Peyton Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1961

129 N.L.R.B. 1358 (N.L.R.B. 1961)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The allegations of the complaint that Respondent has engaged in unfair labor
practices .within the meaning of Section 8(a) (1), (3 ), and (4) of the Act have not
been sustained by substantial evidence.
[Recommendations omitted from publication.]
Peyton Packing Company, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO. Cases
Nos. 33-CA-558 and 33-CA-581. January 18, 1961
DECISION AND ORDER
On December 28, 1959, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.2
The Trial Examiner found that the Respondent violated Section
8(a) (5) of the Act by its unilateral action in December 1958 of with-
holding a bonus to employees in the bargaining unit, and by refusing
to bargain with respect to the bonus. The Trial Examiner also found
that these acts caused a strike which began on March 3, 1959. We
do not adopt these findings.
The matter of Respondent's withholding of the December 1958
bonus was alleged and fully litigated as a Section 8(a) (1) violation
in Case No. 33-CA-512. The complaint in Case No. 33-CA-512 was
issued and served on March 19, 1959. On May 11, 1959, the opening
day of the hearing in that case, the General Counsel moved to amend
the complaint to allege certain independent Section 8 (a) (1) violations
including Respondent's withholding of the December 1958 bonus.
Respondent objected to such amendment, pointing out that it had pre-
viously received a charge in another case, Case No. 33-CA-558, alleg-
i The Respondent has requested oral argument . This request is hereby denied because
the record,, the exceptions , and the brief adequately present the issues and the positions
of the parties.
2 In his Intermediate Report, the Trial Examiner refers to "union security" as having
been a subject of discussion during negotiations . The record fails to disclose any such
discussion . The Intermediate Report is corrected accordingly.
129 NLRB No. 165.
PEYTON PACKING COMPANY, INC. 1359
ing that it had violated Section 8 (a) (5) of the Act by withholding
this bonus. The presiding Trial Examiner, Martin S. Bennett, sug-
gested the "practicability" of consolidating Case No. 33-CA-558 with
the then pending proceeding. The General Counsel, however, elected
not to consolidate; and the complaint was amended, as the General
Counsel had requested. The General Counsel then proceeded, under
the amended complaint in Case No. 33-CA-512, to litigate the issue
of whether the bonus withholding was a violation of Section 8 (a) (1)
of the Act.
The complaint in Case No. 33-CA-512 also alleged that the strike
starting on March 3, 1959, was an unfair labor practice strike. This
issue was litigated at the hearing. It was the General Counsel's con-
tention that one of the causes of the strike was the discriminatory
discharge of employee Hernandez. The General Counsel, however,
did not allege, or litigate, in Case No. 33-CA-512, the withholding of
the bonus as a violation of 8 (a) (5), or as a cause of the March 3, 1959,
strike.
On August 18, 1959, after the hearing in Case No. 33-CA-512 had
been closed, the General Counsel issued a complaint in the instant
cases, Cases Nos. 33-CA-558 and 33-CA-581. This complaint alleged,
inter alia, that Respondent had violated Section 8 (a) (5) by withhold-
ing the bonus and by refusing to bargain as to the bonus. This com-
plaint, however, did not allege that the March 3, 1959, strike was an
unfair labor practice strike, or that it was related to the withholding
of the bonus.'
On September 16, 1959, Trial Examiner Bennett issued an Inter-
mediate Report in Case No. 33-CA-512, finding, inter alia, that
Respondent had violated Section 8(a) (1) by its withholding of the
December 1958 bonus. He also found that although employee Her-
nandez had been discriminatorily discharged, this discharge did not
cause the strike, and that the strike was an economic strike. Respond-
ent filed timely exceptions to the Intermediate Report; no exceptions
were filed by the General Counsel; the Union, the Charging Party in
the case, filed exceptions to the finding that the strike was not an
unfair labor practice strike.
On October 6, 1959, the day the hearing on the complaint in Cases
Nos. 33-CA-558 and 33-CA-581 began before Trial Examiner William
E. Spencer, the General Counsel amended the complaint in these cases
to allege that the March 3, 1959, strike was caused and prolonged by,
among other of Respondent's alleged acts, Respondent's withholding
of the December 1958 bonus and its refusal to bargain about the bonus.
8 On that same day, August 18, 1959 , the General Counsel filed a motion with Trial
Examiner Bennett to reopen the record in Case No. 33-CA-512 for the purpose of remand-
ing that case to the Regional Director so that an order consolidating cases could issue,
and to receive evidence on the complaint in Cases Nos. 33-CA-558 and 33-CA-581. Re-
spondent opposed this motion On September 1, 1959 , Trial Examiner Bennett denied the
motion. No exceptions were taken by the General Counsel to this ruling.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 28, 1959, Trial Examiner Spencer issued an Inter-
mediate Report in Cases Nos. 33-CA-558 and 33-CA-581, which re-
port the Board is here reviewing. As indicated above, Trial Examiner
Spencer found, inter alia, that Respondent had violated Section
8(a) (5) by withholding the December 1958 bonus and by refusing to
bargain as to the bonus. Spencer further found that these acts by Re-
spondent caused the March 3, 1959, strike. Respondent has excepted
to these findings.
The foregoing factual recital presents an issue as the propriety
of twice litigating the withholding of the December 1958 bonus as a
violation of different sections of the Act, and of twice litigating the
cause of the March 3, 1959, strike. We hold that the General Counsel
proceeded improperly.
Generally speaking, sound administrative practice, as well as fair-
ness to respondents, requires the consolidation of all pending charges
into one complaint. The same considerations dictate that, wherever
practicable, there be but a single hearing on all outstanding violations
of the Act involving the same respondent. To act otherwise results
in the unnecessary harassment of respondents.4
We would note here that the Board does not grant respondents sec-
ond hearings to relitigate allegations made against them because they
may have mishandled their defense in the original presentation of the
case.' Only in the exceptional instance, such as where evidence is
newly discovered,6 or where a hearing has been conducted in a preju-
dicial manner,' does the Board grant respondents further hearings.
The General Counsel's status before the Board in these adversary pro-
ceedings is no greater than that of any respondent. In short, the
General Counsel is not a favored litigant, and he is not entitled to any
privileges not accorded any other litigant appearing before the Board.
As for the instant cases, because the General Counsel had already
litigated, in Case No. 33-CA-512, the withholding of the December
1958 bonus as a violation of one section of the Act, the relitigation of
the same conduct in these cases, Cases Nos. 33-CA-558 and 33-CA-581
as an independent violation of a different section of the Act, strikes
us as being highly unfair to Respondent. When the complaint in the
latter cases issued, the General Counsel had every reason to believe
that if the alleged violation with respect to the bonus was sustained by
the Trial Examiner in Case No. 33-CA-512, the Trial Examiner
would recommend that an Order be issued prohibiting the Respondent
from depriving its employees of bonuses because of the employees'
4 See N L R B v. Thompson Products Inc., 130 F. 2d 363, 366-367 (C A 6). See also
Monroe Feed Store , 112 NLRB 1336, 1337
'See, e g, Owl Druq Company, 128 NLRB 552
See The Hunkin - Conkey Construction Company , 100 NLRB 955, 956.
' See Tidelands Marine Service , Inc., 126 NLRB 261 See also Indianapolis Glove
Company, 88 NLRB 986, 987.
PEYTON PACKING COMPANY, INC. 1361
union activities, and also requiring the Respondent to make its em-
ployees whole for any loss they suffered as a. result of Respondent's
withholding of the bonus. As a matter of fact, the Trial Examiner
did find the violation as alleged, and specifically recommend that such
an Order be issued." Nevertheless, despite the Trial Examiner's find-
ings and recommendations in Case No. 33-CA-512, the General Coun-
sel proceeded for a second time to go to hearing on the legality of
Respondent's withholding of the bonus. The General Counsel, in
short, made an election in Case No. 33-CA-512 as to the path he would
take in proving that Respondent had violated the Act, and thereby
had caused an unfair labor practice strike.' Having failed in his
proof, we cannot condone the General Counsel's effort to take a differ-
ent path to achieve what he failed to do in the first instance.
Accordingly, we shall dismiss the complaint insofar as it alleges that
Respondent violated Section 8(a) (5) of the Act by withholding the
December 1958 bonus and by refusing to bargain with respect to it.
We shall also dismiss the complaint insofar as it alleges that these acts
caused, and contributed to the prolongation of, the strike.
There remains for consideration whether the Respondent, by certain
conduct engaged in after the strike began, violated the Act. Spe-
cifically, the Trial Examiner found that the Respondent violated Sec-
tion 8 (a) (5) of the Act (1) by unilaterally granting wage increases
to employees in the bargaining unit; (2) by refusing to furnish infor-
mation on bonus payments requested by the Union; and (3) by un-
reasonably delaying in furnishing wage data requested by the Union.
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (5) by unilaterally granting wage increases without
reference or notification to the Union. We note here that the Re-
spondent admits that after the strike started it granted raises ranging
from 5 to 20 cents an hour to employees in the bargaining unit, and
that such increases were granted without consulting the Union. There
is no dispute that the Respondent's best offer during the prestrike ne-
gotiations was 10 cents an hour for the first year and 5 cents an hour
for the second year. It is therefore evident that the Respondent
granted wage increases in excess of its highest offer. Such action
taken without consultation with the Union was violative of Section
8 (a) (5). We reject the Respondent's contention that these wage
increases were in fact merit raises, the granting of which was a man-
8 On January 13, 1961 , the Board in Case No 33-CA-512, adopted the Trial Examiner's
findings and recommendations in this respect. Peyton Packing Company, Inc, 129
NLRB 1275
9 As set forth above, when Trial Examiner Bennett denied the General Counsel's motion
to reopen the record in Case No. 33-CA-512, the General Counsel made no further effort
to effect consolidation of these cases with that case, either by requesting special per-
mission to appeal from the Trial Examiner's ruling or by excepting to that ruling after
the issuance of Trial Examiner Bennett's Intermediate Report.
5 86439-61-vol. 12 9-8 7
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement prerogative which had been reserved throughout negotiations.
There is no evidence to support the Respondent 's contention that
these wage increases were based on merit.
We also find in agreement with the Trial Examiner , and for the
reasons set forth in the Intermediate Report, that the bonus was not
a gratuity , but in fact constituted an integral part of the Respondent's
wage structure. As the information requested was thus directly
related to wages, the Respondent , by refusing to accede to the Union's
request, violated Section 8(a) (5). We further find, as did the Trial
Examiner , that the Respondent violated Section 8(a) (5) by its un-
reasonable delay in furnishing the Union with the requested wage
data. In this respect , the Respondent delayed 3 months in honoring
the Union 's request , and the only justification advanced was that no
job classifications existed. As the Trial Examiner points out, this
was no excuse for not supplying whatever data was obtainable, espe-
cially data pertaining to the departments in which the employees
worked and the job functions which they performer.
However, contrary to the Trial Examiner, we do not find that either
the refusal to furnish the bonus information or the delay in furnishing
the wage data tended to prolong the strike. In this connection, we
note that the Respondent ultimately did furnish the Union with wage
data, but nevertheless the strike continued. As to the bonus informa-
tion, we note that such was first requested by the Union on June 24,
1959, nearly 4 months after the strike began. In view of our dispo-
sition of this case insofar as it relates to the General Counsel's attempt
to establish that the matter of the bonus was a factor causing the
strike, we cannot find on this record any causal relationship between
the strike and the Respondent 's refusal to honor a request made 4
months after the strike began. Absent such a relationship, there is no
basis for holding that the Respondent's conduct tended to prolong
that strike. Accordingly, we shall also dismiss the complaint insofar
as it alleges that the Respondent 's unfair labor practices tended to
prolong the strike.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , Peyton Packing
Company, Inc., El Paso, Texas, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Taking unilateral action with respect to granting wage increases
affecting employees in the following appropriate unit : All produc-
tion and maintenance employees of the Respondent at its El Paso
plant, including truckdrivers and truckdriver helpers, stockyards, feed
PEYTON PACKING COMPANY, INC. 1363
lot and feed mill employees working at said plant, but excluding all
office clerical workers, salesmen, watchmen, guards, and supervisors
as defined in the Act.
(b) Withholding information on bonus payments and their method
of computation respecting employees in the above-described appro-
priate unit, from the Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, or unreasonably delaying furnish-
ing wage data respecting such employees to the said Union.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,,
to form labor organizations, to join or assist the Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection
or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Forthwith furnish the Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, with information on bonuses
as requested.
(b) Upon request, bargain collectively with the Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, as
the exclusive representative of employees in the previously described
appropriate unit, with respect to rates of pay, wages, hours of work,
and other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
(c) Post at its place of business in El Paso, Texas, copies of the
notice attached hereto marked "Appendix." 10 Copies of the notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8(a) (5) of the Act by withholding
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the December 1958 bonus and by refusing to bargain with respect to
it, and that the strike beginning March 3, 1959, was an unfair labor
practice strike caused by these acts, and that these acts and other con-
duct engaged in subsequent to March 3, 1959, contributed to the pro-
longation of the strike, be, and it hereby is, dismissed.
MEMBER KIMBALL took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL upon request, bargain collectively with Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of all our employees in the
unit described below, with respect to rates of pay, wages, hours
of employment, or other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees of our El Paso
plant, including truckdrivers and truckdriver helpers, stock-
yards, feed lot, and feed mill employees working at said plant,
but excluding all office clerical workers, salesmen, watchmen,
guards, and supervisors as defined in the Act.
WE WILL furnish to the Union information on bonus payments
and their method of computation respecting employees in the
above-described appropriate unit.
WE WILL NOT unreasonably delay furnishing to the Union wage
data respecting employees in the above-described appropriate unit.
WE WILL NOT unilaterally grant wage increases to our employees
in the above-described appropriate unit without first giving notice
to and discussing the matter with the Union as the exclusive
bargaining representative of our employees in such unit.
WE WILL NOT, by refusing to bargain with the Union or in any
like or related manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form, join, or assist Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all such activities.
PEYTON PACKING COMPANY, INC. 1365
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named or any other
labor organization.
PEYTON PACKING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner of the Na-
tional Labor Relations Board, herein the Board, in El Paso, Texas, October 8 to 13,
1959, on the complaint of the General Counsel of the Board and answer of the Re-
spondent .) The issues litigated were whether in violation of Section 8(a) (1) and (5)
the Respondent refused to bargain with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, herein called the Union, the duly designated
representative of its employees in an appropriate unit, and thereby caused its em-
ployees to strike. The allegations of unfair labor practices were duly denied in the
answer of the Respondent . General Counsel and Respondent have filed briefs.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Peyton Packing Company, Inc., is a Texas corporation, having its principal office
and place of business at El Paso, Texas, and is engaged in meatpacking and cattle
feeding. During a representative 12-month period , it has sold meat products and
related byproducts derived from the processing of livestock , in excess of $50,000 of
which it has shipped from its El Paso plant to points outside the State of Texas.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
Pursuant to the results of a Board-conducted election, the Union was on October 3,
1958, certified as representative of Respondent 's employees in an appropriate unit.
Beginning in November 1958, there were negotiations between Respondent and the
Union on a contract , and these negotiations continued until March 2, 1959', when
the Union called a strike. The strike became effective on the morning of March 3.
At times material herein through the summer of 1958, the Respondent has paid its
employees a twice-yearly bonus or gratuity. These sums have customarily been paid
in June and at the Christmas season in December . The customary June 1958 bonus
was paid . The Christmas 1958 bonus was not paid to employees in the bargaining
1 While an order correcting the transcript of proceedings has been issued , there remains
an inaccurately indexed transcript with errors too numerous to correct in their totality,
corrections having been made only where essential to findings on the issues The report-
ing of the first day of the proceeding was so substandard that it could not be transcribed,
and a halt was called in the hearing until it was possible, through the cooperation of
Respondent 's attorney , to recruit a local reporter-and, it may be said, a highly competent
one. The transcript of the concluding days of the hearing , however , again made by an
official reporter, was riddled with errors. It is felt that some official acknowledgement
should be made of the splendid cooperation of representatives of all the parties in this
difficult situation , and particularly of their action in stipulating the evidence taken on
the first day.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit , and no further bonuses or gratuities have been paid to these employees by the
Respondent to this date.
B. The bonus-gratuity or wages?
At the threshold of this case , and basic to a resolution of most of its issues , we have
The problem of the bonus or, as the Respondent would term it, the "gratuity ." While
Respondent would limit our scrutiny of this problem to the period subsequent to the
incorporation of the Respondent in late 1955, I think we would not be justified in
observing such limitations . As argued by the General Counsel in his brief , "Peyton"
is a name associated with the meatpacking industry at El Paso since about 1915, and
from that date until now, though there have been changes in the legal form and
ownership of the business , neither the location nor the basic character of the business
has undergone substantial change, and the name "Peyton " and all the goodwill asso-
ciated with that name has passed on, from an individual proprietorship to a corpora-
tion, from a corporation to a partnership in about 1945 , and from a partnership back
to corporate form in late 1955. The present majority stockholder and president of
Respondent was a partner in the partnership that existed prior to 1955 and, at times,
vice president of the corporation that constituted Peyton prior to 1945. The conti-
nuity of the business has been accompanied by a substantial continuity of personnel.
New officers have been brought into the corporation and there have been some shifts
and changes in supervisory personnel and doubtless improved methods of operations
have been adopted from time to time , but the body of rank-and -file employees has
continued , the oldest among them from corporation to partnership and back to corpo-
ration. Obviously, we are dealing with a series of successorships which have carried
on under the Peyton name , without basic change in the nature of the business . There-
fore, in determining whether the bonus was a part of the Peyton wage structure, or
merely a gratuity dispensed at the hands of management without a tie to earned
employee income , we properly and necessarily note that from 1940 to 1950 approxi-
mately, Peyton paid its employees an annual bonus , and from 1950 through 1957
paid its employees a twice-yearly bonus, one in June and a second during the Christ-
mas season . In 1958, as already noted, the Respondent paid only the June bonus.
On the evidence , I have not the slightest doubt that this bonus was from its incep-
tion and continued to be until it was discontinued in December 1958, just as much a
part of Respondent 's wage structure as the weekly or hourly wage rate paid its
employees. While the Respondent refused voluntarily to submit its records on bonus
payments to employees during a material period it is evident from the testimony of
employees that seniority played a substantial part in the determination of what
amount in bonus each employee received , and that there existed a formula for the
determination of the amount of increase in bonus payments for each succeeding year.
In terms of percentages , the Respondent admitted that in 1957 about 53.3 percent of
employees received an increase over the previous year of $25 in bonus payments;
that 24.8 percent received an increase in amounts ranging from $50 up to, in some
cases, as much as several hundred dollars ; that 17 employees out of the some 400
employees received less in 1957 than in 1956 and 5 percent received the same bonus
each of these years. Inasmuch as no records were submitted for the verification of
these percentages , we may view them with qualifications 2 but , even so, supplemented
as they are by the testimony of the General Counsel 's witnesses , they tend to establish
a pattern of an established ratio of increase , and that the bonuses paid were substan-
tial, ranging as high as $1,000 for a single employee , is admitted . Respondent's
vice president , Charles Chauvet , admitted that bonus payments in 1957, in their
totality, amounted to between $200,000 and $400,000.
As to Respondent 's contention that all of the bonuses were paid out of profits
and for that reason are exclusively of managerial concern , this has the hollow ring
of casuistry . Should the Respondent cut its prevailing wage rate 10 percent or
some other percentage , this savings could be added to its "profits ," and the Re-
spondent could then proceed to distribute this savings or profit among its employees
and call it a gift . It is the same if the Respondent sets its wage scale low enough
to allow for a margin of profit to be returned to its employees in the form of a
bonus or so -called gratuity . A share-the -profits plan , as established and administered
here, is merely a form of wage incentive . Nor do I find compelling Respondent's
argument that the bonus was determined on each occasion by its board of directors
2 Respondent's witness , William P . Kilgore, in giving the percentages admitted with
respect to the 5 percent , that he did not know what their jobs were or how long they
had been in the Company ' s employ, and that they may have been on the payroll for some
20 to 30 years . In fact , lie could afford no explanation of the percentages which he
purported to have had copied from Respondent 's records.
PEYTON PACKING COMPANY, INC. 1367
and, presumably , the amount of managerial largesse to be dispensed at any given
time was in ratio to present and anticipated profits. Again, assuming there were
no bonus or "gratuity," there no doubt would still exist a direct relationship between
Respondent's economic wellbeing and the maintenance of its wage structure, and
that, too, would no doubt be the concern of its board of directors. It is ridiculous
to suppose that at a meeting of Respondent's board of directors when the bonus
was determined, each of the some 400 employees was taken up individually and
measured for the love and affection borne him by Respondent's officialdom and
rewarded accordingly. Finally, there was a little parade of witnesses on both sides,
those for the General Counsel testifying that Respondent's officers characterized
the bonuses as money paid them for their work, while witnesses for Respondent
testified that they always referred to these payments as gifts or gratuities. In the
giving of this testimony both sets of witnesses had a rehearsed and practiced sound,
and I do not rely on either in reaching a conclusion in the matter. Assuming without
finding that Respondent's vice president, Charles Chauvet, invariably referred to
these payments as gifts or gratuities, and thought of them as such, my conclusion
remains the same. Chauvet admitted his paternalistic attitude toward his employees,
predominantly of Mexican extraction, and out of this attitude no doubt rationalized
that the bonuses were paid independently of services rendered, but his employees,
all too obviously, thought of them as something earned and paid to them because
they had earned them. In any event we are not here primarily interested in the
assessment of labels attached to the bonus packages by either management or
employees, but in a scrutiny of the package itself. Such scrutiny, on the basis of
the entire evidence, leaves no doubt in my mind and it is found that the Respondent's
system of bonus payments was an integral part of its wage structure.
C. The refusal to bargain
1. Unilateral withholding of the 1958 Christmas bonus
The Respondent vigorously, and lawfully, opposed the unionization of its em-
ployees and preceding the September 25, 1958 election, circulated a series of letters
among them urging that they vote against union representation. In these letters,
as an argument among several for voting against the Union, Respondent referred
to its practice of "dividing its profits" with its employees. In the concluding letter
of the serves, over the signature of S. N. Chauvet, Respondent's president, the
argument was couched in this language:
You have: good, steady work, wages above average in this area, vacation,
insurance, and a share of the profits at the end of the year. Yes, we have shared
the profits with you. I have felt that this was a fair way to treat my friends .. .
The Respondent's arguments failed in their objective and on October 3, 1958, the
Union was certified as bargaining representative of employees in the following
appropriate unit:
All production and maintenance employees, truckdrivers and truckdriver help-
ers, stockyards, feed lot, and feed mill employees working in the company's
plant in El Paso, Texas, excluding all office clerical workers, salesmen, watch-
men, guards, and supervisors as defined in the Act.
Accordingly it is found that the Union was on October 3, 1958, and at all times
material herein was and now is the exclusive representative of employees in the
said appropriate unit.
Following the Union's certification there was a series of conferences between
Respondent and the Union, during which the Union submitted a contract proposal
including, inter alia, a substantial wage increase. At a meeting of representatives
of the parties on December 12, the Union inquired if the Respondent intended to
pay a Christmas bonus that year. William P. Kilgore, Respondent's chief negotiator,
replied that he did not know but would inquire and give them that information the
next time they met. At the next meeting on December 22, Kilgore advised the
Union "that it had been a decision of the Board of Directors, made at a previous
date, that there would not be any funds available for a Christmas gratuity at that
time." This was the first notification to the Union that Respondent would withhold
the Christmas bonus that year. In fact, no bonus was paid to employees in the
bargaining unit but a bonus was paid to officers and supervisory personnel outside
the unit. A system of bonus payments to production and maintenance employees
which had prevailed at Peyton's since 1940 thus came to an end.
That the decision not to pay a 1958 Christmas bonus was a unilateral determina-
tion is too obvious to require extended comment. According to Charles Chauvet,
1368 DECISIONS OF NATIONAL LABOR RELAR(ONS BOARD
Respondent 's vice president , Respondent 's board of directors in April 1958, made
the decision to pay a June 1958 bonus, and at the same time set up a priority system
for the payment of future bonuses in which production and maintenance employees
came at the foot of the list. Further according to Chauvet, at the October meeting
of the board of directors it was determined that because of capital expenditures for
plant improvements, there would not be sufficient profits to pay a bonus to employees
lowest on the priority list, i .e., employees in the bargaining unit. The decision on
the 1958 Christmas bonus was therefore admittedly made and carried out without
notification or reference to the Union , and information in the matter was withheld
from the Union until December 22, at the season when the bonus normally would
have been paid. During this period the Union was attempting to negotiate a contract
with the Respondent and among its proposals was a wage increase which would
represent the conversion of the bonus into an hourly wage rate. Obviously, there-
fore, the Respondent was on notice that this was something which the Union
wanted to bargain about. In any event , without such explicit notice, the Respondent
was under a duty, on request, to bargain with a newly certified representative of
its employees on all bargainable matters. Having found that bonus payments
constituted an integral part of Respondent 's wage structure , it necessarily follows
that Respondent's unilateral action in withholding the 1958 bonus payments to em-
ployees in the bargaining unit, regardless of its motivation , was a refusal to bargain
within the meaning of Section 8(a)(5) of the Act. It is so found.
2. Continuing refusal to bargain on wages
The Union made various wage offers which would convert bonus payments into
an hourly wage rate, its position being that the employees should have the benefit
of such payments as a part of their regular wages instead of being required to wait
the 6-month intervals between bonus payments. The Respondent was not, of course,
required to agree to this proposal ; it was only required to bargain on it. But it
could not bargain on it as long as it maintained its position that bonus payments
were entirely discretionary with management. From the first and consistently
thereafter it took the position that bonuses being paid out of profits constituted "a
discretionary gift," in the words of its chief negotiator , Kilgore. Kilgore further
testified that the Respondent never took a position in these bargaining conferences
on whether or not bonus payments was a negotiable matter. Such a reservation
was itself tantamount to a refusal to bargain . Either one agrees to negotiate on
a bargainable matter or refuses ; there is no middle ground. Kilgore also testified
that Respondent was always willing to discuss the matter of bonuses with the Union
and that there were numerous such discussions . But a mere willingness to talk
is not bargaining . "Enforcement of the obligation to bargain collectively is crucial
to the statutory scheme. And , as has long been recognized , performance of the
duty to bargain requires more than a willingness to enter into a sterile discussion of
union-management differences " N L R.B. v. American National Insurance Co.,
343 U.S. 395. Its position that the matter of bonus payments was something to be
unilaterally determined by management , without reference or notice to the Union,
is further evidenced by its refusal to the present time to supply data requested by
the Union with respect to bonus payments , and is reiterated in its brief filed with
the Trial Examiner where it is admitted that the Respondent "never changed its
position that the gratuity is a voluntary , variable, and entirely discretionary sharing
of profits with the employees by the respondent ." Bonus payments , as found, being
an integral part of Respondent 's wage structure , a refusal to bargain with respect
to such payments was a refusal to bargain on wages.
In summation , Respondent 's unilateral action in withholding bonuses to employees
in the bargaining unit in December 1958, and thereafter; its refusal on repeated re-
quests by the Union to rescind this unilateral action and pay the bonuses; its con-
sistently maintained position in bargaining conferences that bonus naymen+c con-
stituted "a discretionary gift" by management ; and its refusal , on request . to furnish
the Union with data on bonus payments , clearly show Respondent 's continuing re-
fusal to enter into good-faith negotiations on the matter of wages paid its mainte-
nance and production workers. The said refusal constitutes a violation of Section
8(a)(1) and (5) of the Act.
3. Unilateral wage increases
On March 3 , 1959 , there was a union-sanctioned strike of Respondent 's employees.
Subsequent to that date , without reference to or notification of the Union , the Re-
spondent gave wage increases to certain nonstriking employees in the unit repre-
sented by the Union . Needless to say, the Union did not cease to be the exclusive
PEYTON PACKING COMPANY, INC . 1369
representati"e of all employees in the appropriate unit because of the strike or be-
cause a substantial number of Respondent's employees did not join in the strike,
and Respondent's duty to bargain with the Union as such representative was in no
way qualified by the strike. Indisputably, wages constitute a bargainable subject
and, in fact, provided one of the principal, if indeed not the principal unresolved
issue between the parties during negotiations preceding the strike. Absent special
circumstances, any unilateral action by the Respondent with respect to wages was
therefore a refusal to bargain. An impasse in bargaining might represent "special
circumstances" but where, as here, negotiations have broken down in part at least
because of the Respondent's refusal to bargain on the matter of wages, it cannot be
said that a true impasse existed. Respondent's negotiator, Kilgore, testified in effect
that an impasse existed over the Union's demand for a union shop and checkoff of
dues, and that the Union had declared that it would never agree to a contract which
did not contain such provisions. For reasons to be stated hereinafter, I am unable
to believe that a true impasse developed over union-security demands, before or
after the strike. It would appear, though it is not clearly articulated, that Respond-
ent's further defense on this point is that the wage increases unilaterally made by it
following the strike were merit increases, and that the Respondent having reserved
to itself the right to make merit increases without reference to the Union, could
properly effectuate such increases as a matter of managerial prerogative. A corollary
to such a defense would be an admission that Respondent regarded merit increases,
as it did the bonus, a matter of managerial discretion and therefore never bargained
with respect to them. But it is settled law that merit and incentive wages in general
are bargainable issues. N.L.R.B. v. J. H. Allison & Company, 165 F. 2d 766
(C.A. 6); cert. denied 335 U S. 814; N.L.R.B. v. W. T. Grant Company, 199 F. 2d
711 (C.A. 9); Duro Fittings Company, 121 NLRB 377. Accordingly, it is found
that by its unilateral granting of wage increases to individual employees within the
appropriate unit, the Respondent refused to bargain within the meaning of Section
8(a)(5) of the Act.
4. The refusal to supply wage data
On March 2, orally, and later in writing, the Union requested the Respondent to
supply it with the date of hire, wage scale, and job classification of employees within
the appropriate unit. Inasmuch as one of the chief issues in negotiations between
the parties was employees' wages obviously the requested data had a direct and
immediate bearing on such negotiations. As previously stated, the strike which oc-
curred on March 3 in no way altered Respondent's duty to bargain with the Union.
While Respondent at no time denied the Union's right to the requested data, it was
not until June 1, 1959, more than a month after a charge of refusal to bargain be-
cause of the withholding of such data had been filed, that Respondent supplied the
requested data. The only justification offered for the delay was that no job classifica-
tions existed in Respondent's plant. Obviously this was no excuse for not honoring
the request by supplying whatever data was obtainable from Respondent's records,
including the departments in which employees worked and the job functions which
they performed. In fact, the data ultimately furnished the Union clearly demon-
strated that the Respondent understood what was required of it. It is found that
by its unreasonable delay in furnishing the requested wage data, the Respondent
refused to bargain with the Union within the meaning of Section 8(a) (5) of the Act.
On June 24, 1959, the Union requested, by telegram, the following data:
(1) Amount of bonus paid employees in the bargaining unit for the year of 1957;
(2) amount paid each individual; (3) system used in computing amounts paid;
and (4) same information on amounts paid first hajf 1958. The Respondent has
never supplied this data and refused voluntarily to comply with a subpoena daces
tecum relating to the same data issued during the hearing in this proceeding. The
requested data was obviously relevant to the wage issue on which the Union was
still attempting to negotiate at the time it made its request. It had proposed a wage
increase which would represent the conversion of the bonus into an hourly wage
rate, and the Respondent had countered that inasmuch as the bonus was paid ex-
clusively out of profits it would be impossible to reduce it to an hourly wage rate.
The feasibility or nonfeasibility of such a conversion would depend materially on
the method actually employed by the Respondent in determining the amounts of
bonuses to be paid individual employees each year. As has been seen on the basis
of such evidence as it was possible for the General Counsel to adduce in view of
Respondent's refusal to give him access to its records, there was a definite tie between
the ratio of bonus increases from year to year and the seniority of the employee.
Obviously, it would be impossible for the Union to make its demands more specific
without access to these records, or to bargain intelligently in the matter. In short,
it was just as much entitled to data on bonus payments as it was to data on any other
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portion of Respondent's wage structure, and Respondent's refusal to supply this data
was a refusal to bargain within the meaning of Section 8(a) (5) of the Act.
D. The strike
Negotiations on a contract began with the Union's submission of a contract pro-
posal in November 1958. The Union proposed a wage increase of 65 cents an hour,
and the Respondent countered with a proposal of no wage increase but a continua-
tion of merit increases to be determined and granted unilaterally by management.
The Respondent later offered a 3-cent an hour "across the board" increase, still re-
serving to itself the right unilaterally to determine and grant merit increases which
would be in addition to the 3-cent offer. When, on December 22, Kilgore informed
the union representatives that the usual Christmas bonus would not be paid to em-
ployees in the bargaining unit, according to his testimony, Dick Tweddell, one of
the Union's negotiators, "became quite perturbed and indicated that he didn't know
just what would happen when that was reported back to the employees." Still
according to Kilgore, there ensued "strong talk." Kilgore further testified that
"there was something said around that time about some concerted activity. Either
it was said to us directly at the meetings or it was as a result of rumors or some-
thing, but there was some information that the employees might not come in to
work that morning"-December 23.
Actually, no strike occurred at that time. However, on December 26, at a meet-
ing of employees, a vote was taken on the bonus, apparently in order to inform the
Union of the employees' position in the matter, and all attending the meeting voted
"in favor" of the bonus. At this same meeting, according to Isabel Dominguez, the
Union's recording secretary, the employees voted unanimously to authorize strike
action. I am not certain that there was not a confusion of dates as to the strike
vote, for on January 22, as testified to by Dominguez and as shown by the minutes
of the meeting, a strike vote was taken and the 166 employees attending the meeting
voted in the affirmative. On February 15, the Union requested its president for
strike authorization, and on February 18 such authorization was granted. The strike
actually occurred, as previously stated, on the morning of March 3.
In January 1959, a U S. Commissioner of Conciliation had attempted to mediate
the differences between the parties but failed in his -attempts, and direct negotiations
between the Union and Respondent were then resumed. There were several meetings
toward the close of February and a final meeting on March 2. By the end of these
negotiations the Union had reduced its wage demand to 35 cents an hour, to include
the conversion of the bonus to 'a wage rate, and Respondent had made a counteroffer
of a 10-cent increase for the first year, and 5 cents for the succeeding 2 years, still
reserving, however, its initial position that bonuses and merit increases be determined
and granted unilaterally by management.
While Kilgore testified that there was no discussion of the bonus issue prior to the
December 12, 1958, meeting, there is no question that in every meeting of the
parties after Respondent had taken unilateral action with respect to the 1958 Christ-
mas bonus, the Union pressed for a payment of this bonus and for negotiations on
wages which would include consideration of the bonus payments. It is just as clear
that the Respondent never qualified its initial position that the bonus was a gratuity
to be paid or withheld solely at the discretion of management, and that it con-
sistently refused to rescind its action withholding the 1958 Christmas bonus. On
cross-examination by the General Counsel, Kilgore testified concerning the final
March 2 meeting:
Q. Do you mean there. was no change in their [the Union's] position, that
throughout these meetings they continued to demand repayment of the bonus?
A. I think that is a fair statement . . . If there was any waiving in that
position, I don't recall it at the moment
Kilgore further testified concerning this March 2 meeting:
We went ahead and talked then, reasonably negotiating matters, discussed many
parts of the situation, principally the wage and economic factors. [Emphasis
supplied.]
At the conclusion of the March 2 session, Tweddell reported on the status of
negotiations to a meeting of employees, and, according to him, the employees, by
secret ballot, once more voted unanimously to strike. Tweddell had previously, as
already noted, on February 17, obtained strike authorization from the Union's
president. The strike became effective on the morning of March 3 and was con-
tinuing at the time of the hearing. Approximately one-half of the some 400 pro-
duction and maintenance employees participated in the strike.
PEYTON PACKING COMPANY, INC. 1371
Concerning his report to the March 2 meeting of employees, Tweddell testified:
I told them of the company's position in regard to the back bonus and in regard
to the replacement of dischargees and reported the position of wages and at the
same time of course reported our position that we had made on the other items
in,the agreement. Because of my inability to negotiate a fair acceptable agree-
ment in regards to these key issues I recommended the employees take economic
action . I recommended to the members that they take a strike vote if need
be to establish their rights in these three key issues.
It is clear that the three "key" issues, according to Tweddell, were: payment of
the withheld 1958 bonus; reinstatement with backpay of certain discharged em-
ployees; and a wage agreement. Kilgore, on crossexamination, also testified, as
noted above, that the discussion in the meeting between the bargaining principals
on March 2 concerned "principally the wage and economic factors." His testimony
on the whole tends to place less emphasis on the issue of reinstatement of discharged
employees, but I must assume that this was a factor in the strike recommendation.
Kilgore was first called to the witness stand under the Federal rule for cross-
examination by the General Counsel, and was questioned exhaustively on the ne-
gotiations between the Union and the Respondent, meetings in which he participated
as a chief negotiator for the Respondent. When, later, Kilgore was called to testify
as a witness for the Respondent, he substantially changed his testimony with respect
to the negotiations preceding the strike, and now testified that the chief unresolved
issue between the parties was the Union's insistence on a union shop with checkoff
of dues. I do not question that this was an issue in the negotiations, as it usually
is, but I am unable to accept Kilgore's testimony that it was on this issue that negotia-
tions were broken off and a strike called. His testimony under examination by the
General Counsel, quoted above, corroborates Tweddell's testimony that the bonus-
wage issue was a paramount consideration in these concluding negotiations. His
later testimony was obviously an afterthought. It may well be that during the strike
Tweddell made some hot-headed statement to the effect that the Union would never
execute a contract which did not contain the desired union-security provisions, but
there is no corroboration whatever for Kilgore's testimony under examination by
Respondent's counsel that union security was a principal or contributory cause of
the strike which occurred on March 3, and in the absence of such corroboration and
in view of his own inconsistency in the matter, I am unable to credit this testimony.
Tweddell, elderly and intellectually vague, was himself by no means an impressive
witness, but his account of the causes of the strike given in this hearing was cor-
roborated by Dominquez who doubtless was far more conversant than Tweddell with
the factors which caused her fellow employees to vote for strike action, and it should
be borne in mind that except for an affirmative vote by the employees there would
have been no strike. In all, it would be neither realistic nor logical to conclude that
the Union's position on the bonus and efforts to bring it under negotiations as a part
of the wage issue, admittedly maintained and urged through the 1959 negotiations
preceding the strike, was not basic in its recommendation of strike action, or that
the Respondent's unlawful action in depriving them of their Christmas bonus, a
substantial portion of their anticipated wages for the 6 concluding months of 1958,
and refusal thereafter to rescind its action and to treat the matter as a bargainable
issue, was not a principal causative factor in the employees' endorsement of the
recommended strike action. Certainly, they should not be prejudiced because the
Union did not recommend strike action immediately upon the withholding of the
bonus, but attempted through negotiations to persuade the Respondent to change its
position on this vital matter.
I can only conclude on the evidence that is before me, and do conclude, that the
strike which became effective on March 3, 1959, was an unfair labor practice strike
within the meaning of the Decisions of the Board and the courts.3
3 Subsequent to the hearing herein, I learned that in a prior hearing involving this same
Respondent (Case No 33-CA-512), the matter of the strike was raised and a finding was
made by the Trial Examiner presiding at that hearing, that the strike was not caused by
Respondent's unfair labor practices I had no knowledge of this at the time of the hear-
ing and no objection was made during the hearing to the introduction of evidence bearing
on this matter I can only say that the transcript of the prior proceeding is not before
me and that the Intermediate Report issued by my associate does not have the decisional
finality to enable me to take official notice of his findings and conclusions. It is apparent
from reading the report, however, that the issue of a refusal to bargain was neither
alleged nor litigated in this prior proceeding, and it is primarily with respect to remedial
action appropriate to a refusal to bargain that findings relating to the strike are made
herein.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The prolongation of the strike
A principal causative factor in the strike being the Respondent's refusal to bargain
on the bonus-wage issue, it logically follows that its refusal to furnish wage data
within a reasonable period, pursuant to the Union's repeated requests during the
strike, and its refusal to the present time to furnish requested data on the bonus,
tended to prolong the strike and obstruct its settlement. The refusal to supply data
on the bonus was but another and additional phase in Respondent's refusal to bargain
on the wage-bonus issue and served to emphasize that the Respondent's position
in the matter remained unaltered and adamant, and that the Union could not there-
fore hope for a resolution of this basic issue through channels of collective
bargaining.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent, as described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and, such of them as have been found to constitute unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent refused to bargain with the Union, the duly
certified representative of its employees in an appropriate unit, it will be recom-
mended that it cease and desist from such refusal and, on request, bargain with the
Union as said exclusive representative with respect to rates of pay, wages (in-
cluding bonuses), hours of work, and other conditions of employment, and, if an
understanding is reached, embody such understanding in -a signed agreement. It will
further be recommended that the Respondent forthwith furnish the Union with the
data on bonuses requested by it.
Respondent's employees having engaged in a strike caused by the Respondent's
unfair labor practices, in order to remedy the refusal to bargain and to effectuate
the policies of the Act, it will be recommended that on application, the Respondent
reinstate them to the positions they held at the time they went on strike, or their
equivalent, without prejudice to their seniority or other rights and privileges.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. All production and maintainence employees of the Respondent at its El Paso
plant, including truckdrivers and truckdriver helpers, stockyards, feed lot and
feed mill employees working at said plant, but excluding ,all office clerical workers,
salesmen, watchmen, guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
3. The Union was on October 3, 1958, and at all times since has been the ex-
clusive representative of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing on and after December 22, 1958, to bargain collectively with the
Union as exclusive representative in the aforesaid appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By the said refusal to bargain, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed them in Section 7
of the Act, and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]