Mountain Meats

National Labor Relations Board - Board Decisions

Jul 13, 1978

236 N.L.R.B. 1481 (N.L.R.B. 1978)

MOUNTAIN MEATS
Eccomunity Farms, Inc., d/b/a Mountain Meats and
Local 10, Amalgamated Meat Cutters. Case I CA
13167
July 13. 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MFMBI RS JENKINS
AND MUIRPHY
On March 23, 1978, Administrative Law Judge Ir-
win H. Socoloff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions.
a supporting brief, and a request for oral argument.'
The General Counsel filed a brief in support of the
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDE.R
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereb\
orders that the Respondent, Eccomunit, Farms. Inc..
d/b/a Mountain Meats, Westminster. Vermont, its
officers, agents, successors. and assigns, shall take
the action set forth in the said recommended Order.
'I his request is hereby denied as the record, the excepllion. inid the
briefs adequately present the issues and position, of Ihe patlictl
2 Respondenl has excepted to certain credibihlli filhLngis ma:de hb the
Administrative Law Judge. It is the Board's eslahlished p.,lic. lolt to oier-
rule an Administratise Law Judge's resolutilons with respect Iu LcredlblhtN
unless the clear preponderance of all of the relevant oxidence c,nirlices us
that the resolutions are incorrect Srainildrd Dr It fill Pililr:. In, )91
NLRB 544 (1950), enfd. 188 2d 362 (IC.A 3. 19511 We hiae c.treifull,
examined the record and find no basis for rexersilig his filndngs
DECISION
STATEMFNI OF T1H CASE
IRWIN H Socot.oI-. Administrative l aw ludge: Upon
charges filed May 26. and June 7. 1977, h1 local 10. Amal-
gamated Meat C(utters, herein called the Union, against
EccomunitN Farms, Inc.. d/b/a Mountain Meats. herein
called Respondent. the General Counsel of the National
Labor Relations Board, by the Regional Director for Re-
gion 1, issued a complaint dated July 15, 1977, alleging
violations by Respondent of Section 8(a)(3) and (I) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended, herein called the Act. Respondent, by its an-
swer, denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in Bel-
lows Falls. Vermont, on October 25 and November 15,
1977. at which the General Counsel and Respondent were
represented by counsel and all parties were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. Thereafter, the par-
ties filed briefs which have been duly considered.
Upon the entire record in this case. and from my obser-
vation of the witnesses, I make the following:
FiNo)L(,s oF FA( i
I i RSI)I( 110
Respondent is a Vermont corporation, engaged in the
slaughtering, smoking. and curing of wholesale beef, pork,
and related products at its Westminster, Vermont, plant. In
the course and conduct of its business operations, Respon-
dent annuallv receives at that plant goods and materials
valued in excess of $50,000 which are sent directly from
points located outside the State of Vermont. Annually, Re-
spondent ships goods valued in excess of $50,000 from its
Westminster plant to locations outside Vermont. I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2). (61, and (7) of the Act.
11 I-ABOR ORGANIZATION
Local 10. Amalgamated Meat Cutters, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
HE Ill Ust 1AIR LABOR PRA TICES
I
A. Background
On Max 23, 1977, Respondent laid off employees Bill
Warvas, James Duquette. James Chandler, Harold Schil-
linger, Zeke Thornton. Richard Labbe, Bill Baldo, and
Victor Holt. I he General Counsel contends that the layoffs
occurred as a result of union activities among Respon-
dent's employees and. thus, were violative of Section
8(a}(3) of the Act. Respondent asserts that the layoffs were
motivated bN economic considerations. Also at issue is
whether Respondent. through its president. John Stevens,
violated Section 8(a)( I) of the Act by engaging in surveil-
lance of a union meeting attended by several of its employ-
ees.
the (cicer'.i ( MlTn]" ' mFl iiill i, norrect the transcript at p 610 lines 4
tIhr 6. , hetbhx l:tilcd \%, ,S rrrted, tlhe hesnence hetining ,.n rile 4
lid cndl ll ,>lI hlc .. i I, 11,hll ir i '\nl S d i .Ille up thai Ken L.uca. . arid John
.lal that hL e:i,. ne if IhiiC ,11 Ih,,ught 'we 'hould get ;r unaion iI1 here
.XTx it ih ..h ] I.~l h;:l, tt
236 NLRB No. 198
1481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Facts2
Respondent began operation of its slaughtering and food
processing plant on October 28, 1976. By May 1977, it em-
ployed nine persons in its "kill room," nine or ten individ-
uals in its cutting room and several additional persons in
its smoke room. From its inception, and until May 23,
1977, when the layoffs occurred, Respondent failed to pro-
duce a profit. Rather, the business suffered monthly losses
ranging, in the November 1, 1976, to April 30, 1977, pe-
riod, between $48,000 and $68,000. According to the testi-
mony of Respondent's owner, Peter Strong, and its presi-
dent, John Stevens, those losses, a lack of operating capital
and the fact that Respondent was no longer able to borrow
money, were the principal reasons for the decision, reached
by Strong and Stevens, to effectuate the layoffs. Thus, Ste-
vens testified.
We were losing money and we wanted to reduce the
staff and regroup things and see if we could turn it
around.
The May 23 layoff of eight employees also-occurred at a
time when union activity among the plant employees was
at a peak. While, prior to May, the employees often dis-
cussed, at work areas and break areas of the plant, the
possibility of union representation, serious discussion be-
gan about May I. At that time, employee Harold Schilling-
er discussed union organization with the kill floor supervi-
sor, Stephen LeClair, 3 and sought LeClair's thoughts on the
matter. The latter did not respond. On May 16, employee
Richard Labbe placed a telephone call to Union Represen-
tative Frederick Hirtle. Hirtle returned the call on Friday.
May 20, telephoning Labbe at the plant. During the ensu-
ing conversation, Labbe and Hirtle agreed to invite the
plant employees to an organizational meeting to be held on
the following Monday evening, May 23, at the Howard
Johnson Motel in Springfield, Vermont. Thereafter, on that
Friday, and the next Monday, Labbe and other employees
announced and discussed the then upcoming meeting.
Some of those conversations, which occurred in work ar-
eas, took place while Supervisors Swensen and LeClair
were within "earshot." Also, on May 20, employee Ken
Lucas told LeClair about the meeting. In response, LeClair
stated that Stevens had said he would never allow a union
in the plant.
LeClair testified that, on May 23, before the layoffs, Ste-
vens asked LeClair to accompany Stevens to a union meet-
ing that evening at the Springfield, Vermont, Howard
Johnson Motel. Le Clair declined the offer. Later that day,
Stevens met with Swensen and LeClair to discuss the lay-
off. According to LeClair:
We were deciding who was going to be laid off, who
showed up every day and who didn't. And it came up
that Ken Lucas, and John [Stevens] said that he was
Ihe findings of fact contained herein are based. primarily, upon undis-
puted testimony In those instances in which resolution of factual questions
requires credibility determinations, those determinations are specifically set
forth
I.eClair and ( Cutting Room Foreman Dean Swensen are acknowledged
statutory supervisors
one of those who thought we should get a union in
here, and we should lay him off. I pointed out that
Ken Lucas had borrowed money from John, if he laid
him off he would not get the money back. So we de-
cided that we would keep Ken Lucas. 4
Stevens initially testified that he and Strong met on Fri-
day night, May 20, and again on Saturday; after reviewing
various business records, including weekly profit-and-loss
statements, they decided on the layoffs that weekend in an
effort to reduce losses by reducing costs. Later, Stevens
testified that the decision might have been reached on Fri-
day. Swensen testified that he was informed on Friday that
there would be a layoff. LeClair first learned of that fact on
Monday, May 23. In any event, it is undisputed that indi-
vidual employees were selected for layoff by the immediate
supervisors, Swensen and LeClair. Swensen's selection of
cutting room employees Waryas, Chandler, Labbe, Baldo,
and Holt was primarily based on the unwillingness or ina-
bility of those employees to work on the kill floor as well as
in the cutting room. LeClair's selection of kill room em-
ployees Duquette, Schillinger, and Thornton for layoff was
made after consideration of the work and attendance rec-
ords of the kill room employees. The layoffs were an-
nounced on Monday, at the end of the workday, and were
the first economic layoffs ever instituted by Respondent.5
At 7 p.m. on May 23, as Union Representatives Fred
Hirtle and Louis Consolvo waited in a room at the Howard
Johnson Motel for the Mountain Meat employees to arrive
for their meeting,6 John Stevens arrived. According to Hir-
tie and Consolvo, when Hirtle asked what Stevens did at
the plant, Stevens said he "owned the fucking place." Hir-
tie asked "what the hell" Stevens was doing at the meeting
and Stevens responded that "I came to find out what you
fuckers were up to." Hirtle told Stevens that it was against
the law to surveil a union meeting. At that point, Stevens
said that it did not look like much of a meeting and that no
one employed as of that day would be present. Hirtle asked
if Stevens had fired anyone and Stevens said "something
like that." As he left the room, Stevens threatened to have
Hirtle and Consolvo run out of the State. A few minutes
later, Duquette and Labbe arrived at the motel. They testi-
fied that they saw Stevens sitting in his car, in the parking
lot, and that the car was not running. As the employees
approached the motel, Stevens waved to them and called
'Stevens, in his testimony, denied issuing an invitation to LeClair to
attend the union meeting. Stevens also denied the remarks attributed to him
hby Lelair concerning employee Lucas. LeClair impressed me as a truthful
witness while, for reasons hereinafter set forth, I found Stevens an unrelia-
hle witness. I credit LeClair's account of the foregoing conversations
In early May. Respondent had granted wage increases, on an individual
hlasis, to a number of plant employees, including Labhe and Duquette. Ad-
ditional raises were promised at that time Wage increases were also granted
after the la)offs. Respondent's payroll costs, which were at $22,782 in April,
increased, after the layoffs. to $26,652 in June, and to $39,104 in July
In the period June 28 to August 13, 1977. Gary Allen. Timothy Keating,
and Barry Toussaint were hired They worked in several departments, in-
cluding the kill room. Among the laid-off employees, only Thornton was
offered reinstatement.
At the end of August. the plant was temporarily shut down for economic
reasons. Thereafter, in October, it was reopened, following which employee
Baldo was offered reinstatement.
I The meeting was attended by employees Schillinger. Labbe, Duquette,
and Lucas
1482
MOUNTAIN MEATS
Labbe's name. Hirtle testified that, shortly thereafter, when
he walked out to the parking lot, Stevens was still in his
car.
Stevens testified that, after selection of employees for
layoff, he received a call, from an unidentified caller, on
the office intercom, advising him of a meeting that evening
at an unspecified Howard Johnson Motel (there are three
in the vicinity).7 The caller stated that "it would be in the
interest of the Company for me to attend." On the strength
of that information, Stevens arrived at the right motel on
the way home from a cattle auction. He asked the desk
clerk for the location of the butchers' meeting. Stevens
claimed that he did not know, at that time, that the meet-
ing in question was a union meeting. He initially testified
that he did not know it was an employee meeting. When
questioned as to why he asked the desk clerk for the loca-
tion of the butchers' meeting, he testified:
I assumed, obviously, that it was some kind of a
meeting to do with employees. You don't expect me to
say I didn't.
Stevens' version of the ensuing conversation with Consolvo
and Hirtle was not materially inconsistent with the testi-
mony of those individuals. He also testified that he told the
union representatives that he was upset because they had
been sneaking around to have a meeting rather than having
their meeting at the plant. Stevens claimed that, subse-
quently, when he waved at Labbe and another employee
from his car, he was in the process of driving away.
To the extent that Stevens' testimony differs in certain
details from the description of events at the motel related
by Hirtle, Consolvo, Labbe, and Duquette, I discredit Ste-
vens' account. Also, largely on the basis of Stevens' incred-
ible explanation of how he happened to be at the union
meeting, and the shifting and evasive manner in which he
testified about that incident, I have concluded that Stevens'
entire testimony, including his claim of lack of knowledge
of employee union activities at the time of the layoffs, is
unworthy of belief.
C. Conclusions
I. Surveillance
Stevens' invitation to LeClair to accompany him to a
union meeting; his admission that he suspected that the
meeting concerned the plant employees; the fact that em-
ployee Lucas specifically told Supervisor LeClair about the
union meeting some 3 days before it occurred; and the
incredible nature of Stevens' explanation of his presence at
the meeting, warrant the conclusion that Stevens attended
the meeting, with full knowledge of its nature, in order to
engage in illegal surveillance. Moreover, Stevens stated his
purpose to the union representatives in unequivocal lan-
guage. He was there "to find out what you fuckers were up
to." Based on the foregoing, I find and conclude that on
May 23, 1977, Respondent, through its president, John Ste-
In a June 1, 1977, letter to the Board, Stevens stated that the caller did
specif) the Springfield. Vermont. motel
vens, engaged in surveillance of a union meeting of its em-
ployees, in violation of Section 8(aX I1) of the Act.
2. The layoffs
There can be little doubt, on the state of this record, that
Respondent has amply demonstrated economic justifica-
tion for the layoffs of May 23, 1977. The critical question
before me is whether, as urged by Respondent, the layoffs
occurred as a result of those economic factors or, whether,
as argued by the General Counsel, Respondent instituted
the layoffs in response to the union activities of its employ-
ees. For the reasons stated below, I have concluded that
the layoffs were violative of Section 8(a)(3) of the Act.
Respondent's decision to effectuate the layoffs was a
sudden one, and occurred contemporaneously with em-
ployee activity aimed at arranging a meeting with the
Union. The layoffs were announced on Monday, May 23,
just hours before the union meeting was scheduled to be-
gin. The record evidence establishes that, by Friday, May
20, Respondent knew about the meeting as, on that day,
employee Lucas so informed Supervisor LeClair. Prior to
May 20, LeClair had learned from employee Schillinger
that the employees were contemplating union organization.
Respondent demonstrated hostility toward its employ-
ees' union activities in a number of ways. Thus, on May 20,
LeClair told Lucas that Stevens would never allow a union
in the plant. On May 23, Stevens surveilled the union meet-
ing, threatened to have the union organizers run out of the
State, and stated that individuals still employed by' Respon-
dent would not attend the meeting. Stevens also expressed
his anger about the fact that the employees had chosen to
have a meeting outside the plant. Earlier on May 23. Ste-
vens specifically related the layoffs to employee union ac-
tivity when he suggested that Lucas be laid off because "he
was one of those who thought we should get a union in
here."
As noted, Respondent's business losses, if viewed in iso-
lation, might provide an explanation for the layoffs. How-
ever, until May 23, Respondent had been willing to sustain
losses in the hope that, ultimately, the business would be-
come a profitable operation. That Respondent did not,
prior to the advent of the Union, intend to deal with its
situation by means of a reduction in payroll costs, is indi-
cated by the fact that, several weeks before the layoffs, it
granted wage increases and then promised further increas-
es. As a result of those wage boosts, additional wage in-
creases which were granted after the layoffs, and the hiring
of new employees, Respondent did not in fact reduce its
payroll costs. I am thus of the view that Respondent's stat-
ed desire, to reduce its losses by means of a reduction in
costs, does not, in all the circumstances, adequately ex-
plain its sudden decision to lay off eight employees.
The suddeness of the layoffs, the timing, Respondent's
knowledge of its employees' union activities and its hostili-
tv thereto, and Respondent's stated desire to rid itself of
employee Lucas because he was a known union supporter.
all suggest to me, in a very convincing way, that Respon-
dent effectuated the layoffs in order to deal a sudden
crushing blow to the union activities of its employees. Ac-
cordingly. I find and conclude that the layoffs were in vio-
lation of Section 8(a)(3) of the Act.
1483
DEC ISIONS OF NATIONAL LABOR RELATIONS BOARD
I'. THEli EFFE(I OF THE UNFAIR LABOR PRACTI( ES UPON
COMMERCE
The activities of Respondent set forth in section 111,
above, occurring in connection with Respondent's opera-
tions described in section 1., above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. rHE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(3) and (I) of the
Act. I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
CONC(I. USIONS OF LAW
1. Respondent. Eccomunity Farms, Inc., d/b/a Moun-
tain Meats, is an employer engaged in commerce, and in
operations affecting commerce, within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Local 10, Amalgamated Meat Cutters, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By discharging Bill Waryas. James Duquette, James
Chandler, Harold Schillinger. Zeke Thornton, Richard
Labbe. Bill Baldo, and Victor Holt, Respondent has com-
mitted unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By engaging in surveillance of the union activities of
its employees. Respondent has violated Section 8(a)( 1) of
the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER
The Respondent, Eccomunity Farms, Inc., d/b/a Moun-
tain Meats, Westminster, Vermont, its officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Discharging employees because of their union activi-
ties and sympathies.
(b) Engaging in surveillance of the union activities of its
employees.
(c) In any other manner, interfering with, restraining, or
coercing its employees in the exercises of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to Bill Waryas, James Duquette, James Chan-
dler, Harold Schillinger, Zeke Thornton, Richard Labbe,
Bill Baldo, and Victor Holt immediate and full reinstate-
ment to their former positions or, if those positions no lon-
ger exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges.
(b) Make Bill Waryas, James Duquette, James Chan-
dler, Harold Schillinger, Zeke Thornton, Richard Labbe,
Bill Baldo, and Victor Holt whole for any loss of pay they
may have suffered by reason of the Respondent's discrimi-
nation against them by payment to each of them of a sum
of money equal to that which that employee normally
would have earned as wages, from the date of the discrimi-
nation to the date of Respondent's offer of reinstatement,
less net earnings during such period, with backpay to be
computed in the manner prescribed in F. W. Woolworth
Company. 90 NLRB 289 (1950), with interest as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977) (see, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records. social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its facilities located in Westminster, Ver-
mont, copies of the attached notice marked "Appendix." 9
Copies of said notice on forms provided by the Regional
Director for Region 1, after being duly signed by Respon-
dent's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by Respondent
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced or covered by any
other material.
(e) Notify the Regional Director for Region I, in writ-
ing. within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
"In the event no exceptions are filed as provided by Sec. 10246 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.
9 In the event that this 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 ULnited States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because of their
union activities and sympathies.
WE WILL NOT engage in surveillance of the union ac-
tivities of our employees.
WE WILL NOT in any other manner interfere with.
restrain, or coerce our employees in the exercise of the
rights guaranteed them in the National Labor Rela-
tions Act.
WE WILL offer Bill Waryas, James Duquette, James
Chandler, Harold Schillinger, Zeke Thornton, Richard
1484
MOUNTAIN MEATS
Labbe, Bill Baldo, and Victor Holt immediate and full
reinstatement to their former positions or, if those po-
sitions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges.
WE WILL make Bill Waryas, James Duquette, James
Chandler, Harold Schillinger, Zeke Thornton, Richard
Labbe. Bill Baldo. and Victor Holt whole for any loss
of earnings because of the discrimination against
them, plus interest.
All of our employees are free to become or remain mem-
bers of Local 10, Amalgamated Meat Cutters, or any other
labor organization of their choosing.
E(cst :lNI i FARMS. IN(. d/b/a MOL:NTAIN MEATS
1485