Meat Processors of Green Bay

National Labor Relations Board - Board Decisions

Mar 22, 1977

228 N.L.R.B. 984 (N.L.R.B. 1977)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farah Supermarkets , Inc., d/b/a Meat Processors of
Green Bay and Local 248 Meat & Allied Food
Workers, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFLr-CIO. Case 30-
CA-3671
March 22, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On November 2, 1976, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief and a brief in
support of the Administrative Law Judge's Decision.
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, findings, and
conclusions 1 of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.
The Administrative Law Judge found, and we
agree, that the Respondent' s numerous and blatant
unfair labor practices fully warranted, as a part of the
remedy, the issuance of a bargaining order under
N.L.R.B. v. Gissel Packing Co., Inc.2 We also agree
with the Administrative Law Judge's finding that the
Respondent should be required to bargain as of the
June 15, 1976, demand date even though many of the
violations were committed prior to that date, but only
because those violations are otherwise remedied by
our adoption of the Administrative Law Judge's
recommended Order. Trading Port, Inc., 219 NLRB
298 (1975) (Member Fanning concurring).3 See also
Drug Package Company, Inc., 228 NLRB 136
(1977) (Member Walther concurring and Member
Fanning concurring in part and dissenting in part).
The Administrative Law Judge also found, in light
of the Board's Decisions in Steel-Fab, Inc., 212
NLRB 363 (1974), and Trading Port, Inc., supra, that
it was unnecessary to reach the issue of whether or
not the Respondent violated Section 8(a)(5) of the
Act. We disagree. The complaint alleged a violation
of Section 8(a)(5) and, under the circumstances of
I Inasmuch as we fully agree with the Administrative Law Judge that the
Union demanded recognition on June 15 , 1976, and that the Respondent
could not avoid the consequences of that demand by refusing all communi-
cation with the Union , see, e .g., Century Projector Corporation , 49 NLRB 636
(1943), enfd. 141 Fd.2 488 (C.A. 2, 1944), we need not decide whether the
228 NLRB No. 111
this case, it is appropriate to make an 8(a)(5) finding.
The record establishes that (1) on June 15, 1976, the
Union represented a majority in an appropriate unit
and sought recognition, and (2) the Respondent
refused to recognize and bargain with the Union
while engaging in and having engaged in numerous
and substantial unfair labor practices. Accordingly,
as all the elements of an 8(a)(5) violation are present,
we find that on and after June 15, 1976, the
Respondent violated Section 8(a)(5) of the Act.
AMENDED CONCLUSIONS OF LAW
In accord with our above finding, we adopt the
Administrative Law Judge's Conclusions of Law with
the following modification:
Substitute the following for Conclusion of Law 9:
"9. By refusing, since June 15, 1976, and at all
times thereafter, to recognize and bargain with the
Union as the exclusive representative of its employees
in the appropriate unit set out above, the Respondent
has engaged and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act."
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, as
modified below, and hereby orders that the Respon-
dent, Farah Supermarkets, Inc., d/b/a Meat Proces-
sors of Green Bay, Green Bay, Wisconsin, its officers,
agents, successors , and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 1(k) and
reletter the subsequent paragraph accordingly:
"(k) Refusing to bargain with Local 248 Meat &
Allied Food Workers, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, as
the exclusive representative of the employees in the
following unit:
All employees of Farah Supermarkets, Inc., d/b/a
Meat Processors of Green Bay at its facility
located at 2210 Don Hutson Road, Green Bay,
Wisconsin, excluding office clerical employees
and supervisors as defined in the Act.
2. Substitute the following for paragraph 2(c):
"(c) Upon request, recognize and bargain with
Local 248 Meat & Allied Food Workers, Amalga-
Union's filing of an RC petition on June 18 , 1976, "perfected" an otherwise
imperfect demand.
2 395 U.S. 575 ( 1969).
3 Member Fanning agrees with the Administrative Law Judge that the
bargaining obligation should date from the demand.
MEAT PROCESSORS OF GREEN BAY 985
mated Meat Cutters & Butcher Workmen of North
America , AFL-CIO, with respect to wages , rates of
pay, hours of employment , and other terms and
conditions of employment for employees in the
appropriate unit set out above.
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
of North America, AFL-CIO, as the exclusive
bargaining representative of employees in the
appropriate unit described below.
WE WILL offer the employees named below
immediate and full reinstatement to their former
jobs, or, if those positions are no longer available,
we will offer the employees substantially equiva-
lent positions , together with all seniority and other
rights and privileges they previously enjoyed,
discharging if necessary any employees hired on
or after June 14, 1976, and WE WILL make the said
employees whole for any loss of earnings they
sustained by reason of our discrimination against
them:
WE WILL NOT discharge, lay off, or otherwise
terminate the employment of our employees Max Behrendt Jo-Ann Koehler
because of their union sympathies, interests, or Wayne Hultman William Vallier
activities. Jeffrey LeAnna John Hoenig
WE WILL NOT interrogate our employees con- Rhonda Watruba
cerning their union sympathies, interests, or
activities.
WE WILL NOT interrogate our employees con-
cerning the union sympathies, interests, or activi-
ties of their fellow employees.
WE WILL NOT threaten our employees with
layoff, discharge, or other discrimination affecting
the tenure of their employment because of their
union sympathies, interests, or activities.
WE WILL NOT create the impression in our
employees that their union activities are under
surveillance.
WE WILL NOT inform our employees that they
and their fellow employees have been discharged
because of their union sympathies, interests, and
activities.
WE WILL NOT solicit our employees to persuade
their fellow employees to abandon their allegiance
to the Union.
WE WILL NOT condition the future employment
of our employees on their willingness to persuade
their fellow employees to abandon their allegiance
to the Union.
WE WILL NOT threaten our employees that other
employees who may be reinstated to their former
jobs will again be discharged because of their
union sympathies, interests, and activities.
WE WILL NOT threaten to discharge all of our
employees rather than submit to a union represen-
tation election.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the National Labor Relations Act.
WE WILL NOT refuse to bargain collectively with
Local 248 Meat & Allied Food Workers, Amalga-
mated Meat Cutters & Butcher Butcher Workmen
WE WILL, upon request, recognize and bargain
collectively with Local 248 Meat & Allied Food
Workers, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, with
respect to wages , rates of pay, hours of employ-
ment, and other terms and conditions of employ-
ment . The appropriate unit for the purposes of
collective bargaining is:
All employees of Farah Supermarkets, Inc.,
d/b/a Meat Processors of Green Bay at its
facility located at 2210 Don Hutson Road,
Green Bay, Wisconsin, excluding office
clerical employees and supervisors as defined
in the Act.
FARAH SUPERMARKETS,
INC., D/B/A MEAT
PROCESSORS OF GREEN
BAY
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me at Green Bay,
Wisconsin, on August 2 and 3, 1976, upon a complaint
issued by the General Counsel of the National Labor
Relations Board and an answer filed by Farah Supermark-
ets, Inc . d/b/a Meat Processors of Green Bay, hereinafter
sometimes called the Respondent . The issues raised by the
pleadings relate to whether or not the Respondent violated
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended, by engaging in acts and conduct
hereinafter specified. Briefs have been received from the
General Counsel and the Respondent, and the briefs have
been duly considered.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I fmd that
the Respondent is (1) engaged in the processing and retail
and wholesale sale and distribution of food and meat
products at its facility at Green Bay, Wisconsin; (2) that the
Respondent's gross volume of business exceeds $500,000
annually; (3) that the Respondent annually purchases
goods in interstate commerce in an amount valued in excess
of $50,000; and (4) that the Respondent is an employer
within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE STATUS OF THE CHARGING UNION
The complaint also alleges , the answer admits, and I fmd
that Local 248 Meat & Allied Food Workers, Amalgamated
Meat Cutters & Butcher Workmen of North America,
AFL-CIO, hereinafter sometimes called the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE APPROPRIATE BARGAINING UNIT
The parties have stipulated and I find that the following
described bargaining unit is a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All employees of Farah Supermarkets, Inc. d/b/a
Meat Processors of Green Bay at its facility at 2210 Don
Hutson Road, Green Bay, Wisconsin, excluding office
clerical employees, guards and supervisors as defined in
the Act.
IV. THE UNION'S MAJORITY STATUS
The parties have further stipulated that on June 14, 1976,1
prior to any terminations, there were 10 employees in the
bargaining unit, exclusive of 5 individuals whom the parties
have stipulated to be supervisors within the meaning of
Section 2(11) of the Act. The record contains nine authori-
zation cards executed by the employees on June 9 and 10,
by which they designated the Union to represent them for
purposes of collective bargaining. There is no contention
and no evidence that the authorization cards are other than
voluntary designation by the employees of an agent for the
purposes of collective bargaining. I fmd, accordingly, that
at all times since June 9, 1976, the Union has been the duly
designated collective-bargaining representative of the Re-
spondent's employees in the appropriate unit for the
purposes of bargaining with respect to rates of pay, wages,
' All dates hereinafter are in 1976, unless specified to the contrary.
2 The mailgram was sent to the attention of Don Farah at the Respon-
dent's business address The record reflects that Daniel Farah is also known
hours of employment, and other terms and conditions of
employment.
V. THE UNION' S DEMAND FOR RECOGNITION AND
BARGAINING
The pertinent events in this case transpired in a relatively
restricted timespan extending from approximately June 1 to
June 15, and the Respondent's response to the collective-
bargaining aspirations of its employees portrays a classic
pattern of interference, restraint, and coercion. The Re-
spondent's employees became interested in union represen-
tation on or shortly before June 1. On June 5 employee Max
Behrendt contacted Victor Bobrowicz, the business agent
for Local 248, explained the employees' interest in union
representation, and obtained some literature appropriate to
an organizing campaign. Between the date of his contact
with Bobrowicz and June 9, Behrendt passed out the
literature to his fellow employees and solicited their
attendance at a union meeting scheduled for the latter date.
At the meeting on June 9, Bobrowicz explained the benefits
of union representation, informed the employees of the
various means to obtain recognition from the Respondent,
and passed out authorization cards for the employees'
signatures. Seven of the employees who attended the
meeting signed valid authorization cards, and two addition-
al cards were executed on the following day. Between the
approximate hours of 4:30 p.m. on June 14 and 11:30 a.m.
on June 15, the Respondent, in clear possession of
knowledge of the protected activities of its employees,
discharged seven of the nine employees who had authorized
the Union to represent them.
After his discharge on the evening of June 14 by the
Respondent President Daniel Farah, Max Behrendt report-
ed the contents of the discharge interview to Business Agent
Bobrowicz. At approximately 9:30 p.m. that evening
Bobrowicz sent a mailgram to the Respondent, advising of
the Union's majority status, and offering to prove the claim
through recourse to a card check.2 Bobrowicz also request-
ed the Respondent to recognize the Union and offered to
meet on a mutually agreeable date for the purpose of
collective bargaining.
On the morning of June 15 Bobrowicz received a
telephone call from Western Union, in which it was
reported that no person at the Respondent's place of
business would accept the mailgram. In a second call
received by Bobrowicz shortly thereafter, Western Union
reported that a second attempt to deliver the mailgram had
also proved futile. Bobrowicz directed that the mailgram be
sent to the Respondent by registered mail. On June 18
Bobrowicz received a copy of the mailgram sent on June 14,
and on June 21 Bobrowicz was advised by Western Union
that the Respondent's personnel had also refused to accept
a copy of the registered letter.
In the interim, on June 18, the Union filed a petition in
Case 30-RC-2879 requesting that the Board conduct a
representation election in a unit essentially identical to the
bargaining unit which the Respondent concedes here is
appropriate for the purposes of collective bargaining. A
as Don Farah, and was referred to by this nickname by some of his
employees.
MEAT PROCESSORS OF GREEN BAY 987
copy of the petition with accompanying documents was
mailed to the Respondent by registered mail on the same
date as filed. The return registry receipt reveals that the
petition was received at the Respondent's address on June
21, and was signed for by Carl Farah, whom the record
reveals to be a brother of Daniel Farah.
It is the Respondent's contention that no refusal to
bargain has been proved in this case because the Union
failed to make a valid request for recognition and collective
bargaining. In support of this contention Daniel Farah
testified that he was unaware of the Union's June 14
mailgram until the following Thursday, when he was told
by General Manager Robert Warner that a telegram for
Farah had arrived on June 15, but Warner had refused to
accept it. Warner testified in this proceeding, but afforded
no explanation of his refusal to accept the telegram. Farah
additionally testified, however, that on Thursday, June 18,
he received a registered letter, which he sunilarly refused to
accept, and returned the letter to the sender. In explanation
of this unusual conduct, Farah asserted that he does not
normally receive telegrams, and although he had no
particular reason to refuse the telegram, he did so because
he does not like telegrams.
As concerns the representation petition, Farah similarly
denied receipt, and testified that he was unaware of the
petition until the date the hearing in this proceeding
opened. Farah acknowledged that the signature on the
return registry receipt is that of his brother Carl, but
asserted that Carl Farah is neither employed by nor has any
official position with the Respondent, but only drifts in and
out of the office. Counsel for the Respondent stipulated
that the petition was received in the Respondent's office on
June 21 and, without conceding that the petition came to
the attention of Daniel Farah, counsel further stipulated
that on June 29, after he was retained to represent the
Respondent, he was furnished a copy of the RC petition by
a representative of the Regional Office.
To the extent Daniel Farah testified to the alleged
reasons the Respondent refused to accept the Union's
mailgram and registered letter, I reject his testimony as
inherently incredible and in direct contrast with all the
circumstances attending the Respondent's gross violations
of the Act. Similarly, I reject Farah's averments that,
notwithstanding his brother's receipt and signed acknowl-
edgment of the RC petition, the document did not come to
his attention until the date the hearing in this matter was
opened. On the whole of the record I find that the Union
took all reasonable and necessary steps to perfect its
demand for recognition and bargaining by its mailgram of
June 14, followed by a registered letter on the following
day. The Respondent offered no credible evidence to
explain why the Union's correspondence was refused, and
in the light of all the circumstances the inference is clearly
warranted that the Respondent's conduct in this respect
was in direct furtherance of its goal of frustrating the
collective-bargaining aspirations of its employees. When
the Respondent refused receipt of the Union's demand its
agents, including Farah, had clear and unequivocal knowl-
edge of the employees' union activities. Prior to the time the
Union's mailgram of June 14 was delivered to the Respon-
dent's premises , Daniel Farah had discharged several of the
employees in the unit, and by the time the Union's
registered letter was received Farah had discharged seven
of the nine employees who had signed authorization cards.
In the light of the Respondent's knowledge of its employ-
ees' union activities and considering its subsequent course
of gross discriminatory conduct, I reject the contention that
the Union's demand for recognition was defective and
legally insufficient to support a bargaining order.
Even if on the contrary, however, the record supported a
fmding that the Union's demands for recognition of June
14 and 15 were deficient, I would find that the demand was
perfected with the filing of the RC petition on June 18. It
was stipulated that a copy of the RC petition was received
in the Respondent's office on June 21, and I have
discredited Daniel Farah's testimony that the petition was
not brought to his attention until August 2. Even if I were to
credit Farah, the undisputed evidence is that a copy of the
petition was furnished to the Respondent's attorney on
June 29, at a time when he was concededly the Respon-
dent's agent for the purposes of this proceeding.
The Respondent argues , nevertheless, that no bargaining
order is warranted here because, even if the Union's
demand was perfected, all the unfair labor practices were
committed before either the demand was made or the RC
petition was filed. I find no merit in the Respondent's
argument.
It is not correct, as the Respondent asserts, that all of the
unfair labor practices here were committed prior to the
Union's demand for recognition and bargaining. Even if
the Respondent's assertion was supported by the record,
however, it would not foreclose a bargaining order where
there is proof of majority status and the Respondent has
engaged in extensive and pervasive unfair labor practices.
An employer has the legal right to insist on an election to
determine a union's claim of majority status; but as we are
taught by the decision of the United States Supreme Court
in Gissel,3 an employer foregoes that legal right when, in the
face of a proven majority claim, it engages in independent
unfair labor practices which make the holding of a fair
election unlikely. It is not material to the appropriateness of
a bargaining order that the unfair labor practices postdate
the union's demand for recognition or the filing of a
petition. The essential rationale of the Gissel rule is that a
bargaining order is required where the Board's traditional
remedies are insufficient to remedy the employer's unfair
labor practices. The test is the extent and seriousness of the
unfair labor practices, and not the timing in relation to the
union's demand or the filing of a petition for election. This,
moreover, is the test applied by the Board in Trading Port,4
where the Board ordered a bargaining remedy retroactive
in application, even though the employer's unfair labor
practices were initiated prior to the union demand for
recognition or the filing of a representation petition.
I find accordingly, that the Union made a valid demand
for recognition, and in the light of the Respondent's unfair
labor practices found below, a bargaining order is required.
3 N LR B v. Gissel Packing Co, Inc, 395 U.S 575 (1969). 4 Trading Port, Inc., 219 NLRB 298, 301(1975)
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE DISCHARGES AND ATTENDANT 8(A)(1)
CONDUCT
Max Behrendt was employed by the Respondent in
March 1976 and worked as a meatcutter until the date of
his discharge on June 14 . Behrendt was a participant in
some of the conversation among employees concerning
union representation, and he made the initial contact with
Business Agent Bobrowicz. Behrendt obtained some pam-
phlets from Bobrowicz, which he passed out to his fellow
employees during the next few days, generally using break
periods for this purpose. Toward the end of the day on June
9, Behrendt met and talked with Brad Mueller, the
Respondent 's foreman in its retail outlet . Behrendt told
Mueller that the employees were going to hold a meeting
after work and invited Mueller to attend . Mueller testified
in this proceeding and acknowledged that , on June 7 or 9,
he was asked by Behrendt to attend a union meeting, or
some kind of a meeting at the office of the Amalgamated
Meat Cutters.
On the evening of June 14, Behrendt was informed by his
mother that he had been called by Daniel Farah. Behrendt
returned the call and was asked by Farah, "What's this
about a union?" Farah added that he had heard that
Behrendt was passing out literature , and instructed Beh-
rendt to meet him at the plant at 7 p.m.
Behrendt proceeded to the plant , but found a note that
Farah would be back at 7:30 . Behrendt left to get a
sandwich, met Wayne Hultman, and the two returned to
the plant to meet with Farah . Present at the meeting were
Farah , Warner, Mueller, and Richard Janus , all of whom
are acknowledged supervisors and agents of the Respon-
dent.
When Behrendt and Hultman entered the meeting Farah
stated that he assumed they knew why they were present,
and Behrendt replied that he had a pretty good idea. Farah
then embarked on a long tirade, telling the employees that
the Union was the kind of a thing that would break a new
business, and accusing the employees of taking food out of
his mouth and other people at the plant . Farah said he had
no choice, and that he couldn't afford to pay $6 or $7 an
hour. Behrendt explained that the employees weren't
looking for an arm and a leg, but that their take-home pay
was not adequate to support married couples. Farah asked
why the employees hadn't contacted him if they had
problems , but Behrendt made no reply.
Speaking directly to Behrendt, Farah told him that he of
all the employees had the most to gain , that the smokehouse
was intended as Behrendt's department , and that the
Company had been pleased with Behrendt's production.
Behrendt stated that Farah could still beat the union
matter, and in response to Farah's inquiry explained that, if
Farah would get together with the employees and make
them an offer, the employees would probably vote against
the Union in an election . There is no indication in the
record that Farah replied, but Warner interjected that the
Company could not let the matter come to an election,
"We'll fire all of you first" Warner added that, once the
Union got its foot in the door it was already too late, and
spoke of some other employer who had suffered a nervous
breakdown because of a union . At this juncture Warner
asked if Behrendt had signed a card, and also asked who
else had signed cards . Behrendt replied that he wasn't sure,
but thought that all of the employees had done so. Warner
countered that he knew that it was 100 percent, knew that
Behrendt had passed out the literature , and there was
nothing more to be said. Warner told the employees that
they were no longer in the employment of Meat Processors.
Hultman asked the reason for his discharge , indicating that
he believed it was for union activities . Warner retorted that
Hultman should not put words in his mouth , and stated
that Hultman was discharged for lack of production.
Hultman suggested that since the employees were dis-
charged they might as well leave, and he proceeded out the
door. Farah called Behrendt back and stated that he would
guarantee the employees' reinstatement to their jobs if they
would get the employees to tear up their union cards, or
somehow get out of the Union . Behrendt called Hultman
back in to hear Farah's offer and Farah repeated, "You
have my word that I'll reinstate both of you if you can get
these people out of the Union, change their minds."
Behrendt replied to Farah's offer with the statement that
he was in the minority, that he would have to talk to the
other employees, and that it would be up to them. Behrendt
also asked what guarantee there was that they would be
hired back; Farah replied that the employees had his word,
but refused Behrendt's suggestion to put the offer in
writing. Behrendt also asked about the other employees;
Farah equivocated, but finally stated that he had made an
offer to Behrendt and Hultman, "And, that's it " The
employees were provided with a list of the names and
telephone numbers of the other employees and left the
Respondent's premises.
Later in the evening Behrendt and Hultman called the
other employees and related Farah's offer, including his
statement that there was no guarantee that the other
employees would be reinstated to their jobs. The employees
had a meeting on the following morning, and apparently
decided not to revoke their union authorizations. On June
16 the charge in this matter was filed.
Wayne Hultman was employed by the Respondent from
February to June 14. Hultman's primary duties entailed the
operation of the meat grinder, but he also performed
cutting duties and worked in the retail outlet. Hultman
participated in some of the early discussions with Behrendt
and other employees about union representation, he
attended the union meeting on June 9, and he executed an
authorization card while at the meeting.
Hultman testified that, prior to the meeting with Farah
on the evening of June 14, he had received a call from
another employee with the message that Farah and Warner
knew about the Union. On the whole, Hultman's testimony
concerning the events of the meeting with Farah and other
agents of the Respondent accords in most essential details
with the testimony adduced through Behrendt. Hultman
did add that Division Manager Richard Janus asked the
employees why they wanted a union, and there was some
conversation about the Armour plant. According to Hult-
man, Farah wrote his name and that of Max Behrendt on a
piece of paper and informed the employees that as of 5
minutes of 8 the two were no longer employed by Meat
Processors of Green Bay. Hultman confirmed that he asked
for the reason for his discharge, suggesting that both
MEAT PROCESSORS OF GREEN BAY 989
employees were discharged for union activities , and that it
was Farah who replied, "Don't put words in my mouth, I'm
firing you for lack of production.
According to Hultman 's testimony it was Robert Warner
who produced the list of names and telephone numbers,
after Farah had offered to reinstate Behrendt and Hultman
if they succeeded in obtaining the other employees ' assent
to abandon the Union . Hultman called some of the other
employees and related the contents of the meeting with
Farah and his offer concerning revocation of the authoriza-
tion cards.
The Respondent 's avowed reason for the discharge of
Behrendt and Hultman , like its explanations for the
discharges of five other employees , is a mixture of fact and
phantasy, with strong emphasis on the latter . Farah testified
that Behrendt was discharged for poor workmanship, but
immediately substituted the explanation that Behrendt had
been hired to operate the smokehouse , but since plans for
the smokehouse had not materialized , Behrendt was
terminated . Next, Farah testified that Behrendt operated
the Cry-O-Vac machine, and that some of the meat had
soured . When the General Counsel sought clarification as
to those aspects of poor workmanship which prompted
Behrendt's termination, Farah slipped back to his plea that
Behrendt had been hired for the smokehouse , which never
became operational . In addition , according to Farah,
Behrendt did a bad job of cutting up chickens , and spoiled
a batch of prime ribs by failing to properly operate the Cry-
O-Vac machine . The latter incident, as Farah testified,
occurred sometime during the first week in June, but his
testimony as to whether he discussed the problem with
Behrendt can only be described as evasive and equivocal.
Warner also testified concerning the reasons prompting
Behrendt's discharge , and acknowledged that Behrendt did
operate the Cry-O-Vac machine . Warner had received
complaints from customers , but when questioned specifi-
cally, Warner was unable to state whether it was the
operator or the machine which caused the problems.
Behrendt also acknowledged that he operated the Cry-O-
Vac machine , admitted there were problems with the
machine, but denied that he was the recipient of any
complaint from the Respondent about any batch of spoiled
prime ribs . According to Behrendt , the only reason he was
given for his discharge was Farah 's explanation of lack of
production.
As a witness called by the General Counsel, Farah
testified that Hultman was discharged for poor workman-
ship . With more detail , Farah explained that Hultman had
improperly cut some pork steak for a hospital customer,
and the hospital complained. Questioned about when the
incident happened, Farah stated that it happened on the
Tuesday prior to Hultman's discharge . Immediately after,
Farah testified that the incident occurred 1 to 2 weeks prior
to the discharge, during the first part of June . According to
Farah he talked to Hultman about the mistake on Tuesday,
but also talked to him concerning the same matter on one
or two other occasions . Farah was questioned about other
problems with Hultman 's work and replied , variously, that
he didn't know ; that Hultman didn't have his mind on his
work ; that he could not recall any other problems; and that
on one occasion Hultman had caused the spoilage of some
meat by failing to rotate the stock . According to Farah, he
discovered the latter example on the afternoon of June 14.
Warner's testimony concerning the reasons for Hult-
man's discharge is no more enlightening than that proffered
by Farah . It is Warner's version that on June 14 or 15 he
discovered four boxes of meat which had been removed
from the freezer 4 days before , 70 percent of which was
spoiled . Warner was asked if he had investigated the
matter, and without any explanation answered that Hult-
man had pulled the meat out of the freezer . Oddly enough,
Warner conducted his investigation into June 15, after he
allegedly determined that Hultman was responsible and
Hultman had been discharged . Warner was not questioned
about the reason given Hultman at the discharge interview,
and Farah's testimony is similarly silent on the issue.
Accordingly , I credit Hultman's testimony that the reason
given by Farah and Warner was poor production, and I
similarly credit his denial that he was not responsible for
the spoilage of any meat removed from the cooler.
In assessing the diverse reasons asserted by Farah and
Warner for the discharges of Behrendt and Hultman, I am
least impressed with the multiplicity and variety of the
misconduct relied on, and the extent of time which elapsed
between the alleged misconduct and, the termination.
Similarly lacking is credible evidence that the employees'
derelictions were considered of sufficient importance to
prompt warnings or instructions to the employees and the
evidence that both were told that they were terminated for
lack of production. Farah and Warner were not convincing
witnesses, and Farah in particular was evasive, equivocal,
and unbelievable.
The assessment of the discharges of Behrendt and
Hultman, like the discharges of five other employees, must
also be made in the context of the Respondent's knowledge
of their union activities , the timing of the discharges in
relation to the Respondent's discovery of their activities,
and the contents of the discharge interviews. Upon the
whole of the record I find that the Respondent 's agents had
knowledge of the employees ' union activities no later than
June 9 , when Behrendt solicited Mueller to attend a union
meeting. Farah testified, however, that he was unaware of
any union activities until about 4:30 p .m. on June 14, less
than 4 hours before Behrendt and Hultman were dis-
charged. For the purposes of this Decision I accept Farah's
testimony in this respect as it exemplifies that fmding that
the discharges were peremptory retaliations against the
Union's organizing campaign which the Respondent sought
to mask with hasty and ill-contrived assertions of termina-
tions for cause.
Farah testified that he returned to the plant about 4:30
p.m. on June 14, and shortly thereafter Mueller informed
him that he was having problems with employee Jo-Ann
Koehler in the retail outlet . Farah told Mueller that he was
responsible for the retail outlet, and told Mueller to fire
Koehler, or lay her off. In Farah's presence Mueller made
the call . At this juncture, according to Farah, Mueller
informed him about the employees ' union activities. Al-
though Farah testified that all of the discharges had been
previously planned, he called Max Behrendt at his home,
concededly for the purpose of finding out what the union
matter was all about . On the basis of testimony reviewed
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
below, I find that, immediately following Mueller's call to
Koehler, Farah laid his plans to discharge all of the
employees who were identified as participants in the
organizing effort.
Jerome Hujet testified that on June 10 he was approached
by employee Jo-Ann Koehler and asked if he wanted to
sign a union card. Hujet did sign the card. At a later time
that day, and/or the next day, Brad Mueller asked Hujet
how he felt about the Union, and if he had signed a card.
Hujet replied in the affirmative. At a subsequent conversa-
tion during the period from June 10 to June 12, Mueller
again approached Hulet on the subject of the Union, and
informed Hujet that he was against the Union, and that he
had previously lost a job because of a union. In his
testimony in this proceeding Mueller was not questioned
and did not deny Hujet's version of the conversations
concerning the Union . Mueller's questioning of Hujet
about his feeling on the Union and whether he had signed a
union card is a clear and explicit interrogation prohibited
by Section 8(a)(1) of the Act. The second conversation,
however, was not alleged as a violation of the Act, and no
finding is required.
Late in the afternoon of June 14, Mueller approached
Hujet for the third time about the Union to inform him that
Farah was aware the Union was trying to get in. This
conversation took place in the breakroom, and shortly after
Mueller had talked to him Hujet overheard a conversation
between Warner, Janus, and Mueller. While the three
supervisors were talking about the Union trying to get in,
Farah entered the room and told the supervisors that he
thought he had a plan to beat the Union.
Hujet had a day off on July 15, but in the evening he
received a call that he had been fired. Hujet attended the
plant on the following morning and asked Mueller if he was
still employed. Mueller explained that, after Behrendt and
Hultman left the plant on the evening of June 14, Farah
changed his mind and agreed to retain Hujet. Hujet was not
alleged as a discriminatee , and I make no finding with
respect to his discharge.
Jo-Ann Koehler was employed by the Respondent on
March 4 and continued to work until her discharge on June
14. Koehler was employed in the retail outlet , but occasion-
ally worked in the wholesale portion of the plant. Prior to
June 9 Koehler engaged in some conversations with Max
Behrendt about organizing a union , she attended the union
meeting on June 9 and signed an authorization card.
Koehler also obtained two extra cards, and on June 10 she
solicited the signatures of Rhonda Watruba and Jerome
Hujet.
About lunch time on June 10, in the presence of Hujet
and Watruba, Koehler inquired of Mueller if Max Behrendt
had asked him to sign a union card. Mueller replied that
Behrendt had made the request and added, "Do you know
they can just lay you off and that's what they'll probably
do." About 8:30 p.m. of June 14 Koehler received a call
from Mueller, who informed her that there had been a
meeting at the plant , that the discussion had included
reference to dissatisfaction with Koehler's work, and that
Mueller was going to lay her off. Koehler testified, and I
credit her testimony that she had not previously been
criticized or warned about her work, but on the contrary
had been complimented by Farah on her maturity and the
good job she was doing.
Farah testified that Koehler was discharged on June 14
by Brad Mueller because of the latter's complaint that
Koehler had left work early. Farah was unable to state
whether Koehler had ever been warned about her work
performance. Mueller was not questioned on the issue of
whether Koehler had been the recipient of prior warnings
or threats of discipline or discharge, but he recited a
plethora of complaints about Koehler's work, her attitude,
and the neglect of her assigned duties. Koehler was
employed by the Respondent from March to mid-June, and
her alleged incompetence, neglect, and poor attitude were
of no concern to Mueller or Farah until it was ascertained
that she favored union representation. While Farah con-
tends he knew nothing about the Union until after Mueller
had fired Koehler, there is little if any reason to credit his
testimony in this respect. Even if credited, however, Farah's
lack of knowledge would not foreclose a finding that
Koehler's discharge was motivated by discriminatory
reasons . Mueller was fully aware of Koehler 's union
sympathies and activities, and on June 10 he had threat-
ened Koehler and two other employees that they would be
laid off if they signed union cards. Mueller's discharge of
Koehler on the evening of June 14 was only the final
consummation of his previously expressed threat, and the
finding is the more supported by the evidence that the other
two recipients of Mueller's threat, Watruba and Hujet, were
also terminated.
The Respondent's animus toward Koehler is further
exemplified by the testimony of employee James Greene.
Greene attended the union meeting on June 9, but was on
vacation from June 14 to June 20. On June 28 Greene
encountered Brad Mueller in the breakroom , and in the
presence of several other employees Mueller told Greene
that, if the Union ever succeeded in putting Koehler back
to work, she would not last a week.
I find, upon all of the relevant evidence in the record, that
Jo-Ann Koehler was terminated from her employment in
violation of Section 8(a)(3) of the Act. As to the threat to
Koehler and other employees on June 10, Mueller acknowl-
edged that he talked to Koehler about the Union on that
date, but he made no pretense to refute Koehler's version
that he threatened that employees who signed union cards
would be laid off. Neither did Mueller's testimony contain
any refutation of Mueller's statement to Greene of the
prospects if Koehler managed to obtain reinstatement. I
find that both of Mueller's threats violated Section 8(a)(1)
of the Act.
Rhonda Watruba, like Jo-Ann Koehler, was employed in
the Respondent's retail outlet and worked from May to
June 15. Watruba did not attend the union meeting on June
9, but on June 10 she signed an authorization card at the
suggestion of Jo-Ann Koehler. On the afternoon of June 14
Watruba approached Warner to find out where to locate an
item desired by a customer. Warner answered Watruba's
inquiry, and then asked her, "What's this about a union?"
Watruba replied that she didn't know, and told Warner that
she had to return to the customer.
Between 4 :30 and 4:45 p.m. on June 14, Watruba was
questioned by Farah about the Union. In the presence of
MEAT PROCESSORS OF GREEN BAY
his supervisors, Farah asked Watruba if she knew anything
about a union. Watruba refused to say anything. On the
following morning at 7:45 Mueller informed Watruba that
there had been a meeting the night before between Farah
and some of his supervisors and they had decided to let
some people go. Watruba asked what Mueller meant and
he replied that he had to fire some people, including
Koehler and Watruba, and that Watruba was laid off
indefinitely. In response to Watruba's inquiry, Mueller
stated that they were dissatisfied with her work, but refused
to provide any details.
Watruba's termination was explained to her as a layoff,
and there is other evidence in the record bearing on this
subject. As a witness for the General Counsel Farah
explained that he instructed Mueller on the morning of
June 15 to inform Watruba that she was laid off. Farah
explained that he had made the decision on the previous
day because he had too many employees. Farah also
admitted, however, that within a week after Watruba's
discharge he hired two new employees for the retail shop,
and also put his wife to work.
Robert Warner's testimony concerning the reasons for
Watruba's termination do not equate with those proffered
by Farah. According to Warner, Watruba was a good
worker, but young and inexperienced and unable to handle
customers . Warner was sufficiently inexplicit concerning
Watruba's shortcomings as an employee, and there is no
more reason to credit his assertions of termination for
cause, than there is to credit Farah's version that Watruba
was laid off because of a surplus of help. Watruba signed a
union card on June 10, and on June 14 she was the object of
two interrogations about the Union, and in both instances
she refused to provide any information. Although there is
no direct evidence of the Respondent's knowledge of
Watruba's activities, the interrogations suggest that she was
a prime suspect as a union sympathizer. Moreover, at the
meeting on the evening of July 14, Warner told Behrendt
and Hultman that he knew the Union had signed up 100
percent of the employees, and there is nothing in the record
to refute his claim . With knowledge established, and
considering the timing of Watruba's discharge and the
shifting, conflicting, and pretextual reasons advanced by
the Respondent as a defense , it is clear and I find that the
discharge was discriminatorily motivated and violated
Section 8(a)(3) of the Act. I similarly find that the
interrogations of Watruba violated Section 8(a)(1) of the
Act.
Jeffrey LeAnna was first employed by the Respondent in
February as a meatcutter, and worked until his discharge
on June 14. LeAnna engaged in some of the initial
conversations with Max Behrendt about a union, attended
the union meeting on June 9, and signed an authorization
card. At or about 9 p.m. on June 15 LeAnna received a call
from Farah. LeAnna had already received a call from
Wayne Hultman, and informed Farah that his call had
been expected. Farah asked LeAnna why he had signed a
union card and told the employee that he could not afford a
union, because the Union would break his neck. Farah
counseled that he knew that 100 percent of the employees
had signed union cards, and that he would have to get a
whole new crew. Farah completed the conversation with
991
notice to LeAnna, "Of course, you realize I had to hire your
replacement tonight and your job is terminated."
As a witness for the General Counsel Farah admitted that
he discharged LeAnna on June 14, for the asserted reason
that LeAnna had obtained his real estate broker' s license
and intended to leave the Respondent's employ. According
to Farah he made up his mind to fire LeAnna at 7 p.m. on
June 14, and called LeAnna at his home. However, neither
as a witness for the General Counsel nor as a witness on his
own behalf did Farah attempt to rebut, refute, or explain
LeAnna's version of what Farah said in the telephone
conversation on the evening of June 14. Farah had already
informed Behrendt and Hultman that the whole crew was
fired because of the Union, and I credit LeAnna's testimo-
ny that Farah explained his termination in the same terms.
LeAnna's discharge violated Section 8(a)(3) of the Act, and
his interrogation by Farah of the reasons why he had signed
a union card violated Section 8(a)(l) of the Act. In
addition, I fmd that Farah's notice to LeAnna that he knew
the Union had signed up 100 percent of the employees
created the impression that the employees ' union activities
were under surveillance, and constituted a further violation
of Section 8(axl). Further, Farah engendered an additional
violation of Section 8(axl) by telling LeAnna that he had
replaced his whole crew of employees because of their
support of the Union.
William Vallier was employed by the Respondent as a
driver over the period from March to June 14. Vallier was
informed of the union meeting by Max Behrendt, he was
present during the latter part of the meeting, and did sign a
union authorization card. Shortly after 5 p.m. on June 14,
Vallier was approached by Farah, who asked if he knew
anything about a union. Vallier replied that he had heard
about the Union, but didn't know much about it. Farah
then asked if Vallier had signed a union card, and Vallier
replied in the affirmative. Farah continued the conversation
by stating that if the employees brought a union in it would
break his back and they would be taking food from the
tables of employees, and his table. Farah counseled, "It
would be a smart idea for you to get in contact with Max-
your buddies, Max and Wayne, and tell them to forget
about the whole thing." Farah closed the conversation with
the statement, "If you do happen to get a union in here, I'll
probably have to lay some of you off, because I won't be
able to pay the wages that the Union will be asking from
me."
Shortly before noon on June 15, while at the union hall,
Vallier called Richard Janus at the plant and asked what
was going on. Janus asked what was meant and Vallier
asked if he still had a job. After a short hesitation Janus
replied, "No."
It is the Respondent's defense that Vallier was discharged
for losing some sausage off a delivery truck, and subse-
quently refusing to pay for the loss. Farah testified that he
had made the decision to terminate Vallier 2 weeks before
the actual date of discharge, after he talked to Vallier and
Vallier refused to make good the loss of the sausage. Farah
further testified that he told Warner of his decision. There is
no mention in Warner's testimony of instructions to
discharge Vallier and, although Janus informed Vallier of
the termination, Janus did not testify.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vallier admitted that he did lose a package of sausage off
the truck, and testified that the accident occurred a month
or more before his discharge. In the absence of any
specificity from Farah, I accept Vallier's testimony as the
most reliable evidence of when the sausage was lost. Vallier
also conceded that Farah had complained to him about the
loss of the sausage on three occasions , and demanded that
he pay for the loss. The last of these conversations took
place 2 or 3 weeks before Janus informed Vallier that he
was no longer employed.
It is axiomatic that in the absence of a discriminatory
motive an employer may discharge an employee for good
cause, bad cause , or no cause at all. The discharge of Vallier
for an accidental loss which Farah estimated at $12 to $16,
and Vallier estimated at $13.60 , equates with a termination
for no cause at all, and must be viewed in the totality of the
circumstances in which it occurred. Vallier credibly testi-
fied to his interrogation by Farah on the evening of June 14,
and his admission that he had signed a union card. In the
same conversation Farah threatened that he would proba-
bly have to lay off some of the employees if they persisted in
their drive for union representation. Farah was not ques-
tioned at all about the June 14 conversation with Vallier,
and Vallier's testimony is unrebutted. Considered in
conjunction with the timing of the discharge , the mass
nature of the terminations, the pretextual nature of the
reason asserted , and the complete lack of notice and reason
to Vallier, I reject the Respondent's defense of a termina-
tion for cause as a subterfuge. Vallier was threatened with
termination because of his union activities and, as in the
case of several other of Respondent's employees, the actual
discharge was an immediate confirmation of the threat. By
discharging Vallier, the Respondent violated Section 8(a)(3)
of the Act. By interrogating Vallier as to whether he had
signed a union card , and by threatening the termination of
employees, the Respondent violated Section 8(a)(l) of the
Act. In addition I find that Farah's order to Vallier to
convince Behrendt and Hultman to desist from their union
activities , when coupled with his simultaneous threat of
layoffs, also violated Section 8(a)(1) of the Act.
The record reflects that employee John Hoenig attended
the June 9 union meeting and signed an authorization card.
Hoenig did not testify in this proceeding, but the record
reflects that he was employed as a delivery man. According
to Farah , Hoenig had an accident and the insurance
company revoked his driver's license . Farah did not explain
how an insurance company accomplished this objective,
but conceded that he discharged Hoenig between June 14
and 16. According to Farah, he made the decision to
terminate Hoenig a week to 10 days before the actual
termination, and told Janus to release him. As to the alleged
accident and Hoenig's loss of his driver's license, Farah was
unable to recall when the incidents occurred.
A finding of discrimination necessitates proof that the
employer knew of the employee's union activities. Hoenig
attended the June 9 union meeting and signed an authoriza-
tion card. On the unrebutted evidence that both Farah and
Warner claimed knowledge that 100 percent of the employ-
ees had signed union cards, there is proof that the
Respondent knew of Hoenig's union activities . The proof of
knowledge is further substantiated by the evidence that
Hoenig's name is contained on the list given to Behrendt
and Hultman on the evening of June 14, with instructions
from Farah that Hoenig and all the others be persuaded to
give up their union activities.
A finding of discrimination also necessitates proof of
animus , and there is a plentitude in this case . Farah,
assisted by his minions, interrogated employees and threat-
ened them with discharge or layoff. In addition to these
expressions of animus expressed to employees in individual
confrontations, there is the evidence that Farah told
Behrendt and Hultman on the evening of June 14 that all of
his employees were discharged because of their union
activities . Furthermore , as to the asserted discharge of
Hoenig for cause, the record contains small support of the
Respondent's contention. According to Farah, he deter-
mined to discharge Hoenig a week or 10 days prior to the
actual termination. There is no evidence of when Hoenig
suffered the alleged loss of his driver's license, but obvious-
ly it occurred prior to the date Farah made the decision to
terminate him. If Hoenig could not perform his duties for
lack of a driver's license, it is incredible that Farah would
have maintained Hoenig on the payroll for a week or more.
The assertion is the more incredible in the light of the
evidence that other employees were notified of their
terminations immediately after Farah had made his deci-
sion, even to the extent they were notified after regular
working hours.
Upon all of the relevant evidence, I find that Hoenig's
discharge is indistinguishable from the other cases of
discrimination found above. The General Counsel has
proved by a preponderance of the evidence that Hoenig's
discharge was motivated and consummated for reasons
prohibited by the Act, and the lack of Hoenig's testimony
in his own support does not detract from the measure of
adequate proof.5
There remains for consideration in this Decision certain
additional allegations arising from the meeting between the
Respondent's agents and employees Behrendt and Hult-
man on the evening of June 14. It is clear from Farah's
testimony that he called Behrendt's home and summoned
him to the meeting because of his awareness of the union
activities and his desire to find out what was going on.
According to the testimony of Behrendt, Farah asked him
during the telephone conversation, "What's this about a
union," and informed Behrendt that Farah knew he was
passing out literature. Farah testified to his telephone
conversation with Behrendt, but he neither directly or
tacitly denied Behrendt's version of the conversation. I find
that the interrogation violated Section 8(a)(l) of the Act. In
the context of the unlawful interrogation, Farah's acknowl-
edgment that he knew Behrendt was passing out union
literature had the tendency to leave Behrendt with the
impression of surveillance, which I find to constitute an
additional violation of Section 8(a)(1).
I have carefully reviewed the testimony of Farah and
Mueller as it pertains to the meeting on the evening of June
146 and, where their testimony conflicts in any respect from
5 Riley Stoker Corporation, 223 NLRB 1146, 1147 (1976) 6 Robert Warner did not testify with respect to the meeting.
MEAT PROCESSORS OF GREEN BAY 993
the testimony of Behrendt and Hultman , I credit the
employees . I particularly reject Farah's testimony that he
had previously planned to discharge or lay off all of the
seven employees who were terminated . I also reject Farah's
testimony that after his telephone conversation with Max
Behrendt he considered canceling the terminations, but was
dissuaded by Warner's advice. In addition , I discredit the
testimony of Farah, as well as that of Mueller, that it was
Behrendt's suggestion that the employees be contacted
individually to persuade them to abandon the Union. Even
if, arguendo, it was Behrendt's idea , the conduct would be
no less a violation of the Act, particularly when the quid pro
quo was reinstatement of Behrendt and Hultman, an offer
which Farah conceded he made.
The assertion that the idea of contacting the employees
was initiated by Behrendt is the more doubtful in the face of
other relevant evidence . There is uncontroverted evidence
that, a short time before the meeting with Behrendt and
Hultman, Farah announced to his supervisory staff that he
thought he had a plan by which he would beat the Union.
There is the additional evidence pertaining to the list of
names and addresses of employees given to Behrendt and
Hultman . Farah's testimony is that he didn't give the list to
the employees and was not sure how they obtained it. Farah
also testified , however, that he saw the list on Warner's
desk, and Warner brought the list into the meeting. It is
clear from the record that Farah and Warner met separate-
ly after Behrendt and Hultman arrived for the meeting, and
on the clear preponderance of the credited evidence I fmd
that Warner prepared the list to permit Behrendt and
Hultman to persuade the other employees to abandon the
Union, with a promise of reinstatement if they were
successful.
In summary of the meeting on the evening of June 14, I
find that Warner's threat to fire all of the employees before
the Respondent would submit to a union election violated
Section 8(a)(1) of the Act. Warner asked Behrendt if he had
signed a union card , and also asked who else had signed
cards . Both interrogations violated Section 8(a)(1) of the
Act. Warner's comment that he knew 100 percent of the
employees had signed union cards , coupled with his
acknowledgment that he knew Behrendt had passed out
union literature, was a clear message that the employees'
union activities had been kept under surveillance, and the
conduct violated Section 8(a)(1). The notice to Behrendt
and Hultman that they were discharged violated Section
8(a)(3) of the Act and, in the context of which the
announcement was made , the Respondent engaged in a
further independent violation of Section 8(a)(1). Finally, by
predicating the future employment of Behrendt and Hult-
man on their agreement to persuade other employees to
abandon their support of the Union, the Respondent
violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act, I shall recommend that it be
ordered to cease and desist therefrom , and take certain
affirmative actions to effectuate the purposes of the Act.
Having found that the Respondent discharged seven of
its employees in violation of Section 8(a)(3) of the Act, I
shall order that the Respondent offer immediate and full
reinstatement to Max Behrendt , Wayne Hultman , Jeffrey
LeAnna, Rhonda Watruba, Jo-Ann Koehler , William
Vallier, and John Hoenig, together with all seniority , rights,
and privileges they previously enjoyed, discharging, if
necessary , any employees hired on or after June 14, 1976,
and if the former jobs of said employees are no longer
available, the Respondent shall offer them immediate and
full reinstatement to substantially equivalent positions. I
shall also recommend that the Respondent be ordered to
make whole each of the employees named above by
payment to each of them of the amount of money he or she
would have earned from the date of the discharge to the
date of the Respondent's valid offer of reinstatement. Said
backpay shall be computed in the manner proscribed by the
Board in F. W. Woolworth Company, 90 NLRB 289 (1950),
and shall bear interest according to the manner prescribed
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The General Counsel contends that it is appropriate in
this case to order the Respondent to bargain with the Union
as the duly designated collective-bargaining agent of the
employees in the unit found appropriate. In the light of the
findings that the Respondent has engaged in extensive and
pervasive unfair labor practices , including the discriminato-
ry discharges of 7 of 10 employees in the bargaining unit, I
fmd that the requested remedy is in all respects appropriate.
It is clear that the Respondent's multiple unfair labor
practices cannot be remedied by the Board's traditional
cease-and-desist order, the Union represented the employ-
ees in the bargaining unit at all times material , and all of the
elements required under the Gissel doctrine, supra, are fully
satisfied . Such bargaining remedy shall be fashioned in
accordance with the Board's decision in Steel-Fab, Inc., 212
NLRB 363 (1974), and shall have retroactive application to
the date of the Union's demand for recognition , which I
find to be June 15, 1976, in accordance with the dictates of
the Board expressed in Trading Port, Inc., 219 NLRB 298
(1975).
Further, in the light of the Respondent's extensive and
aggravated unfair labor practices , and particularly in the
light of the findings of mass discharges in violation of
Section 8(a)(3) of the Act, I shall recommend that the
Respondent cease and desist in any other manner from
interfering with , restraining, or coercing its employees in
the exercise of the rights guaranteed them by Section 7 of
the Act.
CONCLUSIONS OF LAW
1. The Respondent, Farah Supermarkets , d/b/a Meat
Processors of Green Bay, is an employer within the
meaning of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, Local 248 Meat & Allied Food Workers,
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material to this case the following
described unit has been a unit appropriate for the purposes
of collective bargaining with respect to wages , rates of pay,
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment, and other terms and conditions of
employment:
All employees of the Respondent at its facility at 2210
Don Hutson Road, Green Bay, Wisconsin , excluding
office clerical employees , guards and supervisors as
defined in the Act.
4. Since June 9, 1976, the Union has been, and
continues to be, the sole and exclusive collective-bargaining
representative of the employees in the bargaining unit
described in paragraph 3 above, for the purposes of
collective bargaining with the Respondent with respect to
wages, rates of pay, hours of employment, and other terms
and conditions of employment.
5. Beginning on June 15 , 1976, and continuing thereaf-
ter, the Union has demanded that the Respondent bargain
collectively with it as the sole and exclusive collective-
bargaining agent for the employees in the unit described in
paragraph 3 above.
6. At all times since June 15, 1976, the Respondent has
refused, and continues to refuse , to bargain with the Union,
and has engaged in a course of unlawful conduct designed
to undermine the Union's majority status and prevent the
conduct of a fair representation election.
7. By the following acts and conduct the Respondent
has engaged in violations of Section 8(a)(l) of the Act:
(a) Interrogating its employees concerning their union
sympathies , interests , and activities.
(b) Interrogating its employees concerning the union
sympathies, interests , and activities of their fellow employ-
ees.
(c) Threatening its employees with layoff, discharge, or
other discrimination affecting the tenure of their employ-
ment because of their union sympathies, interests, or
activities.
(d) Creating in its employees the impression that their
union activities are under surveillance by the Respondent.
(e) Informing its employees that they and their fellow
employees have been discharged because of their union
sympathies, interests , or activities.
(f) Soliciting employees to persuade their fellow employ-
ees to abandon their allegiance to the Union.
(g) Conditioning the future employment of its employees
on their willingness to persuade their fellow employees to
abandon their allegiance to the Union.
(h) Threatening its employees that other employees who
might be reinstated would again be discharged because of
their union sympathies, interests, and activities.
(i) Threatening its employees that it would discharge all
of its employees rather than submit to a representation
election.
8. By discharging Max Behrendt, Wayne Hultman,
Jeffrey LeAnna, Rhonda Watruba, Jo-Ann Koehler, Wil-
liam Vallier, and John Hoenig because of their union
sympathies, activities, and interests , the Respondent violat-
ed Section 8(aX3) and (1) of the Act.
9. In the light of the Board's decisions in Steel-Fab, Inc.,
supra, and Trading Port, Inc., supra I find it unnecessary to
r 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
decide whether the Respondent violated Section 8(aX5) of
the Act by refusing to recognize and bargain with the
Union on and after June 15, 1976.
10. The unfair labor practices found in paragraphs 7
and 8 above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and upon the entire record in this proceeding, and pursuant
to the provisions of Section 10(c) of the Act , I hereby issue
the following recommended:
ORDER?
The Respondent, Farah Supermarkets, d/b/a Meat
Processors of Green Bay, Green Bay, Wisconsin, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise terminating the
employment of its employees because of their union
sympathies, interests , and activities.
(b) Interrogating its employees concerning their union
sympathies , interests, and activities.
(c) Interrogating its employees concerning the union
sympathies, interests, and activities of their fellow employ-
ees.
(d) Threatening its employees with layoff ', discharge, or
other discrimination affecting the tenure of their employ-
ment because of their union sympathies, interests, and
activities.
(e) Creating the impression that the union activities of its
employees are under surveillance.
(f) Informing its employees that they and their fellow
employees have been discharged because of their union
sympathies, interests, and activities.
(g) Soliciting its employees to persuade their fellow
employees to abandon their allegiance to the Union.
(h) Conditioning the future employment of its employees
on their willingness to persuade their fellow employees to
abandon their allegiance to the Union.
(i) Threatening its employees that other employees who
might be reinstated would again be discharged because of
their union sympathies, interests , and activities.
(j) Threatening its employees that it will discharge all of
its employees rather than submit to a representation
election.
(k) In any other manner , interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative actions to remedy the
unfair labor practices and to effectuate the policies of the
Act:
(a) Offer to the employees named below immediate and
full reinstatement to their former jobs or, if those jobs are
no longer available, offer them reinstatement in substantial-
ly equivalent positions, together with all seniority and other
rights and privileges previously enjoyed, discharging if
necessary any employees hired on or after June 14, 1976,
and make said employees whole for any loss of earnings
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.
MEAT PROCESSORS OF GREEN BAY 995
they may have sustained by reason of the discrimination
against them, said backpay to be computed and to bear
interest as prescribed in the Remedy section hereof:
Max Behrendt Jo-Ann Koehler
Wayne Hultman William Vallier
Jeffrey LeAnna John Hoenig
Rhonda Watruba
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records and
reports necessary to analyze and compute the amounts of
backpay due under the terms of this recommended Order.
(c) Upon request, recognize and bargain with Local 248
Meat & Allied Food Workers, Amalgamated Meat Cutters
& Butcher Workmen of North America, AFL-CIO, with
respect to wages, rates of pay, hours of employment, and
other terms and conditions of employment. The unit
appropriate for bargaining is:
All employees of Farah Supermarkets, Inc. d/b/a Meat
Processors of Green Bay at its facility located at 2210
Don Hutson Road, Green Bay, Wisconsin, excluding
office clerical employees and supervisors as defined in
the Act.
(d) Post at its facility at Green Bay, Wisconsin, copies of
the attached notice marked "Appendix."s Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being duly signed by the Respondent's
representative, shall as posted by it immediately upon
receipt thereof, in conspicuous places, including all places
where notices to employees are customarily posted, and
shall be maintained by the Respondent for 60 consecutive
days thereafter. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
8 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."