Iowa Pork Co., Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1964

148 N.L.R.B. 1242 (N.L.R.B. 1964)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction Drivers, Helpers & Material Handlers, Local Union No. 341, or
any other labor organization, by discriminating against our employees in any
mariner in regard to their hire or tenure of employment or any term or con-
dition of employment.
WE WILL NOT unlawfully interrogate our employees concerning their and
other employees' union membership, sympathy, and activities.
WE WILL NOT threaten to close down the plant or sell it rather than deal with
a union representing our employees, or otherwise threaten the job security of
employees because of their union membership, sympathy, and activities.
WE WILL NOT refuse to talk with a union representative who is said to repre-
sent our employees.
WE WILL NOT attempt to defeat a strike of our employees by offering rein-
statement to some of the strikers while rejecting the rest of the strikers.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Building Material & Construction Drivers, Helpers
& Material Handlers, Local Union No. 341, or any other labor organization,
to bargain collectively with representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in Sec-
tion 8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL make whole Bernard Trusiak, Joseph DeMarco, Merle L. Crowe,
Rudy J. Tabacek, Frank Yaksetich, and George Zrelak for any loss of pay
suffered by them by reason of the discrimination practiced against them, in
accordance with the Recommended Order of the Trial Examiner's Decision.
All our employees are free to become or refrain from becoming members of In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Building Material & Construction Drivers, Helpers & Material Handlers,
Local Union No. 341.
HORNICK BUILDING BLOCK CO.,
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.
Employees may communicate directly with the Board's Regional Office, 2107
Clark Building, Pittsburgh, Pennsylvania, Telephone No. Grant 1-2977, if they have
any question concerning this notice or compliance with its provisions.
Iowa Pork Company, Inc. and United Packinghouse, Food &
Allied Workers, AFL-CIO, District No. 3
Iowa Pork Company, Inc. and Dallas County Industrial Labor
Union, Petitioner. Cases Nos. 18-CA-1746 and 18-RC-5340.
September 02, 1964
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
On May 28, 1964, Trial Examiner Ramey Donovan issued his De-
cision in the above-entitled proceeding, finding that Respondent had
148 NLRB No. 116.
IOWA PORK COMPANY, INC. 1243
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. The Trial Examiner also recom-
mended setting aside the election held on September 25, 1963. There-
after, Respondent filed exceptions to the Decision and a supporting
brief; the Union filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
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
Decision, the exceptions and briefs, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
ORDER'
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Iowa
Pork Company, Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Order.
IT IS FURTHER ORDERED that the election held on September 25, 1963,
in Case No. 18-RC-5340, be, and it hereby is, set aside, and that said
case be remanded to the Regional Director for Region 18 of the Board
to conduct a new election at such time as he- deems that circumstances
permit the employees to exercise a free choice in the selection of a bar-
gaining representative.
[Text of Direction of Third Election omitted from publication.]
' Add the following paragraph to the Order:
Notify the above -named employees if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated proceeding was heard before Trial Examiner Ramey Donovan
in Perry, Iowa, on March 11 , 12, and 13, 1963. The charge and the amended
charge of unfair labor practices had been filed by the Union on October 29 and
December 3, 1963. Subsequently, the Regional Director for Region 18 issued a
complaint and consolidated therewith objections to an election conducted on Sep-
tember 25, 1963, that had been filed by the Union . The parties filed briefs with
the Trial Examiner on May 11, 1964.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and on the basis of observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Iowa Pork Company merged with Iowa Beef Packers, Inc., in August 1963, and
became a division of the latter corporation. Iowa Beef Packers, Inc., has beef
packing plants at Denison, Iowa, and at Fort Dodge, Iowa. The Iowa Pork Com-
pany plant, as the name indicates, is a pork packing plant, with its principal office
and place of business in Perry, Iowa. At Perry, the Company engages in the
slaughter, processing, and distribution of pork and pork products. During the past
year, Respondent, Iowa Pork Company, Inc., in the course of its business operations,
sold and distributed products valued in excess of $1,000,000, of which products
valued in excess of $1,000,000, were shipped directly to States of the United States
other than the State of Iowa.
II. THE LABOR ORGANIZATIONS INVOLVED
United Packinghouse, Food & Allied Workers, AFL-CIO, District No. 3, herein
called the UP or the UP Union, is a labor organization within the meaning of the
Act.
Dallas County Industrial Labor Union, herein called the Dallas County Union or
Dallas Union, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
In the course of union efforts to organize the Perry plant there have been two
elections. The UP filed a petition in December 1962. The Board conducted the
first election on March 25, 1963. Thereafter, as the result of objections filed by the
UP Union, the results of the election were set aside and a new election was directed
by the Board. The second election was conducted on September 25, 1963, and the
objections to that election, filed by the UP, are before me in the instant case as
well as the allegations of unfair labor practices. The prior election and the objec-
tions thereto are not before me for determination.
The Facts
The Perry plant commenced operations in the latter part of 1962. At the time
of hearing, its complement was approximately 139. Frye was the plant manager;
Salocker was plant superintendent; Lewis was foreman of the kill floor; and Ham-
ersley was supervisor in charge of the head table which was part of the kill floor.
All the foregoing individuals are supervisors within the meaning of the Act, as
stipulated by the parties. Anderson is president of Iowa Beef Packers, Inc., the
parent company, herein called IBP, with his headquarters at the Denison plant, 80
miles from Perry. Thiede is production manager at the IBP plant at Fort Dodge,
about 60 miles from Perry.
Employee Gettler had been hired at the Perry plant in November 1962. Parr
had been hired in January 1963. Both men were adherents of the UP and wore
union buttons and insignia. They were the two election observers for the UP at
the September 24, 1963, election. While Parr did not work at the head table until
about April 1963, they both were working there during the 1963 events that prin-
cipally concern us.
Normally 12 to 14 employees work at the head table at which they perform
various operations on the heads of pigs that come to their section by means of a
moving chain. Although the term head table is used to denote the particular section,
each of the three tables is approximately 8 feet long and 3 to 4 feet wide. At in-
tervals over the tables are suspended water sprinklers which are used to keep the
tables clear of blood and other matter. The tools that are used at the head table,
insofar as pertinent to this case, are knives, knife sharpening steels, and head chisels.
The sharpening steel has a wood handle and a round steel shaft about 14 inches
long. The shaft tapers to a slight point. The function of this instrument is for the
manual sharpening of the knives. The chisel has a metal handle and a rounded
tapering steel shaft about 8 to 10 inches long. The point is more pronounced a
point than is the case with the sharpening steel, although its acuteness is by no means
that of an ice pick or needle point. This chisel is also not comparable to a wood
IOWA PORK COMPANY, INC. 1245
chisel which, in addition to a flat shaft, has a broad sharp cutting edge at the end of
the shaft or blade. The head chisel evidently is used as a gouge or prying im-
plement in working on the heads of the swine.
Some time in the early winter of 1962-63, December-February, Frye was taking
a visitor through the plant. In the head table section of the kill floor, Frye states
that he saw Gettler throwing meat and he called the employees together at the head
table and warned them against such conduct. According to Frye, in speaking to
the head table employees, he was addressing his remarks particularly to Gettler.
There is a good deal of testimony in this record about meat throwing by employ-
ees. I am satisfied that on the rather frequent occasions when it occurred, most,
if not all, the 12 to 14 employees at the head table engaged in it, if not other em-
ployees. The employees throw scrap meat at each other and the nature of this
activity was one of action and counteraction.'
Regarding the meat throwing incident in the winter of 1962, aforementioned, the
evidence persuades me that while Gettler did throw meat on that occasion, there were
others also so engaged. I consider it unlikely that Frye was not aware of this fact.
Both Frye and Salocker testified that Frye informed Salocker of what he had wit-
nessed and Salocker then called all the employees of the head table to his office.
There Salocker told the group that the Company could not tolerate that sort of con-
duct, throwing meat. Neither Salocker nor Frye testified that the latter had singled
out Gettler or mentioned him by name in relating the meat throwing incident to
Salocker. Salocker admittedly did not speak to Gettler separately or mention him
by name when he called the entire head table to his office for a general admonition,
about, as Salocker testified, "horseplay."
Around May or June 1963, Frye, while going through the plant, observed the men
at the head table, including Gettler, Parr, and others, again throwing meat at each
other. Frye went over to the head table and told the men that he was not going
to put up with that sort of thing any longer. He then went to Salocker and told him
that Salocker had to do something to stop the horseplay on the kill floor. Salocker
said that he had warned them all before but would do so again. Salocker there-
after called the entire head table crew to his office and warned that the Company
could not put up with horseplay because it was too dangerous. He said that he
was putting Hamersley at the head table to insure that there was no more horseplay.
Thereafter, Hamersley, who had been a supervisor in another department, was as-
signed to work full time at the head table.
As mentioned, the second Board election, with the UP and the Dallas County
Union on the ballot, was scheduled for September 25, 1963. On September 19,
1963, Hamersley informed Gettler that someone wanted to see him in Salocker's
office. This office is Superintendent Salocker's base of operations and a sign on
the door designates it as "the superintendent's office." The office is in the general
plant area and has two desks, chairs, and a telephone. A first-aid kit is also kept
in the office and if an employee sustains an injury, such as a cut, he customarily
comes to the office where Salocker will apply a bandage or similar aid.
When Gettler arrived at the office, a stranger to Gettler was there, who introduced
himself as Thiede. Thiede was IBP's production manager at its Fort Dodge plant.
A few years ago Thiede had been a production worker in Anderson's Denison plant
and had been a UP member in an unsuccessful strike at that plant. During or after
the strike, Thiede became reconciled with Anderson and disenchanted with the UP.
He subsequently became production manager at Fort Dodge. When Thiede sum-
moned Gettler to the superintendent's office, he was aware that Gettler was a UP
adherent and that there was a contest between the UP and the Dallas Union to
organize the Perry plant There is a conflict in the testimony of Thiede and Gettler
regarding their conversation. For reasons that will be discussed at a later point, my
confidence in Gettler's reliability as a witness is of a qualified nature but with re-
spect to Thiede there is testimony of other witnesses regarding their conversations
with him during this same period.
I am satisfied that Thiede was sent to the Perry plant for two reasons. One rea-
son was a production problem involving the amount and speed of the work to be
performed by employees at Perry. Thiede was a man with personal experience in
a pork plant and he was familiar with the work. There was evidently dissatisfac-
tion among some of the Perry employees about what they' considered inadequate
relief for production men in the course of their work. The other reason for
Thiede's presence was the election campaign of the two unions. Thiede was at
I One employee, Parr, testified that he did not throw meat but did throw glands. I am
using the term meat in its broad sense, including glands. '
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perry at the direction of his employer, Anderson. The latter was admittedly op-
posed to the UP and his opposition was active, not passive. Anderson had fought
the UP succesfully at his Denison plant. He had fought the UP actively at his Fort
Dodge plant.2 Anderson was fighting the UP at his Perry plant and Thiede was
an instrumentality in Anderson's cause, albeit Thiede's sentiments coincided sub-
stantially with those of his employer.
It is found that on September 19 Thiede, in the course of questioning Gettler
about the latter's attitude toward the workload and the wage rates, learned that
Gettler considered the jobload too heavy for the rates. Thiede asked Gettler why
he had not taken this up with some committee .3 The implication, in context, being,
why did Gettler become active in the UP as a means of securing changes in con-
ditions of employment instead of going to the committee. Thiede spent most of
the time telling Gettler about his experience with the UP and the Company during
the Denison strike. The gist of the theme was that the Denison employees were
going hungry during the strike and Thiede went to Anderson to persuade him to
reopen the plant and Anderson said he "would just take a little longer vacation";
that Thiede proceeded to take steps to decertify the UP and that he hoped that
Gettler would not have the unfortunate experience with the UP at Perry with the
employees being out of work. Gettler states, and Thiede denies, that Thiede con-
cluded the interview by saying, "Well, if the United Packinghouse Workers get in
and if you don't change your way of thinking, you are going to find yourself out of
a job." While I do not regard Gettler as a reliable witness in some aspects of his
testimony, I credit his testimony regarding the foregoing statement of Thiede. One
of many factors considered is that the Board and the court found similar statements
made by Respondent's supervisors at its Fort Dodge plant in the latter part of 1962.
Anderson was the Company's policymaker at both plants. Thus, 60 miles away
at Fort Dodge, the superintendent had informed an employee that " `. .. we asso-
ciated with them kind of guys [UP] we would be out of a job."' It was found
that Anderson had warned the Employees that "if he heard of anybody associating
with or affiliating with the international [UP] they would go down the road" (Iowa
Beef Packers, Inc. v. N.L.R.B., supra).
I am satisfied that the interview as a whole manifested and was intended to
manifest to Gettler that the Company was strongly opposed to the UP and was
fighting its organizational effort and that economic detriment was in the cards for
Gettler and other employees if the UP was successful. The company importation
of Thiede from Fort Dodge to Perry, with Thiede's personalized account of his own
experience in abjuring the UP and seeing things Anderson's way, was an obvious
demonstration of the benefits resulting from such a course of action since Thiede,
once a manual worker at Denison, was now production manager in the Fort Dodge
plant. A "smart and capable" employee like Gettler might be expected to see the
point?
On the same day that he interviewed Gettler, Thiede also talked to employee
Welch. Welch had been one of the UP observers at the first Board election on
March 28, 1963. On September 19, Foreman Lewis told Welch to go to the super-
intendent's office. Upon arrival, Thiede introduced himself as the production man-
ager at the Fort Dodge plant of the Company. Evidently attributing the report to
Welch, Thiede told him that it was not true that the Company had taken away the
employees' smoke break at Fort Dodge. Thiede then proceeded to say that Welch
should not pay attention to UP advocates and that the Dallas County Union could
do him more good. Thiede recounted his own experiences at Denison as he had
done with Gettler. He informed Welch that the Perry plant needed two or three
more utility men .5 Thiede also stated that if the Dallas County Union won at
Perry a contract would be negotiated right away but, if the UP won, it might "be a
month, or six months or maybe never."
2 "Mr Anderson was opposed to International [UP] representing his company's em-
ployees in the Fort Dodge plant, and he and his supervisors engaged actively in a cam-
paign to discourage the employees from joining or supporting International." Iowa Beef
Packers, Inc v NLRB., 331 F. 2d 176 (C A 8).
E The record does not disclose to what committee Thiede had reference.
4 Anderson, who, as we shall see, also spoke to Gettler, testified that he recognized him
as "smart and capable." Both Anderson and Thiede also knew that Gettler was a leading
UP adherent.
5 A utility man was an all-round employee capable of filling in on all or most of the
plant jobs. In short, the utility man was skilled and versatile and the job was a desir-
able one.
IOWA PORK COMPANY, INC. 1247
During this same September 1963 preelection period, Foreman Lewis sent em-
ployee Hilpipre to the superintendent's office. Anderson was present and he knew
Hilpipre inasmuch as the latter had at one time worked at the Denison plant. An-
derson asked Hilpipre how he thought the election would go and Hilpipre opined
that the UP would win. When Anderson asked Hilpipre about his own sentiments
the latter did not give a direct answer. Anderson said that he would like to have
Hilpipre on the Company's side and "pull for them." That evening Thiede and
Hilpipre met as they were leaving the plant. They had a few words together in a bar.
The next day Thiede went to Hilpipre's home. Thiede and Hilpipre knew each
other, having both worked at the Denison plant. They knew each other socially as
well, and on some prior occasion before Hilpipre had come to the Perry plant, Thiede
and his wife had visited the Hilpipres. On this September 1963 visit by Thiede, at
which Thiede stayed for lunch, they discussed mutual interests and hobbies. I find
that the election was also discussed although Thiede denies this. Thiede states
that Hilpipre did mention that the same union crowd was trying to get into the Perry
plant as had been at Denison. Hilpipre is alleged to have said that he would not
have come to Perry if he knew there was going to be union trouble but that" he
had a supply of canned food on hand, as he had at Denison, in order to insure against
hunger in the event of a strike. I believe that the foregoing probably was said.
But I credit Hilpipre's testimony that Thiede, on this occasion, told him that he had
come down to Perry to get "their" union in. Also, that Thiede asked Hilplpre how
he thought the election would go and that "he would like to have me [Hilpipre]
on his side" and that there was a good possibility of Hilpipre getting a job as utility
mane Thiede also told Hilpipre of situations where the UP had failed and "folded
here and there."
On September 20, Lewis told Gettler that he was wanted in the superintendent's
office. Anderson was there and Thiede remained for the first part of the conversa-
tion. Anderson told Gettler about himself and his experiences in the industry;
he inquired about Gettler's personal life, whether he was married and had a family,
and whether be liked his job He pointed to Thiede as a former UP supporter
"much the same as you [Gettler] are, and he saw what they had to offer, and he
decertified them and went with the local union and today he is production manager
at Fort Dodge." At the end of the conversation, Anderson asked Gettler to send
in employee Merical, which Gettler did. Although Anderson states that Gettler
suggested the Merical interview, this appears unlikely. Anderson was at the plant
to sell his own anti-UP or procompany views and, just as he had selected Gettler,
it is my opinion that Anderson selected Merical, who had been one of two UP
observers at the March 1963 election.
Again, on September 21, Gettler was sent to the office where Anderson once more
sought to "sell" him on the advantages of not being represented by the UP. At
the hearing, Anderson testified that he had noticed Gettler previously and that he
considered him smart and capable. Anderson said that in a series of meetings in the
superintendent's office, "I tried to sell him on IBP [Iowa Beef Packers, the Com-
pany] instead of an international union"; that he told Gettler about the growth and
future of the Company and about the unsuccessful UP strike at Denison. It was
at this talk on September 21 that Anderson invited Gettler to visit the Denison
plant and see for himself the advantages enjoyed by employees in a plant not repre-
sented by the UP. Gettler accepted the invitation but said that he did not wish to
go alone. It was agreeable to Anderson that Gettler bring some other employees
and Gettler was to let Anderson know about the date in a day or so. Thereafter,
this was done and, on September 23, 1963, Anderson drove Gettler, Parr, Lawson,
Merical, and Lawson to the Fort Dodge plant?
On the return trip from Fort Dodge on the same day, Anderson passed around a
copy of a speech he was going to deliver at the Perry plant on September 24, the
day before the Board election.
The speech, aforementioned, read on September 23 on the automobile trip and
delivered by Anderson to the assembled plant employees at Perry on September 24
expressed Anderson's hostility toward the UP. He recounted the experience with
the UP at Denison when that plant was closed for 5 weeks and how the employees
at Fort Dodge and Denison each now had their own unaffiliated union. Anderson
9 Hilpipre was an experienced hog butcher, evidently well qualified to be a utility man.
7 The change from the Denison to the Fort Dodge plant was a last minute change sug-
gested by Anderson on the basis that Denison was about 20 miles farther from Perry than
was Fort Dodge.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that it was impossible to cooperate with the UP because of their insistence "on
unreasonable demands" and that "I favor and expect that I will get along better with
good, sensible boys like you setting down and working things out ." He said it was
up to the employees to decide . The speech concluded:
Now listen real close to me, all of you. If the Dallas union wins, as they did
before, I am going to immediately begin negotiating a fair contract . But
if the UPWA wins this one and comes at me the way they did at Denison with
unreasonable conditions , then the experience at Denison could very well repeat
itself here .8
The election was conducted on September 25, with Gettler and Parr as the UP
observers . The Dallas County Union received a majority of the votes but, on Octo-
ber 1 , the UP filed objections to the election.
On September 26, in the plant lockerroom, just before work, Gettler circulated a
petition among the employees for a special meeting of the Dallas County Union to
elect a new slate of officers . He secured about 53 signatures.
Saturday ,9 October 19 , about 40 employees walked off their jobs and refused to
return to work until Frye agreed to meet with them that evening after work.
Apparently the cause of the walkout was dissatisfaction with the rate of pay they
were receiving for the amount of the work being performed . Gettler took part in
the walkout . At the meeting of a group with Frye that evening, Frye stated that
he could not give a raise . Gettler asked him why, and Frye explained that be would
be subject to unfair labor practice charges. On the following Tuesday, October 22,
after work , Gettler went to Frye's office. He presented Frye with a letter from Hart,
district director of the UP, to the effect that the Union would not file charges if a
fair raise was granted.
Before proceeding to consider subsequent events, the relationship between Gettler
and Respondent up to October 22, 1963, merits our attention
Gettler had been employed by Respondent almost since the Perry plant had com-
menced production . There is no evidence of any criticism of his skill or proficiency
as a worker . Anderson , in his frequent visits to the plant, had admittedly spotted
Gettler as a "smart and capable" individual . The only thing wrong with Gettler
from Respondent 's standpoint was his pro-UP sentiments . Anderson, it is clear, had
also recognized this factor and took steps to convert Gettler. The missionary
effort was not entrusted to some foreman or minor supervisor but Anderson him-
self and Thiede, the production manager at the Respondent 's Fort Dodge plant,
came to Perry. Between them, these top management people devoted 3 days, Sep-
tember 19, 20, and 21, to a determined effort to convince Gettler that his best in-
terest lay in the direction of abjuring the UP and of casting his lot with the Com-
pany and with an unaffiliated union such as the Company dealt with approvingly at
its other plants While a few other UP oriented employees also were subjected to
similar sales talks by either Thiede or Anderson , none of them were exposed to both
officials , nor were they accorded 3 days of propagandizing . In addition , Gettler
alone was offered a private trip to the Denison plant with the president of the Com-
pany.10 All this attention , including the motor trip with President Anderson, was
indeed flattering and bespoke the importances in Respondent 's mind of defeating the
UP. The final gesture of confidence that Gettler and his friends, including Parr,
had been successfully proselytyzed , was Anderson 's affording them a preview read-
ing of the speech that he was.to deliver on the following day at the plant. Fur-
ther, the written speech made it unmistakably clear where the Company stood on the
UP issue and what it expected from any "sensible" employee.
But in spite of all the foregoing , Gettler and Parr , a few days later, served as the
UP observers at the election . When the Dallas Union received a majority of the
votes, Gettler, the next day, circulated a petition among the employees calling for
an election of new officers in the Dallas Union.
• Since the evidence in this record shows affirmative approval and espousal of the
Dallas Union by Respondent , as opposed to the UP, we may fairly conclude that
Respondent approved the leadership of the. Dallas Union as much as it disapproved
of the leadership of the UP. The leadership of both unions , as in most organiza-
tions, rested primarily with its officers and officials. In view of this record's evidence
8 Italics as it appears in the written speech, General Counsel's Exhibit No 6.
9 The plant normally worked on Saturday
10 Upon receipt of the invitation from Anderson , it, was Gettler's idea to have other em-
ployees accompany him on the trip.
IOWA PORK COMPANY, INC. 1249
of Respondent's complete opposition to anything pertaining to the UP, the next
worst thing to having the UP in the Perry plant was to have the acceptable or
approved officers of the Dallas Union replaced by UP oriented officers or by officers
who might make what Respondent considered unreasonable demands. Respondent
appears to have been quite knowledgeable in the labor relations area and it is an
old pattern for a cohesive and determined group, with a capable leader, to infiltrate
another union, affiliated or unaffiliated, and by electing chosen officers to eventually
change the affiliation or the orientation of the infiltrated union. This is always a,
danger when a minority union group is present in a plant. The UP adherents at
Perry were at least a minority group. When Gettler circulated a petition for an
election of officers in the Dallas Union, it is reasonable to conclude that the poten-
tiality or at least the hope was to elect one or more officers palatable to the UP,
adherents. Gettler himself might come to mind as a logical candidate. And Get-
tler, as Respondent then knew, was a committed UP adherent who had withstood,
massive pressure from Respondent to change his views. Even if Respondent en-
visioned none of the foregoing, it did know that Gettler was a UP man and his
circulation of a petition for a new election of Dallas Union officers was at least an
attempt to rock a boat that was sailing in a course completely acceptable to and
favored by Respondent.
Walkouts or strikes by employees are quite obviously a cause of concern to an,
employer. Such action affects production and production is intimately related to,
profit. But a walkout or a strike may also be regarded as a manifestation of a
deficient employer-employee relationship. If the walkout or strike is led by a union,
it is a manifestation of union power and whether of long or short duration it demon-
strates some potentiality of future trouble. For the foregoing reasons, it is appar-_.
ent that Respondent did view the brief October 19, 1963, walkout with some con-
cern. The accuracy of the foregoing conclusion is confirmed by Frye's testimony
that he had secured statements from employees that Gettler was responsible for or-
led the walkout. Under the circumstances, it seems unlikely that employees, who ,
engaged in or who were closest to the walkout from the information standpoint,
initiated statements from themselves to present to Frye. Quite likely, it was Frye .
who took steps to investigate the walkout and to secure statements concerning the
identity of the leader of the movement.
The walkout occurred on Saturday, October 19. Thereafter, the afternoon or-
evening of the same day on which the walkout occurred, Frye was meeting with
Gettler and others on the question of wage increases. The meeting had resulted
from the walkout and Gettler was a spokesman in the meeting with Frye. On
October 19, therefore, Frye was aware that Gettler had been and was associated
with the walkout. He may well have believed at that point that Gettler was the
leader or instigator but there presumably was no doubt in Frye's mind about Get-
tler's responsibility for the walkout when he secured statements to that effect. The
fact that Frye took steps to secure such statements indicates clearly, as we have
previously observed, that this walkout was viewed seriously by Respondent.ii
On October 19, therefore, Respondent was aware that Gettler was at least prom-
inently associated with the walkout of that day. In the next few days, it is reason-
able to conclude that Respondent confirmed the foregoing.
A walkout by any employees is a matter of serious concern to an employer-".-
But here we see not only a walkout but a walkout having clear UP connections or UP
instigation through Gettler, the UP leader in the plant. Add to this, the admitted
and clear fact that Respondent was totally opposed to the UP, and we have in the
person of Gettler, an employee who, from Respondent's standpoint, possessed maxi-
11 There is no evidence as to the date on the statements since Frye testified that he no
longer had them in his possession. Under the circumstances, it appears not unlikely that,
on the next working days immediately following the walkout the investigation was made
and the statements secured There would appear to be no reason to wait a week or more
before getting into such matters but, rather, it would be more reasonable to expect the
action to follow the impetus of the affair, to wit, walkout on October 19; meeting with
Gettler and group thereafter on Saturday, October 19 ; check into and investigate re-
sponsibility for walkout on following Monday, October 21, and Tuesday, October 21, or
even October 22.
12 A walkout, if brief and soon terminated without too much interruption of work, is -
nevertheless something like an iceberg. It is what is below the surface that is dangerous
Unless the causes or the instigators of the walkout are cured , there may be further po-
tentialities of a more widespread strike
760-577-65-vol. 1418-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mum undesirability. Not only did Gettler (and Parr) serve as UP observers at the
election after extensive and personalized missionary activity by President Anderson
and Manager Thiede, but Gettler, also, after the election, circulated a petition in an
attempt to bring about a change of leadership in the Dallas Union, a leadership
of which Respondent admittedly approved as much as Respondent disapproved of
any UP leadership. Then, as described above, came the October 19 walkout and
Gettler's prominent association therewith. On October 22, Gettler presented to
Manager Frye a letter from the district director of the UP regarding a raise for the
employees. If nothing else, this confirmed, in Respondent's eyes, Gettler's close
association with the UP.
The events that occurred on Wednesday, October 23, 1963, are, in many respects,
the subject of sharp conflicts in testimony among the witnesses. We begin around
10 a.m. on that day, with Frye coming to the vicinity of the kill floor in the plant.
Frye, according to his testimony, customarily went through the plant about four or
five times a day for periods varying from 5 minutes to 2 or 3 hours at a time.
On October 23, Frye states that when about 50 feet away from the head table he
observed Gettler and Parr on opposite sides of the table This was their regular
work station. The two men, according to Frye, were dueling with each other.
Gettler was thrusting at Parr with a sharpening steel that he had in his hand and
Parr was thrusting back with his chisel.13 Knives were not in view and were not
being used in the above action. Frye states that he was "dumbfounded" to see
such conduct, since about a week before, an employee, Auen, had been seriously
injured in the plant.14 Frye then moved close, about 30 to 40 feet away, to better
observe the conduct of Gettler and Parr. Frye states that he observed the afore-
said duel going on for a total of 3 or 4 minutes. He next went to the head table
and spoke to Gettler and Parr. Frye said, "Are you fellows deliberately trying to
get fired? No company has to put up with this." Gettler said, "Are you going to
sponsor the husbands and wives team?" Frye said "this" was more important but
"I [Frye] would see" about the bowling, and then Frye left.15
Frye testified that after leaving the head table he went to Salocker's office and
told him that he had caught Gettler and Parr dueling. He told Salocker that they
had been warned and something had to be done. Salocker said he had no replace-
ment right at that time. Frye instructed Salocker to discharge the men at the end
of the day and said that be, Frye, would have their paychecks made out. Frye then
had the office girl make out two checks for each man. Salocker corroborates Frye
and states that at the end of the day he called the two men to his office, told them
that they had to turn in their equipment 16 before they received their checks, and
that they were fired or fired for horseplay. When they asked him how they could
be reinstated Salocker told them they would have to see Frye. The men turned
in their equipment and received their checks. Since Wednesday was the regular
payday, they received one check for the week ending Tuesday, October 22, and a
check for 1 day's work, October 23.
According to Frye, and this part of the events is substantially agreed upon by all
the witnesses, Gettler spoke to him at the plant after he had received his checks.
Gettler said that Salocker had told them they were suspended for 3 days and Gettler
asked Frye how he could get reinstated. Frye said they were not suspended but dis-
charged and Salocker came up at that point and Frye repeated what Gettler had said
about being suspended by Salocker. The latter in effect denied having suspended the
men rather than discharging them. Parr also had spoken to Frye about having been
told by Salocker he was suspended, and, again, Frye said it was a discharge and not
a suspension.
Returning now to Gettler and Parr, they both testified that they were not dueling
on October 23 before or when Frye spoke to them. Gettler states that the chain
conveying the heads had stopped for 4 or 5 minutes because some of the heads had
13 These two implements have been described earlier in this Decision
14 The Respondent supplied no details about the Auen affair and the record simply shows
that Auen somehow thrust a knife in his lea, causing heavy bleeding, prolonged absence,
and some or partial permanent impairment of the leg There is no evidence of an investi-
gation of the Auen Incident by Respondent or whether other employees were involved or
whether negligence or misconduct entered into the matter or that any disciplinary or
warning action was taken either with respect to any particular individuals or the em-
ployees generally
is This is Frye's credited version of the entire conversation. Gettler's version is sub-
stantially the same.
16 Helmets and instruments.
IOWA PORK COMPANY, INC. 1251
been found to be abscessed by an inspector. When no heads were coming through,
Gettler sharpened his knife and then was standing at the table across from Parr.
Gettler asserts that he was gesturing with the sharpening steel in his hand while
talking to Parr. Parr was standing at his side of the table hitting with his chisel
the water sprinkler suspended over the table in front of him. Parr was doing this
because the sprinkler head was clogged with particles. Both men denied dueling,
thrusting, or hitting their implements against one another's. Both Respondent and
the General Counsel called employees as witnesses who were in close proximity to
Gettler and Parr at the time of the alleged dueling. The testimony ranged from
statements that there was no dueling or thrusting or hitting to testimony that the two
men were dueling with their steel and chisel and thrusting and hitting the tools to-
gether. Intermediate versions were that there was some arm waving or gesturing
with implements or that there was some slight movement in each other's direction.
A careful consideration of all the evidence persuades me that the following
occurred: The chain had stopped 3 to 5 minutes and no work was coming through
for the head table. During the hiatus Gettler sharpened his knife. He was on the
opposite side of the table from Parr. The latter did hit the water sprinkler a few
times with his chisel. Gettler and Parr were talking and Gettler had his sharpening
steel in his hand. There was some movement of Gettler's hand with the steel and
some of it was part of a conversational gesture. But, while thus standing as de-
scribed, with their respective steel and chisel in hand, I am satisfied that there was
some thrusting at each other across the table with the aforedescribed implements.
It is likely that the steel and chisel crossed or hit in the course of this thrusting.
I do not believe that the thrusting or dueling was as extensive as Frye described it or
was of the duration of the 3- to 5-minute hiatus in the work. It is also found that
the conduct had stopped before Frye came to the table and talked to the men.
As to the question of whether Salocker had originally informed the two men that
they were suspended for 3 days, I believe that the matter is not free from doubt.
It is possible that Salocker did not use the words "fired" or "discharged" but I am
not satisfied that he said suspended for 3 days. Salocker admittedly told the men
that they had to turn in their equipment before receiving their checks. Normally,
the record shows, this was not required on a suspension for a few days and this
impresses me as quite logical. The men did turn in their equipment and received
two checks. Since this occurred on payday, Wednesday, there would be no reason
for the Company to pay them in full for 1 day's work, Wednesday, the first day
of the new workweek, if they would be back at work on the following Monday after
a 3-day suspension. They would thereafter, on Wednesday, payday, receive a check
for work on Monday and Tuesday. In any event, it is clear that the men knew
definitely before they left the plant October 23 that they were discharged.17
About October 25, Gettler made a long-distance call to Anderson at the latter's
home. Anderson was at home ill on that day. Gettler called from the office of
Hart, district director of the UP, and he testified that Hart listened in on the con-
versation on an extension telephone. Anderson testified that he knew at the time
that the call was being monitored and that he heard someone coughing other than
Gettler while Gettler and Anderson were talking. The gist of the conversation was
that Gettler was asking Anderson to reinstate him and Anderson said that it was up
to Frye. Gettler mentioned that he had tried to change the officers in the Dallas
Union and Anderson allegedly said that was the reason Gettler "got it," i.e., was
discharged. Anderson denied having made such a statement. Although Hart was
a witness at the hearing he did not testify regarding this conversation. Neither Get-
tler's nor Anderson's testimony regarding this conversation impressed me. Anderson
was admittedly ill at the time and his testimony was rather vague and general. On
171 admit to some puzzlement about a part of Parr's testimony. After Parr received
his check in Salocker's office he went and asked Frye about his "suspension" Frye said
that he was discharged, not suspended. Parr then asked about being reinstated. Accord-
ing to Parr, Frye then said:
"Well, why don't you come back tomorrow, and we will talk about it," and I [Parr]
said, "What about Danny Gettlera" and he said, "Well,- you just come back to-
morrow " And I said, "Yes, sir "
Here was a man anxious for reinstatement, with a family to support, being told the above
by Frye Yet there is not a word in the record that Parr ever cane to see Frye the next
day and of course nothing about what Frye may have said on this potentially important
Nor is there any explanation offered in this connection.aspect.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other hand, I regard it as unlikely that, under all the circumstances, Anderson
made the statement attributed to him by Gettler. I am not persuaded that Gettler
is to be credited on this aspect.
On Sunday, October 27, 1963, Gettler went to Frye's home with Dale Fairfiehl.18
The testimony of Frye and Gettler is in conflict regarding the conversation that
ensued and Fairfield did not testify. Both witnesses agree that Fairfield said to
Frye that he did not think that the two men had been treated fairly and he asked
Frye to reconsider the discharge action. According to Gettler, Frye refused, stat-
ing that Gettler was trying to close down the plant. Gettler denied that he had led
the walkout but Frye said that he had three statements asserting that Gettler was
responsible. Later, Frye said that the discharge was a loss to the Company and to,
the individual who had been trained in his work for a year "and he [Frye] would
reconsider it and, upon approval of the local union, I [Gettler] would be reinstated."
Frye's version is that in the course of the conversation Gettler said that he was being
blamed for the October 19 walkout and Frye replied that the reason he was dis-
charged was because Frye had caught Gettler and Parr dueling. Frye states that
in the course of the conversation Fairfield asked him if he would reinstate the men
if the employees voted to have them come back to work. Frye flatly refused this
proposal but said that if the Dallas Union intervened for the two men "and want
me to reconsider," he would entertain such a request. Frye states that he told Fair-
field and Gettler that he did not like to see people out of work and was reluctant to,
discharge anybody.
I am satisfied that the topic of the October 19 walkout did come up in the con-
versation on October 27. Both Frye and Gettler agree on this. Frye admitted at
the hearing that he did have statements that asserted that Gettler was the leader
of the walkout. Since the walkout topic did come up on October 27 and since I
believe that Gettler did disclaim responsibility therefor in his effort to secure rein-
statement, I believe it reasonable to conclude that Frye did refer to the statements
that ascribed walkout responsibility to Gettler. It is not readily apparently how
Gettler would know that there were such statements and testify as he did about them
unless Frye had mentioned the fact on October 27. I do not believe that the persons
who furnished such statements to Frye, accusing Gettler, would have informed
Gettler of their actions. One other possible source of Gettler's knowledge of the
statements is that at the unemployment compensation hearing involving Gettler
and Parr, Frye, in addition to the dueling, which was the written reason given by
the Company for the discharges, may have asserted that Gettler had tried to close
the plant and that he had statements proving Gettler's leadership in the walkout.
At the instant hearing, Frye said he had not said at the unemployment hearing that
Gettler had tried to close down the plant; then the witness said he could not recall
whether he had made such a statement; and, finally, he said that he could have made
that statement.
In any event, it is evident that, on October 27 and at the later unemployment com-
pensation hearing, the subject of the reason or reasons for the discharges was under
discussion. I believe that on either or both of these occasions Frye, in addition to
the dueling, referred to an attempt to close down the plant by a walkout and men-
tioned statements that he had, fixing responsibility on Gettler. As above mentioned,
I do not perceive any other plausible source of Gettler's testimony in the present hear-
ing that Frye referred to efforts to shut down the plant and to statements that he
had about Gettler's role in the walkout, particularly the latter.
Frye's testimony as to what he said on October 27 respecting the conditions under
which he would reconsider the discharges merits some attention. Frye had earlier
rejected the requests for reconsideration when made by Gettler and Parr individually.
He rejected the request for reconsideration made by Fairfield on October 27 as well
as Gettler's on the same occasion. Frye had also rejected reconsideration even if,
as proposed on October 27, the matter was submitted to a vote of the employees in
the plant. This would indicate that Frye did not regard the views of the employees
generally as a factor to be considered by him with respect to the dischargees.19 But
Frye did indicate to Gettler on October 27 that the best and only avenue to secure
reconsideration of the discharges was to have the Dallas Union, presumably acting
through its officers in their official capacity, request reconsideration from Frye. The
terms "best and only avenue to secure reconsideration" are used appropriately since,
18 Fairfield is not identified in the record. He evidently was a UP representative or a
friend or associate of Gettler.
19 By mentioning this fact, no question is being raised concerning an employer's un-
doubted right to conduct his affairs without subjecting his actions to employee votes.
IOWA PORK COMPANY, INC . 1253
,as we have seen , the requests for reconsideration by Gettler and Parr and by Gettler
,and Fairfield had been rejected by Frye 2°
While Frye did not make any guarantees on October 27, it is clear that he suggested
-action through the Dallas Union , as a union , as the method that afforded most hope
for reconsideration of the discharge . Exactly why the possibility of reconsideration
of the dischargees ' cases was best if the Dallas Union "went to bat" for the men, also
merits our attention.
The Dallas Union did not have a contract with the Company at Perry at that time
and it was not operating under any grievance procedure . There were no fats
relating to the discharges that the Dallas Union could submit that had not already
been submitted by Gettler, Parr, and Fairfield or known by Frye himself. Nor can
it be said that Frye's reference to the Dallas Union arose because of his concern
about and interest in the sentiments of the plant employees regarding reconsideration
-of the dischargees ' cases. He had already rejected the proposal of a poll of all em-
ployees on the subject . The least that can be said is that, in the context described
previously, Frye's statement that, in effect, action by the Dallas Union provided the
best hope for securing reconsideration of the discharges, indicates that "reconsidera-
tion" bore some relationship to the whole picture of Dallas Union versus UP, and
matters other than , or in addition to, dueling . If Frye was prepared or not prepared
to reconsider the discharges on the merits , it is difficult to see the relevance of his
remark that he would entertain a request for reconsideration from the Dallas Union,
although he had just rejected a request for the same reconsideration from Gettler
and Fairfield. The relevance would seem to be that the matter of reconsideration,
and possibly the original discharges , had some point of reference with the union
situation at the plant.
Conclusions Regarding the Discharges of Gettler and Parr
We have previously referred to the throwing of scrap meat by employees at each
other . This conduct was general although Frye and the other supervisors correctly
characterized it as horseplay . Frye testified that the supervisors were under instruc-
tions to reprimand or discipline for horseplay.
In the approximately 1 year that the plant had been in operation up to October 23,
1963, no employee had been discharged for horseplay of any description . None had
been suspended for an hour , a day, a week , or more, for horseplay . In addition to the
prevalence of meat throwing , the record shows that other horseplay was not un-
common . Thus , employees from time to time squirted water on other employees
from hoses or sprinklers used in their work ; hot water from a sterilizing tank was
on one occasion thrown on other , employees ; and an employee named Block thrust
a hose down the back of employee Mansfield's shirt while the latter was holding
three or four knives that he had just finished cleaning . Lewis, foreman of the kill
floor, was present and simply said , "Block had better be careful or Mansfield will
whip his ass ." Employee Elliott , who was among the 12 to 14 employees who
worked at the head table, testified that about a week or so before October 23, 1963,
he hit employee Swanson with a scraper because Swanson was dropping lard or some
such material on his neck and head . Hamersley, who was supervisor in charge of
the head table , commended Elliott for having enough gumption to retaliate against
Swanson and not take such treatment like some others did. About "3 weeks ago,"
i.e., before he testified at the hearing on March 11, 1964 , Elliott was hit by cold
water thrown at him while Foreman Lewis was present . Lewis said nothing to any-
one. "Yesterday," March 10 , 1964 , Elliott saw Kirk toss a jawbone at another em.
ployee. Hamersley was present and Hamersley gave Kirk "the devil " but no other
disciplinary action ensued. Either a few days before or after October 23, 1963,
employees Deeth and Case, according to employee Hilpipre, were fooling around.21
Case received a cut that required that Hilpipre go to Lewis to request another man
to work in Case's place Case received medical treatment in Salocker 's office and
his cut hand required stitches . Subsequently , according to Hilpipre , Case told him
that he and Deeth had been warned not to have any more horseplay . There is no
20 On October 24, 1963, the day after the discharge , Gettler and Parr had gone to the
president and chief shop steward of the Dallas Union for assistance in being reinstated.
The testimony is uncontroverted that these-Dallas union officials said that they would
not take the responsibility of representing the dischargees but told them to see the Dallas
Union's attorney , Van Wifvat Gettler and Parr did speak to the attorney and he tele-
phoned Frye . This was on October 24 , and after talking to Frye about the discharges,
Van Wifvat suggested that Gettler call Anderson . The last-mentioned call was made on
October 25 as previously described.
21 Case and Hilpipre work together as hog openers.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence of any disciplinary action taken. Salocker and Lewis testified that Case
reported that he cut himself while sharpening a knife. Admittedly, no investigation
was made. Hilpipre stated that he and others threw hot water in the plant, about
six times, both before and after October 23. When a foreman observed this he
would warn the men not to do it. No one was disciplined, suspended, or discharged.
This was also true of other incidents where employees were cut accidentally by other
employees.
Superintendent Salocker testified that he customarily went through the plant sev-
eval times a day. He had never suspended an employee for horseplay and had not
discharged anyone for such conduct. He had received a report that employee
Smothers had had hot water thrown on him. Salocker issued no warning or dis-
ciplinary action but he said that he thought "maybe" the foreman had given a warn-
ing. Salocker stated that he gave two general warnings to employees in a group
with respect to meat throwing in the winter of 1962-63 and around June 1963.
Foreman Lewis, who had charge of the kill floor, which included the head table,
spent most of his time on the kill floor. He had warned employees at the head
table as a group and also employees in other departments about horseplay. "I
[Lewis] told them it could result in suspension, but I did not tell them that it
would. I told them it could." Apparently Lewis never even mentioned the word
"discharge" in connection with horseplay or that it could or would be the penalty
for such conduct. Hamersley, foreman at the head table, who, according to his
immediate supervisor, Lewis, spent all his (Hamersley's) time there, states that he
was in another department on October 23 when the Gettler-Parr incident occurred.
Hamersley testified that he did not see the affair. He testified that a substantial
number of the employees engaged in horseplay, such as throwing meat, poking at
each other and hitting each other on their helmets with their tools (dueling), and
squirting water. Hamersley testified that none of the employees was foolish enough
to use knives in their horseplay. On two or three occasions he had warned em-
ployees as a group to cut out the horseplay because they would get in trouble.
Hamersley, in August or September 1963, had caught employee Kirk throwing meat.
He warned Kirk but took no other action.
Frye testified that a safety committee of employees was appointed on October 2,
1963, under the general supervision of Mauk, the plant safety director.22 There is
no evidence of what if any special instructions were given to this committee or of
what they did or what they were supposed to do. No activity, special or routine,
on the part of Mauk or his assistant is shown. Frye states that, a day or two after
employee Auen was seriously injured, Mauk told Frye-that something had to be
done about the horseplay.23 Frye asserts that on October 22, he learned that
Auen's injury would leave him with a permanent limp. We have previously de-
scribed what the record shows regarding the Auen incident. There is also no evi-
dence that at the time of or in the days following the Auen affair, Frye or anyone
else investigated the affair or questioned other employees about it. No showing is
made that Frye called his superintendent and foremen together or went to them
individually to instruct them to put an absolute stop to any horseplay either by sus
pension, discharges, or otherwise No notice or admonitions were issued at this
time to employees collectively or to any individual employee. No activity, addi-
tional or routine, is shown by the safety director or his staff at this time other than
Frye's testimony that Mauk had told him that the horseplay should be stopped.
Respondent's assertedly great concern about horseplay and safety is not reflected
in the contract executed on November 19 with the Dallas Union, just a few weeks
after the October 23 discharges. The memories of people, including employees, is
short. In 3 years, which is the term of the contract, the memory of the discharges
of Gettler and Parr would grow dim and new employees would never have heard
of the affair. In view of its position in the instant case the Company would
presumably be consistently concerned about horseplay and related misconduct. But
the contract places no stress or emphasis upon safety or rules concerning horseplay,
and there is no evidence that the Company had made proposals placing greater stress
on safety and more stringent disciplinary action for horseplay. Section 15 is a
routine "Safety and Health" provision.24 Under section 6 of the contract, absences,
"The plant also had an assistant safety director.
23 Auen's injury occurred about a week before Gettler 's and Parr's discharges.
24 Section 15 reads as follows:
The Company shall make all reasonable provisions for the safety and health of its
employees during the hours of employment. Protection devices and equipment neces-
sary to properly protect employees from injuries shall be provided by the Company,
and the Union shall have the privilege of recommending improvements and changes
necessary for the protection of health and safety to the Plant Safety Committee.
IOWA PORK COMPANY, INC. 1255
misconduct, tardiness, garnishment, and insubordination, are subject to three written
warnings before discharge may be imposed. I have italicized "misconduct"
since that provision is the only one under which horseplay would be covered. The
contract provides that other offenses, such as drunkeness, narcotics, gambling, con-
viction of felony, malicious mischief, and so forth, under none of which horseplay
would fit, "may" result in immediate termination.
The "dossier" against Gettler and Parr, that Respondent has asserted, consists of
participation with other employees in meat throwing, a common practice in the plant.
Group warnings to desist from the practice were issued on the two occasions. The
parrying and thrusting with implements on October 23 is claimed to have been the
cause of the discharges.
While there is no question that employees should not throw meat at each other
or squirt water, or duel, or engage in other forms of horseplay in the plant, that is
not the issue before us. Nor is it my right or inclination to question the un-
doubted right of an employer to discharge for any reason, good, bad, or indifferent.
It is not my function to decide whether a penalty imposed by an employer is just
or unjust, mild or severe. But it is our statutory function and it is the issue to
decide, on the entire record before us, whether Gettler and Parr were discharged
because of their prominent union activities or because of the reasons asserted by
Respondent. On this record and in the light of all the evidence, it is my opinion
that it was the men's prominent union activities, particularly Gettler's, and Re-
spondent's hostility thereto, that motivated the discharges. The dueling was a pre-
text seized upon when presented. My consideration of the record and of Frye and
other supervisors convinces me that neither Gettler nor Parr or any other employees
in this plant, with the same or even greater record of horseplay, would have been
discharged on October 23 for thrusting and dueling if there had been no union
activity in the picture.25 A violation of Section 8(a)(3) and (1) of the Act is
therefore found.
Conclusions Regarding Allegations of Section 8(a)(1) and (2) Conduct
I find that Production Manager Thiede's interviewing and conversation with Get-
tler and Welch on September 19, 1963, in the superintendent's office constituted a
violation of Section 8(a)(1) of the Act. It was made clear that economic benefit
would or might well accrue to the individual employees interviewed as well as to
others if the UP was abandoned; but that economic detriment would accrue if
loyalty to the UP persisted. Although there was some personal acquaintance be-
tween Thiede and Hilpipre, and although Hilpipre had at one time worked directly
for Anderson, I regard their respective interrogations of Hilpipre around Septem-
ber 19 to 20, 1963, as illegal under Section 8 (a) (1) of the Act. During this same
period prior to the September 25 election, Anderson, in his talks with Gettler, made
it clear that Gettler's personal opportunities for advancement in the Company lay
in the same direction as the path followed by Thiede, i.e., abandonment of the UP
and support of an unaffiliated union. This was also in effect a promise of benefit in
violation of Section 8(a)(1) of the Act. Moreover, all the conversations between
Anderson and Thiede with individual employees were interrogations about the union
situation at the Perry plant and about the views of the individuals thus interrogated.
25 Respondent's policy and attitude toward the UP and its leading advocates stemmed
from its president, Anderson, and there is no basis for concluding that this policy was
not followed by subordinate officials This Decision is not based upon any finding that
Anderson himself personally discharged the men nor upon a finding that he personally
made the determination to discharge them. The record is not clear, indeed, that Anderson
was or was not at the Perry plant on October 23, 1963. Parr testified that after Salocker
had spoken to him on October 23 and after he had received his checks, Parr went to
Frye's office to see Frye but Frye was then engaged with Anderson in his office Parr
waited until Frye came out and then spoke to him about his discharge. According to
Parr, Anderson came out of the office at one point, stood for a while, and then went back
into Frye's office. Frye states that Anderson was not present at his conversation with
Parr. Frye gave no testimony as to whether or not Anderson was in his office or at the
plant on that day. Anderson, when asked whether he was in Perry at that time, stated,
"I don't believe so . . . Later, Respondent's counsel, referring to Parr's testimony,
asked, "... were you in Perry ? Did you overhear such a conversation [ between Parr
and Frye] ? Were you present .. . Anderson replied, "If I was present I wasn't
cognizant of it. I wasn't aware of any conversation between Parr and Frye. I could
have been there, but I would have had 14 other things on my mind."
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, the interrogations were illegal under Section 8(a)(1)
of the Act.
It is found that the granting of a wage increase to the employees on August 1,
1963, at a time when the representation issue was current, constituted conduct viola-
tive of Section 8(a)(1), there being no explanation in the record for the timing of
the granting of the increase. In the absence of such explanation, the inference is
compelling, in the light of Respondent's opposition to the UP, that the increase and
its timing were designed to forestall and to consolidate Respondent's policy of no
UP representation in its plant.
The execution of a contract with the Dallas County Union on November 19, 1963,
and the granting of a wage increase at that time, when a question of representation
was pending before the Board, was violative of Section 8(a)(1) and (2) of
the Act.26
Objections to the Election
Briefly stated, the objections are: (1) Supervisors made statements to employees
that if the UP won the election the plant would close; (2) employees were 'called
individually into the office to prevail upon them to vote against the UP; (3) Ander-
son held a captive audience meeting on September 24, 1963, at which he said that
if the local union won the election it would secure a good contract right away but
that if the UP won, Anderson would negotiate at arm's length. Anderson also
threatened another Denison if the UP made strong demands; (4) articles in the
Des Moines Sunday Register, September 22, 1963, and in the Perry Chief, Septem-
ber 24, 1963, distorted the UP situation in St. Joseph, Missouri, in order to in-
fluence the election.
On objections Nos. 1 and 2, I believe that the findings heretofore made in this
Decision with regard to violations of Section 8(a)(1) of the Act coincide substan-
tially with those objections. The objections are therefore sustained.
As to objection No. 3, Anderson's speech, I believe that to persons hearing or
reading the speech the conclussion was clear that Anderson would negotiate differ-
ently with the Dallas Union than he would with the UP. Although stating that he
would promptly negotiate a fair contract with the Dallas Union if it won, no corre-
sponding statement is made with respect to the UP. The premise seemed to be
that any contract proposals by the Dallas Union would not be such that the Com-
pany would have serious objections thereto and that a good contract could be
promptly achieved. Although Anderson at the end of his objection said "if" the
UP made unreasonable demands, the tenor of the speech as a whole was that the
UP demands (before they were presented) would be unreasonable in Anderson's
eyes, just as they were at Denison, and that the Denison experience of a strike and
a closed plant for over a month "could very well repeat itself here." 27, Although
Respondent was entitled to express its opinion regarding the competing unions, it
was not entitled to convey to its employees that it would negotiate differently with
either union if it won the election. The employees, since Respondent was under-
taking to tell them about negotiations -after the election, were entitled to know
that Respondent would approach the bargaining table in good faith and with an
open mind regarding proposals that might be submitted by which ever union won
the election. This Respondent did not do but conveyed a picture of a prompt,
favorable contract with the Dallas Union and almost inevitable strife and possible
disaster if the UP won the election and sought to bargain.
Regarding objection No. 4, above, the Perry Daily Chief, the sole newspaper in
Perry, contains a column captioned, "The Observer." "Notes and opinions by
G.E.W. on Everyday Life and Events." The initials G.E.W. are apparently those of
G. E. Whitehead, publisher of the paper. In the Second Supplemental Decision and
Direction of New Election, August 21, 1963, the Regional Director found that the
Perry Daily Chief is a corporation owning 75 shares of the Respondent's common
and preferred stock. What percentage of the outstanding shares this constitutes does
not appear.
On September 24, 1963, The Observer commented on local parking meters and
the use of parking lots. The impending election at Respondent's plant was then
discussed. The opinion was expressed that jobs would be more secure under the
20 Madwest Plpnng and Supply Co, Inc., 63 NLRB 1060.; Iowa Beef Packers, Inc. v.
N.L R B 331 F 2d 176 (C.A. 8).
2T ". . It's impossible to cooperate with someone who insists on unreasonable de-
mands . . . . I don't like the UPWA . . . . I favor and expect I will get along better
with good, sensible boys like you . . . [acting through the Dallas Union]."
IOWA PORK COMPANY, INC. 1257
local union, principally because, in the writer's view, the UP did not allow its local
units to make decisions. He then referred to a Rath Packing plant, organized by
"a big union," that was losing money and stated that a company could not afford
to stay in business under such conditions. Reference was made to accounts of the
UP's conduct at an Armour plant in Missouri. The writer contrasted the situation
at Denison where things were running smoothly under a local union and expressed
the views that at Perry the employees were voting for or against a secure job.
In a half page "Open Letter" to the citizens of Perry, in the same paper on
September 24, signed by the chairman of the UP organizing committee and about
144 named local residents, the other side of the picture was presented, including
asserted local autonomy of UP locals and statements that the writers had a strong
interest in preserving the plant as a going concern and were not interested in putting
anyone out of business.
Other exhibits in the record show a considerable amount of material in the form
of leaflets, letters to the paper, news stories, and so forth that dealt with the ques-
tion of which union the employees should select. Under the circumstances, I be-
lieve that the employees were in a position to evaluate the contending positions and
this is the very premise of our democratic society.28 I do not sustain objection
No. 4.29
Having found, as set forth above, that some of the objections to the September 25,
1963, election are valid, it will be recommended that the election be set aside and a
new election be directed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices found to have been committed by Respondent, occur-
ring in connection with the operations of the Company, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing such commerce.
V. THE REMEDY
The customary remedial action for the illegal discharge of employees is recom-
mended with respect to Gettler and Parr. This includes reinstatement to their
former positions without prejudice to seniority and other rights and privileges, and
backpay, less intermediate earnings. The remedial principles of F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, shall
apply.
Since Respondent recognized and entered into a contract with the Dallas County
Industrial Labor Union at a time when there existed a real question of representation,
it will be recommended that such recognition be withdrawn unless and until the
said Dallas Union is certified. It is also recommended that Respondent cease giving
effect to its contract with the Dallas Union unless and until that Union is certified.
Nothing herein is intended to affect the existing wages, hours, and working condi-
tions of the employees in the plant other than union requirements and status that
exist by reason of the contract referred to above.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The UP Union and the Dallas County Union are labor organizations within
the meaning of the Act.
3. By interrogating employees in connection with their union activities in a man-
ner constituting interference and restraint, and by threatening employees, and by
offering benefits and detriments to influence employees in their choice of a bargain-
ing representative, Respondent has violated Section 8(a)(1) of the Act.
29 No opinion Is Intended to be expressed by me concerning situations at the St. Joseph,
Missouri, plant of Armour or at the Rath plant or elsewhere.
20 The objecting party in Its brief does not refer to articles In the "Des Moines Register"
of September 22, 1963, cited in the objections to the election. Among Respondent's ex-
hibits, there were some excerpts from that paper that, in my opinion, are not grounds for
setting aside the election.
It Is also noted that on August 30, 1963, counsel for Respondent wrote to Whitehead of
the "Perry Daily Chief" requesting that he "refrain from in any way Interfering with or
affecting the Iowa Park employees' selection of a collective-bargaining representative."
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By assisting the Dallas Union through recognition and the execution of a con-
tract at a time when there was pending a question of representation, Respondent has
violated Section 8(a) (2) and (1) of the Act.
5. By discriminating against Danny Gettler and Benjamin Parr because of their
union activity Respondent has violated Section 8 (a) (3) and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
-entire record, it is recommended that Respondent, Iowa Pork Company, Inc., a
,division of Iowa Beef Packers, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees in connection with their union activities in a manner
constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1)
of the Act; threatening employees or promising or indicating benefits or detriments
in order to affect employees' choice of a bargaining representative.
(b) Assisting or contributing support to the Dallas County Industrial Labor
'Union, or to any other labor organization, by recognizing such labor organization
as the exclusive representative of its employees for the purpose of collective bar-
gaining at a time when there exists a real question concerning representation.
(c) Giving effect to its contract of November 19, 1963, with the aforementioned
Union or to any renewal, extension, modification, or supplement thereof, unless and
until said labor organization has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(d) Discouraging membership in, or activities on behalf of United Packinghouse,
Food & Allied Workers, AFL-CIO, District No. 3, or any other labor organization,
by discriminatorily discharging any of its employees or by discriminating in any
other manner in regard to their hire and tenure of employment or any term or con-
dition of employment.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer Danny Gettler and Benjamin Parr immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to any seniority
or other rights and privileges, and make them whole for any loss of pay since
October 23, 1963, to the date of the offer of reinstatement, as described in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the rights of employment under the terms of this
Recommended Order.
(c) Withdraw and withhold recognition from the Dallas County Industrial Union
as the exclusive representative of its employees for the purposes of collective bar-
gaining unless and until the said labor organization has been duly certified by the
National Labor Relations Board as the exclusive representative of the employees.
(d) Post at its plant in Perry, Iowa, copies of the attached notice marked
"Appendix." 30 Copies of this notice, to be furnished by the Regional Director for
Region 18, shall, after being duly signed by a representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that such notices are not altered, defaced, or covered
by other material.
(e) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of this Decision, what steps Respondent has taken to, comply therewith 31
Unless the Respondent so notifies the said Regional Director it is recommended that
the Board issue on order requiring Respondent to take the aforesaid action.
"If 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. If the Board's Order is enforced by a decree' of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "a Decision and
Order."
31 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 18, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
BILTMORE MOBILE HOMES
APPENDIX
1259
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees in connection with their union
activities or sentiments in a manner constituting interference, restraint, or
coercion under the National Labor Relations Act.
WE WILL NOT threaten our employees or promise benefits or harm in order
to affect our employees' free choice of a collective-bargaining representative.
WE WILL NOT give effect to our November 19, 1963, contract with the Dallas
County Industrial Labor Union unless and until it has been certified by the
National Labor Relations Board as the exclusive representative of our employ-
ees. This action will not affect present wages and other working conditions.
WE WILL NOT discriminate against any employee because of his union ac-
tivity on behalf of United Packinghouse, Food & Allied Workers, AFL-CIO,
District No. 3, or any other union.
WE WILL withdraw and withhold recognition from Dallas County Industrial
Labor Union as the collective-bargaining representative of our employees until
and unless it has been certified by the National Labor Relations Board.
WE WIILL offer Danny Gettler and Benjamin Parr immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice
to seniority and other rights and privileges. We will pay them for the wages
they have lost since their discharge to the date of their reinstatement.
All our employees are free to join or not to join, to become or remain, or to
refrain from becoming or remaining members of any labor organization. We will not
discriminate against any employee because of his union membership or activity.
IOWA PORK COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their rights to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 316 Fed-
eral Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No.
399-0112, Extension 2601, if they have any questions concerning this notice or
compliance with its provisions.
Biltmore Mobile Homes and Sheet Metal Workers International
Association , Local No. 213 . Case No. 19-CA-2709. Septem-
ber 23, 1964
DECISION AND ORDER
On March 24, 1964, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision.
148 NLRB No. 133.