Northfield Cheese Co.

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1117 (N.L.R.B. 1979)

NORTHFIELD CHEESE COMPANY
Northfield Cheese Company and Alfreda Williams and
Meat, Food & Allied Workers, Local P-653 Amal-
gamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO. Cases 22-CA-7675, 22-
CA-7799, and 22-CA-7899
June 13, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On February 6, 1979, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed 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 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,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Northfield Cheese Company, Northvale, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In affirming the Administrative Law Judge we do not adopt his conclusion
that Respondent's bargaining stance was influenced by its "anticipating a
decertification petition being filed." No such petition was ever filed, and
there is no evidence that one was being circulated among the employees.
' In conformity with Abilities and Goodwill, Inc., 241 NLRB 27 (1979),
Miguel HernadeL Emilio Ramirez, and Alfreda Williams shall be made
whole for any loss of pay or other benefits from May 13, 1978. the date of
their illegal discharge. For reasons stated in her dissent in A bilities and Good-
will, Inc,, Member Murphy would adopt the Administrative Law Judge's
recommended Order that makes these employees whole for any loss of pay
or other benefits as of July 18, 1977, the date on which the Union made an
unconditional offer on behalf of the strikers to return to work.
1. Substitute the following for paragraph 2(a);
"(a) Offer Miguel Hernandez, Emilio Ramirez,
and Alfreda Williams immediate and full reinstate-
ment to their former jobs or, if their jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privi-
leges previously enjoyed, and make them (until
proper offer of reinstatement) whole for any loss of
pay or other benefits since May 13, 1977, and make
the following 29 former strikers (until the dates of
proper offers shown after their names) whole for any
loss of pay or other benefits since July 18, 1977, in the
manner set forth in the Remedy section:
Herbert Anderson
Joseph Bergen
Pearl Bradley
Manuel Camilo
Rafael Florencio
Maria Garcia
Gwendolyn George
Jose Gortorreal
Mercedes Grullar
Simon Gruyair
Socorro Guzman
Roosevelt Hatcher
Alvin Holmes
Sonja Holmes
Ella Jenkins
Donella Lawson
Fabio Medina
Elizabeth Mercedes
Jose Rodriquez
Pedro Rodriquez
Jose Rubio
Hundo Sanders
Geneva Smith
Ethel Solomon
Elizabeth Sunga
Donald Tackaberry
Virginia Thorton
Charles Williams
Jose Williams
10/24/77
11/10/77
11/30/77
11/10/77
11/28/77
9/8/77
11/28/77
9/14/77
9/8/77
11/28/77
9/1/77
10/5/77
12/5/77
1/24/78
10/5/77
9/8/77
11/2/77
10/25/77
10/5/77
11/2/77
11/28/77
9/7/77
12/22/77
9/8/77
8/9/77
9/14/77
9/1/77
9/1/77
9/14/77
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: These
consolidated cases were heard at Newark, New Jersey, on
April 19-21 and 26-28, 1978. A charge was filed by the
individual, Mrs. Alfreda Williams, on May 19, 1977,' and
charges were filed by the Union on July 15 and September
2; a complaint was issued on July I and consolidated com-
plaints were issued on August 31 and September 13 (and
amended at the hearing).
I All dates are in 1977 unless otherwise stated.
242 NLRB No. 157
1117
I)8(ECISIONS OF NATIONAL LABOR RELATIONS BOARD
After three bargaining sessions in which there admittedly
was "excellent movement" toward reaching a new agree-
ment, the Company followed the advice of its attorney, an
official of' the parent company, to refuse to extend the old
agreement and to take a "severe" bargaining tactic, with
the knowledge that the attorney-official had been "involved
on behalf' of' other parent company's] subsidiaries in suc-
cessful efforts to oust unions from those subsidiaries, includ-
ing [this] Union." The primary issues are whether the Com-
pany, Respondent. (a) in order to "break the Union,"
engaged in bad faith bargaining, (b) refused and delayed
reinstatement of employees, and (c) unlawfully discharged
three striking employees for assisting the Union and engag-
ing in protected picketing activity in violation of Section
8(a)(1), 13), and (5) of the National Labor Relations Act.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of'
the briefs filed by the General Counsel and the Company. I
make the following:
FlNDIN(S (1F A( I
1. JRISI)I I ION
The Company, a New Jersey corporation, is engaged in
the manufacture of cheese products at its plant in North-
vale, New Jersey, where it annually receives goods valued
in excess of' $50,00) directly from outside the State. The
Company admits, and I find. that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act, and that the Ulnion is a labor organization within
the meaning of Section 2(5) of the Act.
I. A.LF(HI) UNlFAIR ABOR PRA('II('S
A. Prior Bargaining
The Union represented about 39 employees in a bargain-
ing unit of all production and maintenance employees.
There had been a 20-year bargaining history, without any
strikes, and the Company had never proposed the removal
of the union-shop and checkoff provisions which had been
included in all of the agreements. The last 3-year agreement
expired Saturday night, April 30. Company Attorney
Joseph Carey. an official of the parent company Kane-
Miller Corporation, had previously participated in negotia-
tions with the Union.
In 1976, a year in which the Company suffered an oper-
ating deficit of about $40,000 or $50,000. the union mem-
bership first rejected a wage-reopener settlement reached by
the Company and the union bargaining committee, but lat-
er reversed itself and accepted the settlement, following the
Company's bargaining "tactic" of communicating its posi-
tion directly to the employees. Its April 27, 1966, letter to
them (U. Exh. I) referred to the Company's "financial situ-
2 The General Counsel's unopposed motion to correct lines 7 and 9 on
page 1279 of the transcript. changing "!lis fists" to "his face." is granted. The
Company's January 17. 1979 motion to open the hearing to receive as docu-
mentar) evidence a copy of a new I-year agreement executed on December
28. 1978, effective from October I, 1978. through September 30. 1979. is
denied: however, the document is received in evidence as Resp. Exh 24.
ation," cited "trouble getting enough cheese to operate,"
the high prices of cheese obtainable, and having to operate
on one production line when the plant was designed for two
lines. The letter stated that its 10-cent-per-hour offered in-
crease was its "top offer," and that if the employees called a
strike, the Company had the right to "carry on business in
the usual manner and to hire permanent replacement em-
ployees." The letter, signed by President Mark Robbins,
continued:
I want to make it very clear to each and every em-
ployee that if'a strike does take place, we will continue
to operate this business. And, if necessary, we will hire
permanent replacements for every employee that goes
on strike. Furthermore, I want you to know now that I
will not agree as part of a strike settlement to discharge
anyone who is hired as a permanent replacement.
B. Presrike Negotiations
By the time the Company and Union began bargaining
in 1977 for a new agreement, the Company had begun in-
stalling new facilities to increase production and to operate
more efficiently and profitably. Only President Robbins was
representing the Company in negotiations, and the evidence
is clear that both the Company and the Union were negoti-
ating in good faith during the three bargaining sessions on
April 20, 22, and 28, preceding the April 30 expiration of
the old agreement. B the end of the three sessions, which
lasted from I to 2-1/2 hours, the parties were near agree-
ment on all issues except wages. According to President
Robbins at the trial (Tr. 459 464), the parties agreed on
item 2 (separation pay) of the Union's April 20 contract
proposals; the Union had dropped its request in item 3
(increased pension): the Union accepted the Company's
proposal on item 4 (substituting job classifications for labor
grades); the parties agreed on item 5 (cost of living pay-
ment the Union dropping its request for an increased pay-
ment. conditioned on wages being acceptable); there was
progress on item 6 (the proposed welfare program the
Union dropping its request for dental coverage, and reduc-
ing its request from $3.73 to $2.73 per month for limited
drugs and optical coverage): the parties agreed on item 7
(the Company agreeing to broader maternity benefits and
to a $2,000 increase in life insurance); the Union accepted
the Company's proposed language on item 8 (the Union
dropping its request for sick days and accepting the lan-
guage of the Company's proposed perfect attendance bo-
nus); the parties agreed on item 9 (the Company granting
Union's request to increase the number of unexcused ab-
sences from 5 to 8 days a year for discharge, and the Union
agreeing to a 5-day suspension after five unexcused ab-
sences); the Union dropped item 10 (improved vacation
schedule); the parties agreed on item II (permitting 2
months leave of absence after 5 years instead of 10); and
the parties agreed on item 12 (adequate eating facilities and
telephone booth).
Concerning wages, President Robbins described to the
union bargaining committee the ('ompany's serious finan-
cial problems (discussing restrictive government regula-
tions, limited availability of raw material, the government
make-work program, etc ), and presented to the committee
1118
NORTHFIEI.D CHESE COMPANY
a quarterly income statement (showing, before taxes, a
January profit of $58,000 and losses of $83,000 and
$128,000 in February and March). Robbins stated that the
Company "didn't project any profit, at least until the end of
the year." Apparently anticipating future profits (from im-
provements in the commodity market and from increased,
more efficient production resulting from its ongoing expan-
sion program), the Company on April 22 proposed a 3-year
agreement, with an 8-cent increase at the beginning of the
first year, a 10-cent increase the second year, and a 12-cent
increase the third year, totaling 30 cents. Finally', during a
caucus in the April 28 bargaing session, Robbins obtained
from his controller's office a 3-year projection, "utilizing
expectations in terms of the size of the bargaining unit," etc.
According to Robbins, "what we came up with was an ab-
solute maximum figure . . . of 15 cents each of the three
years." He then presented this 15 15-15 cent proposal, to-
taling 45 cents, to the Union.
The Union originally proposed on April 22 a wage in-
crease of 15-12 10 percent (which the Company computed,
on a medium rate of $4.10 an hour, to be a total of $1.70
over the 3 years). On April 28, the Union lowered its re-
quest to a 12 10 10 and then to a 10-9-9 percent increase
(computed by the Company to be total increases of $1.45
and $1.16 over 3 years).
Thus, at the third bargaining session, the Company in-
creased its total wage proposal 15 cents an hour (from 30 to
45 cents), and the Union decreased its total wage proposal
54 cents an hour (from $1.70 to $1.16), reducing the gap
from $1.40 to 71 cents over the 3-year period. In the hope of
resolving this difference and concluding negotiations on the
whole agreement, the Company and the Union agreed to
continue bargaining on May 6 in the office of the Federal
Mediation and Conciliation Service.
Meanwhile, the Union indicated its willingness-in lieu
of going on strike Monday morning. May 2, following the
April 30 expiration of the old agreement-to an extension
of the agreement, with the negotiated wage increase being
made retroactive to May 1. President Robbins would not
commit the Company to extending the old agreement, but
he indicated that he would advise the Union about Mon-
day, May 2, after conferring with Company Attorney
Carey. (As credibly testified by Union President Mitchell
Holloway and International Represenative Joseph Abbat-
ermarco, President Robbins asked near the end of the April
28 negotiations whether the Union would agree to an exten-
sion of the old agreement f Robbins agreed to retroactivity:
Holloway answered that he would: and Robbins said he
would have to speak with Attorney Carey about it. I dis-
credit Robbins' claim that he said he would have to check
with Carey only about the function of Federal Mediation.)
The employees continued to work on Monday. Ma 2
(the first workday after the expiration of the old agree-
ment). Not hearing anything further about the contract ex-
tension and retroactivity, Union President Holloway went
to the plant on Monday afternoon, responded negatively to
questions about retroactivity as employees were getting off
work around 4:30: and spoke to Company President Robh-
bins a few minutes later when Robbins came to the em-
ployee entrance. Holloway asked Robbins i there was an
agreement on retroactivit. Robbins answered that he was
"still trying to get in touch with Mr. C'ares.." Hollowav
made it clear that the employees would continue to work
only if the C'ompany agreed to retroactivity during further
negotiations. As Holloway credibly testified, he told Rob-
bins "I would be back at 7 o'clock," and that if Robbins
agreed to retroactivity, "I would make sure there was no
misunderstanding among the employees."
I find the evidence clear that Robbins gave fabricated
testimony about this conversation and about the employees
then going on strike. In support of the Company's conten-
tion early in the trial (Tr. 143) that "A strike ensued at 4:30
in the afternoon when the employees in mass left the build-
ing and the process continued and the cheese went over the
hopper onto the floor," Robbins testified that about 4:30 or
4:31, Production Manger Jerry Ross informed him over the
intercom that the (14 process line) employees had been
"walking away from the line" although "he had told them
quite emphatically that they had an obligation to work
overtime," and asked Robbins ' 'what should he do?" Rob-
bins then claimed that he went to the process line (after
4:30 p.m.), saw the arm in motion on the filling machine
(indicating that the machine was still running), and ob-
served the production supervisor and a member of the
cleanup crew "scooping up some [spilled] cheese." He testi-
fied that he then went outside the employee entrance and
claimed that he told the group of employees there, in sub-
stance. "What are you doing out here? There is work to be
done." To the contrary. Production Manager Ross admit-
ted that he had alread, withdrawn the last two batches of
cheese from production, that the process employees had
finished the remaining work before 4:30 and left, and that
as he recalled, Robbins had come into the plant about 4:30
and helped him push the tables of opened, unused raw
cheese (which he had withdrawn from production) into the
refrigerator. Thus the overtime work had been canceled (as
the employee witnesses testified), and there was no machin-
ery left running. no cheese going over the hopper onto the
floor, no spilled cheese being scooped up, no reason for
Robbins asking employees outside what then were doing
there and telling them there was work to be done. and no
strike that afternoon. (There had been a dispute concerning
the assigning of overtime. Robbins' own minutes of the
May 6 negotiations reveal a dispute over the employees
expecting "at least one hour notice if there is going to be
overtime." These same minutes further belie Robbins' testi-
monv by stating that "the process line was run out and
emptied earlier than schedule, causing some prepared raw
material to be returned to storage.") After giving the fabri-
cated testimony about employees walking off the job, Rob-
bins claimed that nion President Holloway. who was
standing outside the employees entrance, said in effect. "We
don't have a contract, we don't owe ou an\thing....
thought we had an extension and I understand that Mr.
('Cares contacted the Federal Mediation Serv ice and ads ised
them that there was no extension and no retroactixit." I
credit the denials and discredit this testirnon as well.
(Fronm his demeanor on the stand, Robbins did not impress
me as being a candid Witness.)
President Rohbins as most c\;tsi\C hen questioned
about his knowledge of Attorney (ares's successful union-
ousting efforts. (On cross-examnllation by tile unlion counsel,
Robbins testified:
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Isn't it a fact that Mr. Carey has told you that he
has had experiences in other plants where he has suc-
cessfully engineered getting the union out?
MR. CAREY: I object to that...
A. I think I can answer that.
JUDGE LADWIG: Overruled.
A. Mr. Carey and I really do not discuss other
cases. I assume he's a successful labor attorney, and
therefore, I am pleased to have him as the Northfield
Cheese attorney. His other cases, winnings or losings,
is no affair of mine.
Q. I am not talking about cases. I am talking about
other clients.
A. Clients.
Q. Other clients that are part of the Kane-Miller
chain, other subsidiaries. Hasn't Mr. Carey advised
you that he has been successful in getting the union
ousted in other plants?
A. As a reason for my using his services or-
JUDGE LADWIG: No. Could you answer the question
directly?
A. I am not sure I understand the question. Has he
boasted-
Q. ... Do you know whether or not Mr. Carey has
been involved in other situations in which unions have
represented employees at Kane-Miller plants and the
unions have been ousted, do you know that?
MR. CAREY: I object [to relevancy].
JUDGE LADWIG: Overruled.
MR. CAREY: I have continued exception, Your Hon-
or, to all of these rulings.
A. I am very poorly informed of Mr. Carey's other
activities. I do know that he does a great deal of work
with other subsidiaries of Kane-Miller Corporation. I
couldn't quote to you no matter how hard I tried to
explain exactly specifically those activities-what those
activities are.
JUDGE LADWIG: Could you answer the question di-
rectly?
A. The answer is no. I don't recall exactly the word-
ing of the question.
Q. Are you aware as to whether or not Mr. Carey
has been involved on behalf of other Kane-Miller sub-
sidiaries in successful efforts to oust unions from those
subsidiaries, including the Meat Cutters Union?
A. I am indirectly aware of such, yes.
Q. And you were aware of it at the time . . . you
went in and made your proposal on May 6th, weren't
you?
A. Yes.
C. Poststrike Negotiations
1. Summary of Company's bargaining tactics
A close analysis of the Company's bargaining tactics
which the Company pursued after President Robbins con-
sulted with Attorney Carey, shows that they included the
following:
First, the Company decided not to extend the old agree-
ment, and not to agree to wage retroactivity, knowing that
this would result in a strike.
Second, it withdrew all of its earlier proposals, including
the 45-cent wage proposal and its prestrike tentative agree-
ments on most of the proposed contractual changes.
Third, it proposed a -year contract, continuing all of the
terms and conditions of the old agreement, except for the
elimination of the union-shop and checkoff provisions
which had previously remained unchallenged in the union
agreements over a period of about 20 years.
Fourth, it met with strike replacements, advised them
that it had withdrawn the compulsory-membership and
checkoff clauses in negotiation with the Union, and gave
them an unsolicited promise that they would not have to
join the Union or pay dues. When the Union sought to
negotiate about union security, the Company indicated a
closed mind on this mandatory subject of bargaining by
President Robbins stating that he "gave his word to each"
of the strike replacements that "they would never have to
belong to a union or pay union dues." (Emphasis supplied.)
The Company continued after the termination of the strike
to give new employees unsolicited promises that they would
not have to join the Union or pay dues.
Fifth, it continued to withhold any wage offer and its
other prestrike proposals and concessions until after the
strike was broken and the Union made unconditional offers
to return to work.
Sixth, it falsely advised the Union that all of the strikers
had been permanently replaced, and delayed offering rein-
statements, with the result that many former strikers failed
to accept offers of reinstatement when finally made.
Seventh, it attempted to turn the former strikers against
the Union by falsely advising them that "The Union ex-
pressed its position [in negotiations] that it would not com-
promise its need for a closed shop even if it blocks the oppor-
tunity for employees to return to work at this time."
(Emphasis supplied.)
Eighth, it finally changed its position on the union secu-
rity issue (by announcing that its no-compulsory-member-
ship, no-dues commitment to the strike replacements would
end after the expiration of even a I-year or 6-month agree-
ment); however, it waited to do so until after it had chal-
lenged the Union's continued majority status-obviously
anticipating that before the next round of negotiations, a
decertification petition would be filed.
After Attorney Carey joined President Robbins in repre-
senting the Company in the negotiations, the parties en-
gaged in 13 bargaining sessions over an I -month period
(from May 6 to April 6, 1978), but no agreement was
reached.
2. Decision to withdraw proposals
Late Monday afternoon, May 2, after Company Pres-
ident Robbins stated to Union President Holloway that he
was "still trying to get in touch with Mr. Carey" (concern-
ing contract extension and retroactivity), Robbins had a
long telephone conversation with Attorney Carey concern-
ing the Company's strategy. Carey dictated to Robbins a
letter to be delivered by him to the bargaining unit employ-
ees at 7 o'clock the next morning, the time Robbins had
agreed to meet with Holloway to give him the Company's
decision on retroactivity. The letter stated that "Manage-
ment has refused a contract extension, and will not provide
1120
NORTHFIELD CHEESE COMPANY
retroactive pay when a new Agreement is completed."
Thereafter in the letter (as in the letter Robbins distributed
to the employees a year earlier), Robbins on behalf of the
Company referred to its wage offer and advised them of its
right to carry on its business in the usual manner during the
strike, to hire permanent replacement employees. to refuse
to discharge permanent replacements as part of a strike set-
tlement, etc.
Robbins also wrote out the Company's position, on a
piece of paper which he later copied verbatim in the revised
minutes he prepared following the next negotiating session
with the Union. The paper read:
a. Northfield is not extending [emphasis supplied]
the Collective Bargaining Agreement terminated 12:01
am May 1, 1977.
b. Northfield withdraws Union Security i.e. compul-
sory union membership (article 3B of contract).
c. Northfield withdraws check-off of union dues and
initiation fees (article 3C).
I note that when Robbins copied this "A-B-C directly off
that document" into his revised minutes of the May 6 bar-
gaining session (U. Exh. 2), he copied the words as written,
"is not extending"; but because the tense was wrong at the
time of the session, he later drew lines through the "is" and
the "ing," changing the words to read, "did not extend."
Robbins was quite evasive upon being repeatedly asked on
cross-examination when it first entered his mind to with-
draw the union-security provisions. He finally testified that
he believed it was in a telephone conversation with Attor-
ney Carey on May 5, or "It may have been May 4th," and
"Certainly" after April 28th. In view of his seeming lack of
candor on the stand, the wording he used when writing the
document (that the Company "is not extending" the agree-
ment), and his testimony that "The action of May 6th was
combined in bargaining tactic with the refusal to grant re-
troactivity," it appears likely, although I need not decided,
that Robbins wrote down the Company's "A-B-C" position
during his long telephone conversation with Carey on May
2, not immediately before the May 6 bargaining session as
he testified.
About 7 o'clock on Tuesday morning, May 3, President
Robbins began distributing the letter (dated "May 3, 1977
7 a.m.") to the employees, handing the first copy to Union
Bargaining Committeeman Alvin Holmes in the absence of
Union President Holloway, who was late arriving. (Under
these circumstances, I find no merit to the General Coun-
sel's contention that by distributing the letters to the em-
ployees, before advising Holloway that there was no agree-
ment on retroactivity, the Company was negotiating
directly with its employees, thereby bypassing the Union. I
therefore dismiss that allegation in the complaint.) When
Holloway arrived (before time for the employees to report
to work) and asked Robbins about the letter, Robbins an-
swered, "Well, you can read it for yourself." Holloway re-
sponded, "Well, okay, based on this, you have a strike." All
of the production and maintenance employees then left the
premises and went on strike. (The so-called "mixed" clean-
up crew, which had worked until 7:30 the evening before,
also joined the strike later that morning.)
President Robbins testified (on direct examination), "I
was unsure or uncomfortable frankly with the severe tactic
[emphasis supplied]" which Attorney Carey was recom-
mending that the Company follow in its poststrike negotia-
tions with the Union. However. immediately before the
May 6 bargaining session with the Union, Carey showed
Robbins the Board's decision in Midwest Casting Corpora-
tion, 194 NLRB 523 (1971), and "we went over almost line
by line the . . . Board decision," and found that "it corre-
sponded to what we were doing." (In Midwest Casting, 194
NLRB at 531, where the employer withdrew its entire con-
tract proposal at one meeting and reinstated the next day all
of the proposal except for the checkoff, there was a specific
finding that the evidence "indicates genuine collective bar-
gaining and a desire to conclude a contract." and not "bad
faith bargaining"-matters in issue in the present case.) He
testified, "I felt this [tactic) would have the effect that I
hoped to obtain" (to "shake up the troops" and make it
clear that a settlement would demand "a substantial de-
crease in the wage demand"), and "frankly, that it must be
okay if it was in there," in that Board decision. (When
asked on cross-examination about the employer in Midwest
Casting resubmitting its proprosal a day later, Robbins tes-
tified, "I didn't think ... that the exact same time span was
meaningful." Here the Company withheld its proposal for
nearly 4 months, until after the strike was broken.)
On May 6 in the mediation office, both President Rob-
bins and Attorney Carey met with the Union. (This was the
fourth bargaining session, and the first of 13 in which Carey
participated.) The Company said it had financial problems,
that it was not really able to pay the 15-15-15 cent wage
increase, and that it was withdrawing the proposals it had
made to the Union on April 28. The Company also stated
that it would agree only to continuing the old contract for I
year, with the union security and checkoff provisions re-
moved. After a caucus, the Union made a counter proposal
for a -year agreement; reduced its wage request to an im-
mediate increase of 20 cents (5 cents more than the Compa-
ny's previous offer), plus an additional 10 cents after 6
months; and requested certain contract changes which in-
cluded several items the Company had previously offered
and withdrawn. I discredit Robbins' denials that he with-
drew all of the Company's previous proposals (as the em-
ployer had done in Midwest Casting). His own revised min-
utes (U. Exh. 2) belied these denials. In paragraph 3, page 2
of the minutes, Robbins wrote: "Northfield explained that
they' desired to continue all the terms and conditions of the
now expired Collective Bargaining Agreement, with the ex-
ception of Union Security, and check-off, for a term of one
year." (Emphasis supplied.) I also noted that the Company
erroneously stated in its brief that the difference between
what the Union was requesting and what the Company was
offering at the May 6 session and at three subsequent bar-
gaining sessions (on May 27, June 28, and August 12) was
$1.16 an hour-ignoring the contrary testimony and para-
graph 6-a, page 3, of Robbins' minutes, that the Union
presented a new offer on May 6 of "20C/hr. increase upon
contract with a 10c/hr. further increase after 6 months."
President Robbins admitted that there had been "excel-
lent movement" in the April 22 and 28 prestrike negotiation
of items 2 through 12, and also "movement" on the part of
the Union on April 28 when it reduced its intitial wage
requests by the amount of 54 cents an hour. However, he
contended that he believed the "servere tactic" which At-
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
torney Carey recommended was required to "bring them to
realize how serious I was" on the wage issue. Yet, the deci-
sion (recommended by Attorney Carey) not to agree to any
extension of time for bargaining (thereby precipitating the
strike) was made before the scheduled bargaining session in
the mediation office could be held and before-if the Com-
pany were adamant against granting any higher wage in-
crease -it had an opportunity to so advise the employees as
it had the year before, reminding them of the consequences
of a strike. (Robbins distributed such a letter to the employ-
ees after taking the attorney's advice not to extend the old
agreement and not to grant retroactivity on wages.)
The Company's only explanation for withdrawing its
agreement to compulsory union membership and checking
off dues other than the Union requiring some "shock ther-
apy" was that the Union "had failed to cooperate with
the management committee, which was quite appraent by
the wage differential, and that based upon this failure to
cooperate, there was no reason that management commit-
tee should cooperate." (This contention is apparently based
on language in the Midwest Casting decision, 194 NLRB at
527, that "The Company also said that it had only one
secretary in its office to handle all the office work and in
view of the Union's lack of cooperation in not devoting
enough time to negotiations [empahasis supplied] the Com-
pany felt it should not have the burden of collecting dues
and it now proposed that the Union collect its own dues."
Robbins dubiously testified that he found the circumstances
in that case "almost identical" to the Company's circum-
stances.) Yet the Union further demonstrated its flexibility
on wages at the May 6 negotiations. When the Company
proposed the old wages and all of the other terms and con-
ditions of the old agreement for 1 year (minus union secu-
rity and checkoff), the Union requested an immediate wage
increase of 20 cents (5 cents above what the Company had
offered at the last bargaining session), plus an additional
10-cent increase in 6 months. (Under this proposal, the ad-
ditional 10-cent increase would be payable later in the year.
Robbins had indicated the prospects of the operation be-
coming profitable again when he told the Union at the
April 22 bargaining session that the Company "didn't proj-
ect any profit, at least until the end of the year.")
Despite the Union's flexbility on wages, the Company
continued to withhold any offer of a wage increase and
declined to reinstate any of its prestrike tentative agree-
ments throughout the May 6, May 27, June 28, and August
12 negotiating sessions. (The strike was terminated after the
August 12 session.) President Robbins claimed that one
purpose of his bargaining tactics was to avoid protracted
negotiations and testified that it was his hope in every bar-
gaining session to "resolve this situation" so that he could
get back to normal production. However, he admitted that
he did not expect the Union to take his May 6 offer seri-
ously, testifying that it was merely a "negotiating tactic."
Thus, instead of reinstating part of all of its prestrike
tentative agreements when the Union reduced its wage re-
quests (from an amount exceeding the Company's proposal
by 71 cents over a 3-year period, to an immediate increase
of 5 cents above the Company's prestrike proposal. plus an
additional 10 cents in 6 months) in an effort to resolve the
remaining differences, the Company maintained its ada-
mant position (of offering no wage increase and none of its
former concessions) for a period of nearly 4 months-not
expecting the Union to take the Company's position seri-
ously thereby prolonging the bargaining for at least those
4 months.
On September 2, after the strike was broken, the Com-
pany reinstated its prestrike proposals, including its pro-
posal of a 3-year agreement, except that it reduced the pro-
posed annual wage increase (of 15 cents) first to 10 and then
to 12 cents, and restricted the union-security and checkoff
proposals as discussed below. The Company continued its
12 12 12 cent offer throughout the September 26 and Octo-
ber 11 bargaining sessions and granted a 12-cent unilateral
increase to the employees on January I, 1978 (despite its
1977 losses in excess of $500,000 resulting from the cur-
tailed production during and immediately after the strike,
and the continuing financial problems). The Company fi-
nally raised the offer on March 8, 1978, to a 15 15 cent
increase (in an 18-month agreement) and this was accept-
able to the Union (as shown in the company minutes, U.
Exh. 4).
3. Bargaining on union security
As indicated above, the Company's sudden May 6 rever-
sal of its 20-year acceptance of union-security and checkoff
provisions was purportedly based on the Union's prestrike
failure to cooperate with management in reaching an agree-
ment on wages. Before the next bargaining sesssion was
held on May 27, the Company made an unsolicited com-
mitment to the strike replacements, and the issue over re-
storing the contractual provisions precluded agreement on
a new contract until the time of trial.
On May 20, President Robbins held a meeting with the
strike replacements, who asked whether they were going to
lose their jobs if there was a settlement of the strike. He
assured them that they could stay as long as they wished,
and that they would not be discharged if the strikers de-
cided that they wished to return to work. Robbins then
proceeded to inform the replacements that he had with-
drawn the compulsory-membership and checkoff clauses in
negotiations, and gave the replacements a commitment that
they had a "complete choice" on whether they joined the
Union and paid dues.
In the September 2 bargaining session, when the Com-
pany reinstated its prestrike tentative agreements on con-
tractual changes, negotiation on the remaining issues re-
sumed. (In the May 27, June 28, and August 12 sessions,
the Company had indicated "no change" in its May 6 posi-
tion that there would be no wage increase for 12 months
and no contractual changes-except for deleting the union-
security and checkoff provisions.) Union President Hollo-
way credibly testified that President Robbins proposed on
September 2 that as part of a 3-year agreement, there would
be no compulsory membership or checkoff for the first 12
months (then reduced to the first 6 months), and that Rob-
bins said he had given "his work to each one of the people
that was hired during the strike and told them that they
would never [em.phasis supplied] have to belong to a union
or pay union dues." When testify'ing on direct examination.
Robbins repeatedly testified falsely that during this pro-
posed 12-month then 6-month suspension period only
1122
NORTHFIELD CHFESE COMPANY
the reinstated strikers and not the strike replacements
would he required to join the Union. and that after the
suspension period the strike replacements would also he re-
quired to join: "there would be a change hack to a status olf
full compulsory" membership with checkoff. and "everone
would be subject to a compulsory clause." (Again he ap-
peared to he endeavoring to give testimony fvorable to the
Company, rather than being candid.) Finalls. after being
shown his September 7 letter to the former strikers. Roh-
bins admitted that his preceding testimony was erroneous.
(The letter stated that "Compulsory union membership and
deduction of dues from wages would be suspended for the
first six months of the three year contract under Manage-
ment's offer. Also, any permanent replacement emploees
remaining after the sixth month would rmain exen ) [tIm-
phasis supplied] from compulsory Union membership.")
The Union continued to seek a restoration of the pre-
strike union-shop and checkoff provisions. and President
Robbins continued to refuse. stating that it was a matter of
his personal credibility and that he had given the strike
replacements his word. Even after all of the presious strik-
ers had been offered reinstatement. Robbins continued to
make the commitment to new employees. As late as Nlarch
30, Robbins told a new employee that "he wouldn't have to
pay union dues or join the Union." (Robbins testified that
after the strike, applicants asked questions "concerning will
I have to pay dues or if I do. what does it cost do you have
a union, those sort of questions.")
President Robbins' actions finally revealed that his moti-
vation for making the commitment to the strike replace-
ments and for telling the Union that he could not restore
the prestrike union security provisions because of his word
that the replacements would "never" be required to join
was related to the Union's status as the majority represent-
ative. In the January 16 negotiations. Robbins questioned
whether the Union still represented a majority of the 45
current employees, after only 16 (out of approximately 39)
of the former strikers had been reinstated. At the next ses-
sion, the Company announced that it was willing to con-
tinue bargaining. (The trial herein was pending, hut had
been postponed at the request of the Company.) The Com-
pany thereafter in April refused the Union's proposed com-
promise of July I as the cutoff date for exempting strike
replacements from the union-shop provision. (The number
of strike replacements hired before July I and remaining on
the payroll was 12-several iTwer than the number of rein-
stated former strikers.) However. apparently anticipating a
decertification petition being filed before the next round of
negotiations, the Company reversed its position on "never"
requiring the strike replacements to join the Union and pay
dues. The Company proposed a I-year agreement, and then
a 6-month agreement, telling the Union that after the expi-
ration of such a short agreement, the Company's no-union.
no-dues commitment to the strike replacements "would
have been satisfied, and we'd go forward into the next bar-
gaining agreement clear of this issue" not mentioning the
anticipated decertification petition in the meantime.
4. Bargaining on reinstaitements
The Company had begun an expansion program before
the May 3 strike, adding new cutting and packaging equip-
ment in order to increase profits. About August. new Swiss
cheese cutting equipment was installed, producing about
five times as much as the replaced equipment and requiring
"many more people to keep it fed with the raw materials'
and "more people for packaging."
On NLa, 3 there were 39 or more bargainling-unit emplo -
ees who went on strike. They were the 32 alleged discrimi-
natees inolved in this proceeding (named below)., 3 other
strikers who were reinstated (Joyce Marion. Pura Savinon,
and Elizabeth Sunga: see list of employees on the April 6.
1978, payroll. Resp. Exh. 2). and 4 strikers whose discharge
for strike misconduct is not alleged to he illegal (Ilector
DeJesus, Eleodora llernandez. Pascual Morillo. and Santo
Rubhio). The evidence does not disclose whether 2 addi-
tional persons (Gary l.ove and Jose Ulrena. named in the
Union's September I charge) were also striking bargaining-
unit employees. (Without producing company records.
President Robbins estimated that there were 38 members of
the bargaining unit employed on May 2.)
There was a sharp drop in production during and inme-
diatel after the strike. The process line was shut down
from N1ay 3 until May 10 or I 1. The otlice and manage-
ment personnel ere performing some packaging during
that time. The Company hired two employees (Filipe Ker-
veadou and Julio l.ozano) on May 10: to on Man 1 I em-
ployees who worked that day but respected the picket line
on May 12);: and eight applicants on Friday. Mao 13. to
begin work the next Monday. During the week o May 16
the Company reached a complement of 28 people (includ-
ing office and management personnel)., producing about 28
to 30 batches a day about 60 percent of the prestrike pro-
duction of 49 batches a da!. Despite the necessit, of ex-
panded production for profitability, the Compan treated
this reduced crew of' 28 persons as a "full" complement
during the strike. relieving the nonunit personnel frorn bar-
gaining-unit work as employees were hired or reinstated.
On July 18 the Company had the opportunity oft restor-
ing its full productive capacity hby reinstating experienced
strikers while continuing negotiations, but it tailed to do so.
On that date it received two mailgrams from the iUnion.
dated Jul, 15:
Local P 653 who represents the workers on strike
against your Comnpany will agree to send these workers
hack to work unconditionally pending future negotia-
tions. (Sent at 9:03 a.m.)
We ask that you reinstate all these workers immedi-
ately. (Sent at 9:25 a.m.)
In its brief' the Compan', contends that these mailgrams
were not effective as an unconditional offer because the!
"demanded the immediate reinstatement of all the strikers
without [termination] of the strike." tlowever. it is clear
that this is merely an afterthought. President Robbins on
July 19 sent a reply telegram which stated:
This will acknowledge receipt on JulN I8 1977 olf our
mailgram in which I lmer.sland ou to he mnad.c an
ium 'oinditiwial /hr on behall / l tie' wrA io eipl/'t' of
Northfield return io vitork.
Please he informled that the emplo!er has exercised its
legal right to hire permanent replacemenlt enmploees
alnd as ill/ ,tl z Nl 'zitliv 'miplwI'ee hare¢ hl''tl, ill act.
1 23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permanentlyv replaced and there are, therefore, no job
openings at this time. [Emphasis supplied.]
Thus, Robbins interpreted the union offer as an uncondi-
tional offer for the strikers to return to work, but he claimed
that "all" of them had been permanently replaced and there
were, "therefore, no job openings at this time."
President Robbins' claim was false. When asked on cross-
examination how many permanent strike replacements had
been hired by July 15, Robbins answered, "I don't really
know. Some people had returned [presumably referring to
striking employees Joyce Marion and Pura Savinon]. In
terms of the strike replacements, there would probably be
about fifteen or sixteen." (Emphasis supplied.) The Com-
pany stipulated that one additional strike replacement (L.
Fernandez) was hired on July 18-between the July 15 date
of the unconditional offer for the strikers to return to work
and the July 19 date of the claim that all (approximately
39) of the strikers had been permanently replaced. (I note
that although the company counsel checked the Company's
payroll records "late last night" after Robbins had given the
estimate of 15 to 16 permanent replacements hired by July
15-see Attorney Carey's statement, Tr. 1264-the Com-
pany did not produce any records to prove that a larger
number had been hired by that date.)
After sending the inaccurate telegrams, stating that there
were no job openings because all of the striking employees
had been permanently replaced, the Company continued to
hire strike replacements (Marc Nicolas on July 25, Jean
Etienne on August 5, and Duckens Souffrant and Jean
Surin on August II). President Robbins at one point testi-
fied that "After July 15, anybody that was hired were rein-
statements of the strikers." However, he then revealed, on
further cross-examination, that the "preferential hiring pro-
gram [for reinstating former strikers after the termination of
the strike] may have been a few weeks after that." Still
later, he testified that there "may have been one or two"
hired after July 15, explaining that "if a job had to get done
. . .and it would have been detrimental to function, and
someone came to the waiting room and applied, conditions
required that we would hire someone under those condi-
tions." I note, though, that between July 18 and September
1, the Company did not offer reinstatement to any of the
strikers (except Elizabeth Sunga who individually crossed
the picket line and applied for work on August 9). 1 find
that the real reason for President Robbins' continuing to
hire permanent replacements was the fact that he had not
yet decided to give preference to the strikers seeking rein-
statement.
At the next negotiating session on August 12, as Union
President Holloway credibly testified, President Robbins
initially stated that the Company had "no responsibility" to
the striking employees, stating that they all had been per-
manently replaced. Robbins himself testified:
Q. [By Mr. Gordon] I said didn't you take the posi-
tion that you had no obligation to put them back at
all?
A. I didn't feel any more obligation as economic
strikers to put them back than I did under the proposal
of [Union Attorney] Gordon that they were unfair la-
bor practice strikers.
Q. There was no obligation to put them back at all?
A. That's correct.
Q. Even as vacancies became available?
A. That's correct.
Q. That was [Company Attorney] Carey's advice to
you, was it not?
A. That's correct.
Q. And you really began to reinstate people only
when you were informed by me that you were risking a
huge liability, isn't that the fact?
A. I think that's a conclusion you have drawn.
Immediately after this bargaining session, the Union termi-
nated the strike and notified the Company by mailgram
that the employees would "report to the job site on Monday
August 15 1977 at 8AM" to return to work. The Company
did not offer any of the former strikers reinstatement until
September , when it sent offers of reinstatement to three of
them.
Following the September 2 bargaining session, the Com-
pany made a move obviously intended to turn the former
strikers against the Union. In a letter dated September 7,
President Robbins reviewed the bargaining and stated that
the Company had offered to "Immediately begin rehiring
striking employees who wished to return to work. Jobs
would be offered as they become available due to attrition
or company expansion. Under this program striking em-
ployees would be given preferential hiring over any other
applicants.... The Union negotiating committee refused to
accept Management's offer and explained that they will not
enter into any agreement that does not include compulsory
membership and checkoff.... Northfield emphasized its
desire to get striking employees back to work as quickly as
possible without mass dismissal of permanent replacement
employees." Robbins (ignoring the Company's legal obliga-
tion to offer such reinstatements-even assuming the em-
ployees had been economic strikers-and despite the fact
that any dispute over union security was immaterial to that
obligation), then falsely added: "The Union expressed its
position that it would not compromise its need for a closed
shop even if it blocks the opportunity for employees to return
to work at this time." [Emphasis supplied.]
The Company still did not offer immediate reinstatement
to enough former strikers to restore the prestrike productive
capacity. By the time the Company did make valid offers
the 28 of them (11 in September, 5 in October, 9 in Novem-
ber, 2 in December, and I in January 1978), 13 failed to
report to work. (The four remaining alleged discriminatees
were Elizabeth Sunga, who was reinstated when she crossed
the picket line on August 9, and Miguel Hernandez, Emilio
Ramirez, and Alfreda Williams whose discharge is in issue.)
As stipulated, offers of reinstatement were made as follows:
Herbert Anderson 10/24
Joseph Bergen 11/10
Pearl Bradley 11/30
Manuel Camilo 11/10
Rafael Florencio 11/28
Maria Garcia 9/8
Gwendolyn George 11/28
Donella Lawson 9/8
Fabio Medina 11/2
Elizabeth Mercedes 10/25
Emilio Ramirez (no offer)
Jose Rodriguez 10/5
Pedro Rodriguez 11/2
Jose Rubio 11/28
1124
NORTHFIELD (CHEESE COMPANY
Hundo Sanders 9/7
Geneva Smith 12/22
Ethel Soloman 9/8
Elizabeth Sunga 8/9
Donald TackaherrN 9/14
Virginia Thorton 9/1
Alfreda Williams (no offer)
Charles Williams 9/1
Jose Williams 9/14
5. Concluding findings
a. Union-ousting efborts
This is an instance in which a respondent company has
introduced evidence of private communications between its
president and its attorney as a defense to an allegation of
bad-faith bargaining.
Despite President Robbins' admitted reluctance to adopt
Attorney Carey's "severe" bargaining tactics-after three
productive bargaining sessions in which Robbins was the
sole company negotiator-- Robbins followed Carey's rec-
ommendation to refuse wage retroactivity (thereby provok-
ing a strike), to withdraw all prestrike proposals, and to
propose for a -year period no wage increase, and tno con-
tractual changes except deleting the union-shop and check-
off provisions which had been an unchallenged part of their
agreements for 20 years. The purported justification was
that the Board had approved such tactics in its Midwe.sl
Casting decision (a largely inapposite case, 194 NLRB 523).
and that such negotiating tactics were necessary to induce
the Union to reduce its wage demands.
Despite the fact that the Union at the next (May 6) bar-
gaining session reduced its wage request to an immediate
20-cent increase (5 cents above what the Company had of-
fered), and an additional 10-cent increase after 6 months
(close to the time when the Company had indicated a possi-
ble return to profitability), President Robbins-joined by
Attorney Carey in the 13 poststrike negotiating sessions-
adamantly maintained the Company's no-wage-increase,
no-contractual-changes. no-union-security position for
nearly 4 months, until after the strike was broken. Further-
more, before giving the Union the opportunity to bargain
on union security at any of the succeeding bargaining ses-
sions, the Company began on May 20 making unsolicited
commitments to strike replacements that they would not
have to join the Union or pay dues. After the strike ended,
the Company continued to make such unsolicited commit-
ments to new employees, thereby precluding an open mind
and good-faith bargaining on that mandatory subject of
bargaining during a number of bargaining sessions when
restoration of the union-security and checkoff provisions
was the principal issue between the Company and the
Union.
Meanwhile, instead of bargaining to resolve the greatly
reduced difference in the Company's and Union's wage
proposals in the May 6 bargaining session, the Company
endured a long, costly strike and reduced its productive
capacity by about 40 percent-notwithstanding the fact
that the Company had already embarked on an expansion
program after deciding that increased production was nec-
essary for profitability. The Company refused to offer im-
mediate reinstatement to any of the experienced employees
pursuant to the Union's July 15 and August 12 uncondi-
tional offers, and thereafter kept its productive capacity low
for several additional months as it delayed recalling the
former strikers. This reduced production contributed to the
Company's financial problems which resulted that year in
losses exceeding $500,000.
At the hearing, during which significant parts of Pres-
ident Robbins' testimony were belied by his own minutes
(of the May 6 negotiations) and by his September 7 letter to
employees. Robbins denied that he had discussions with
Attorney Carey "about the procedure for eliminating the
Union from the plant." However he finally admitted qfter
much evasion that when he made the May 6 proposal rec-
ommended by the attorney, he was aware that Carey (an
official of the parent company. Kane-Miller Corporation)
had "been involved on behalf of other Kane-Miller subsid-
iaries in successful efforts to oust unions from those subsid-
iaries. including the Meat Cutters Union." Robbins also
admitted that he did not expect the Union to take seriously
the Company's May 6 offer (which it refused to change
throughout the strike).
The Company argues in its brief that it was not "out to
break the Union by engaging in surface bargaining." After
considering all of the evidence and circumstances. I find to
the contrary that by adopting the attorney's "severe" bar-
gaining tactics (refusing to offer any wage increase or other
prestrike concessions and withdrawing its long-standing
agreement to union-shop and checkoff provisions), the
Company was engaging in bad-faith bargaining without
any intention of reaching an agreement throughout the 14-
1/2-week strike. in the hope of first breaking the strike and
then ousting the Union, thereby violating Section 8(a)(5)
and (I) of the Act. I also find that after the termination of
the strike. the Company continued to bargain in bad faith
concerning union security. Although an employer or union
may, in good faith, refuse to agree to a proposal and refuse
to make a concession under Section 8(d) of the Act, I find
that the Company's position on exempting new employees
from union-security provisions was taken in bad faith, in
furtherance of its union-ousting efforts. I therefore find that
in the nine bargaining sessions from September 2 through
April 6, 1978, the Company violated Section 8(a)(5) and (I)
of the Act.
In its motion to reopen the hearing (see footnote 2
above), the Company refers to the execution on December
28, 1978, of a new, I-year agreement as "documentary evi-
dence that the labor dispute that gave rise to the alleged
surface bargaining charge in Case 22-CA-7799 has been
settled." Of course, such a settlement of the underlying la-
bor dispute would not release the Board of its responsiblity
to remedy such serious unfair labor practices committed by
the Company. Moreover, the new agreement (Resp. Exh.
24), expiring September 30. 1979, does not indicate that the
Company has dropped its unlawful union-ousting efforts.
To the contrary, the agreement indicates that the Company
has continued its bad-faith bargaining on the subject of
union security inasmuch as article 3, section B-l. provides
that "There will be no compulsory Union membership re-
Jose (iortorreal 9/14
Mercedes Grullar 9/8
Simon Gruyair 11/28
Socorro Guzman 9/1
Roosevelt Hatcher 10/5
Miguel Hernandez (no
offer)
Alvin Holmes 12/5
Sonja Holmes 1/24/78
Ella Jenkins 10/5
1125
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired of any employees who was hired before October 1,
1978." This provision exempts from union-shop coverage
not only the reinstated strikers (whom the Company sought
to turn against the Union by falsely linking the union shop
with their reinstatement rights in its September 7 letter), but
also the strike replacements and new employees hired after
the strike (to whom the Company made unsolicited com-
mitments on union membership and dues, as part of its
union-ousting efforts). The Company had made somewhat
similar proposals before the trial as part of these unlawful
union-ousting efforts. It proposed then that union security
would cover those hired since the date of execution of a
new agreement, and also proposed that its no-union, no-
dues commitment to the strike replacements "would have
been satisfied" after the expiration of a short agreement,
"and we'd go forward into the next bargaining agreement
clear of this issue." The latter proposal was a reversal of the
position the Company took on September 2 when President
Robbins told the Union that he had given his word that
strike replacements would never have to belong to a union
or pay union dues, and the Company took this reversed
position after challenging the Union's continued majority
status. Thus, the Company was endeavoring, before the
trial, to take advantage of its unlawful delay in reinstating
strikers (with the result that many of these union members
did not accept the belated offers of reinstatement) and its
other unlawful union-ousting efforts (reducing the Union's
support and bargaining strength). It then proposed "going
into the next bargaining agreement clear or' its commit-
ments to the strike replacements, without mentioning an
anticipated decertification petition in the meantime.
Under these circumstances, I find that a remedial order,
requiring good-faith bargaining, is necessary to prevent the
Company from benefiting from its own wrongdoing.
b. Unfair labor practice strike
Having found that the Company engaged in bad-faith
bargaining, with no intention of reaching an agreement,
from May 6 through the remainder of the strike, I agree
with the General Counsel that the May 3 strike was pro-
longed by the Company's bad-faith bargaining and "was
converted to an unfair labor practice strike as of May 6,
1977." 1 therefore find that the Company was required on
July 18 (when it received the Union's July 15 return-to-
work offer, which the Company acknowledged on July 19
to be "an unconditional offer") and again on August 15
(upon receipt of the Union's August 12 renewed uncondi-
tional offer) to reinstate the unfair labor practice strikers
who had been lawfully discharged for strike misconduct,
displacing if necessary any employees hired since May 6
when the strike became an unfair labor practice strike. Ac-
cordingly, I find that by refusing to reinstate the employees
on July 18 and August 15, the Company discriminated
against them in violation of Section 8(a)(3) and (I) of the
Act. I also find that by delaying and refusing to reinstate 29
of the employees until valid offers of reinstatement were
made on the stipulated dates in the period from August 9
through January 24, 1978, the Company discriminated
against them in violation of Section 8(a)(3) and (1) of the
Act.
D. Discharges During Strike
There was an incident of strike violence on May 12 when
new employees Julio Lozano and Filipe Kerveadou arrived
for work. Lozano's car was damaged, Lozano was as-
saulted, and neither employee returned thereafter.
On May 13 the Company sent discharge letters to seven
of the strikers for engaging in strike misconduct. The Gen-
eral Counsel does not challenge the discharge of four of the
strikers, Hector DeJesus, Eleodoro Hernandez, Pascual
Morillo, and Santo Rubio. The complaint does allege that
the Company unlawfully discharged the other three strik-
ers, Miguel Hernandez, Emilio Ramirez. and Alfreda Wil-
liams for assisting the Union and engaging in protected
picketing activity. The Company contends that Miguel
Hernandez was discharged for throwing a rocklike object
and shattering the windshield as the car was entering the
driveway; Ramirez, for beating his fists on the shattered
windshield; and Alfreda Williams, for throwing a heavy
object at the windshield, shattering it, also at the picket line.
The General Counsel's witnesses testified that no damage
was done to the car at the picket line, and that the damage
was done (by others) at the rear of the plant.
The testimony appeared to be in great confusion until the
General Counsel called the last witness, striker Charles Wil-
liams, who was not accused of any misconduct, who im-
pressed me (from his demeanor on the stand) as being an
alert, honest witness with a good memory, and who was in
a good position to observe what happened at the picket
line.
While testifying on cross-examination, Charles Williams
gave a detailed, credible account of what actually hap-
pened. He was on the picket line before work that morning
when two new women employees, who had worked the day
before, arrived in their car. He met them in the street and
they agreed to honor the picket line and left. In the next car
there were two new Spanish-speaking employees (Lozano
and Kerveadou). He and Pascual Morillo walked to the car
as it was moving slowly through the picket line. He asked
the driver to roll down the window so they could talk. The
driver refused to do so until striker Elizabeth Mercedes
came over and spoke to the driver in Spanish. The driver
then rolled down the window slightly. Williams went to the
other side of the car to speak to the passenger, who immedi-
ately locked the door. At that moment the car jerked for-
ward, and Williams saw President Robbins (who was stand-
ing toward the building to the right passenger side-of the
driveway near the Company's guard) waving for the driver
to continue coming in; and Williams caught a glimpse of
striker Ramirez (who was on his way in front of the car-
to the driver's side to talk to Mercedes) being bumped to
the ground by the car. The car stopped while Ramirez was
getting up, and Robbins was again waiving for the driver to
come in. As the car jerked forward a second time, Morillo
was hitting the hood (causing no damage), and something
was thrown at the car. Williams observed striker Alfreda
Williams' hand coming across his shoulder, saw something
hit the metal band at the top of the windshield (causing no
damage), and realized it was an egg because a piece of the
shell hit him in the face. (Alfreda Williams credibly testified
that she had started eating a boiled egg and threw it in
disgust. Charles Williams demonstrated how Alfreda Wil-
1126
NORTHFIELD CHEESE COMPANY
liams threw it, extending her hand and arm straight out-
ward from her shoulder, "the way a woman throws.") No
other object struck the car, which proceeded to the back
parking lot. Alfreda Williams was shouting for the strikers
not to go on company property, hut several of the "hot-
heads," after picking up pieces of tree limbs, etc., in the
wooded area to the left of the driveway. ran after the car.
Robbins ran into the office. Assistant Controller Lawrence
Needleman first came out the front door and ran to the
back. Then Assistant Production Manager Glenn Messner
came out, followed by Robbins. and they also ran to the
back. After the police arrived and as the car was being
towed away. Charles Williams saw that all of the windows
in the car were cracked or broken. (The four other dis-
charged strikers were taken to the police station, but not
Miguel Hernandez, Ramirez. nor Alfreda Williams.)
Charles Williams positively and credibly testified that no
damage was done to the windshield or to any other part of
the car at the picket line: that Morillo (one of the four
arrested strikers) was the only striker who struck the car
there in front: and that the egg was the only object which
hit the car at the front entrance.
The Company's witnesses, Robbins, Messner, and Nee-
dleman, did not mention Charles Williams' turning away
the first car, nor Robbins' waving for driver Lozano to
come in. They gave conflicting accounts of what happened,
and I find that their testimony was largely fabricated.
Messner, but not Needleman, claimed that he saw striker
Miguel Hernandez throw a rock or piece of metal at the
windshield as the car was entering the driveway, knocking a
hole in the windshield and shattering it, like a cobweb. He
also claimed that Robbins was then standing, not to the
right of the driveway, nearer the building (as Charles Wil-
liams and Alfreda Williams credibly testified), but on the
left side of the driveway, between the left front wheel and
the driver's door. Yet Robbins, supposedly standing within
a few feet of the windshield, was not aware of any such
object being thrown. (I credit Charles Williams' testimony
that Miguel Hernandez did not throw anything at the car.)
Needleman and Robbins claimed that they saw Alfreda
Williams throw an object which "shattered" the winshield,
but Needleman claimed that the windshield was already
shattered, whereas Robbins testified that the first time he
noticed the windshield was broken was when Williams
threw the object. Messner and Robbins, but not Needle-
man, claimed that they saw striker Emilio Ramirez pound-
ing on the shattered windshield. Having credited the testi-
mony that the object thrown was the uneaten portion of an
egg which Alfreda Williams had in her hand, I discredit the
testimony by Needleman and Robbins that the object
thrown by Alfreda Williams shattered the windshield and
the testimony by Messner and Robbins that Ramirez was
pounding on the shattered windshield.
Messner and Needleman claimed that they witnessed the
incident at the picket line from Robbins' office, first from
the inner window and then from the corner window, but
they gave conflicting accounts about this as well. Each of
them testified that he was at the corner window when he
saw someone (Morillo) trying to force open the driver's
door (something which happened, according to Robbins.
before Alfreda Williams threw the object at the wind-
shield). Needleman testified that Messner had alreat left
the corner window and the room when Needleman saw
someone trying to open the driver's door, and that Needle-
man thereafter saw Alfreda Williams throw the object.
However Messner claimed that he was still at the corner
window when he saw the struggle over the car door. Ac-
cording to Messner (although not seen by Needleman who
claimed he was also watching from the same window).
Messner saw Miguel Hernandez throw the rock or metal at
the windshield, saw Alfreda Williams just standing there
(this indicating that she had already thrown the egg). and
saw Ramirez pounding on the shattered windshield. The
Company's brief ignores these conflicts, except to cite Rob-
bins' testimony that he concluded from his conversation
with Needleman and Messner on the day of the incident
that Hernandez threw the object before Alfreda Williams
did contrary to what Messner testified. Thus the Com-
pany apparently knew, from the day of the incident, that
there were conflicts in the versions given by Messner and
Needleman. Messner was claiming that he was watching
the same incident and at the same time as Needleman, yet
Messner. but not Needleman, was claiming that he saw
Hernandez throw the rocklike object and Ramirez pound-
ing on the windshield. At the time, Rohbins instructed both
Messner and Needleman to write reports of what they saw,
but he proceeded to discharge both Miguel Hernadez and
Ramirez, although knowing that Needleman undoubtedly
would have seen the two of them engaging in such miscon-
duct if they had actually done so.
It was under these circumstances that the General Coun-
sel requested that the Company produce not only the writ-
ten reports made by Messner and Needleman of the May
12 incident, but also Robbins' own notes of what happened.
The Company refused. (Earlier in the hearing, as already
mentioned. the Company had produced Robbins' minutes
which had belied significant parts of his testimony.) I infer
that if these requested documents had been favorable to its
defense, the Company would have produced them.
President Robbins testified that if merely an egg had
been thrown, it would not have been grounds for discharge
because "it would be hard for me to conceive how that
would be terrifying or in any way serious, threatening the
occupants of the car." Having credited the testimony that
part of an egg was all that striker Alreda Williams threw
(hitting above the windshield without causing any damage).
and having credited the testimony that striker Miguel Her-
nandez threw nothing at the car and that stnker Emilio
Ramirez did not strike the windshield-contrary to the
Company's purported reasons for discharging the three em-
ployees I find that the Company unlawfully discharged
them on May 13 for assisting the Union and engaging in
protected picketing activity in violation of Section 8(a( 1)
and (3) of the Act.
CON( L.USIONS ()F LA%\
1. B engaging in bad-faith bargaining with no intention
of reaching an agreement with the Union from May 6.
1977. until the end of the strike, and by thereafter continu-
ing to bargain in bad faith concerning union security. in an
appropriate bargaining unit of all production and mainte-
nance employees at the Company's Northvale plant. the
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company committed unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
2. The strike which began on May 3, 1977, and ended on
August 12. 1977, was prolonged by the Company's bad-
faith bargaining and was converted on May 6. 1977, to an
unfair labor practice strike.
3. By unlawfully discharging striking employees Miguel
Hernandez, Emilio Ramirez, and Alfreda Williams for as-
sisting the Union and engaging in protected picketing ac-
tivity, the Company violated Section 8(a)(1) and (3) of the
Act.
4. By refusing on and after July 18 and on and after
August 15, 1977, unconditional offers for Miguel Hernan-
dez, Emilio Ramirez, and Alfreda Williams to return to
work, and by refusing on those dates unconditional offers
for 29 other employees to return to work and delaying of-
fers of reinstatement to them until stipulated dates from
August 9 through January 24, 1978, the Company discrimi-
nated against them in violation of Section 8(a)(3) and (I) of
the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Respondent having unlawfully discharged 3 striking em-
ployees and unlawfully delayed offers of reinstatement to
29 other strikers, I find it necessary to order Respondent to
offer the 3 discharged employees full reinstatement and to
pay them and the 29 other striking employees for lost earn-
ings, less net interim earnings, in accordance with the for-
mula set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977), from the date of Respondent's
receipt on July 18, 1977, of unconditional offer for the 32
strikers to return to work, to the date of proper offer of
reinstatement. See generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). Inasmuch as Respondent's unlawful
conduct goes to the very heart of the Act, I find it necessary
to issue a broad order, requiring Respondent to cease and
desist from infringing in any other manner upon the rights
guaranteed employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER'
I. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against any employee for engaging in protected
picketing activity or for supporting or assisting Meat. Food
& Allied Workers Local P-653, Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL-CIO. or
any other union.
(b) Unlawfully refusing to bargain with Local P 653 as
the exclusive representative of the employees in the follow-
ing appropriate unit:
All production and maintenance employees employed
at Respondent's Northvale, New Jersey., plant, exclud-
ing office clerical employees, administrative employees,
guards. professional employees, and all supervisors as
defined in the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Miguel Hernandez. Emilio Ramirez, and
Alfreda Williams immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to substantially
positions, without prejudice to their seniority or other rights
and privileges, and make them (until proper offer of rein-
statement) and the following 29 former strikers (until the
dates of proper offers shown after their names) whole for
any loss of pay or other benefits since July 18, 1977, in the
manner set forth in the remedy section:
Herbert Anderson
10/24/77
Joseph Bergen 11/10/77
Pearl Bradley 11/30/77
Manuel Camilo
11/ 10/77
Rafael Florencio
11/28/77
Maria Garcia 9/8/77
Gwendolyn George
11/28/77
Jose Gortorreal 9/14/77
Mercedes Grullar
9/8/77
Simon Gruyair
11/28/77
Socorro Guzman 9/1/77
Roosevelt Hatcher
10/5/77
Alvin Holmes 12/5/77
Sonja Holmes 1/24/78
Ella Jenkins 10/5/77
Donella Lawson 9/8/77
Fabio Medina 11/2/77
Elizabeth Mercedes
10,'25/77
Jose Rodriguez 10/5/77
Pedro Rodriguez 11/2/77
Jose Rubio 11/28/77
Hundo Sanders 9/7/77
Geneva Smith 12/22/77
Ethel Solomon 9/8/77
Elizabeth Sunga 8/9/77
Donald Tackaberry 9/14/77
Virginia Thorton 9/1/77
Charles Williams 9/1/77
Jose Williams 9/14/77
The Respondent, Northfield Cheese Company. North-
vale, New Jersey, its officers, agents, successors, and as-
signs, shall:
In the event no exceptions are filed as provided by Sec. 102.46 of he
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.
(b) 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 records necessary to
analyze the amount of' backpay due under the terms of this
Order.
(c) Upon request. bargain in good faith with Local P-
653 as the exclusive representative of the employees in the
1128
NORTHFIELD CHEESE COMPANY
appropriate unit and embody in a signed agreement any
understanding reached.
(d) Post at its plant in Northvale. New Jersey, copies of
the attached notice marked "Appendix."' Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 22, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS ALSO RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act not specif-
ically found.
4 In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
WE WILL offer Miguel Hernandez, Emilio Ramirez.
and Alfreda Williams immediate and full reinstate-
ment to their former jobs or, if their jobs no longer
exist, to substantially equivalent jobs, without preju-
dice to their seniority or other rights and privileges
previously enjoyed, and make them whole for an3 loss
of pa) or other benefits, plus interest.
WE WI..l pay the following 29 former strikers for
any loss in earnings or other benefits from date of offer
to return to work until date of proper offer of reinstate-
ment. plus interest:
Herbert Anderson
Joseph Bergen
Pearl Bradley
Manuel Camilo
Rafael Florencio
Maria Garcia
Gwendolyn George
Jose Gortorreal
Mercedes Grullar
Simon Gruyair
Socorro Guzman
Roosevelt Hatcher
Alvin Holmes
Sonja Holmes
Ella Jenkins
Donella Lawson
Fabio Medina
Elizabeth Mercedes
Jose Rodriguez
Pedro Rodriguez
Jose Rubio
Hundo Sanders
Geneva Smith
Ethel Solomon
Elizabeth Sunga
Donald Tackaberry
Virginia Thorton
Charles Williams
Jose Williams
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT in any manner interfere with your
rights under Section 7 of the Act.
WE WILL bargain in good faith with Meat Cutters
Local P-653 upon request as the exclusive representa-
tive of our production and maintenance employees and
put in writing and sign any bargaining agreement
reached.
NORTHFIELD CHEESE COMPANY
1129