L. A. Beefland, Inc.

National Labor Relations Board - Board Decisions

Oct 14, 1977

232 N.L.R.B. 1189 (N.L.R.B. 1977)

L. A. BEEFLAND, INC.
L. A. Beefland, Inc. and International Union of
Operating Engineers, Local No. 501, AFL-CIO.
Case 21-CA-15048
October 14, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 24, 1977, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief. The General
Counsel filed a brief answering Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt her recommended Order, except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, L. A. Beefland,
Inc., Los Angeles, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 Member Penello agrees with the Administrative Law Judge's conclu-
sion that the Respondent obligated itself as successor to notify and consult
with the Union prior to implementing changes in terms and conditions of
employment for the reasons expressed in his separate opinion in Spruce Up
Corporation, 209 NLRB 194. 207 (1974).
3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Los Angeles, California,
on May 19 and 20, 1977. The charge was filed by
International Union of Operating Engineers, Local No.
501, AFL-CIO, herein called the Union, and served on
Respondent on September 20, 1976. The complaint which
issued on November 8, 1976, alleges that Respondent
violated Section 8(aX)(1) and (5) of the National Labor
Relations Act. Posttrial briefs were filed by the General
Counsel and by Respondent.
The basic issues herein are: (1) Whether a finding of a
violation is barred under Section 10(b) of the Act; and, (2)
if not, whether Respondent was obligated to bargain with
the Union before eliminating prior seniority credit for
vacations and sick leave.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
I. COMMERCE
Respondent is engaged in the operation of a meatpack-
ing plant in Los Angeles, California. During the 12-month
period immediately preceding the issuance of the com-
plaint herein, Respondent sold goods and services valued
in excess of $50,000 to customers within the State of
California, each of which customers, during the same 12-
month period, sold goods and services valued in excess of
$50,000 directly to customers located outside the State of
California.
The complaint alleges, Respondent admits, and I find,
that Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find,
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
For a number of years prior to November 1975,1 Pride
Packing Co., Inc., herein called Pride, operated a meat-
packing plant located at 3320 East Vernon Avenue, Los
Angeles, California. For at least several of those years,
including up to November 1975, the Union was the
exclusive bargaining representative of the operating engi-
i All dates hereinafter will be in 1975 unless otherwise indicated.
232 NLRB No. 175
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neers employed by Pride.2 Most of Pride's employees,
however, were represented in separate units by the
Teamsters and Butchers Unions. The most recent collec-
tive-bargaining agreement covering the unit of operating
engineers, herein called the Meat Industry Agreement, was
negotiated by an employer association, Meat Packers,
Incorporated, on behalf of its members, including Pride,
and was effective by its terms from October 1, 1973, to
September 30, 1976.3 This agreement provided, inter alia,
for paid vacation based on seniority varying from I week
after I year of employment up to 5 weeks after 20 years of
employment. It also provided for 6 days' sick leave after 1
year of employment, and thereafter to accumulate at the
rate of 1/2 day per month up to a maximum of 48 days.
In or about October or November Respondent pur-
chased, and on or about November 8 began operation of,
the meatpacking plant theretofore operated by Pride.
Respondent admits that it operated this business at the
same location with substantially the same equipment used
by Pride and with substantially the same employees
performing substantially the same functions as they
performed for Pride prior to November. Respondent
further admits, and I find, that Respondent is a successor
employer to Pride within the meaning of Section 2(2) of the
Act.
On November 8, 1975, the following notice was posted at
the Pride plant, a copy of which was sent to the Union:
NOVEMBER 8, 1975
TO ALL ENGINEER'S UNION EMPLOYEES:
IT IS WITH GREAT REGRET THAT THE OWNERS OF PRIDE
PACKING CO., INC. ANNOUNCE THEIR RETIREMENT FROM
THE CUSTOM SLAUGHTER BUSINESS. A NEW COMPANY BY
THE NAME OF L. A. BEEFLAND, INC., HEADED BY SAM
PERRICONE AND SEYMOUR OWENS, WHO ARE
EXPERIENCED AND CAPABLE OPERATORS WILL BE
OPERATING THE PLANT HEREAFTER. WE KNOW YOU WILL
GIVE THEM THE SAME LOYAL SERVICE YOU HAVE GIVEN
US.
PRIDE PACKING CO. INC. IS TERMINATING ITS
ENGINEER'S UNION EMPLOYEES AS FOLLOWS:
1. C. SPEARS, EFFECTIVE 11:59 P.M., MONDAY,
NOVEMBER 10, 1975.
2. J. JARSKI, EFFECTIVE 3:00 P.M., SUNDAY, NOVEMBER
9, 1975.
3. J. SHIELDS, EFFECTIVE 11:59 P.M., FRIDAY,
NOVEMBER 7, 1975.
4. L. MOOSCHEKIAN, EFFECTIVE 11:59 P.M., TUESDAY,
NOVEMBER II, 1975.
5. JUAN GARCIA, EFFECTIVE 11:59 P.M., SATURDAY,
NOVEMBER 8, 1975.
6. JESSE ACOSTA, JOHN BEARDEN, EWELL CURTIS AND
FRANK MARTINEZ, EFFECTIVE 11:59 P.M., SUNDAY,
NOVEMBER 9, 1975.
2 The appropriate unit is: All chief engineers, assistant chief engineers,
operating engineers, maintenance engineers, relief engineers, and apprentice
engineers employed by Respondent.
3 The agreement was never signed by the Union but there is no dispute
that an agreement was reached which was reduced to writing and that the
agreement was honored by Pride.
TERMINATION PAY AND ANY UNTAKEN VACATION PAY
OR SICK PAY BONUS, WILL BE AVAILABLE MONDAY,
NOVEMBER 10, 1975 AT THE PLANT OFFICE. CHECKS FOR
THE WEEK ENDING NOVEMBER 9, 1975 WILL BE
AVAILABLE AT THE PLANT OFFICE ON WEDNESDAY,
NOVEMBER 12, 1975.
L. A. BEEFLAND, INC. WILL POST ITS OWN NOTICE
REGARDING YOUR EMPLOYMENT AVAILABLE BY IT.
THANK YOU FOR YOUR YEARS OF SERVICE. WE
SINCERELY BELIEVE THAT YOUR EMPLOYMENT WITH L. A.
BEEFLAND, INC. WILL PROVE WORTHWHILE.
SINCERELY,
PRIDE PACKING CO. INC.
By /s/ Aaron Lilien
AARON LILIEN
Also posted on that same date was the following notice:
NOVEMBER 8, 1975
TO FORMER PRIDE EMPLOYEES:
TIME CARDS WILL BE AVAILABLE AT THE USUAL PLACES
FOR WORK, MONDAY, NOVEMBER 10, 1975 AT THE USUAL
TIMES.
L. A. BEEFLAND, INC.
By /s/ Seymour Owens
SEYMOUR OWENS, VICE PRESIDENT
Although there had been rumors of an impending sale
for about a month, these notices constituted the first
official notice given to the employees in the engineering
unit or to the Union. There is no evidence that the Union
was sent a copy of Respondent's notice. At no time prior to
the sale, or for several months thereafter, was the Union or
the employees in the unit represented by the Union
notified of any change in terms or conditions of employ-
ment. However, prior to Respondent's assuming operation
of the business, the Teamsters and Butchers Unions and
the employees represented by them were notified that
Respondent would eliminate seniority credit earned prior
to November 8, for purposes of vacation and sick leave.
Because Respondent's principal owners were also the
principal owners of Vernon Meatland which had eliminat-
ed prior seniority credit for vacation and sick leave
purposes when it assumed operation of another meatpack-
ing plant which had a collective-bargaining agreement with
the Union,4 the Union and the unit employees immediately
4 The dispute over this change and the Employer's alleged reneging on
an agreement to arbitrate the matter was one of the reasons for the Union's
refusal to execute the 1973-76 Meat Industry Agreement.
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L. A. BEEFLAND, INC.
suspected that Respondent would eliminate seniority.
However, the Union chose not to make inquiries 5 and
instructed unit employees to refrain from discussing terms
and conditions of employment with Respondent and that,
if any such attempts were made by management, they
should refer them to the Union. Also, they were to notify
the Union if any changes in wages or terms or conditions of
employment were made.
The Union's first suggestion to Respondent of its
concern as to whether prior vacation and sick leave
seniority would be honored was on January 8, 1976, when
Union Representatives Fox and Black met Milton Tyre,
the attorney who was to negotiate the 1976 Meat Industry
Agreement on behalf of Meat Packers, Inc., a multiemploy-
er bargaining association of which Repsondent and Vernon
Meatland were members. Fox told Tyre of the longstand-
ing dispute with Vernon Meatland over seniority and that
the Union would file an unfair labor practice charge
and/or a grievance if Respondent attempted to unilaterally
eliminate previously earned seniority credit. The Union
articulated this same position in a July 25 or 26, 1976,
meeting, held prior to the commencement of the 1976
negotiation in an attempt to resolve the seniority problem
at Vernon Meatland. At neither of these meetings was the
Union told that seniority had been eliminated for vacation
and sick leave purposes.
No member of the bargaining unit had occasion to take
sick leave or vacation until the last week of August 1976,
when Jesus Acosta took his vacation. He received no
vacation pay. Respondent admits that it has eliminated
seniority credit for Pride service for purposes of vacation
and sick leave. In all other respects it has abided by the
1973-76 Meat Industry Agreement except that it has made
no contributions to the pension fund since January 1977.
Respondent acknowledges that it has an obligation to
make such contributions but contends that it has failed to
do so only because of its financial status. Respondent has
continued to make other contributions required under the
Meat Industry Agreement.
B. Conclusion
Respondent argues that it has made no change in the
terms and conditions of employment. Rather, it contends,
it is following the letter of the contract. The contract has no
provision for sick leave or vacation during the first year of
employment and what is involved here is the first year of
employment with Respondent. I find this argument
specious. It ignores the concept of continuity of employing
industry inherent in the Board's successor doctrine.
Though the meatpacking plant here has new owners, it
continues the same employing industry as under Pride
ownership, and what is involved here is not the first year of
employment by the employing industry. When an employ-
ee entitled to 4 weeks' vacation becomes entitled to none
I According to Union Representatives Coy T. Black and Robert H. Fox,
Jr.., the Union did not wish to initiate the subject because of the case law
applicable to a successor's right to make unilateral changes upon taking over
the business of a predecessor.
6 Even if I credited Cline's testimony, which I do not, that he had a
conversation with Spears regarding the loss of seniority credit, he does not
contend that he told Spears that the engineers would lose seniorit) credit for
purposes of vacation and sick leave. According to Cline. Spears asked wh)
upon a change of ownership, there has certainly been a
change in the terms and conditions of his employment.
The question is whether Respondent was privileged to
make such changes without notification to or consultation
with the Union. In N. LR.B. v. Burns International Security
Services, Inc., et al., 406 U.S. 272 (1972), the Supreme Court
held that a successor employer is ordinarily free to set the
initial terms on which it will hire the employees of a
predecessor since, until it has hired a full complement of
employees, it is not evident whether the majority represen-
tative of the predecessor's employees will remain the
majority representative of the successor's employees.
However, the Court also recognized that "there will be
instances in which it is perfectly clear that the new
employer plans to retain all of the employees in the unit
and in which it will be appropriate to have him initially
consult with the employees' bargaining representative
before he fixes terms."
In Spruce Up Corporation, 209 NLRB 194 (1974), the
Board interpreted this proviso as being restricted to
circumstances in which the new employer has either
actively or, by tacit inference, misled employees into
believing they would all be retained without change in their
wages, hours, or conditions of employment, or at least to
circumstances where the new employer has failed to clearly
announce its intent to establish a new set of conditions
prior to inviting former employees to accept employment.
Such is the circumstance here. Respondent's only
announcements to unit employees was the November 8
notice stating only: "Time cards will be available at the
usual places for work, Monday, November 10, 1975, at the
usual times." Certainly this notice gives no indication of
any change in working conditions. It does imply, however,
that the engineers' employment would be continued
uninterrupted and, in the absence of anything to the
contrary, it further implies that the same wages, hours, and
other terms and conditions of employment would continue
as before.
This conclusion is buttressed by the fact that the
employment of the engineers did continue without inter-
ruption and that Respondent continues the same hours, the
same wages, and the same contributions to the various
health funds. At no time prior to the takeover did
Respondent clearly announce an intent to eliminate the
prior seniority credit of unit employees. Even in January
and July 1976, when the Union voiced some concern as to
a repetition of the Vernon Meatland seniority dispute,
Respondent did not announce that seniority credit had
already been eliminated.
In these circumstances, I conclude that either Respon-
dent did not eliminate prior seniority credit until August
1976 or that by its silence it attempted to mislead the
Union and the unit employees into believing that no
change had been made, thus prolonging labor peace. I
he could not keep his vacation pay and Cline replied he had nothing to do
with it, there was nothing he could do about it. Cline further testified that at
or about the same time Bearden (a Pride employee who was not hired by
Respondent) asked if he could keep his seniority. Cline replied there was
nothing he could do about it, he could not give him anything because
everybody was losing everything. Neither instance constitutes a clear
announcement to unit employees, prior to hire, of a new set of working
conditions.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reject Respondent's contention that the Union had an
obligation to inquire as to Respondent's intent because it
had constructive notice of a change. The circumstances
herein do not amount to such notice.
This contention is apparently based on Respondent's
announcement to the Teamsters and Meatcutters. Even if
the Union and/or the unit employees knew of such
announcement, it does not follow that the changes would
be made in the engineers' unit. The failure to make a like
announcement to the Union or the unit employees could
just as likely mean that no such change was intended in the
engineers' unit. As soon as it became clear that Respondent
was eliminating the seniority credit for vacation and sick
leave of unit employees, the Union protested.
I further conclude that at the time of Respondent's
takeover it hired Pride's unit employees without any clear
announcement of an intent to establish new conditions of
employment and accordingly it falls within the Burns
proviso. Therefore, I find that Respondent was obligated to
notify and consult with the Union prior to implementing
initial wages, hours, and terms and conditions of employ-
ment. 7 Howard Johnson Company, 198 NLRB 763 (1972);
Roman Catholic Diocese of Brooklyn, et al., 222 NLRB 1052
(1976).
Consequently, whether the change was implemented at
the time of the takeover as contended by Respondent or in
August 1976, as contended by the General Counsel,
Respondent was obligated to bargain with the Union prior
to making any changes in wages, hours, or other terms and
conditions of employment.
Respondent contends, however, that the change was
implemented in November 1975, and that a finding of a
violation based thereon is barred by Section 10(b) of the
Act. I disagree. As indicated above, I conclude that the
circumstances herein do not constitute actual or construc-
tive notice prior to August 1976 of the implementation of
any change in conditions of employment. See Local Lodge
No. 1424, International Association of Machinists, AFL-
CIO, et al. [Bryan Mfg. Co.] v. N.L.R.B., 362 U.S. 411, 429,
fn. 19 (1960); Hot Bagels and Donuts of Staten Island Inc.,
227 NLRB 1597 (1977); Skippy Enterprises, Inc., 211
NLRB 222, 227 (1974). Therefore, even if Respondent
made the change in November, it is not barred by Section
10(b) of the Act.8
Accordingly, I find that, by unilaterally eliminating
seniority credit earned during employment with Pride for
purposes of determining vacation and sick leave entitle-
ment, Respondent has violated Section 8(a)(5) and (1) of
the Act.9
CONCLUSIONS OF LAW
i. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
I In reaching this conclusion I have carefully considered all of the
arguments and the cases cited by the parties.
s Moreover, any ambiguity as to the timing of the change was caused by
Respondent's failure to fulfill its obligation to consult with the Union, so
any ambiguity should be resolved against Respondent. However, since no
liability arose until August 1976, and since I have concluded that a
November 1975 violation would not be barred by Sec. 10(b), it is
unnecessary to reach a conclusion as to which is the date of the change.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All chief engineers, assistant chief engineers, operat-
ing engineers, maintenance engineers, relief engineers and
apprentice engineers employed by Respondent constitute
an appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. International Union of Operating Engineers, Local
No. 501, AFL-CIO, herein called the Union, has been and
is the exclusive representative of all employees in the
above-described appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By unilaterally eliminating prior seniority credit for
purposes of determining vacation and sick leave entitle-
ment, Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) and (I) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent in violation of Section
8(a)(5) and (1) of the Act unilaterally eliminated prior
seniority credit in determining vacation and sick leave
entitlement, I shall recommend that Respondent cease and
desist from making unilateral changes in the wages, hours,
and other terms and conditions of employment of the
employees in the appropriate unit herein, and that
Respondent make whole said employees for any loss of pay
or other benefits they may have suffered as a result of
Respondent's unilateral elimination of prior seniority
credit for purposes of determining vacation or sick leave
entitlement on or after November 8, 1975, with interest at 6
percent per annum, and that Respondent cancel such
unilateral changes and continue the rates of pay, wages,
hours, and conditions of employment in effect on Novem-
ber 8, 1975, until such time as Respondent negotiates in
good faith with the Union to agreement, or to impasse.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '0
The Respondent, L. A. Beefland, Inc., Los Angeles,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
9 In view of my conclusions herein, I find it unnecessary to reach the
question of contract adoption.
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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L. A. BEEFLAND, INC.
(a) Refusing to bargain collectively with the Union as the
exclusive bargaining representative of its employees in the
following appropriate unit:
All chief engineers, assistant chief engineers, operating
engineers, maintenance engineers, relief engineers, and
apprentice engineers employed by Respondent.
(b) Unilaterally changing wages, hours, or other terms
and conditions of employment of the employees in the
above-described unit without consulting with the Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Cancel the unilateral changes heretofore made in
wages, hours, or other terms and conditions of employment
of the employees in the above-described appropriate unit
and continue the wages, hours, and other terms and
conditions of employment in effect on November 8, 1975,
until such time as Respondent negotiates in good faith with
the Union to agreement or to impasse.
(b) Make whole the employees in the appropriate unit for
any loss of pay or other benefits they may have suffered as
a result of the unilateral elimination of prior seniority
credit for purposes of determining vacation and sick leave
entitlement on or after November 8, 1975, with interest at 6
percent per annum.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, and other documents neces-
sary to ascertain the amount due under the terms of this
Order.
(d) Post at its Los Angeles plant copies of the attached
notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 21,
after being duly signed by Respondent's representative,
shall be posted by Respondent 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 to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Director for Region 21, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
WE WILL NOT refuse to bargain with International
Union of Operating Engineers, Local No. 501, AFL-
CIO, as the exclusive bargaining representative of our
employees in the following appropriate unit:
All chief engineers, assistant chief engineers,
operating engineers, maintenance engineers, relief
engineers and apprentice engineers.
WE WILL NOT unilaterally, without consultation with
the Union, change wages, hours, or other terms and
conditions of employment of the employees in the
above-described unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL bargain collectively, upon request, with the
Union.
WE WILL cancel our elimination of prior seniority
credit for purposes of determining the vacation and sick
leave entitlement of our employees in the above-
described unit; and WE WILL continue the wages, hours,
and other terms and conditions of employment of said
employees in effect on November 8, 1975, until such
time as we negotiate in good faith with the Union to
agreement or to impasse.
WE WILL make whole the employees in the above-
described unit for any loss of pay or other benefits they
may have suffered as a result of our unilateral
elimination of prior seniority credit for purposes of
determining vacation and sick leave entitlement on or
after November 8, 1975.
L. A. BEEFLAND INC.
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