Meat Cutters, Local 530

National Labor Relations Board - Board Decisions

Mar 19, 1973

202 N.L.R.B. 478 (N.L.R.B. 1973)

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local 530, AFL-CIO and Du-
Quoin Packing Company. Case 14-CB-2468
March 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 14, 1972, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the Charging
Party filed cross-exceptions and a supporting brief,
to which the Respondent filed an answering brief.
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 brief
and has decided to affirm the rulings,' findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local 530, AFL-CIO, DuQuoin, Illinois, its officers,
agents, and representatives , shall take the action set
forth in the said recommended Order.
' We have considered the exception taken to the ruling of the
Administrative Law Judge excluding testimony relating to the meetings of
May 11 and June 14, 1972 We shall not disturb this ruling. As the Charging
Party notes, Respondent is being required to sign the collective -bargaining
agreement which is the primary objective of the complaint and modifying
the Order would involve more a matter of form than of substance
2 We find it unnecessary to decide whether one of Respondent's
representatives, Niederdeppe, believed that prelinunary agreement on the
deletion of the incentive plan from the proposed collective-bargaining
agreement had been reached on March 24, 1971. It is clear from the
subsequent actions of the parties, as detailed by the Administrative Law
Judge, that ultimately Respondent agreed to the inclusion of the original
incentive plan as submitted by the Charging Party
Chairman Miller would affirm the Decision of the Administrative Law
Judge, including his finding that no preliminary agreement regarding the
incentive plan was reached on March 24, 1971
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in this case was filed on May 15, 1972, and
amended on June 19. The complaint was issued on June
29. The hearing was held on August 21 in St. Louis,
Missouri. The complaint alleges that Local 530 has
violated Section 8(b)(3) of the National Labor Relations
Act, as amended, by refusing to sign a written contract
with the Charging Party on which agreement has been
reached. For the reasons set forth below, I find Local 530
has violated the Act as alleged.
Upon the entire record and after due consideration of
oral argument as well as briefs filed by all parties, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
The Charging Party, an Illinois corporation, operates a
meat packing plant in DuQuoin, Illinois. During calendar
year 1971, a representative period, it shipped products
valued at more than $50,000 directly to customers located
outside the State of Illinois. The Charging Party is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
Local 530 is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE
A. The Issue
This case involves three words in one sentence in a 29-
page collective-bargaining agreement. One sentence in the
Charging Party's proposal for an incentive plan which it
wanted to insert in its contract read, "The Company will
not require an employee to exceed 100 percent of
production standard." The plan calls for 100 percent of
contracted hourly wages for employees who turn out 80
percent of the production standard for their jobs as
determined by timestudies, 101 percent wages for 81
percent production, 110.5 percent wages for 91 percent
production, and so forth through a table in which
production advances 1 percent at a time as wages advance
I or 1 /2 percent, as the case may be, until they reach the
point where 130 percent of standard production is
compensated at 130 percent of contracted hourly wages.
Thus, the quoted sentence permits the Charging Party to
discipline employees who achieve less than 100 percent of
the standard for their jobs even though they are being
compensated as much as 114.5 percent of contracted
hourly wages, the rate provided in the plan for 99 percent
of standard production.
Local 530 contends that, at a negotiating session held on
March 24, 1971, the Union objected to possible discipline
for employees who were earning 100 percent or more of the
wage rates provided in the contract, that the Charging
Party bought its argument, and that the sentence was
modified by insertion of the underlined words to read,
"The Company will not require an employee to exceed the
100 percent pay point of production standard." The
General Counsel and the Charging Party contend that,
when agreement was finally reached on a new contract on
February 17, 1972, Local 530 agreed to accept the
Charging Party's incentive plan without any modification.
202 NLRB No. 83
MEAT CUTTERS, LOCAL 530 479
B. Facts
1. Background
The contract preceding this one ran from September 15,
1968, through September 14, 1971. It contained no
incentive plan. It was between the Charging Party and
Local P-156. During the life of that contract, the Charging
Party adopted an incentive plan. What transpired at that
time is set forth in detail in DuQuoin Packing Company, 183
NLRB No. 108. In brief summary, the Charging Party
announced its intentions and gave the Union some data on
its plan on July 14, 1969. The Union filed a grievance. The
plan was discussed again on August 13, 1969. Two days
later, on August 15, Local P-156 filed an 8(aX5) and (1)
charge against the Charging Party. (That case bears the
number 14-CA-5236 and eventually resulted in the
Board's decision at 183 NLRB No. 108.) Following the
August 13 meeting, the Charging Party sent John Hyche, a
representative of the International Union, a complete
written draft of its plan. At a meeting on September 10,
1961, Hyche requested certain modifications. These were
incorporated and the plan, as modified? was sent to Hyche
on September 11, 1969. In the meantime, the Charging
Party put the plan into effect in its plant.
Complaint was issued in Case 14-CA-5236 on Septem-
ber 26, 1969, and hearing was held on November 13. On
January 21, 1970, Trial Examiner' William O. Brown,
citing Jos. Schlitz Brewing Company, 175 NLRB 141,
recommended dismissal on the ground that the parties
should be left to their voluntarily established dispute
settlement procedures. On June 24, 1970,' the Board
dismissed the complaint on the ground "that the Union
and the Respondent fully discussed the wage incentive
plan that was announced by the Respondent at the July 14,
1969, meeting . . . and that the Union unmistakably
waived its interest in formal negotiation of the matter"
before the plan was put into effect. The Board also found
"that the Respondent bargained with the Union concern-
ing the incentive plan" in view of all the events which took
place between July 14, 1969, and the hearing.
Left to their own voluntarily established dispute settle-
ment procedures, the parties carried Local P-156 's griev-
ance to arbitration. The record in this case does not reveal
exactly when the arbitrator's award was handed down. As
a result of that award, sometime prior to March 1971, the
Charging Partydiscontinued the incentive plan.
At the request of Charles Hayes, vice president of the
International Union, early negotiations for a new contract
to replace the one scheduled to expire in September 1971
got under way in March 1971. The parties first met on
March 11. The Charging Party's incentive plan did not
come up. On March 23, the parties met again . The Union
presented to the Charging Party an eight-page document
setting forth its proposals. It contained no mention of an
incentive plan. On March 24, the parties met for the third
time. The Charging Party presented to the Union a six-
page document setting forth its proposals. Included was a
proposal that a new article XXIII , entitled "Incentive
Plan," be added to the contract. The plan set forth was
substantially identical to the incentive plan contained in
the document mailed to John Hyche on September 11,
1969, in that it contained the modifications requested by
Hyche . It differed only in that the second sentence of the
fifth paragraph now read, "The Company will not require
an employee to exceed 100 percent of production stand-
ard," whereas in the 1969 document it had read, "In no
case is an employee compelled to do more than this
requirement" (i.e., perform a "fair day's work").
2. The March 24, 1971, meeting
Among the participants at the March 24, 1971, meeting
for the Union were Hayes and Robert Niederdeppe, the
assistant director of the International Union 's industrial
engineering department . This was the only bargaining
session Niederdeppe attended . Among those present for
the Charging Party were J. T. English, the industrial
relations director, and W. G. Brown, industrial engineer.
During the course of the meeting , English stressed that
obtaining an incentive plan was an important part of the
negotiations from the Charging Party's point of view. He
said it was imperative that productivity at the plant be
increased and that the incentive plan was a fair way to do
so. Hayes indicated that the Union was not opposed to the
concept of increasing productivity through an incentive
plan. Niederdeppe pointed to the sentence in dispute in
this case and asked whether " 100 percent" referred to
production , pointing out that , if so, this created an
anomalous situation from the Union 's point of view, for it
permitted the Charging Party to discipline employees who
were earning a bonus . He said the Union would not want
to create that kind of a precedent. The Charging Party's
negotiators held a brief caucus . When they returned,
Brown said Niederdeppe's interpretation of the language
as written was correct and indicated his understanding of
the problem it posed from the Union's point of view.
Niederdeppe suggested the language be changed by
inserting "the" and "pay point" in the sentence at issue. He
inserted these words in his copy of the Charging Party's
proposals . He added the notation after the paragraph in
which the sentence appears, "Co so far in agreement
(Watch this one closely)." (I do not credit Niederdeppe's
testimony that Brown committed the Charging Party to the
three inserted words , the crucial fact in this case, for
reasons which are set forth below in the section entitled
"Analysis and Conclusions.")
3. Subsequent events
When he returned to his office in Chicago, Niederdeppe
changed a second copy of the Charging Party's proposals
by placing an asterisk at the end of the first sentence in the
fifth paragraph of the Charging Party's proposed article
XXIII and a note at the bottom of the page introduced by
another asterisk which read "modify or delete completely."
He placed brackets around the second disputed sentence
and altered it to read, "The Company can not discipline an
employee for failure to exceed the 100 percent pay point of
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production standards" rather than "The Company will not
require an employee to exceed 100 percent of production
standard." After the closing bracket he added the notation
"actually 80% by std." He placed both copies of the
Charging Party's proposals in his file relating to the
DuQuoin negotiations.
The negotiations continued with three sessions after
March 24, 1971, and before May 19 as to which there are
no details, not even the dates on which they were held, in
the record. At a meeting on May 19, 1971, there was some
discussion about the incentive plan during which Milton
Talent, the Charging Party's attorney, talked about the
possibility of using discipline rather than an incentive plan
to achieve the Charging Party's goal of increased pro-
ductivity. There was no specific discussion about the
sentence in the Charging Party's proposal at issue in this
case.
There was a hiatus in negotiations after May 19. Local
P-156 sent the formal notice required by Section 8(d) of
the Act on July 2, 1971. The first meeting thereafter was
held on August 5. The Charging Party and the Union each
resubmitted their proposals. There was discussion of an
incentive plan much like that on March 24. Company
negotiators stressed the importance of such a plan to the
Charging Party. Union negotiators indicated their agree-
ment in principle. There was no discussion of the sentence
at issue in this case.
The next negotiating session about which there is any
evidence in the record was held on September 14, 1971.
Presumably there were a number of sessions between
August 5 and September 14, for, when the latter session
ended without agreement on a new contract, a strike began
as the old one expired at midnight. The parties were
divided on many issues when the strike began. There was
some discussion of the 'ncentive plan at the September 14
meeting but no specific discussion about the sentence at
issue in this case. Hayes, the International vice president
who was the Unions' principal spokesman throughout the
negotiations, said the incentive plan was a good idea but
the Local Union was opposed to it to the point that it was
prepared to strike over it.
The record is again silent on negotiations, if any, which
took place between the beginning of the strike and January
11, 1972. During this period, on November 3, 1971, the
International Union placed Local P-156 under a trustee-
ship, appointing Raymond O'Mohundro, president of
Local 530, trustee.
The January 11, 1972, meeting was held in Chicago
rather than in downstate Illinois where negotiations had
been conducted prior to that time. The local union
committee which had participated in prior negotiations
was not present. O'Mohundro was there, along with
officials of the International Union, including Hayes. All
of the issues separating the parties were discussed. With
respect to the incentive plan, the Union referred to the
manner in which the Charging Party had started to
institute it in 1969-70 by introducing it one department at
a time. The Union proposed that the Charging Party start
with those departments, permitting employees to vote in
each department whether they wanted to change to
incentive, and add new departments only after similar
elections in each. The Union offered to urge the employees
to vote for the plan. The Charging Party rejected this
proposal for a voluntary, piecemeal incentive plan. There
was no specific discussion about the sentence at issue in
this case.
The negotiators met again on January 26, 1972, in St.
Louis. This time the local committee was present, along
with O'Mohundro and International officials. The Union
presented counterproposals on the issues which separated
the parties. With respect to incentive, the Union offered to
accept the Charging Party's plan if the Charging Party
would agree to a reappraisal at the end of 1 year, at which
time the Union would be free to strike, the contract's no-
strike clause notwithstanding, in the event the parties could
not agree. The Charging Party declined on the ground that
it needed the incentive plan for the term of the contract.
The Union then offered to accept the Charging Party's
incentive plan if the Charging Party would give in on some
other issues. This proposal foundered when the Charging
Party would not agree to negotiate a list of new job rates
the Union wanted. Finally, the Union agreed to submit the
Charging Party's outstanding offer to the employees. Once
again, at the January 26, 1972, meeting there was no
specific discussion about the sentence at issue in this case.
The employees voted on the Charging Party's outstand-
ing offer. The result was a tie. Consequently, the parties
returned to the bargaining table on February 15, 1972, in
St. Louis. The Union offered to accept the Charging
Party's incentive plan for 1 year as previously suggested or,
alternatively, for the term of the contract if the Charging
Party would increase some fringe benefits. The Charging
Party rejected both offers. The sentence at issue in this case
was not specifically discussed.
The negotiators met for the last time on February 17,
1972, in Chicago. Neither O'Mohundro nor the local
committee was present. The Union was represented only
by Hayes and two other International officers. The
Charging Party stood pat on its last offer, including its
incentive plan proposal. The Union pointed out that the
employees had already rejected that package and asked for
some slight change in certain fringe benefits to sweeten the
Charging Party's offer a little. After a caucus, the Charging
Party upped its hospitalization and sickness and accident
offers in the second year of the contract. The union
accepted, subject to ratification by the employees. A
memorandum of agreement was prepared and initialed by
the parties. It read:
Memorandum of Understanding
Between
Du Quoin Packing Company
and
Amalgamated Meat Cutters and Butcher
Workmen of North America
At a meeting held at the International headquarters,
2800 N. Sheridan Road, Chicago, Illinois on Thursday,
February 17, 1972, the following people were present:
MEAT CUTTERS, LOCAL 530 481
Joseph Belsky, President;, Patrick E. Gorman, Secretary-
Treasurer and Charles Hayes, International Vice
President, participating for the Union.
The Employer who was present was the DuQuoin
Packing Company, represented by Milton O. Talent,
Attorney; J. T. English and Walter Naumer, Jr.
The following was agreed in settlement of the strike
at the DuQuoin Packing Company.
A two-year agreement effective as of the date of
ratification by the Union.
First year:
The incentive plan as submitted to the Union.
32 cents increase in wages across the board. Five
weeks vacation after 25 years. Meal allow-
ance-$1.50. Hospitalization-Room and Board
to $30. Sickness and Accident-benefit increased
by ten dollars to $50.
Second year:
31 cents increase in wages across the board.
Hospitalization-Room and Board up to $35.00
if hospital rates increased. Sickness and Accident
benefits increased by five dollars to $55.
The Pension Committee having been advised that
the present rate of contribution of .1409 cents per hour
contribution will support a $6.00 per year pension and
the Pension Committee having advised the Company
and the Union that such $6.00 per year pension is
feasible, such pension will go into effect at such time as
the Pension Committee desires, with no further
contribution by the Company.
O'Mohundro and the local negotiating committee sent
mail ballots to the employees on February 18, 1972. The
letter which accompanied the ballots listed the agreement
as set forth above and recommended ratification. With
respect to the incentive plan, it read:
8. The incentive plan will be put into effect and the
Company agrees that it shall be subject to the regular
grievance and arbitration procedures if necessary.
O'Mohundro informed the Charging Party on February
24, 1972, that the agreement had been ratified. The strike
ended that night as the midnight shift returned to work.
The Charging Party instituted the incentive plan immedi-
ately. It drafted a new contract dated February 25, 1972,
which incorporated the agreement reached into the old
contract, including a new article XXIII, entitled "Incentive
Plan."
On April 21, 1972, Local P-156 was merged into Local
530, (The parties to this case stipulated that Local 530 is
bound by any agreements reached between Local P-156
and the Charging Party.)
Sometime between June 14 and 26, 1972, O'Mohundro
picked up a copy of the new contract from the Charging
Party. (A controversy had already arisen over whether
O'Mohundro would sign it, and the Charging Party had
already, on May 15, filed the charge in this case. I hereby
reaffirm my ruling that testimony proffered by the General
Counsel about incidents which took place on May 11 and
June 14, 1972, relating to that controversy is inadmissible
in this proceeding.) On June 19, O'Mohundro telephoned
Niederdeppe at the International's office in Chicago and
reported, erroneously, that the Charging Party was disci-
plining employees who were achieving more than 80
percent, but less than 100 percent, of the production
standards for their jobs. Niederdeppe sent O'Mohundro a
copy of the notes he had made on a copy of the Charging
Party's proposals after his return from the March 24, 1971,
meeting . In his letter to O'Mohundro, Niederdeppe stated,
erroneously, that these were notes he had made at that
meeting. The last paragraph of Niederdeppe's letter read:
I questioned the sentence in the brackets and it was
agreed by the company in that meeting to amend it to
read as follows: The company cannot discipline an
employee for failure to exceed the 100% pay point of
production standards. (Actually 80% by standard.)
O'Mohundro and members of the local committee met
with officials of the Charging Party on June 26, 1972.
O'Mohundro, for the first time , checked the old contract
and the memorandum of agreement against the new
contract. He refused to sign the latter on the ground that it
did not accurately reflect the agreement reached. He took
the position that the second sentence in the fifth paragraph
of article XXIII should read as stated in Niederdeppe's
letter of June 19 to him.
Hayes, Niederdeppe, O'Mohundro, and the vice presi-
dent of Local 530 met with officials of the Charging Party,
including Brown, the industrial engineer, and the Charging
Party's attorney on July 3, 1972. The Union took the
position that the Charging Party, in the person of Brown,
had agreed on March 24, 1971, to change the second
sentence of the fifth paragraph of article XXIII to the
language contained in Niederdeppe's letter of June 19,
1972, to O'Mohundro. The Charging Party took the
position that it had not.
Niederdeppe subsequently discovered that he had sent
O'Mohundro and had himself relied on the wrong notes.
C. Analysis and Conclusions
The first question that arises is whether the Charging
Party agreed, on March 24, 1971, to Niederdeppe's
proposal to insert "the" and "pay point" in the second
sentence of the fifth paragraph of its incentive plan
proposal. The only evidence that it did so is found in the
testimony of Niederdeppe. I found Niederdeppe to be an
honest and intelligent man. I attach no significance to the
fact that O'Mohundro on June 26, 1972, and Niederdeppe
himself on July 3, 1972, took a position with the Charging
Party that does not jibe with Local 530's present position,
accepting without reservation his explanation that he did
not realize he had sent O'Mohundro the wrong notes until
after the latter meeting . Nevertheless, I find, on the basis of
Niederdeppe's evidence and contrary to Local 530's
present position, that the Charging Party did not agree to
the insertions.
I am persuaded, first, by the manner in which Nieder-
deppe arrived at a specific statement that the Charging
Party's industrial engineer, Brown, agreed to his proposal.
There is no dispute from Brown and J. T. English, the
Charging Party's industrial relations director, the two
witnesses called by the General Counsel, that Niederdeppe
raised the question, near the end of the March 24, 1971,
meeting, whether employees could be disciplined if they
made less than 100-percent production even though they
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be earning a bonus under the plan. Neither,
however, remembers the caucus which, on the basis of
Niederdeppe's testimony, I find occurred. Both, of course,
deny that Brown said the Charging Party agreed to
Niederdeppe's proposed change. I am convinced that the
Charging Party's representatives did caucus briefly, but
only to decide what the answer to Niederdeppe's question
was and not to decide whether to agree to his proposal.
Niederdeppe was, of course, called as a witness by Local
530. When he was asked on direct examination what
happened on March 24, 1971, his answer did not include a
direct statement that Brown had said the Charging Party
agreed to his proposal. Instead, his testimony went like
this:
Q. (Interrupting) Did you make any specific
proposals as to modifications of the language?
A. I proposed at that time the addition of three
words.
Q. Are those three words to be found in handwrit-
ing on Respondent's Exhibit 3?
A. This is correct.
Q. And this (indicating) is the proposed amend-
ment that you made to the company?
A. At that time, yes.
Q. Continue.
A. When the caucus was over, Mr. Brown indicat-
ed that, yes, this was proper, that inasmuch as the
variable allowance chart is there, that the 80 per cent
would be the normal expected.
Q. Did Mr. Brown indicate that the language
which you had proposed was acceptable?
A. This was my understanding, yes.
TRIAL EXAMINER: Run that one by me again.
They came back from the caucus and Mr. Brown said
something. To the best of your recollection, what did
he say?
THE WITNESS : Mr. Brown said, yes, in this plan
with the variable allowance, that the 80 percent in this
plan would actually be normal, the normal work pace,
what they really have done is reduced the normal, it
now becomes 80 in this plan because this is where the
hundred percent pay point starts.
Q. (By Mr. Nichols) During the course of the 1971
negotiations, Mr.-did you address yourself to any
other portion of the proposed incentive plan during
that particcular meeting?
A. Not that I recall.
On cross-examination by counsel for the Charging Party,
who was himself present at the March 24, 1971, meeting,
Niederdeppe conceded that there had been much discus-
sion about productivity and that, although he did not recall
the figure, there could have been insistence by the
Charging Party's negotiators on its need for 100 percent.
He only came, reluctantly, to a specific averment that the
Charging Party had agreed to his proposal in this manner
when counsel pressed him on what was said:
Q. According to your testimony, the only proposal
that you made was the insertion of three words?
A. This is correct.
Q. Did you say that the company agreed to that?
A. It was my feeling that day from Brother Brown
that we had agreement on -it.
Q. When you say it was your feeling, then there
was no express agreement, you just understood-
A. (Interrupting) You people came back from the
caucus. J. T, English said that this is an engineering
matter, the engineers discussed it, and inasmuch as the
variable allowance is in this thing your 80 per cent
actually becomes norm in this program, and I recall
Jerry [Brown ] saying, "Yes, this is true."
Q. Then nothing was said about inserting that
specific language in the contract?
A. I say it was.
Q. When Jerry came back and allegedly agreed,
was something said about putting the language in on
the copies that were submitted and the copies that the
company had?
A. That's my recollection.
Q. Then your testimony now is that there was an
agreement to insert it and it was inserted in the copies?
A. It was put to me that it would be inserted, and
after that meeting I was never in contact with it again,
Milt. I had no idea it was left out.
Q. When you say it was put to you that it would be
inserted, what did you mean, at some future date it
would be-
A. (Interrupting) Prior to the signing the agreement
that you were negotiating.
Second, I am persuaded by the lameness of Nieder-
deppe's explanation for redrafting the disputed sentence
when he returned to Chicago following the March 24, 1971,
meeting. When counsel pressed Niederdeppe on this point,
the cross-examination went like this:
Q. When you got back to Chicago there was no
need to do anything further on that language, was
there?
A. I assumed we'd be back into discussions further
down the line somewhere.
Q. But I thought you had just testified that at the
March 24 meeting you submitted three words and they
were accepted.
A. Yes.
Q. And that ended any further discussion on that.
So there was no need for any further negotiations on
that particular point, was there?
MR. NICHOLS: Objection. It is argumentative.
TRIAL EXAMINER: Overruled.
Q. (By Mr. Talent) Isn't that correct?
A. No; there would have been no need to mark
that one up, granted.
Q. Yet you came to Chicago and allegedly drafted
some language which was in your words stronger than
what you had submitted and what had been agreed
upon?
A. Yes, this is correct.
Q. Now, I ask you, "Skip," isn't it perhaps the fact
you went back to Chicago and drafted up that language
because that was language that you were going to
submit to the local union or the International to submit
at some future date?
A. Possibly in reference to other contracts, yes.
MEAT CUTTERS, LOCAL 530 483
"Possibly in reference to other contracts, yes" is, of
course, inconsistent with "I assumed we 'd be back into
discussions further down the line somewhere," so the cross-
examination at this point trailed off into Niederdeppe's
explanation that the redrafted sentence was not intended
by him for use in the negotiations for a new contract with
the Charging Party.
Third, and most important, I am persuaded by the notes
which Niederdeppe made on the incentive plan page of the
Charging Party's proposal at the March 24, 1971, meet-
ing-"Co so far in agreement (watch this one closely)."
In my view, the significant features of those parts of
Niederdeppe's testimony which I have reproduced here at
some length are (1) his failure, on direct, to state that
Brown spoke words of agreement; (2) his initial answer on
cross that his insistence that Brown had agreed was based
on a "feeling" growing out of what Brown had actually
said; (3) his repetition, on cross, of words allegedly spoken
by Brown which do not contain express words of
agreement; (4) his failure thereafter to state precisely what
words of agreement Brown allegedly spoke, falling back,
instead, on such responses as "I say it was" and "That's my
recollection"; and (5) his initial response, when cross-
examined about the notes he made when he returned to
Chicago, "I assumed we 'd be back into discussions further
down the line somewhere." When coupled with the
revealing phrase "so far" and the admonition "watch this
one closely" in the note he actually made at the March 24,
1971, meeting, they add up to an inescapable conclusion
that Niederdeppe, when Brown spoke, misinterpreted the
words he actually spoke as tentative agreement to the
insertions proposed and is now mistaken in his recollection
that other unspecified words were spoken by which the
Charging Party committed itself to make them. I find,
therefore, that the Charging Party did not agree, on March
24, 1971, to alter the second sentence of the fifth paragraph
of its incentive plan proposal by inserting "the" and "pay
point."
Since I have concluded that the Charging Party did not
agree to alter its incentive plan proposal, the second
question that arises is whether the Union ever agreed to it
in its unchanged form. When negotiations were resumed
on August 5, 1971, following the formality of an 8(d) notice
on July 2, the Charging Party resubmitted its proposals,
including an unmodified incentive plan. At no point in the
ensuing meetings did the Charging Party agree to any
change in the wording. When agreement was finally
reached on February 17, 1972, it was memorialized in a
memorandum which states , "The following was agreed .. .
The incentive plan as submitted to the Union." (Emphasis
supplied.) When they voted to ratify, the employees had
been informed that the incentive plan was part of the
package negotiated on their behalf even though local
leadership had been opposed to it. I find, therefore, that
Local 530 agreed to accept the second sentence of the fifth
paragraph of article XXIII in its pristine form. Since the
2 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.
contract which has been presented to it for execution
reproduces that sentence in that form and since there is no
contention by Local 530 that it has not agreed to any of the
other provisions of that document, Local 530 has violated
Section 8(b)(3) of the Act by refusing to sign it.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. DuQuoin Packing Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, Local 530, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By refusing to sign the collective-bargaining agree-
ment with the Charging Party dated February 25, 1972,
Local 530 has violated Section 8(b)(3) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
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: 2
ORDER
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local 530, AFL-CIO, its officers , agents,
and representatives, shall:
1. Cease and desist from:
(a) Refusing to sign a collective-bargaining agreement
with DuQuoin Packing Company dated February 25, 1972.
(b) In any like or related manner, refusing to bargain
collectively with employers whose employees it represents
under the provisions of Section 9(a) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, sign the collective-bargaining agree-
ment with DuQuoin Packing Company dated February 25,
1972.
(b) Post at its office or union hall copies of the attached
notice marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for Region 14,
after being duly signed by Local 530's authorized repre-
sentative, will be posted by Local 530 immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps will be taken by Local 530 to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Mail to the Regional Director for Region 14 copies of
the attached notice marked "Appendix" for posting by
DuQuoin Packing Company at its place of business in
DuQuoin, Illinois, in places where notices to employees are
3 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."
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted , if the said Employer is willing to do so.
Copies of said notice to be provided by the Regional
Director , after being signed by an authorized representa-
tive of Local 530, will be forthwith returned to the
Regional Director for said posting.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of the receipt of this
Decision , what steps Local 530 has taken to comply
herewith.4
4 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read.
"Notify the Regional Director for Region 14, in writing , within 20 days
from the date of this Order , what steps Local 530 has taken to comply
herewith "
provisions of Section 9(a) of the National Labor
Relations Act, as amended, by refusing to sign
collective-bargaining agreements to which we have
agreed or in any like or related manner.
WE WILL, upon request , sign the collective-bargain-
ing agreement with DuQuoin Packing Company dated
February 25, 1972.
AMALGAMATED MEAT
CUTTERS AND BUTCHER
WORKMEN OF NORTH
AMERICA , LOCAL 530,
AFL-CIO
(Labor Organization)
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found , after a
trial , that we violated Federal law by refusing to sign the
new contract with DuQuoin Packing Company, we hereby
notify you that:
WE WILL NOT refuse to bargain collectively with
employers whose employees we represent under the
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
448, 210 North 12th Boulevard , St. Louis, Missouri 63101,
Telephone 314-622-4167.