all times material herein, Respondents, Arnold, Art,
Boyle, Burnett, Fisher, L & C, Lutz, S & S, Snow, Wil-
liams, and each of them, have been, and are, members of
Respondent Association.
In the course and conduct of their respective business
operations, the members of Respondent Association and
Respondent Allied annually purchased, in totality, goods
and products valued in excess of $50,000 directly from
points located outside the States of their respective busi-
ness operations and annually sold, in totality, goods and
products valued in excess of $50,000 directly to
customers located outside the States of their respective
business operations.
Accordingly the Trial Examiner finds, based upon their
admissions, that Respondents, and each of them, are, and
at all times material herein have been, employers engaged
in commerce within the meaning of the Act.
II. THE UNION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of
North America , AFL-CIO, Local No. 576, is a labor or-
ganization admitting to membership employees of each of
said Respondents and has been for more than 25 years
last past the recognized bargaining representative of all
employees in the following found appropriate unit:
All skilled wholesale meat cutters , semiskilled workers,
unskilled workers , porters, and apprentices employed by
members of Respondent Association in the metropolitan
Kansas City area, excluding all other employees, guards,
and supervisors as defined in the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Bargain
1. The facts
For over 25 years Heart of America Meat Dealers As-
sociation, albeit until about 1956 under a different name,
has acted as the collective-bargaining representative for
a multiemployer group of wholesale meat companies in
the Kansas City area. For that same period of time the
meat cutter employees have similarly been represented in
collective bargaining by Local 576. Except for one short
3-4 day strike in 1953 labor relations in the industry have
been excellent with the parties operating continuously
under contracts usually of a 2-year duration.3
Since 1959 these contracts had provided for an em-
ployer-paid health and welfare plan which the Associa-
tion carried with-the-AuTa Life Insurance Company. The
sole connection therewith by the Union was to negotiate
with the Association the benefits to be provided for in
said contract. The 1964 collective-bargaining agreement
provided a pension plan for the first time. Although all
these agreements contained grievance and arbitration
provisions, grievances have customarily been handled
satisfactorily by the business agent of Local 576 over the
telephone with the individual employers so that there has
never been an arbitration proceeding under the contract.
The Association also handled the negotiation of labor
agreements on behalf of the same multiemployer group
with the Teamsters representing the Company's drivers.
Until 1966 the contracts with the Teamsters were usually
executed after the Meat Cutters contract had been
signed, despite the fact that the Teamsters contracts by
their terms expired prior to the expiration date of the con-
tracts with Local 576.
On March 6, 1966, Carl H. Nothnagel, secretary-trea-
surer and business agent of Local 576 as well as its prin-
cipal spokesman, gave notice of that Union's desire to
reopen the existing contract with the Association. On
April 12 ,4 Local 576 submitted its proposed changes in
the contract to the Association. Among others this
proposal put on the table a $9.50-per-week (23.75 cents
per hour) across-the-board wage increase, improvements
in the health and welfare benefits, 4 weeks' vacation after
18 years' employment, severance pay, extra overtime
pay, plus some fringe costs such as the Employer supply-
ing freezer coats, gloves, rubber boots and $1 per day for
those employees working in salt, as well as funeral leave
and vacations. In addition there were several other mat-
ters placed on- the table applicable in large part to in-
dividual members of the Association. The Union's
proposal thus was not an inexpensive package.
The parties met on April 22 when the Association sub-
mitted its counterproposal. In large measure this counter-
proposal was for a 5-year contract containing changes in
the grievance and arbitration clauses, a management
perogative clause, deletion of the 40-hour guarantee, a
no-strike no-lockout clause, and no wage increase. At
3 There is agreement among all parties both as to the multiemployer ap-
propriate unit as well as the Union's majority therein.
9 All dates herein are in the year 1966 unless otherwise noted
HEART OF AMERICA MEAT DEALERS ASSN. 837
that meeting and at the hearing Nothnagel rather aptly
characterized this proposal as "a little jewel."
At negotiation meetings held on May 6, May 13, and
again May 16 the Association voiced objections to the
extravagant costs of the Union's proposals. To this com-
plaint Nothnagel would reply, "Well, it's only money"
and suggested as a solution to that problem that the As-
sociation raise its prices. During these meetings the mat-
ters involving individual members had been satisfactorily
disposed of, the new grievance and arbitration clauses ac-
cepted and the Union had withdrawn temporarily at least
most, if not all, of its fringe costs but with funeral leave
left dormant.
Towards the end of the May 16 meeting the Associa-
tion feeling, as the negotiator put it, that, because of the
number of cost items the Union still had on the table, it
was not yet in a position to make a "realistic" offer, did in
fact offer a 5-year contract to include all items the Union
still had on the table but without any increase in wages. In
the alternative Elliott for the Association offered to ac-
cept the health and welfare improvements , together with
vacations in a 3-year contract with annual increases of
3-3-5 cents per hour. With these alternate proposals be-
fore him Nothnagel told the Association that "negotia-
tions were at an end. When they got something to propose
to us to call" and left the meeting.
Respondent did not "call" but the Federal Mediation
and Conciliation Service did and arranged another meet-
ing between the parties on May 31. During this meeting
the conciliator separated the parties and, while speaking
with Elliott privately, told Elliott that Nothnagel was
going to insist upon the same terms he had negotiated on
behalf of Local 576 in the fall of 1965, after a 6-week
strike, with the retail or chain stores,5 to wit, a 3-year con-
tract with annual wage increases of 14-11-5 cents per
hour, improvements in health and welfare, and 4 weeks'
vacation after 18 years of employme^it.s After Nothnagel
had withdrawn most of the Union's fringe demands, the
Association offered a 3-year contract, improvements in
health and welfare as in the retail contract with annual
wage increases of 6-7-8 cents per hour. To this offer
Nothnagel said, "It is all okay except for money and the
length of the contract." Following another caucus the
Union proposed a 2-year contract with annual wage in-
creases of 15-15 cents plus the retail health and welfare
improvements , sick leave, 4 weeks' vacation after 18
years, and overtime for Christmas and New Year. For
the Association Elliott objected that the Union was de-
manding more than the Association had agreed to in the
Teamsters contract.7 Nothnagel answered "We are not
interested in the Teamsters. We are not negotiating their
contract and they aren't negotiating ours." Before the
meeting ended, Elliott indicated that vacations and
holidays remained a problem so that the Association
would not have another offer to make until after it had
had another membership meeting. Again Nothnagel re-
peated his familiar phrase , "It's only money" before the
meeting adjourned. As usual Elliott indicated that the As-
sociation had not reached its final money figure.
The Mediation Service again got the parties together on
June 3. Elliott rejected the union proposal on the ground
that it was too high, cost too much. Nothnagel reiterated
that "It's only money. All the Association had to do was
to raise prices." At this meeting Elliott repeated the same
Association proposal as previously made except that this
time the annual raises were to be 8-8-9 cents per hour,
again making assurances that this was not the Associa-
tion's final offer. Nothnagel stated that they would take
this proposal back to the union membership with a
recommendation that it be rejected. As they were leaving
the meeting, Elliott indicated his belief to Nothnagel that
the Teamsters would not support a picket line by Local
576. Nothnagel replied that it would not be the first time"
but objected to the thought of a strike.9 Elliott made it
clear that "Action against one would be action against all
Association members."
As the contract was to expire the following day, the
mediator insisted upon another meeting on June 4
despite Nothnagel's objections thereto. At this meeting
Nothnagel informed the group that the Union had
unanimously rejected the Association proposal and then
increased the Union's demands by adding funeral leave.
Elliott objected that he did not understand what
Nothnagel had meant by saying that the proposal was
"okay except for money" because the Union was now
raising its demands by putting funeral leave on the table.
The meeting adjourned without results after 20 minutes.
At the request of Nothnagel the Mediation Service
called another meeting of the parties on June 20 at which
time Nothnagel, pointing out that Elliott had been careful
to state that none of the Association offers previously
made had been "final," requested a final offer from the
Association with a statement that, if the Association were
not in a position to make a better offer, they were just
wasting their time at the meeting. This time the Associa-
tion offered another 3-year contract with the retail health
and welfare benefits plus annual wage increases of
8-10-10 cents with retroactivity. Elliott made it clear
that, if this offer were rejected, retroactivity would be
withdrawn. Nothnagel agreed to submit the proposal to
the membership of Local 576 at a meeting on the evening
of June 22.
The Association considered this offer to be both
realistic and reasonable and, for the first time, with a
chance of being accepted by the membership. Ac-
cordingly the Association published and distributed to all
This agreement is referred to throughout the transcript and here as the
"retail contract."
" Nothnagel denied having made any such comment. But whether
Nothnagel actually made this statement or not, it is the information which
Elliott received and passed on to the Association bargaining commits
This information did not assist the negotiations.
For the first time in the history of these negotiations the Association
had completed its Teamsters contract prior to the present negotiations for
annual increases of 10-10-10 cents. The wage increases of that contract
Nothnagel knew There had also been a change made in the picket line
clause of the Teamsters contract but this Nothnagel did not learn until
later.
8 The Teamsters had not honored the Local 576 picket line during the
6-month strike during the retail negotiations in November 1965.
" Nothnagel suspected that a deal had been arranged between the As-
sociation and the Teamsters whereby the Teamsters would refuse to
honor any picket line of Local 576 while Local 576 was demanding more
than the 10-10-10-cent formula . This suspicion did not assist the negotia-
tions either
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees prior to the June 22 meeting the following
notice:
IMPORTANT NOTICE
TO ALL AMALGAMATED MEAT CUTTER
EMPLOYEES
TAKE TIME OUT RIGHT NOW
TO READ THIS
This letter is sent on behalf of the members of the
Heart of America Meat Dealers Association, con-
sisting of the Employers noted below. It concerns the
status of the negotiations which have been going on
with your Union.
On Monday, June 20, the negotiating committee
of the Association met with your negotiating commit-
tee. At this meeting, the Association made its last
and final offer to settle the negotiations. "Last and
final" means just that-it is the very best the As-
sociation can consider, and we will neither make nor
accept a higher offer.
Our last and final offer is:
1. All tentative agreements to date:
A. Changes in language of arbitration clause.
B. Extend vacation period to February 1 to Oc-
tober 31, inclusive.
C. Sick leave - provide the first two times a
man is off, he shall be paid from the first day off,
and when he is off thereafter payment shall com-
mence on the third day off.
D. Extend an employee's right to retain seniori-
ty while on layoff from 90 days to six months.
II. Negotiating Committee of the Association
agreed to recommend to the members of the Associa-
tion that a uniform policy of funeral leave for deaths
in the immediate family be adopted.
III. A three-year contract.
IV. The Health and Welfare benefit increase
requested by the Union to be effective during the
first year of the contract.
V. In addition to Health and Welfare adjust-
ments, wage increases:
Effective June 4, 1966 eight cents (.08)
Effective June 4, 1967 ten cents (.10)
Effective June 4, 1968 ten cents (10)
This proposal is based on a three-year contract.
Three-year contracts are prevalent among industries
today and have worked out very well for both
parties, and forms the basis for the substantial offer
the Assocaition has made here. The contract means
that, if ratified, in less than two years each employee
will receive 28 cents per hour in wage increases -
plus the requested increase in insurance . The wage
increase package, not including Health and Welfare,
based on straight-time hours only, will increase the
existing labor cost over the three years by over
$200,000! What we are saying is simply this: The
Association has done its very best to offer the best
package it can. There is no more to come.
The Union Committee has advised us of its inten-
tion to take our offer back to you and recommend it
be rejected. We wish you to know that we believe
that will be a mistake.
We urge each of you to go to the Union meeting, so
that your wishes may be made known. We hope that
a strike may be avoided by acceptance of this fair and
reasonable proposal. For the Association, we have
done all we can and will take whatever comes for as
long as it may be necessary.
We do not believe anyone wants a strike, and this
is why we have prepared this letter. We want you to
know what has been done and that your attendance
at the Union meeting is vitally important to the
security of you and your family. We understand the
meeting is Wednesday night, June 22, at 8:00 p.m.
Arnold Bros. Meat Co.
Art Meat Company
Boyle Meat Co., Inc.
Burnett Meat Company
Ferguson Meat Company
G. R. Fisher Meat Company
L & C Meat Company
Lutz Meat Company
S & S Meat Company
Snow & Company
Sterner Meat Company
Williams Meat Company
Despite this persuasive effort the members of Local
576 rejected the Association proposal at their June 22
meeting. By 10 p.m. that evening the Association was so
notified by a "birdie" at the meeting who also informed
the Association that the Union had been given strike
authority.
On June 24 the Association members published and
posted the following notice:
NOTICE TO ALL EMPLOYEES
This is to notify you that the labor contract
between this Company and Local 576, Amalgamated
Meat Cutters and Butcher Workmen of North Amer-
ica, is no longer in effect. We will, however, volun-
tarily maintain the provisions of the old contract per-
taining to wages, hours of work, and economic fringe
benefits until further notice. The other provisions of
the old contract, including specifically the grievance
and arbitration provisions, the union shop, and the
check-off, are no longer in effect.
We wish to further advise you that your health and
welfare insurance benefits and other economic fringe
benefits can be paid only for employees who are
working, on vacation, on leave of absence, or on sick
leave. These benefits cannot be paid by the employer
on behalf of any employee in the bargaining unit dur-
ing the existence of a strike.
Upon receipt of this notice on Monday, June 27,
Nothnagel telephoned Attorney Harry Browne and
queried him as to what the notice meant. All Browne
would say was that the notice spoke for itself.
Soon after the receipt of this notice Nothnagel decided
to strike the Burnett Meat Company, the Company with
which Local 576 had most difficulities and grievances.
Local 576 went out on strike at Burnett at noon on June
28.
At the end of the workday on June 28, in accordance
with prearranged plans, all members of the Association
handed their employees the following notice:
TO ALL MEAT CUTTER EMPLOYEES
Because of the strike by the Amalgamated Meat
Cutters and Butcher Workmen of North America
HEART OF AMERICA MEAT DEALERS ASSN. 839
against a member of the Heart of America Meat
Dealers Association, we are forced to layoff all of
our employees represented by the above union tem-
porarily in order to preserve [sic] the integrity of our
bargaining unit.
We regard a strike against one member of our As-
sociation as a strike against all members.
All other employees will be allowed to continue to
work since they are not envolved [sic] in this
dispute.
The only exceptions to the above were Respondents
Sterner Meat and Ferguson Meat which refused to lock
out their employees at anytime during the strike as well as
Williams Meat and Arnold Meat which did not distribute
the above notice until July 5 and July 18, respectively.
At Respondent Boyle Meat, Robert Boyle, president
of Respondent Boyle as well as Association president,
passed out the lockout notices to all employees, including
his working foreman and supervisor Thomas H. Williams,
except that Boyle told employees William Brinkmeyer
and Vernon Lathrom that the notice did not apply to them
as they were not union members. Lathrom, a cleanup
man, continued to work but Brinkmeyer joined the
strikers despite Boyle's threat that, if he did not work, he
would be considered to have quit, an error in judgment
which Boyle subsequently corrected in writing during the
pendency of this strike.'0 It was stipulated that all mem-
bers of the Association continued operations throughout
the strike using managerial , supervisory, secretarial, and
temporary help.
On July 5, Association members published and dis-
tributed to the striking employees and to the Union the
following notice:
During the existence of the present labor dispute
caused by the strike of the Butcher' s union, in-
surance payments which the company ordinary
makes on your behalf were suspensed as of the first
of the month [July] and will no longer be paid. Em-
ployees must make their own arrangements for in-
surance coverage if they wish it.
The payments made by the company on your be-
half for pension benefits will likewise terminate while
the labor dispute is pending.
We are sorry that we have been forced to take the
action because of the Union' s initial strike against
one of the members of our Association.
Eddie Williams, President of Williams Meat, added two
additional paragraphs to the notice which he sent to his
employees as follows:
Our offer on wages is slightly more than we gave
the drivers when you add the additional benefits to
health and welfare.
How can we possibly justify more to you than we
gave to our loyal driver employees?
Upon receipt of this notice Nothnagel for the Union
telephoned Association Attorney Harry Browne and
irately informed Browne that he could not do this as of
July 1 because the employees had worked the requisite
number of hours during the month of June.
By letter dated July 11 to the Union, Browne
acknowledged his error and the correctness of
Nothnagel's objection. The employees, however, were
not notified of this error by the Association until July 25,
when they received the following notice from the As-
sociation:
Dear Employee:
This is to advise you that effective August 1, 1966,
payments made by the company on your behalf for
both health and welfare benefits and pension will be
discontinued until a new contract is reached. This
means, of course, that you will not be covered by
Health and welfare benefits as of August 1. Our earli-
er advice to you that the payments would be discon-
tinued on July 1 was in error, and we so informed the
Union a couple of weeks ago.
We are sorry to report that there is no change in
negotiations . On July 12 the Union wrote the com-
panies as follows:
"This letter is to advise you of our position so
there will be no misunderstanding. Regarding
our phone conversation as of today, (the letter
was sent to our attorney) you asked me when we
were going to move. If you will recall, the last
proposal that was submitted to the Local Union
on June 20, 1966, was a final proposal of the em-
ployer. In view of this fact, the move is up to the
industry."
You are entitled to have the company position.
Our bargaining committee met with your commit-
tee on at least nine different occasions in an attempt
to reach an agreement in which we made proposals
and counterproposals, sometimes making one
proposal and then another proposal in an effort to
reach an agreement. Finally, we made our last offer.
We are not going to be put in the situation of having
moved, our proposal rejected, and then being told
that it is our move again - and again - and again.
All of the companies in the association -are willing
to meet through their bargaining committee when-
ever it is indicated there is a reasonable chance of
reaching a contract within the framework of our last
offer and we have so told the Union. This is now up
to the Union and the membership."
At the request of the Association the Mediator got the
parties together again on July 27 when Elliott inquired if
Local 576 had any proposal to make. Nothnagel had
none. Elliott then said, "... from our point of view we
had made the best offer we could, and that we weren't in
a position where we could be told to keep filling up the
pot to keep, just make one offer and then add more to it
and more to it until finally we made an offer where the
Union said stop we will except this." So the Association
stood pat on its 8-10-10-cent offer without reciprocity.
Nothnagel expressed his solution to this dilemma by say-
ing, "Pay the fare-it's only money." The results were
nil.
10 Brinkmeyer had previously joined the Union and requested Respond-
ent Boyle to check off his dues to the Union . Due to laxity on the part of
Respondent Boyle no money had actually been so checked off.
t1 Browne's quotation from the July letter of Nothnagel omits a para-
graph therein stating that Local 576 was willing to meet for negotiations at
anytime and also willing to work for all Association members except Bur-
nett.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following this July 27 negotiation session the Associa-
tion sent to the striking and locked out employees the fol-
lowing notice:
A meeting was held between the employer's bar-
gaining committee and the Union's bargaining com-
mittee on Wednesday, July 27 in the offices of the
Federal Mediation and Conciliation Service. We are
sorry to report that no progress was made, because
the Union told us that there was absolutely no
change in their position. The Union stated that they
were still insisting on the demand which they made
early in June because the Union showed no
willingness to move. It seemed clear that there was
no reasonable chance of settling the dispute within
the reasonable framework of the Employer's offer to
June 20.
This offer, you will recall, provided for a 3 year
contract with a health and welfare increase plus 8
cent per hour the first year, a further increase of 10
cent per hour the second year, and an additional 10
per hour the third year.
We would hope that when the next meeting is held
that we can have a more optimistic report. We
remain willing to meet at any time to discuss a settle-
ment which would be within the reasonable bounds
of our last offer.
Reasonableness will settle this dispute. Stubborn-
ness or maintaining a fixed position can only in-
definitely prolong it.
The parties met again on August 9 when the Union of-
fered a 3-year contract, the retail changes in the health
and welfare program, and 4 weeks' vacation after 18
years with a 15-15-15-cent wage increase. After a recess
the Association made an counteroffer of 15-15 cents on
an 18-month contract but deleted health and welfare
changes and the 4-week vacation after 18 years.
Nothnagel maintained that, despite the different
phraseology in which the offer was framed, this offer
worked out to the same old 10-10-10-cent formula. El-
liott acknowledged the truth of Nothnagel's analysis by
agreeing that the new offer was in the framework of the
Association's "last offer" of June 20. The meeting broke
up without further progress.
Following this August 9 meeting the Union, profiting
from the prior publicity efforts of the Association, rushed
out the following notice to its members:
Dear Member:
We had a meeting today with the negotiating commit-
tee of the association and they made a proposal
which is only re-arranging their last proposal, which
deletes some of the benefits they originally proposed.
We notified the negotiating committee of the associa-
tion that their proposal does not meet the demands of
the members.
Their proposal was:
1. All agreements we tentatively agreed on to
date with the exception, they withdrew their
proposal to improve Health and Welfare.
2. Day before Christmas and day before New
Years time and one-half for the three (3) hours,
plus straight time, if the three hours is worked.
3. A three (3) year contract. Contract expires
June 1969.
4. Wages - Effective the date, if agreed to-.15
cents an hour for 16-1/2 months. NO
RETROACTIVE PAY for the time worked
from June 4, 1966 through June 28, 1966. Effec-
tive December 4, 1967 - 15 cents for 18
months.
5. No increase in Health and Welfare for three
(3) years.
6. Funeral Leave left up to each individual
company, but won't put it in the contract.
7. No improvement in vacations.
On the surface this looks like an improved proposal.
However, if you take time to analyse [sic] it still
amounts to .30 cents in three (3) years on each job
classification.
No improvement on the Health and Welfare for the
three years.
On a three years contract no chances of improving
the Pension Program for the three years.
Evidently the negotiating committee for the associa-
tion feels that after six weeks strike the people are
willing to accept approximately the same thing that
was submitted to us on June 20, 1966.
I would like to call to your attention that working
past the expiration date of the contract of June 4,
that we were under a bona fide legal agreement until
such time the employer notified us on June 24th that
they were canceling the contract , but they refused to
PAY RETROACTIVE from June 4 to June 28.
You will be notified of any further developments.
Fraternally yours,
C.H. Nothnagel, Sec.-Treas.
Local Union 576
Following a meeting held in Chicago about which there
is no testimony in this record, the parties met twice on
August 15 when they agreed, subject to ratification by
the union membership, upon a 3-year contract containing,
among other things, the new grievance and arbitration
provisions (which had been acceptable almost from the
beginning of the negotiations), a no-strike or lockout
clause, a vacation clause containing a provision for 4
weeks' vacation after 20 years of employment, a new sick
leave clause (which also had been acceptable almost from
the beginning), the retail changes in the health and welfare
program (which had been in and out of the various offers
throughout the negotiations but had actually been ac-
ceptable almost from the beginning), a funeral leave
clause (which most Association members allowed but
which the Association did not want referred to in the con-
tract), a provision that the new health and welfare
premium and the pension contribution should be made
for eligible employees employed as of August 22, plus
wage increases of 14-11-12 cent per hour annually dur-
ing the 3-year contract.
Local 576 ratified the agreement and its members
returned to work on August 17.
HEART OF AMERICA MEAT DEALERS ASSN. 841
2. The discharge of Leroy Chenowith
On June 28 G. R. Fisher Meat Company, a member of
the Association, locked out all its employees including
employee Leroy Chenowith, as found above.
On or about June 30 Bobby Stackhouse, son of the
owner of Allied Meat Company which was not an As-
sociation member but which occupied premises adjacent
to Respondent Fisher, telephoned Leroy Chenowith and
asked if Chenowith wanted to work for Allied.
Chenowith accepted and began working the same day.
Thomas Fisher of Respondent Fisher testified that it
was he who, out of "compassion" for Chenowith, had
requested Stackhouse to give Chenowith employment at
this time.
Soon after his employment began, Stackhouse told
Chenowith, "after you finish boning these plates, I have
some meat Tommy [Fisher] want[s] you to cut for him."
After getting advice from his father and fellow meatcutter
Joseph A. Chenowith, Leroy Chenowith told Respondent
Allied that he, Chenowith, could not cut meat for Fisher.
Stackhouse answered, "Okay." Chenowith was never
thereafter requested to cut meat for any member of the
Association.
This episode was soon known throughout the area.
Thomas Fisher heard about it also.
About a week thereafter Respondent Allied's Manager
Warner Keegan told Leroy, in the presence of fellow em-
ployee Howard Steever, "sorry, I have to let you go ...
I just had to turn down a $300 order from Art Mat Com-
pany [a Respondent and a member of the Association].
. I didn't want to get in the middle of the union and the
Association .... The Association is pressuring me and
Art. Art said `you have a boy [Leroy Chenowith]' in
there that is suppose to be walking the street."
Soon after Leroy's discharge, Keegan saw Joseph
Chenowith on the picket line and told Joseph that Art
Meat Company was doing about a $1,000 worth of busi-
ness a month with him and that they, Art, had threatened
to close out that account if he did not let Leroy go.
Howard D. Steever, a meatcutter employed by Allied
at this time, heard Warner tell Leroy that "due to the
pressure from the Association," Keegan was going to
have to lay Leroy off.
Subsequently in a private conversation Keegan told
Steever that Art Meat Company had called and wanted
a $300 meat order but, when Keegan had to turn them
down on the order, they remarked about the fact that Al-
lied had an employee who formerly worked for an As-
sociation 'member [Fisher] and that "after this was all
settled, they wouldn't do any business with Allied if
[Allied] didn't do something about Leroy." Keegan
added that, "Tommy [Fisher] had gone to an Association
meeting on a Tuesday before and told about Leroy work-
ing over there and the Association should do something
about it. 1112 Steever also testified without contradiction
that, after the discharge of Leroy, Allied was forced to
work its employees overtime.13
B. Conclusions
1. The alleged refusal to bargain
General Counsel argues that under the facts found
above that Respondent by:
1. Conducting the "negotiations with the Union with
a fixed decision and a closed mind that no agreement
would be reached with the Union which varied substan-
tially from the contract the Respondent had made with
the Teamsters"; and
2. Unilaterally canceling the collective-bargaining
contract with the Union and thus changing the existing
terms and conditions of employment of its employees on
June 24 had violated Section 8(a)(1) and (5) by refusing
to bargain in good faith with the Union and thus the union
strike at Burnett Meat Company on June 28 was an un-
fair labor strike.
The Trial Examiner cannot agree.
General Counsel argues that "the evidence in this case
conclusively shows that the Respondents either made an
agreement with the Teamsters, or by their conduct led the
Union to believe that such an agreement had been made
with the Teamsters, wherein the Union would be offered
a total wage package no greater than the wage package
the Respondents had given the Teamsters. Obviously, the
agreement or the holding out of such agreement by the
Respondents presupposes a fixed intent and closed mind
with respect to negotiations with the Union."
The Trial Examiner cannot agree. General Counsel's
"either/or" statement above as to what he says the
evidence "conclusively" shows confirms the Trial Ex-
aminer's opinion that there is no competent evidence in
this record which disproves the testimony of Association
witnesses that there was in fact no such agreement
between the Association and Teamsters. Even Nothnagel
only testified that "in my opinion" there was a deal made
between the Association and Teamsters. This "opinion"
apparently was based upon the facts that the Teamsters
did not respect the Union's picket line and Respondent
did its best to hold the wage increase to the Union down
to the increase given previously by it to the Teamsters.
Conceivably the first might be some indication of a
"deal" (along with the somewhat innocuous change in the
picket line clause of the Teamsters contract - about
12 Keegan denied having even talked to Joseph Chenowith or Steever
about the discharge of Leroy. He further denied having given Leroy any
reason for his discharge other than that there was not enough business to
justify his further employment Keegan denied that Allied did $1,000 a
month business with Art and variously estimated that business at $100 per
month on one occasion and about $200 a month on another. Allied did not
choose to offer its business records to corroborate his oral testimony.
When "Tommy" Fisher was asked if there had been any discussion in
Association meetings about Leroy's refusal to cut meat at Allied intended
for Fisher, his answer was denial of sorts: "If there was, sir, it was very
vague , because there was more pressing things at hand at the time "
None of these denials was impressive , particularly when contrasted to
the testimony of Steever, a completely disinterested witness who testified
to the contrary although such testimony might have jeopardized his job
with Allied.
Manfred Bergmann , "manager, president, whatever you call it," of Art
Meat Company , testified on direct examination for Respondent that Art
had never tried to get Allied to discharge or terminate Leroy Chenowith,
in fact knew nothing of Leroy. On cross-examination Bergmann was not
so definite . In fact, according to his testimony , anything became possible
The most charitable thing to say about this testimony is that it was so
vague as to be completely worthless.
The three employees gave all the appearances of witnesses telling the
truth. Neither Keegan nor Fisher did The circumstances also tend to cor-
roborate the witnesses for the General Counsel. Accordingly, the Trial
Examiner must and does accept the testimony of the General Counsel's
witnesses.
11 Allied made no offer of its books and records to disprove this
testimony.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Nothnagel did not know at that time) except for the
fact that even before the Teamsters-Association contract
had been negotiated, the Teamsters had failed to respect
the Union's picket line in the strike during the negotiation
of the retail contract. As to the second point it is just con-
ceivable that the Association thought that it had given the
Teamsters a reasonable wage increase which would con-
stitute a reasonable increase for the Union as well. Unlike
the General Counsel the Trial Examiner can find no
evidence of any "deal" with the Teamsters nor of any
holding out of any such deal by the Association.
Next General Counsel argues that "the most cursory
analysis of the bargaining between the Respondents and
the Union from April 22 to June 20 shows that the
Respondents were engaging in surface bargaining. There
are three factors present that prove the aforementioned
conclusion."
The first alleged basis for this claim is that the Associa-
tion's first offer to the Union was a 5-year contract with
no additional benefits and no wage increase. Even the As-
sociation witnesses conceded that this was not a
"realistic" or a "reasonable" offer. In fact they had no
thought that the Union would accept it. Acknowledging
that the Association's first offer was unrealistic, it was in
fact no more unreasonable than the huge cost package
which Nothnagel placed on the table in order to start
negotiations. An unreasonable demand was thus coun-
tered by an unrealistic offer. Unfortunately collective
bargaining frequently commences from such untenable
positions.
The second factor General Counsel relies on here is the
fact that the Association suggested that certain matters
which the Union wanted could be worked out between
the Union and the individual employers without the
necessity of its inclusion in the contract. He cites as a
specific example of this the Union's request for funeral
leave. The facts, however, show that a multitude of union
demands applicable to a few or only one of the Associa-
tion members such as freezer coats, gloves, $1 for those
working on salt, etc., were in fact settled during the
negotiations satisfactorily to all without their inclusion in
the contract. Also a funeral leave clause was included in
the final Union-Association agreement after a checkered
career throughout the negotiations when at various times
it was demanded and then forgotten or offered and then
deleted depending upon the vagaries of the situation.
The third factor relied on by General Counsel was the
fact that Respondents "refused" to make a final offer on
wages for the first 2 months of the negotiations whereas
an Association bargaining committee representative had
testified that in prior negotiations every offer the Associa-
tion made had been a "final" offer. This is largely a matter
of semantics. It is undenied in this record that the con-
tracts finally executed between the Association and the
Union always contained wage rates higher than any
previous "final" offer made theretofore by the Associa-
tion. The same proved true in the negotiations under
discussion here despite the strong propaganda ploy made
by the Association in its memorandum to the union mem-
bers regarding its so-called "last and final" offer that on
this occasion "last and final" really meant last and final.
As had been customary this "last and final" offer proved
no more "last and final" than had any of the previous
ones. The important fact here is that from the commence-
ment of negotiations to the "last and final" offer of June
20 the Association's offers had been slowly increased
from no wage increase for 5 years to 3-3-5 cents to 6-7-8
cents to 8-10-10 cents with a further increase still to
come. Although this may seem a rather unduly long
period of jockeying for position, these increases indicate
that Respondent Association did not have a closed mind
nor, in the opinion of this Trial Examiner, was refusing to
bargain in good faith for the reason that the Union also
continued to add and subtract numerous fringe cost items
as fancy dictated. The facts show that Nothnagel was not
withdrawing any cost demands permanently at any time.
Funeral leave, for instance, was on and off the table
several times depending upon Nothnagel's estimate of the
exigencies of the situation at the particular moment.
General Counsel calls attention to alleged "admis-
sions" by two individual Association members, Albert
Arnold and Tom Likely, to the effect that it would be un-
fair to Respondent's "loyal drivers" to give the Union
more of a raise than it had previously given to them.
These individual statements14 do not prove a "deal" with
the Teamsters anymore than they prove, if made, that,
rightly or wrongly, the Association members figured that
the raise given to the Teamsters was a reasonable raise to
be given to the Union also. These alleged "admissions"
constitute a most slender reed.
Consequently on the record made here the Trial Ex-
aminer cannot find that Respondent Association was bar-
gaining with a closed mind due to a "deal" with the Team-
sters nor just engaged in surface bargaining.
The name of the game being played here is collective
bargaining where the rules today call for one side to get as
much as the traffic will bear and the other side to give as
little as it can get by with. For the Union Nothnagel was
determined to outdo the Teamsters 10-10-10-cent settle-
ment and, in addition, wanted more than he had obtained
in the retail contract he had negotiated with the Associa-
tion and Elliott, to wit 14-11-5 cents. On the other hand
Elliott for the Association set his sights on the "reasona-
ble" increase previously given by the Association to the
Teamsters. From the first moment when Nothnagel first
laid his unreasonably large cost package on the table and
Elliott countered with the Association's equally un-
realistic first offer, the sides maneuvered and jockeyed
back and forth in a game of wits, demanding this in order
to get the pot sweetened or deleting the other in order to
reduce the demands a bit. If at the commencement of the
game each side had set reasonable goals, the game would
have ended much sooner and without a strike. Under the
extreme positions taken by each side here it took a lot of
preliminary jockeying before the game even became
realistic.
Nothnagel was unreasonable. And, without meaning
any disparagement to Elliott personally, innumerable
Board cases indicate that legal training in all the techni-
calities does not necessarily qualify an attorney as the
best or speediest of negotiators. Admittedly Elliott was
handicapped by his unfamiliarity with the industry at the
beginning. Nothnagel and Elliott were hardly conversing
in the same language. All this slowed down the progress
of the negotiations.
14 The Trial Examiner has grave doubts that Likely even made such a
statement although solicited to do so in a private conversation with a per-
sonal union friend of his.
HEART OF AMERICA MEAT DEALERS ASSN. 843
However from the very beginning it was obvious that
the stumbling block was money and money alone.
Nothnagel and Elliott shadowboxed around with ar-
bitration and grievances, health and welfare, funeral
leave, and other similar matters throughout the negotia-
tions but these things were actually settled early and ex-
peditiously. Money was not. Nothnagel candidly re-
peated numerous times, "it's only money" or "it's all
okay except the money."
He fitted his actions to his words on May 15 when he
ended the negotiations, telling the Association to call him
when they had a better monetary offer to make. The pot
was not being sweetened fast enough for him.
Nothnagel again repeated this maneuver on June 28
when Local 576 called its strike against Burnett. The ex-
cuse suggested in the complaint for calling this strike
against one member of the Association was the fact that
the Association had just notified Local 576 and its mem-
bers that the contract between the Association and Union
had expired by its terms and that, while the Association
members intended voluntarily to maintain the same wage
scale and working conditions, the grievance and arbitra-
tion, union-security and checkoff provisions of that con-
tract were no longer in existence. It is this Trial Ex-
aminer's opinion that the above was an afterthought.'5
General Counsel contends that by this notice Respond-
ent unilaterally changed the working conditions of the
employees during the negotiations and thus violated Sec-
tion 8(a)(5) of the Act. The contract establishing the
aforementioned matters had in fact expired on June 4 by
the terms of the agreement itself. Thus any changes made
thereby occurred by operation of law and not by the uni-
lateral action of the Association. Admittedly, as General
Counsel claims, the matters referred to above were all
mandatory subjects of negotiation . But in this case they
were created by the contract itself and thus expired with
the contract which had created them. The Association
was at this very time willingly engaged in negotiating their
re-creation in the contract then under negotiation.
At the hearing Nothnagel claimed that the strike
against Burnett was an unfair labor practice strike
because of Respondent's refusal to bargain. As previ-
ously indicated, the Trial Examiner can find no closed
mind or other refusal to bargain on the part of the As-
sociation as well as no unilateral change in working condi-
tions as claimed by the General Counsel. The Trial Ex-
aminer believes and, therefore, finds that as of June 20,
June 28, and throughout Respondent Association was
bargaining in good faith, albeit it was "hard bargaining."
Respondent was still trying to get the cheapest deal possi-
ble from the Union which it had the right to do under the
existing rules of the game.
So the Trial Examiner is convinced and, therefore,
finds that the Union called the June 28 strike against Bur-
nett as a tactical maneuver to force the Association to
sweeten the pot once again by increasing its wage offer.
Nothnagel himself had stated that the June 20 offer by
the Association was "all okay except for the money."
Hence the strike of June 28 was purely an economic
strike and not caused by any refusal to bargain or other
unfair labor practices on the part of the Association.
Nothnagel's economic pressure paid off some weeks
later, on August 15.
Faced with this economic power, the Association im-
mediately retaliated with economic pressure of its own in
the, form of a multiemployer lockout which, at the hear-
ing, the Association steadfastly maintained was instituted
in order to "preserve its multiemployer bargaining unit."
More realistically the Trial Examiner believes that the
lockout was instituted by the Association as a means to
secure more favorable settlement terms than to "preserve
its bargaining unit."''
The Supreme Court cases 17 on this subject of lockouts
during negotiations by multiemployer groups make it
quite clear now that, in the absence of an antiunion
motivation on the part of the Association and/or its mem-
bers, a multiemployer group may use the lockout as a
defensive tactic to a "whip saw" strike situation despite
the normal and natural discouragement inherently result-
ing to the Union and its members from the use of such
lockout tactics in order to secure more favorable settle-
ment terms.
The Supreme Court ends its discussion of an 8(a)(3)
finding in the Brown Food cases as follows: "Certainly
then, in the absence of evidentiary findings of hostile mo-
tive [on the part of the multiemployer group], there is no
support for the conclusion that respondents violated §
8(a)(1) . "
While its discussion of a possible 8(a)(3) violation in the
American Ship Building case concludes: "Therefore, we
conclude that where the intention proven is merely to
bring about a settlement of a labor dispute on favorable
terms, no violation of § 8(a)(3) is shown."
On the record made in this case the Trial Examiner has
been unable to find that indispensible hostile, antiunion
motivation on the part of the Association over and
beyond that discouragement of unionization inherently
resulting from the use of a countervailing economic force
of a lockout to that being employed by the Union. In fact
the evidence is to the contrary.
However, General Counsel presented evidence that
upon the resumption of work Respondent Burnett failed
to recall nine of its meatcutters for a considerable period
of time. Burnett testified that this delay in recalling the
nine meatcutters was due to a slowdown in business.
General Counsel made no attempt to disprove this claim.
With the burden upon the General Counsel in this in-
stance, the Trial Examiner must hold that there was no
discriminatory motive in this episode.
General Counsel also presented evidence that at the
time of the lockout Robert Boyle, president of Boyle
Meat Company and also Association president, handed
lockout slips to all employees except William Brinkmeyer
and Vernon Lathrom on the grounds that they were not
union members and therefore were not affected by the
lockout. Brinkmeyer, having joined the Union previously,
joined the strikers despite the threat by Boyle that, if he
failed to report for work, he would be considered to have
quit, a mistake which Boyle corrected by letter sub-
sequently. At most the Brinkmeyer incident is an isolated
incident.
95 For 25 years all grievances had been settled by telephone and not in
accord with this grievance procedure provided in the contracts so these al-
leged changes in working conditions seem more theoretical than real.
16 On October 10, its first meeting after the settlement of the strike, the
Association expelled two members of the Association.
" N.L.R.B. v. Truck Drivers Local Union [Buffalo Linen Supply Co.],
353 U S. 87, N.L R.B v. Brown Food Stores, 380 U.S 278; Local 374,
International Brotherhood of Boilermakers, etc. [American Ship Building
Co.l v. N.L.R.B., 380 U S. 306.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing Boyle maintained that historically the
Union had always permitted cleanup men to continue
work during strikes. This contention was not disproved.
Accordingly this Trial Examiner will recommend the
dismissal of the allegations of the complaint in Case
17-CA-2965 in reference to the refusal to bargain in toto.
2. The discharge of Leroy Chenowith
For reasons explicated supra, the Trial Examiner has
had to credit the testimony of employees Leroy
Chenowith, Howard Steever, and Joseph Chenowith as
against the denial thereof by Allied's manager, Warner
Keegan, that Keegan explained his discharge of Leroy to
them on the grounds that Respondent Art and the As-
sociation had brought business pressure against Allied
and forced Allied to discharge Leroy because Leroy was
a union member, locked out in the Association's dispute
with the Union, who "should be walking the street."
With this credibility question thus disposed of,
Keegan's credited explanation to the employees, re-
gardless of its actual truth or falsity, constitutes an admis-
sion by Allied that it was discriminating in regard to the
tenure of employment of Leroy because he was a locked
out union member and thus Allied violated Section
8(a)(3) and (1) of the Act. The Trial Examiner so finds.
The fact that business pressure was brought to bear
upon Allied by third parties in order to force Allied to dis-
criminate _against Leroy constitutes no defense. for
Respondent Allied. The discrimination remains the same
regardless of where the impetus for the discriminatory ac-
tion came from.
Warner Keegan testified that, at the time of his
discharge, he told Chenowith that the discharge was due
to a lack of business. However, there is competent
evidence in this record which shows that, immediately
following the discharge of Leroy Chenowith, Respondent
was forced to work its employees overtime. As Keegan
did not deny this testimony regarding overtime nor did
Respondent Allied attempt to produce its books and
records to disprove such testimony, the Trial Examiner
must find that there was sufficient work in Respondent's
place of business and that Chenowith was not discharged
because of any lack of business.
The law is clear that, if there is competent proof in this
record that Respondents Association and Art in fact
brought pressure upon Allied forcing Allied to commit
the discriminatory discharge here involved, Respondents
Art and Association are also responsible and liable there-
fore. See West Texas Utilities Company, 108 NLRB
407, enfd. 218 F.2d 824 (C,A. 5), cert. denied 349 U.S.
953.
The only question here then is whether there is proba-
tive evidence in this record that Respondents Association
and Art in fact brought pressure on Allied causing this
discriminatory act.
The only testimony in this record connecting Respond-
ents Association and Art with this discharge is the
testimony of employees Leroy Chenowith, Steever, and
Joseph Chenowith who all testified that Allied in the per-
son of Keegan told them in explanation of Leroy's
discharge that Art and the Association had brought pres-
sure and forced Allied to discharge Leroy. Although, as
found above, this constitutes an admission as against Al-
lied, this testimony amounts only to hearsay as regards
Respondents Art and Association. Keegan, Respondents
Art and Association, and Allied all denied that any such
pressure was in fact brought to bear . The Trial Examiner
found all these denials , for reasons which need not be
gone into here, to be most unconvincing . However, no
matter how unconvincing denials may be , still the denials
do not constitute probative evidence to the contrary
thereof. There is thus no probative and admissible
evidence as against Respondents Art and Association in
this record . Consequently , the Trial Examiner must find
that the General Counsel has failed in his burden of prov-
ing by competent and admissible probative evidence that
Respondents Art and Association pressured Allied to dis-
criminate against Leroy Chenowith and will , therefore,
recommend that the allegations of the complaint regard-
ing the discharge of Leroy Chenowith be dismissed as to
Respondents Association and Art.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent Allied set forth in section
III, above, occurring in connection with the operation of
all Respondents described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, 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
It having been found that Respondent Allied dis-
criminated in regard to the tenure of employment of
Leroy Chenowith, the Trial Examiner will accordingly
recommend that Respondent Allied offer to Leroy
Chenowith immediate and full reinstatement 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 pay he may haves suffered by reason
of said discrimination against him by payment to him of
a sum of money equal to that which he would have earned
as wages from the date of the discrimination to the date of
his reinstatement, less his net earnings during such
period, in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum.
CONCLUSIONS OF LAW
1. Respondent Association and its member companies
and Respondent Allied are employers within the meaning
of Section 2(2) of the Act and are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, Local No. 576, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By discharging Leroy Chenowith in early July 1966
thereby discriminating in regard to his tenure of employ-
ment and thus discouraging union membership and activi-
ties among its employees, Respondent Allied has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent Association and its member companies
have not been proved to have committed violations of
Section 8(a)(1), (3), or (5) of the Act.
HEART OF AMERICA MEAT DEALERS ASSN. 845
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that Allied Meat Company (Kansas City,
Missouri), its officers, agents, successors, and assigns,
shall:
1. Cease and desist from discouraging union member-
ship and activities among its employees by discriminating
in regard to the hire and tenure of any of its employees in
order to discourage such union membership and activi-
ties.
2. Take the following affirmative action which the
Trial Examiner finds will effectuate the policies of the
Act:
(a) Offer to Leroy Chenowith immediate and full rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges and make him whole in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Post at its plant in Kansas City, Missouri, copies
of the attached notice marked "Appendix A." "' Copies
of said notice, to be furnished by the Regional Director
for Region 17, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
Allied to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'9
The Trial Examiner hereby recommends that the al-
legations of the complaint as to all Respondents except
Respondent Allied be dismissed.
The Trial Examiner further recommends that unless
within 20 days from the receipt of this Decision Respond-
ent Allied has notified the said Regional Director that
it will comply with the foregoing recommendations, the
Board issue an order requiring Respondent Allied to take
the aforesaid action.
11 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
19 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what
steps Respondent had taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage union membership or ac-
tivities of our employees on behalf of Amalgamated
Meat Cutters & Butcher Workmen of North Amer-
ica, AFL-CIO, Local No. 576, or any other labor or-
ganization, by discriminating in regard to hire and
tenure of employment of any of our employees
because of such affiliation or activity.
WE WILL offer Leroy Chenowith immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights and privileges and will make him
whole for any loss of pay he may have suffered by
reason of the discrimination practiced against him
together with interest thereon at 6 percent per an-
num.
WE WILL NOT in any like or similar manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of their rights to self-organization, to form,
join , or assist any labor organization, to bargain col-
lectively through representatives of their own choos-
ing, or to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid
or protection or to refrain from any or all such activi-
ties.
ALLIED MEAT COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri
64106, Telephone FR 4-5282.