Sanderson Farms

National Labor Relations Board - Board Decisions

Sep 6, 1984

271 N.L.R.B. 1477 (N.L.R.B. 1984)

SANDERSON FARMS
Sanderson Farms, Inc. and International Chemical
Workers Union, AFL-CIO. Cases 15-CA-7303
and 15-CA-7389
6 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 22 January 1981 Administrative Law Judge
James M. Fitzpatrick issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed limited excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by engaging in
bargaining with the Union without an intention of
entering into a collective-bargaining agreement,
and that a strike which commenced on 27 Febru-
ary 1979 was caused and prolonged by the Re-
spondent's bad-faith bargaining. He further found
that the Respondent's subsequent withdrawal of
recognition from the Union and its unilateral insti-
tution of a wage increase additionally violated Sec-
tion 8(a)(5) and (1) of the Act. We disagree with
the judge's finding that the Respondent bargained
in bad faith, but we agree with his conclusion that
the Respondent unlawfully withdrew recognition
from the Union and unlawfully raised wages with-
out bargaining with the Union.
The Respondent, a wholesale processor and dis-
tributor of poultry, employed at the time of the op-
erative facts in this case approximately 390 produc-
tion and maintenance employees at its Laurel, Mis-
sissippi poultry processing and rendering plant.
These employees have been represented by the
International Chemical Workers Union since 1972,
when that Union was certified following a Board-
conducted election. The Respondent and the
Union, in the form of the International Union and
"its agent" Local Union No. 882, thereafter entered
into two collective-bargaining agreements, the first
covering the period from 5 February 1973 through
4 February 1976, and the second from 23 February
1976 through 26 February 1979.
In April 1978, prior to expiration of the second
contract, the Respondent's representative, Joe San-
derson Jr., contacted the International Union repre-
271 NLRB No. 212
sentative, Hubert Mills, who had negotiated and
was responsible for administering the contract for
the International, and offered to extend that con-
tract from 26 February 1979 to 30 September 1980,
with an approximate 50-cent-per-hour wage in-
crease to be phased in over that time period. Mills
and Regional Vice President Harley Thomas of the
International Union, whom the Respondent also
consulted regarding the proposal, informed the Re-
spondent that the proposal was fine with them if
the local agreed to it. Sanderson then spoke with
local president William Magee, who brought along
two employees to hear the Respondent's proposal,
and received a favorable reaction to the proposal
from the local delegation. Sanderson was subse-
quently informed by Magee, however, that at a
local union meeting in June, which was attended
by seven members, the contract extension proposal
had been rejected by a vote of four to three. Al-
though Magee again presented the proposal at the
local's July meeting, only five members were
present at that time, and that was not enough to
act on the proposal.
Subsequently, on 30 November 1978 the Union
sent the Respondent a letter seeking negotiations
on a third contract, and the parties agreed to meet
for the first session on 7 February 1979.1 Sometime
prior to that first meeting, Sanderson inquired of
Mills whether he "expected anything hot" in the
negotiations, and was told that Mills had met with
the local members, that they had not suggested any
contract proposals, and that wages would be the
major issue.
When the parties met on 7 February, Mills pre-
sented an extensive new contract proposal which
was essentially based on proposals which he had
made 3 years earlier in negotiating the expiring col-
lective-bargaining agreement. The Union had, in
that instance, agreed on provisions substantially dif-
ferent from those it initially proposed in reaching
that contract accord. This first meeting was entire-
ly consumed by Mills' presentation of the Union's
proposal and his explanation of the changes sought.
In reply, the Respondent's chief negotiator, attor-
ney Andrew Partee, advised that the Company
would have to go through and analyze the docu-
ment before making any responses. Partee noted
that the Respondent had been thinking basically in
line with the old contract.
On 20 February the parties again met and, at
Mills' suggestion, began reviewing the Union's pro-
posal to determine if there were specific provisions
on which they could agree. Partee had begun the
meeting by stating that the Company could not re-
' Unless otherwise indicated, all dates hereafter are 1979
1477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spond to the Union's proposal because Mills had
rewritten the entire contract, but the parties then
proceeded to reach agreement on part or all of
three of the eight union proposals discussed. At the
end of that bargaining session, Mills attempted to
persuade the Respondent to extend the old contract
while negotiating for the new one. This the Re-
spondent refused to do.
At a local union membership meeting on the
evening of 20 February Mills told the employees
that he felt the Company was not bargaining in
good faith. The membership thereupon authorized
a strike, leaving it to the negotiating committee to
effectuate that action when and if it saw fit.
The parties met one additional time, on 24 Feb-
ruary, before the 26 February contract expiration.
They were assisted on that occasion by the Federal
Mediation and Conciliation Service, which had
been called in by Mills because the existing con-
tract was expiring prior to the next scheduled
meeting. Partee stated that the Respondent could
not address all the issues which the Union had
placed on the table since, he asserted, they includ-
ed 106 changes from the existing agreement. He in-
dicated that the Company was willing to negotiate
within the framework of the old contract and to
consider minor changes proposed by the Union.
The mediator separated the parties into different
rooms and discussed a possible extension of the old
contract, but the Respondent adhered to its posi-
tion of 20 February that it would not extend the
contract and no agreements were reached. On 27
February, the day after the contract expired, the
local committee decided to strike and did so in
midshift of that day.2
The only evidence the judge found of company
bad-faith bargaining on substantive topics prior to
the strike was what he regarded as the Respond-
ent's 20 February inflexibility in not acceding to
the Union's proposed grievance procedure and ar-
bitration provisions which, he commented, in-
volved only minor points. He further found, how-
ever, that the Company's hardening and shifting of
positions in refusing to extend the terms of the ex-
piring agreement during continuing contract nego-
tiations, when the Respondent had itself originally
requested an extension, also evidenced a desire to
avoid agreement. Thus, he concluded that this, to-
gether with the Company's inflexibility on the
grievance and arbitration issues, warranted the
finding that the Respondent was not bargaining in
good faith and that the strike engaged in by the
2 The parties continued bargaining during the strike until 5 June, when
a decertification petition was filed. They engaged in a total of 13 bargain-
ing sessions.
employees on 27 February was an unfair labor
practice strike from its inception.
The Respondent, in its exceptions, argues that
the judge incorrectly found bad-faith bargaining
after only two bargaining sessions. The first meet-
ing was occupied exclusively with the Union's
presentation of its extensive new proposals, and in
the second session the parties did not even get
through the majority of the provisions in order for
the Company to state its response to the proposals.
Only 8 of the contract's 23 articles were discussed.
With respect to the judge's conclusion that the Re-
spondent bargained in bad faith by refusing to
extend the expiring contract, the Respondent
denies that it at any time shifted or hardened its
position on continuing the status quo during the
continuing negotiations, claiming that it was justi-
fied in not agreeing to a specific contract extension
during that time. The Respondent further asserts
that it had itself wanted a new agreement extend-
ing existing contract provisions with wage in-
creases beginning in 1978, that Mills had as late as
December 1978 indicated that there were no con-
tract problems and that wages would be the only
real issue, and thus that its initial approach that the
existing contract was a viable basis for negotiating
the new agreement was reasonable.
We agree with the Respondent that the judge's
finding of bad-faith bargaining cannot be sustained.
In ruling on an allegation that a party has bar-
gained in bad faith, we base our finding of either
good- or bad-faith bargaining on the totality of cir-
cumstances reflecting the respondent's bargaining
frame of mind. Rhodes-Holland Chevrolet Co., 146
NLRB 1304 (1964). An employer's proposals are
sometimes such that we have found that they may
be characterized as "unusually harsh, vindictive, or
otherwise unreasonable" and therefore "may be
deemed so predictably unacceptable as to warrant
the evidentiary conclusion that they have been
proffered in bad faith."3 Here, however, when the
Respondent would have essentially adhered to the
terms of its past contract with the Union, its pro-
posals cannot be so construed. In addition, when
the Respondent initially proposed extending the ex-
piring contract for approximately 19 months with a
raise in wages, union representatives voiced no ob-
jections to terms other than wages which might
have alerted the Respondent that no agreement
could be reached unless major changes were effect-
ed. Further, there were only two bargaining ses-
sions and the Respondent had not yet had an op-
portunity to respond to the Union's entire new pro-
posal. The Respondent's mere refusal to extend the
3 Chevron Chemical Co., 261 NLRB 44, 46 fn. 10 (1982).
1478
SANDERSON FARMS
old contract cannot constitute sufficient evidence
to establish bad-faith bargaining for a new agree-
ment. Therefore we cannot agree with the judge
that the evidence is sufficient to warrant a finding
that, commencing from 20 February, the Respond-
ent negotiated with the Union without an intention
of entering into a final or binding collective-bar-
gaining agreement.
Nor does there appear to be a later point at
which the Respondent's bargaining demonstrated
bad faith. While the judge relied on aspects of the
Respondent's conduct in 5 other of the parties' 13
bargaining sessions in concluding that the Respond-
ent bargained in bad faith, those findings are rebut-
ted when considered in the totality of circum-
stances.
The judge concluded that the Respondent's con-
duct in the 28 March bargaining session of only
criticizing, rather than suggesting some modifi-
cation of the Union's proposal to remove the limits
on the number of employees on the grievance com-
mittee,4 evidenced a purpose to avoid agreement.
The facts do not support that conclusion. Before
that session, this proposal had been referred to only
once, at the 20 February meeting, and then only in
passing with the Union merely asking for approval
of the proposal and the Respondent simply reply-
ing it could not agree to it. Neither party attempt-
ed to justify its position concerning the proposal,
and there was uncontradicted testimony that the
grievance committee was not even used during the
term of the expired contract. In these circum-
stances, the judge found that the Union's proposal
"was unrelated to a specific labor relations consid-
eration and was instead related to union prestige,"
and that "the Company's conduct on this point did
not evidence bad faith." Because there was no real
discussion of the Union's proposal on 20 February
and no bad faith in the Respondent's conduct on
that date, and because the Union presented the pro-
posal without change at the 28 March meeting, we
find no basis for concluding that the Respondent's
conduct demonstrated bad faith.
Similarly, the judge concluded that the Respond-
ent on 10 April evidenced a tactic of surface bar-
gaining for the purpose of avoiding agreement on
management rights, as well as by rejecting a union
proposal on compensation for probationary em-
ployees. With respect to the Respondent's adher-
ence to its position that it wanted the management-
rights clause contained in the parties' prior con-
tract, the Respondent was of course under no obli-
gation to make a concession on this issue at that
time, and would not appear to be attempting to
4The parties' previous contract had provided for three union members
of a grievance committee.
avoid agreement by taking a position that it wanted
a clause which had previously resulted in agree-
ment. With respect to the Respondent's rejection of
the Union's proposed wage increase for probation-
ary employees, the Union had not submitted an
overall wage proposal or economic package, and
the parties had agreed to defer consideration of all
economic topics until other contract terms were
settled. Since no overall wage demands had been
made by the Union, it would not seem necessary
for the Respondent to extensively justify a rejec-
tion of a proposed increase for one small segment
(probationary employees) of the bargaining unit
prior to being presented with a general wage pro-
posal.
The judge's conclusion that the Respondent re-
vealed an intransigent attitude and unwillingness to
reach agreement by its bargaining regarding rest-
room relief at the 18 and 19 April sessions is like-
wise rebutted by the fact that, at the very next
meeting on 1 May, the Respondent presented a
proposal on that matter which was accepted by the
Union. Finally, we also disagree that the Respond-
ent's 15 May bargaining about regular breaks evi-
denced unwillingness to reach agreement, since the
parties were presenting written proposals and
counterproposals on the subject during that meet-
ing and neither was obliged to accept the other's.
In sum, we find that, although both parties en-
gaged in hard bargaining, none of the incidents
relied on by the judge rises to the level of bad faith
in the total circumstances of this case. Nor can we
find anything in those incidents' combined effect
which establishes bad faith. Rather, it simply ap-
pears that the Respondent had previously obtained
what it regarded as an advantageous contract and
was reluctant to give up those provisions the
Union had earlier been willing to grant.
The General Counsel in his exceptions asserts,
inter alia, that the judge erred in failing to find that
the Respondent also engaged in surface bargaining
by insisting to impasse on a no-strike clause pre-
venting employees from striking in protest of unfair
labor practices. We find, however, that the parties
in this case never reached a bargaining impasse. All
items on which the parties have not agreed are not
necessarily items causing an impasse; mere discus-
sion of unresolved items falls short of unlawful,
persistent demands to the point of impasse. 5 Here,
5 Seattle-First National Bank, 241 NLRB 753 (1979). While counsel for
the General Counsel in the brief attached to his exceptions cited this case
in support of his position that insistence on a no-strike clause which for-
bade striking even in protest of the respondent's unfair labor practices is a
nonmandatory subject of bargaining, quoting portions of administrative
law judge's decision in the case to that effect, the Board itself found that
the respondent there did not insist to the point of impasse and therefore
Continued
1479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent continued to meet and bargain in
an effort to reach a contract accord until union
representative Levine walked out of the 5 June
meeting. The Respondent thereafter refused to par-
ticipate in further bargaining sessions, even though
the Union sought them, due to the 5 June filing of
a decertification petition. Given the fact that these
intervening events prevented the parties from, for
example, ever discussing wages and other impor-
tant economic issues, we cannot conclude that the
parties ever reached a bona fide bargaining impasse
prior to the cessation of bargaining. Therefore, we
find no merit in this exception.
Accordingly, we shall dismiss the portions of the
complaint alleging that the Respondent bargained
in bad faith in violation of Section 8(a)(5) and (1)
of the Act.
Having rejected the judge's conclusion that the
Respondent's bargaining conduct was violative of
the Act, we next consider the lawfulness of the Re-
spondent's actions following the 5 June filing of a
decertification petition. Under the holding of Tel-
autograph Corp.,6 199 NLRB 892 (1972), an em-
ployer faced with a valid decertification petition
was required to suspend bargaining for a new con-
tract with an incumbent union until the question
concerning representation raised by that petition
had been settled by the Board. Here, the decertifi-
cation petition was dismissed by the Regional Di-
rector for Region 15 on 5 July, on the basis that
the pending charge alleging bad-faith bargaining
had been administratively determined to have merit
and precluded the appropriate raising of a question
concerning representation until unfair labor prac-
tices were remedied and for a reasonable time
thereafter. 7 We have, however, decided that the
unfair labor practice charge and complaint did not
have merit, and thus conclude that the Respondent,
in the absence of any other unlawful conduct on its
part, was privileged to suspend bargaining for a
did not pass on the issue of whether or not it was a mandatory subject of
bargaining. Similarly, here, since we find there was no impasse, we need
not pass on whether the Respondent could lawfully insist to impasse on a
provision forbidding strikes in protest of the Respondent's unfair labor
practices.
6 During the interim between the occurrence of the operative facts in
this case and our consideration of their legal effect, the Board has re-
versed existing precedent with respect to an employer's bargaining obli-
gations on being presented with a valid decertification petition. See
Dresser Industries, 264 NLRB 1088 (1982). In so doing, however, the
Board refrained from giving its newly announced rule retroactive appli-
cation. We shall likewise here judge the lawfulness of the Respondent's
conduct in accordance with the applicable Board law at the time of its
occurrence.
Chairman Dotson was not a member of the Board when Dresser Indus-
tries was decided. His participation in this case should not be viewed as
an approval of the decision in Dresser Industries.
I Chairman Dotson and Member Hunter note that, contrary to the Re-
gional Director, they would not have dismissed the decertification peti-
tion simply because an unfair labor practice complaint had issued against
the Respondent.
new contract until the merits of the unfair labor
practice charge had been determined by the
Board.8 The Respondent, however, did much more
than merely suspend bargaining for a new contract;
by letter of 9 August it completely withdrew rec-
ognition from the Union. This it was not privileged
to do.
In its 9 August letter informing the Union of its
decision to withdraw recognition from the Union,
the Respondent cited a number of factors on which
it claimed to base a doubt of the Union's continued
majority status. The primary ground relied on was
the filing of the decertification petition which, the
Respondent asserts, was supported by approximate-
ly two-thirds of the employees then working in the
plant.9 The Respondent admits that, in calculating
the percentage of employee support for the decerti-
fication petition, it excluded the striking employees
from consideration on the assumption that no elec-
tion would be held within a year of the 27 Febru-
ary strike and the strikers would not then be eligi-
ble to vote.'
Had a majority of the Respondent's employees
signed in support of the decertification petition, the
Respondent would have had a reasonable ground
for doubting the Union's continued majority
status." The 5 June decertification petition was
not, however, a majority-supported petition. The
list of employees as of the pay period ending 2
June which was submitted to the Region by the
Respondent for the purpose of checking the show-
ing of interest for the petition contained 377 names.
The Respondent introduced this list into evidence
and, while counsel for the General Counsel stated
that he could not verify that that list was complete
and contained the names of all striking employees,
it is apparent from the list that there were at least
377 unit employees in the pay period immediately
preceding the filing of the 5 June petition. The 151
signers are less than a majority of 377.
8 Since we are finding that the charge had no merit, it follows that the
petition was not blocked by a meritorious charge, and it would be unfair
to find an employer violated Sec. 8(a)(5) and (1) of the Act by refusing to
bargain in the face of an unmeritorious charge which caused the petition
to be dismissed. Therefore, the Respondent would have been privileged
to act as though the petition were still pending and to have suspended
bargaining over a new contract under the holding of le'lautograph Corp
Like an employer who changes terms and conditions of employment
during the pendency of election objections where the union is eventually
certified, the Respondent acted at its peril in so doing Cf. Mike O'Connor
Chevroler-Buick-GMC Co., 209 NLRB 701 (1974).
9 The judge erroneously states that 377 employee signatures wAere filed
as a showing of interest with the decertification petition, whereas the
record reveals that the petition was supported by only 151 signatures.
'o The Respondent noted that, under Sec. 9(c}(3) of the Act, economic
strikers are eligible to vote for only a year after the commencement of a
strike.
I" Dresser Industries, 264 NLRB 1088 (1982); fMasey-Ferguo l, Incr..
184 NLRB 640, 641 (1970); Wabana, Inc.. 146 NLRB 1162, 1171 (1964)
1480
SANDERSON FARMS
At the time the Respondent withdrew recogni-
tion, the striking employees were eligible voters.
The Respondent was, therefore, not justified in
withdrawing recognition from the Union on the
basis that a majority of the unit employees had
signed in support of the decertification petition.
Nor was the Respondent justified in withdrawing
recognition on the basis of other factors cited in its
9 August letter-dwindling employee strike sup-
port as indicated by a diminishing number of em-
ployees on the picket line, and alleged union bar-
gaining intransigence. As properly found by the
judge, picket line inactivity does not establish a
change of view about union representation or rebut
the presumption of continued majority status,' 2 nor
is the union's alleged intransigence at the bargain-
ing table relevant to whether it has the continued
support of the employees. Accordingly, we agree
with the judge that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by withdrawing rec-
ognition from the Union on 9 August, and thereaf-
ter refusing to recognize and bargain with it. It fol-
lows that we also agree with his conclusion that
the Respondent further violated that section of the
Act by announcing and implementing a wage in-
crease without bargaining with the Union."3
With respect to the status of striking employees,
as stated, we disagree with the judge's finding that
the 27 February strike was an unfair labor practice
strike from its inception. We find, rather, that the
strike commenced as an economic strike. Whether
the strike converted to an unfair labor practice
strike when the Respondent withdrew recognition
from the Union and unilaterally changed wages de-
pends on whether those unfair labor practices had
the effect of prolonging the strike. We find that
they did. What had previously been only a strike to
force the Respondent to agree to economic terms
was of necessity converted to a strike to force the
Respondent to grant to the Union the recognition
to which it was entitled. None of the issues facing
the parties could be resolved in any way absent the
Respondent's recognition of the Union. Obviously,
12 Chairman Dotson and Member Hunter find that picket line inactivi-
ty should be considered as a factor in determining whether the Respond-
ent was justified in withdrawing recognition from the Union under Telau-
tograph Corp., supra. See Stoner Rubber Co., 123 NLRB 1440, 1443-44
(1959) However, they agree that, under all the circumstances of this
case, the Respondent's withdrawal was not justified. Member Zimmer-
man notes that Telautograph Corp. does not speak to the question of with-
drawal of recognition, but only to the question of a refusal to continue to
bargain for a new collective-bargaining agreement during the pendency
of a decertification petition.
": As noted, under Telautograph, the Respondent may have been re-
lieved of its obligation to bargain swith the incumbent Union with respect
to the terms of a news collective-bargaining agreement, but the suspension
of that bargaining obligation did not suspend its obligation to consult
with the employees' bargaining representative before making changes in
existing terms and conditions of employment Fle.r Plastis,. 262 NLRB
651 (1982).
the strike in these circumstances could not be ter-
minated until the Respondent was willing to
accord recognition to the Union. Therefore, we
conclude that the strike became an unfair labor
practice strike on 9 August when the Respondent
withdrew recognition and informed the Union that
it was unilaterally changing wages. We shall, ac-
cordingly, order the Respondent to reinstate unfair
labor practice strikers on their unconditional offers
to return to work.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2), engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. All production and maintenance employees of
the Respondent at its Laurel, Mississippi poultry
processing and rendering plant, including shipping
and receiving employees and cafeteria employees,
but excluding all office clerical employees, sales-
men, over-the-road truckdrivers, watchmen, guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
3. The Union and the Local are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
4. At all times since 9 June 1972 the Union has
been the representative for purposes of collective
bargaining of a majority of the employees in the
aforesaid appropriate unit within the meaning of
Section 9(a) of the Act.
5. By withdrawing recognition from the Union
on 9 August 1979 and thereafter refusing to recog-
nize and bargain with the Union regarding any
changes in terms and conditions of employment,
the Respondent engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
6. By announcing on 10 August 1979 and by im-
plementing on 12 August 1979 a 20-cent-per-hour
across-the-board wage increase affecting employees
in the aforesaid appropriate unit without affording
the Union an opportunity to negotiate and bargain
as the exclusive representative of employees in the
unit, the Respondent engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
7. A strike in which the employees of the Re-
spondent in the appropriate bargaining unit were
engaged from 27 February 1979 was prolonged by
the Respondent's unfair labor practices commenc-
ing on 9 August 1979, and was thereafter an unfair
labor practice strike.
1481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
We have found that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing
recognition from the Union when it was not justi-
fied in doing so, and by unilaterally implementing
wage increases without bargaining with the Union.
To remedy these violations we shall require the
Respondent to cease and desist from its unlawful
conduct and to recognize and bargain, on request,
with the Union with respect to any changes in
rates of pay, wages, and other terms and conditions
of employment. 14
We otherwise adopt, with the following excep-
tions, the provisions of the judge's recommended
remedy with respect to the reinstatement and
making whole of unfair labor practice strikers. The
judge included in his recommended remedy a re-
quirement that the Respondent make whole strik-
ing employees for any loss of earnings they may
suffer as a result of the Respondent's refusal, if any,
to reinstate them in a timely fashion, "by paying to
each of them a sum of money equal to that which
each would have earned as wages during the
period commencing 5 days after the date on which
each unconditionally offers to return to work
.... " The Board has found that the 5-day period
is a reasonable accommodation between the inter-
ests of the employees in returning to work as
quickly as possible and the employer's need to ef-
fectuate that return in an orderly manner. Drug
Package Co., 228 NLRB 108 (1977). However, if
the Respondent has already rejected, or hereafter
rejects, unduly delays, or ignores any unconditional
offer to return to work, or attaches unlawful condi-
tions to its offer of reinstatement, the 5-day period
serves no useful purpose and backpay will com-
mence as of the date of the unconditional offer to
return to work. National Car Rental System, 237
NLRB 172 (1978). Further, we shall modify the
order to take into account our finding that the
strike began as an economic strike and was con-
verted to an unfair labor practice strike on 9
August 1979.
ORDER
The National Labor Relations Board orders that
the Respondent, Sanderson Farms, Inc., Laurel,
1 Further, in view of our finding that the decertification petition was
improperly dismissed, it is subject to reinstatement and an election can be
directed after the Respondent's unfair labor practices are appropriately
remedied.
Mississippi, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the
International Chemical Workers Union, AFL-CIO,
as the certified collective-bargaining representative
of the employees in the following described unit,
by withdrawing recognition from that Union and
by making unilateral changes in wages or other
terms and conditions of employment:1 5
All production and maintenance employees
employed by Respondent at its Laurel, Missis-
sippi, poultry processing and rendering plant,
including shipping and receiving employees
and cafeteria employees; excluding all office
clerical employees, salesmen, over-the-road
truckdrivers, watchmen, guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize the Union and bargain, on request,
with the Union with respect to any changes in
rates of pay, wages, and other terms and conditions
of employment.
(b) Offer, on application, to all the employees en-
gaged in an unfair labor practice strike who were
not permanently replaced while economic strikers,
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, discharging, if necessary, any
replacements hired on or after 9 August 1979,
when the economic strike was prolonged and con-
verted into an unfair labor practice strike.
(c) Make each of the striking employees whole
for any loss of earnings they may suffer by reason
of the Respondent's failure, if any, to reinstate
them, upon application, in the manner set forth in
the section of this decision entitled "The Remedy."
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
" Provided, however, that nothing herein shall be construed as requir-
ing the Respondent to vary or abandon any economic benefit heretofore
established.
1482
SANDERSON FARMS
(e) Post at its plant in Laurel, Mississippi, copies
of the attached notice marked "Appendix."' 6
Copies of the notice, on forms provided by the Re-
gional Director for Region 15, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that all other allega-
tions of the complaint to which no violations have
been found are dismissed.
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT refuse to bargain collectively with
the International Chemical Workers Union, AFL-
CIO, as the collective-bargaining representative of
the employees in the unit described below, by
withdrawing recognition from that Union.
WE WIL.L NOT unilaterally, and without consulta-
tion with the International Chemical Workers
Union, AFL-CIO, give our employees wage in-
creases, provided, however, that nothing herein
shall be construed as requiring us to abandon or re-
scind any wage increase we have previously given.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and bargain collectively and
in good faith on request with that Union with re-
spect to any changes in rates of pay, wages, and
other terms and conditions of employment of the
employees in the appropriate unit described below.
WE WILL offer, on application, to all our em-
ployees engaged in an unfair labor practice strike,
who were not permanently replaced while econom-
ic strikers, reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges, discharging if neces-
sary any replacements hired on or after 9 August
1979, when the economic strike was prolonged and
converted into an unfair labor practice strike.
WE WILL make each of these striking employees
whole for any loss of earnings they may suffer by
reason of the failure, if any, to reinstate them, upon
application, plus interest. The appropriate bargain-
ing unit is:
All production and maintenance employees
employed by the Employer at its Laurel, Mis-
sissippi, poultry processing and rendering
plant, including shipping and receiving em-
ployees and cafeteria employees; excluding all
office clerical employees, salesmen, over-the-
road truckdrivers, watchmen, guards and su-
pervisors as defined in the Act.
SANDERSON FARMS, INC.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge. In
this case the key issue is whether the Company engaged
in surface bargaining with the Union, that is, bargained
with a purpose of not reaching agreement. As more fully
set out below, I find that was its purpose.
The present proceedings under Section 10(b) of the
National Labor Relations Act (the Act) began initially
with unfair labor practice charges filed May 29, 1979,' in
Case 15-CA-7303 by International Chemical Workers
Union, AFL-CIO (the Union), against Sanderson Farms,
Inc. (the Company or Respondent). Based on these
charges a complaint issued July 16 alleging Respondent
had engaged in bad-faith bargaining and thereby commit-
ted unfair labor practices proscribed by Section 8(a)(1)
and (5) of the Act. On August 29 the two cases were
t All dates are in 1979 unless otherwise indicated.
1483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consolidated. Respondent answered each complaint, ad-
mitting jurisdictional allegations as well as certain factual
allegations, but denying its conduct amounted to viola-
tions of the Act. The first issue posed is whether the bar-
gaining between the Union and the Company beginning
February 7 involved surface bargaining, the complaint
alleging that the Company bargained in bad faith in vio-
lation of Section 8(a)(1) and (5) of the Act, and the
answer asserting that the Union bargained in bad faith. A
second issue, dependent on the first, is whether a strike
of employees beginning February 27 was caused or pro-
longed by company unfair labor practices. Additional
issues are whether the Company, by withdrawing recog-
nition from the Union on August 9, and by shortly there-
after granting a general wage increase without giving the
Union a chance to bargain about it, further violated Sec-
tion 8(a)(1) and (5) of the Act. The issues were tried
before me at Laurel, Mississippi, on October 29, 30, and
31.
Based on the entire record, including my observation
of the witnesses, and on consideration of the briefs filed
by the General Counsel and the Company (the Union
did not submit a brief), I make the following
FINDINGS OF FACT
I. THE EMPLOYER
The Company, a Mississippi corporation, has, since
1956, been engaged at Laurel, Mississippi, and elsewhere
in the processing and wholesale distribution of poultry.
The Laurel operation, the only facility involved in this
matter, receives live broilers, slaughters them, processes
them, packs them, and distributes the product. At the
time of the events involved here, the Company em-
ployed approximately 390 production and maintenance
employees (mostly women) and operated two shifts proc-
essing approximately 90,000 broilers per day at the rate
of 7600 birds per hour. The key equipment is a conveyor
line which operates continuously. From the time a bird is
hung on the conveyor line at the start of the operation
until the process is completed, approximately 1 hour
elapses. The entire operation is under surveillance by
United States Department of Agriculture inspectors who
have authority to shut down the line at any time.
It is undisputed that the Company is engaged in inter-
state commerce. During the calendar year, preceding is-
suance of the first complaint, it received at its Laurel
plant directly from points outside Mississippi goods and
materials valued over $50,000, and also sold and shipped
from that plant to points outside Mississippi products
valued over $50,000. I find it is engaged in interstate
commerce.
II. THE LABOR ORGANIZATIONS INVOLVED
It is undisputed that the International Chemical Work-
ers Union (the Union) and its Local Union 882, both
labor organizations, have for several years had an estab-
lished collective-bargaining relationship with the Compa-
ny. On June 19, 1972, the Board certified the Union as
the exclusive representative of the Company's produc-
tion and maintenance employees at the Laurel, Mississip-
pi poultry processing and rendering plant, including ship-
ping and receiving employees and cafeteria employees,
but excluding office clerical employees, salesmen, over-
the-road truckdrivers, watchmen, guards, and supervisors
as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Past Labor Relations
Following the certification in 1972, the Company on
the one hand and the Union and its agent, Local 882, on
the other negotiated a first collective-bargaining agree-
ment for employees in the certified unit covering the 3-
year period from February 5, 1973, through February 4,
1976.
On March 5, 1976, the same parties agreed on a
second contract for the period from February 23, 1976,
through February 26, 1979. This second agreement
tracked the format of the first but included some signifi-
cant revisions. Thus, the second agreement contained re-
visions of provisions governing union representation,
checkoff, grievance procedures, arbitration, union bulle-
tin board, employee seniority, working conditions, leaves
of absence, wage classifications, holidays, vacations,
group insurance, employee pension plan, the effect of
Federal and state laws on the agreement, and wages. Ar-
ticles which remained unchanged included those dealing
with recognition of the Union, antidiscrimination, man-
agement functions, no strikes or lockouts, probationary
period for new employees, safety and health, notification,
and bargaining respecting the effects of contracting out
unit work, and duration of the agreement. In sum, the
negotiations resulted in substantial changes from the
prior agreement but used the old instrument as the basis
for (a) continuing in effect those provisions on which
there was no disagreement and (b) discussing topics on
which the parties differed but on which they ultimately
reached agreement.
B. The Negotiations for a Third Contract
1. Initial session-February 7
On November 30, 1978, the Union sent the Company a
letter seeking negotiations for a third collective-bargain-
ing agreeement. The Company acceded to the request
and the parties met on February 7, 1979, for the first of
13 negotiating sessions, all in Laurel, Mississippi. 2 Some-
time prior to the first meeting, Joe Sanderson Jr., who at
the time of the hearing was assistant to the director of
operations for three of Respondent's plants, and had been
involved in negotiations for the prior contracts, spoke
with Hubert Mills, the Union's International representa-
tive, about arranging the meeting. He asked Mills if he
"expected anything hot" in the negotiations. Mills said
he had met with local union members and they had not
suggested any proposals. He indicated that wages was
the important problem.
2 The General Counsel disclaims any contention that the Company
violated the Act by failing to meet on appropriate occasions.
1484
SANDERSON FARMS
a. The union proposal
It is evident that when negotiations commenced on
February 7 both parties approached bargaining from
widely separated positions. The Company, being content
with the existing agreement, expected to again use it as a
basis for negotiating revisions respecting particular prob-
lems arising under the old contract, and it maintained
this posture throughout the negotiations. By contrast, the
Union sought drastic changes, an essentially different
contract. The bargaining which followed did not sub-
stantially narrow the gap between these positions.
At the February 7 session the Company was represent-
ed by its attorney, Andrew Partee, assisted by Joe San-
derson Jr., and the Union by Mills assisted by a local
committee. Since 1974 Mills had been assigned by the
International to a large area, which included Laurel, and
had served the Local and the employees at the Sander-
son plant, including the negotiations for the second
agreement about to expire. International Representative
Clyde Johnson had represented the Union in negotiating
the first contract in 1972. Partee had represented the
Company in the 1972 negotiations and one of his part-
ners, Frederick Kullman Sr., had served that function in
negotiating the second contract.
On February 7 virtually no give-and-take bargaining
occurred. Mills opened the meeting by distributing
copies of the union proposal which at this and subse-
quent meetings was the basis for discussion. Partee stated
that, for the most part, he would not be taking positions
at the first meeting respecting the Union's proposal be-
cause he wanted time to consider it. At this first meeting
Mills orally reviewed the proposal, comparing it with
the old contract and noting similarities and differences,
as well as his reasons for changes. His proposal, which
he testified was based on his proposals made 3 years ear-
lier in negotiating the second contract, made a complete
package of contractual language on desired topics, with
the exception of insurance and pension plan which were
to be dealt with by some yet-to-be-stated upgrading of
provisions in the old agreement, and also no wage pro-
posal was included. The proposal varied significantly
from the old contract on many topics including the rec-
ognition clause, union representation, checkoff, manage-
ment-rights, grievance procedures, arbitration, no-strike/-
no-lockout provisions, probationary period for new hires,
seniority, working conditions, leaves of absence, safety
and health, entirety of the agreement provision, and du-
ration of the contract.
Union Recognition. On the matter of company recogni-
tion of the Union, the proposal deleted section 2 of the
existing contract which limited recognition of the
Union's representative capacity to employees and not to
work. Mills argued that the old section 2 prevented the
Union from representing the employees in accordance
with the Board certification. He said, "we could not
agree to that type of language any longer, and we didn't
feel like any union within its right mind would agree to
that type of language .... " He did not explain why the
Union had changed its mind about language it had
agreed to for the past 6 years.
Union Representation. On the matter of union represen-
tation, the proposal removed all existing restrictions on
the number of shop stewards and grievance committee-
men to be appointed and certain limits on access of union
officials to the plant. The old contract provided for a
maximum of 7 stewards for a one-shift operation and 10
for a two-shift operation, and for 3 union members of a
grievance committee. Mills argued that on occasion there
had been insufficient stewards to cover the shifts and
that the Union should not be limited in the number of
stewards and grievance committeemen it could appoint.
He objected to having his own access to the plant limit-
ed to grievance investigations and also to the require-
ment that a company official accompany him. The pro-
posal also provided that employees engaged in process-
ing a grievance should be paid for the time spent. Mills
asked Partee if they could agree. Partee indicated he was
not agreeing to any language during that session. I find
he was not disagreeing but rather was deferring his re-
sponse to a later time.
Checkoff: The checkoff proposal reduced the opportu-
nity for employees to withdraw authorization from twice
a year to once a year. The old provision set forth the
form to be supplied by the Union and used by employees
in authorizing checkoff. Mills explained that the Interna-
tional had a differently worded form which it would
supply to the Local. The union form would allow for
fewer opportunities to revoke checkoff authorization.
Mills proposed there be no contract language on revoca-
tion, that it be governed solely by the wording of the
Union's authorization form. He did not indicate on what
basis, if any, the form could be changed. Apparently no
further discussion of the proposal occurred at that meet-
ing.
Management-Rights. The proposal on management-
rights was a substantial change. In the old contract, man-
agement-rights were spelled out with great particularity.
The proposal entirely eliminated the existing provision,
substituting in its place a three-sentence provision allow-
ing the Company to discharge or discipline employees
for just cause, requiring presence of a union representa-
tive in the event of written reprimand, suspension, or dis-
charge, and limiting the effect of written reprimands to a
period of 6 months.
Mills said the Union had had too much trouble during
the last contract with management-rights. He contended
that under the old provision the Union had given back to
the Company all the employee rights it was certified to
protect, making it impossible for the Union to represent
the employees. He cited various working conditions and
incidents of discipline to support his argument. He par-
ticularly objected to management's right to assign per-
sonnel, which he said should be governed instead by se-
niority. Partee interjected, "Well, you realize we're not
going to sign any contract without a management-rights
clause. We've got to have our management rights
clause." Mills replied, "Well, that's the problem, because
we may have some real problems here with the one
you've got in here." Thus, on this crucial topic, they
were poles apart from the beginning of negotiations.
Grievance Procedures. As to grievance procedures, the
proposal broadened the definition of grievance from a
dispute as to the interpretation or violation of a specific
1485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision of the contract to "any difference ... between
the Company and the Union or its members as to the in-
terpretation, application or operation" of the agreement.
Mills argued that the procedures should be broad enough
to handle any problem. The proposal also deleted the ex-
isting ban on work stoppages pending resolution of a
grievance except in the event of a clear and present
danger to health or safety. Mills contended that, in view
of the general no-strike clause in the contract, there
would be no need to include a ban on work stoppages in
the grievance procedure language. Partee declared there
was a need to explicitly prohibit slowdowns and the
Company wanted the prohibition in the grievance lan-
guage where employees would see it. Neither noted that,
in contrast to the proposal, the old contract provided an
exception to the no-strike clause in the event of hazards
to health or safety.
The proposal on grievances also enlarged the time
period in which to file a grievance from 5 days to 10 and
required the Company to grant grievances which it did
not answer within a prescribed time limit. Mills stated
there had been numerous situations which had come to
light too late to grieve within the short 5-day limit. En-
larging the filing time to 10 days, he said, would be more
reasonable. Also, to require the Company to answer on
time or be penalized by having the grievance granted
would, according to him, be more evenhanded.
Arbitration. The proposal respecting arbitration would
change the old clause in various minor respects. But,
more significantly, it would eliminate existing restrictions
on the authority of an arbitrator to decide matters within
the management-rights provisions or matters of past
practice, or to award backpay for a period prior to the
filing of the written grievance. The old contract allowed
30 days in which to appeal a grievance to arbitration,
except for grievance in which financial liability was ac-
cruing, which had to be appealed within 10 days. Re-
garding this latter time limit, Mills stated that because
the Local had to vote on whether to take a matter to ar-
bitration, 30 days were needed in all instances. He
argued against continuation of the limitations on arbitra-
ble subjects, stating that, considering the existing provi-
sions on recognition, management-rights, grievance, and
arbitration procedures, seniority, and the so-called zipper
or entire agreement clause, the Union was powerless to
do anything for employees. He said those clauses had to
be changed. He also proposed dropping the American
Arbitration Association as a source for arbitrators be-
cause of the expense and delay involved.
Bulletin Board. With respect to union use of a plant
bulletin board, Mills proposed eliminating the existing re-
quirement that advance approval of a posting be ob-
tained from the Company's division manager. He said it
was not right to require such approval for routine no-
tices.
No-Strike/No-Lockout. The proposal respecting strikes
and lockouts differed substantially from the old contract.
The old provision categorically banned strikes, walkouts,
slowdowns, sitdowns, picketing, or other activity de-
signed to interfere with operations for any reason. In the
proposal, the ban on strikes or similar activities applied
only to those in support of a change in the contract or a
grievance subject to arbitration. Mills argued the old
contract forbade even strikes to protest unfair labor prac-
tices by the Company. The proposal, he said, eliminated
this limitation. The proposal also would waive the Com-
pany's right to claim damages from the Union for breach
of the no-strike provisions, provided the Union actively
encouraged a return to work and took all reasonable
steps to notify employees of their no-strike obligations.
In support of this latter proposal, Mills urged that the
proposal, in requiring the Union to take all reasonable
steps to get strikers back to work, was adequate and that
the Union should not be liable for damages for all strike
action because even nonunion employees could strike.
He said the Company could protect itself from strikers
by firing them. Partee responded that under the existing
clause no court would hold the Union liable for damages
if it took reasonable steps to end strike action.
Probationary Period. With regard to the probationary
period for new employees, the proposal would reduce
the existing 90-day probationary period to 30 days. Mills
said 30 days should be enough time in which to deter-
mine an employee's ability to perform the unskilled work
involved.
Seniority. On seniority, the proposal would eliminate
management discretion in selecting employees for layoff,
recall, or promotion and would require such action be
according to seniority. Mills asserted that the old provi-
sions left senior employees unprotected because manage-
ment enjoyed unfettered leeway in determining employee
qualifications to fill any job. The proposal also would
eliminate the practice of short-term layoffs, from which
Mills said senior employees were wholly unprotected.
Working Conditions. In the old contract, the topic of
working conditions defined the workweek, hours of
work, employee breaks, and showup and call-in pay. The
proposal would substitute for this a series of topics enti-
tled Workday and Workweek, Shift Premium, Overtime,
Rest Periods and Plant Rules, which spelled out many
more employee rights in considerably greater detail. It
also would require the Company to assign employees re-
turning from a leave of absence to their former position
rather than to a pool of unassigned employees.
The proposal would also provide extra pay for second-
shift employees and enhance overtime and weekend pay.
Mills also proposed additional pay for unit employees as-
signed temporarily as foremen, and general wage in-
creases in the form of an automatic override in the event
of the increase in the Federal minimum wage laws.
Partee commented that these latter proposals basically
were economic topics which usually were deferred until
other contract terms were settled. Mills then agreed to
defer their consideration as economic topics. As it turned
out, they never reached the economic topics.
Plant Rules. Mills then turned to his proposal that all
plant rules be negotiated with the Union, as well as pub-
lished for I week, prior to enforcement. Existing rules
dealt with poor attendance, misconduct on the job, and
discipline. Mills said those rules had caused trouble,
citing instances of unwarranted discharge for absenteeism
due to illness of the employee or in his family. Sanderson
1486
SANDERSON FARMS
responded to the effect that attendance was crucial to
plant operations.
Leaves of Absence. Mills next addressed leaves of ab-
sence, urging that these provisions be liberalized. He pro-
posed more equitable funeral leave, citing past incidents
of inequity, and jury leave with regular pay, less the
amount received for jury duty.
Holidays and Vacations. With respect to holidays and
vacations, the proposal would make subtantial increases.
But Mills deferred discussion on them on the ground
they were economic in nature.
Insurance. He then turned to insurance, stating that the
Union wanted improved insurance at company expense.
His written proposal contained no specific proposal, stat-
ing only that he wished to discuss upgrading it when
they reached the economic subjects.
Safety and Health. On the topic of safety and health,
the old contract had a short provision that the Company
must maintain safe and healthy conditions. The proposal
would substitute for this an extensive 12-section provi-
sion specifying in detail practices to be followed to
insure health and safety. Among other things, under the
proposal, the Company would maintain accident records,
and would maintain a joint labor-management health and
safety committee which would meet monthly, make
monthly inspections of the plant, recommend correction
of unsafe conditions and practices, review and analyze all
reports of industrial injury and illness, investigate the
causes and recommend procedures for the prevention
thereof, handle health and safety grievances, and pro-
mote health and safety education. This committee would
be authorized to seek the advice of outside experts, in-
cluding union representatives, and call them into the
plant for examinations, investigations, and recommenda-
tions. The Company would inform the committee re-
specting substances used in the plant, exposure to which
might be unhealthy or dangerous and, upon request of
the Union, reveal the identity and nature of any sub-
stance used. The Company would also furnish medical
service and facilities for diagnosis and treatment of inju-
ries or afflictions caused in the plant. Union representa-
tives on the committee would be allowed to leave their
work in order to fulfill committee functions without loss
of pay.
In support of the health and safety proposal, Mills
stated that it was to implement a program of the Interna-
tional to upgrade health and safety clauses in local con-
tracts. He said he would answer questions about that
after Partee had a chance to read it.
Contracting Out Work. The old contract limited the
Company's right to contract out work by requiring ad-
vance notice thereof to the Union and negotiation with it
as to the effects of contracting out. It also forbade per-
formance of bargaining unit work by supervisory em-
ployees if such would result in the layoff of an employ-
ee. Under the proposal the Company would categorical-
ly agree not to contract out bargaining unit work. Super-
visors would not perform any unit work, and if they did,
unit employees would be paid for the time spent in addi-
tion to their regular pay.
Miscellaneous. An additional miscellaneous proposal
would require the Company to give each employee
either a ham or turkey at Christmas. When Sanderson
pointed out that the plant did not process ham or turkey,
Mills changed his proposal to a chicken.
Entirety of Agreement. The old contract contained a
section, referred to as the zipper clause, by which the
parties agreed that all matters between them were settled
by the contract whether or not dealt with in the docu-
ment or discussed in negotiations. Mills proposed to
delete this entirely on the ground that during the term of
an agreement they should be free to bargain over any-
thing they had overlooked.
Duration. As to duration of the contract, Mills pro-
posed a I-year term instead of the 3-year term of the old
agreement.
b. Status of negotiations at end of first session
As of the end of the first meeting the Union had
placed an extensive new proposal on the table. The par-
ties agreed to separate out those matters involving "eco-
nomics" and to defer consideration of them until after
agreement was reached on noneconomic subjects. The
matters thus put aside included wages, shift premium,
overtime pay, temporary foreman pay, automatic over-
ride above Federal minimum wages, rest periods, holi-
days, vacations, paid leaves of absence, insurance, and
pension.
Proposals remaining on the table dealt with the scope
of company recognition of Union, union representatives,
checkoff, elimination of management-rights provisions,
grievance and arbitration procedures, union bulletin
board, scope of the no-strike clause, probationary period
for new employees, seniority, assignment of employees,
plant rules, safety and health, subcontracting of work,
performance of unit work by supervisors, vending ma-
chine profits, the zipper clause, and duration of the
agreement. No agreement was reached on any of these
topics during the initial session. At the close Partee told
Mills, "Well, you've given us a whole lot here. We're
going to have to go back and analyze this. We were
thinking basically in line of the old contract." In context
this was a statement of management's general approach
rather than a counterproposal. They agreed to meet
again on February 20.
Although it was apparent at the close of the first meet-
ing that the union proposals differed substantially from
the old contract, there were circumstances suggesting
the Union might give ground on them. As already noted,
Mills had indicated, prior to negotiations, that plant em-
ployees had no particular items in mind other than more
money. There were, moreover, the background circum-
stances of the second contract being somewhat similar to
the first even though the negotiations had started with
proposals from Mills similar to those he was currently
proposing. As of the end of the first session, and without
considering any later events, the conduct of neither party
demonstrated bad faith.
2. The second session-February 20
As the second session started on February 20, Partee
stated that there was no way he could respond to the
union proposals because Mills had rewritten the entire
1487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract. At Mills' suggestion, they then again began re-
viewing the entire union proposal, exclusive of economic
items, considering each specific proposal to see on which
they could agree.
Union Recognition. The first item considered was the
proposal dealing with company recognition of the Union.
It was identical to section I of the recognition article of
the old agreement which contained two sections. The
Company agreed to this old section I language. But the
union proposal omitted the second section of the old arti-
cle. Regarding this, Mills stated there was no way the
Union could live with the old section 2, it being his view
that in it, the Union had given up part of its responsibil-
ity, under the law, for representing employees. Partee re-
sponded that, although the Company might have consid-
ered omitting section 2 if it were not already in the exist-
ing contract, he feared that if it were now taken out, an
arbitrator would construe the deletion as an effort of the
parties to have the employer give up some (unspecified)
right and, accordingly, he was insisting that the old sec-
tion 2 be included. This amounted to a counterproposal
of the old section 2 language. Mills did not agree. At his
suggestion they put that issue aside.
Counsel for the General Counsel characterizes Partee's
response in this matter as a meaningless answer. I dis-
agree. Partee may have been overly careful, but his re-
sponse was not meaningless. Moreover, his bargaining
position was to retain an existing provision which, argu-
ably, benefited management. In the circumstances his
posture was at least reasonable, and his response as
meaningful, as Mills' statement that there was no way
the Union could live with a provision which in the past
it had twice agreed to and had lived with for 6 years.
Both parties gave reasons for their positions. See Texas
Industries, 140 NLRB 527 (1963). Neither party made
any effort at this meeting to reach a middle ground or to
accommodate the apprehensions of the other. They
simply put the matter aside as unresolved. As of that
point, their conduct on the issue did not evidence bad
faith.
Discrimination. Mills next turned to the proposed pro-
visions banning discrimination, the language of which
was the same as the old contract. Partee agreed to this
proposal.
Union Representation. Mills then turned to his proposal
relating to union representation, specifically the proposal
that there be no limit on the number of shop stewards.
The existing provision limited the number of stewards to
7 for a one-shift operation and 10 for a two-shift oper-
ation. Mills opened the discussion by asking Partee if he
was going to let the Union decide how many people
they could have as shop stewards. Partee replied no, that
they had to have an agreed limit in the plant. During ne-
gotiations (possibly at this meeting) Partee asked Mills
what number of stewards he wanted. Mills answered that
he did not know, that the situation changed from time to
time, and the Union wanted the right to determine what
it thought was needed, that the number of stewards was
union business, not company business. When Partee
asked if the Union had ever experienced a shortage of
stewards in the plant, Mills replied he did not know. It is
apparent the Company was willing to bargain about the
number of stewards but that the Union was not, demand-
ing, instead, unfettered discretion under the contract to
control the number of stewards. They did not agree, so
the topic was put aside as unresolved. Since the Compa-
ny was not insisting on the right to determine the
number of stewards, but merely wanted a maximum de-
termined by contract, it cannot be said its position evi-
denced bad faith.
Mills had also proposed that the Union's designation of
grievance committee members be unlimited. By contrast,
the comparable provision in the old contract allowed the
Union to designate a committee of three. The discussion
consisted of Mills referring to that provision and asking,
"What about the committee?" and Partee responding,
"No, we can't agree." Mills testified, "We held that."
Neither party gave any explanation justifying their re-
spective positions on the number of grievance commit-
teemen. Joe Sanderson Jr. testified, without contradic-
tion, that during the term of the existing contract the
parties, in fact, did not use the grievance committee, that
the apparatus fell into disuse. There is no evidence that
anyone objected to this at the time. In the circumstances
I infer that the proposed removal of limits was unrelated
to a specific labor relations consideration and was instead
related to union prestige. As with the designation of
stewards, the Company's conduct on this point did not
evidence bad faith.
The next part of the proposal on union representation,
to which Mills turned, was to give the union representa-
tion access to the plant at reasonable times during work-
ing hours with reasonable notice to the Company. The
existing provision only allowed union officials access for
the purpose of investigating grievances alleging viola-
tions of the contract and further required that a manage-
ment representative accompany the union representative.
With respect to the differences between his proposal and
the old contract, Mills asked Partee if he was going to
have to file a grievance to get in the plant. In answering,
and in defense of the old provision, Partee noted that
Mills had experienced no difficulty in entering the plant
when he wished to. Furthermore, he expressed the wish
that a management representative accompany him for
health and safety reasons, saying, "We just can't take
that out." Mills then agreed to the language of the old
provision thereby settling that issue.
Mills then asked approval of his new proposal that
stewards and committeemen investigating and handling
grievances or contract negotiations be allowed the neces-
sary time off with pay. Sanderson interjected that the
Company was not interested in granting time off with
pay without getting some work out of it. Mills replied,
"Well, let's hold that." Whether this was a deferral of
consideration because of obvious economic aspects is not
clear. At that point the conduct on that issue did not
demonstrate bad faith.
Checkoff: Mills next turned to checkoff. He apparently
only briefly addressed the subject by saying that the
Union had to have its standard checkoff form (although
such requirement and the terms of such form were not
spelled out in the proposal). According to Mills' testimo-
ny, Partee replied that the Company could not agree to
1488
SANDERSON FARMS
"it"-that they were thinking in terms of the old con-
tract. It is unclear whether Partee was responding to the
written proposal, Mills' verbal comment, or both. In any
case, there was no further discussion, Mills simply
saying, "Let's hold that." The discussion did not demon-
strate bad faith.
Management-Rights. Partee then brought up the sub-
ject of management-rights, complaining that Mills had
completely eliminated from his proposal the existing
management-functions provisions. He said the Company
could not agree to a contract without a management-
rights clause. Mills explained that the old provision pre-
sented the Union with too many problems; that it could
not live with it; that it could not represent the employ-
ees; that its hands were tied; that it just had to have
some changes in it. Mills testified that he went into detail
about problems in certain areas. He complained of union
inability to file grievances involving management func-
tions, and of the limitations on arbitrators deciding ques-
tions raised under the management-functions clause.
Partee explained his view that, because of Supreme
Court decisions on arbitrability and Board rulings on the
extent of bargaining without specific waivers, it was es-
sential to employers that agreements contain detailed
management-rights clauses. He argued that the existing
management-rights clause was modified by all other parts
of the agreement. But Mills did not construe manage-
ment-rights as being modified by other provisions in the
contract. He felt the existing provision needed revision
and was proposing deletion of management-rights lan-
guage. I find that Mills was in error respecting the law
of contract construction. Both parties explained their po-
sition but held fast and refused to change. In these cir-
cumstances their conduct did not evidence bad faith.
American National Insurance Co., 343 U.S. 395 (1952).
Grievance Procedures. Mills' proposed grievance proce-
dure was somewhat similar to that of the expiring con-
tract, although broader in application, and, in several re-
gards, more favorable to employees and less favorable to
the Company. Mills asked Partee if they could agree on
the grievance procedure proposal. Partee replied they
could not. So, according to Mills, they held that propos-
al over. Although there was no extensive discussion,
Partee noted that the fourth step had been eliminated
from the proposal. Mills explained that experience had
shown the fourth step to be useless and it would be pref-
erable to proceed to arbitration after three steps. But
there was no further discussion and they went on to the
arbitration proposal. Given the nature of the proposal, it
is unclear why Partee did not justify his position or make
some move toward compromise. This was a failure to
make a reasonable effort to agree. Fitzgerald Mills, 133
NLRB 877 (1961).
Arbitration. Mills apparently also noted the various dif-
ferences between the proposal on arbitration and the ex-
isting provision, saying that the Union could not repre-
sent the employees under the old contract, that they had
had too many problems with it. He testified that the
Company (presumably Partee) reiterated, "We are think-
ing in terms of the old contract, and we've got to do
what we're going to do within the framework of the old
contract." Mills testified, "So, we held that."
Grievance and arbitration are the first point at which
the Company demonstrated considerable inflexibility.
Mills injected explanations and justifications for changes
which were within the framework of the old provisions.
The Company could have signaled some readjustment on
such matters as elimination of the American Arbitration
Association, which would have saved the Union money,
or adjustment in the 10-day notice requirement since
Mills explained the Union had experienced trouble
making the deadline. In this regard it should be noted
that Mills serves a large territory, a fact known to the
Company, so it understandably could be difficult for him
to become involved in an arbitration on short notice, as
he might wish to be, or as employees or Local Union of-
ficials might wish him to be. These were minor points
that a reasonably cooperative attitude might have
worked out. Partee's attitude apparently was to give
nothing. The Company's conduct in this regard did not
satisfy the teaching of Fitzgerald Mills, supra; NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1956); and NLRB v. Reed
& Prince Mfg. Co., 205 F.2d 131 (Ist Cir. 1953). I find
this to be evidence of bad faith in that it indicates a pur-
pose to not reach agreement.
By contrast, eliminating the restrictions on an arbitra-
tor to decide various questions was obviously a more dif-
ficult issue because the Company's existing advantage
was substantial, and concession in this regard, likewise,
would have been substantial. Rapprochement between
the parties, without considerably more discussion, was
most unlikely.
Bulletin Board. The existing provision read in part as
follows, "Notices will be posted only after advance ap-
proval by the division manager and only in the designat-
ed space." Mills' proposal deleted this sentence but, in
other respects, was identical to the old provision. He
asked Partee if he was going to let William Magee
(Local Union president) post meeting notices and the like
on the bulletin board without having to first check with
the plant manager. According to Mills, Partee replied,
"Well, we like to know what's going up there, and we
want to see what's going up before it's put up." Mills ap-
parently took this as a rejection of his proposal. He did
not press the matter further but simply said, "Well, let's
hold that." I have some doubt that Partee was flatly re-
jecting the proposal. While he was not agreeing and was
expressing preference for the old provision, the situation
was such that a little argument might have borne fruit.
But neither party pressed the matter and it was simply
held as unresolved. The circumstances do not amount to
evidence of bad faith.
Priority Issues. At some point in the session, Partee
characterized the union proposals as a very large amount
of material, that the issues needed to be narrowed, and
the Company needed to know what issues had priority.
Mills then indicated that the International's priority
issues were those dealing with recognition, no-strike, and
checkoff, and that the Local's priorities involved plant
rules, seniority, and wages. He did not indicate any rela-
tive priority among these several topics or between
issues of the International and the Local. Thus, the area
1489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of possible bargaining remained quite broad. Wages, of
course, had already been deferred as an economic issue.
At the end of the February 20 meeting, the parties had
agreed on continuing the language of section 1 of the ex-
isting union-recognition provision but disagreed about
deleting section 2. They also agreed on language regard-
ing discrimination and regarding access to the plant for
union agents. They did not agree on anything else.
In considering a date for the next meeting, it was ap-
parent that both Mills and Partee had crowded calendars
and were not easily available. Partee indicated he was
available March 13 and 19. Mills pointed out that the
current contract would expire February 26, and there
was a need to work things out but he did not suggest a
date to meet. Partee volunteered that the Company
would let employees work on if they wished to work
and that the Company did not anticipate any changes in
the contract. Mills responded that, if the Company did
not anticipate any changes, he did not see anything
wrong with them agreeing to extend the old contract
until they could get back together and work out a new
one. Partee then shifted slightly, saying he did not antici-
pate any changes that he knew of. Mills left the room to
confer privately with other union officials and shortly re-
turned, informing Partee the employees would work on
until they could resume negotiations, provided the Com-
pany did not change anything in the contract. Partee
then hardened his position further, saying that, although
the Company did not intend to change anything in the
contract, the old contract would expire and the Compa-
ny was unwilling to extend it beyond its expiration date.
He said the Company would allow the employees to
work if they wished to work and, if they wished to
strike, the Company wanted 24 hours' advance notice.
Mills agreed provided the Company was willing to
extend the contract. Before Partee replied, Sanderson
took him outside for a discussion. When they returned,
Partee reiterated that the Company did not intend to
change anything that he knew of, that the employees
could continue working, but that the contract would
expire February 26. Mills asked again if they were going
to change anything. Partee then said for the first time
that the Company was not going to honor the checkoff
or the arbitration provisions after the contract expired.
He again reiterated that if the employees should strike,
the Company wanted a 24-hour notice. Mills replied he
did not know what the employees were going to do. He
reiterated the Union was willing to extend the contract
pending negotiations but, if the Company was unwilling,
he could not tell what the people would do. He said
there would be a membership meeting that evening and
it was going to be left up to the membership. Partee
stated that if the employees should strike, the Company
wanted 24 hours' notice. Apparently Mills made no re-
sponse.
Nothing further occurred at that meeting except that,
according to Mills, Partee at the end said, "We're think-
ing of the old contract, we're proposing the old contract,
anything we do has to be within the framework of the
old contract." This language, alone, might allow for an
inference, as Respondent argues in its brief, that the
Company was agreeable to using the old contract as a
basis for negotiating revisions which would meet current
needs and desires. But the inflexible attitude taken on
some minor points on February 20 suggests that the
Company intended holding to every detail of the old
contract, was unwilling to give an inch, and was, in re-
ality, proposing an unchanged old contract. In addition,
company brinksmanship at the end of the meeting, by
shifting and hardening its position regarding continuing
the status quo pending negotiations, virtually invited a
strike. Respondent's brief argues it was only engaged in
hard bargaining. But to me its conduct is evidence of un-
willingness to strive for agreement. NLRB v. Truitt Mfg.
Co., supra.
Respondent's position on expiration of the contract
was 180 degrees from its position during the term of the
contract. In April 1978 Sanderson had proposed to Mills,
and Mills, on behalf of the International, tentatively
agreed to an extension of the contract from February 26,
1979, to September 30, 1980, in consideration of exten-
sive increases in the wage provisions. At Mills' sugges-
tion, Sanderson met in May 1978 with a local delegation
consisting of Local President Magee and two member
representatives. He put the same proposition to them
and, according to Sanderson, they expressed their ap-
proval. None of the union representatives at either the
local or International level suggested any other changes
in the contract. This underscores the reasonableness of
Respondent's initial approach to the negotiations at issue
in this case, that the existing contract was a viable basis
for negotiating a third agreement, as well as Mills' pro-
posal to extend the contract pending negotiations.
In spite of the affirmative responses he received from
officials of both the International and the Local, Sander-
son's 1978 efforts to obtain an extension of the second
agreement failed. In the latter part of June 1978 Magee
informed him that at the June meeting of Local mem-
bers, attended by only seven persons, the proposal to
extend the contract was defeated by a vote of four to
three.
The contrast between the Company's position in nego-
tiations on extension of the contract and its 1978 propos-
al to extend underscores the inflexibility of its negotiat-
ing attitude and lends support to the inference that it was
inviting the strike which followed on February 27.
3. The third session-February 24
At the conclusion of the February 20 meeting the un-
derstanding between the parties was that they would
resume negotiations on March 13 and 19, the only dates
that had been mentioned. After leaving the meeting, and
in view of the fact that the existing agreement was to
expire on February 26, Mills contacted Charles Tolbart
of the Federal Mediation and Conciliation Service who
arranged a meeting of the parties with himself at Laurel
on Saturday, February 24.
The mediator opened this meeting by stating his un-
derstanding that the existing agreement would expire on
Monday, February 26, and that the Company was not
willing to extend the agreement. He asked for the com-
ments and positions of the parties. Partee deferred to
Mills who stated that, in view of the expiration of the
1490
SANDERSON FARMS
contract and the absence of an extension, the Union did
not know what was going to happen. He indicated will-
ingness to work out a new contract immediately.
Partee then commented that there was no way the
Company could address all the issues the Union had
placed on the table, there being, he said, 106 changes
from the existing agreement. He reiterated the Compa-
ny's willingness to negotiate within the framework of the
old agreement and, if the Union had minor changes to
propose and let the Company know what they were, to
consider them. Mills then began discussing specific issues
but Tolbart stopped him, separating the parties into dif-
ferent rooms.
The mediator first met for about an hour with the
Company. He then met separately with the union com-
mittee, telling them he had unsuccessfully tried to get the
Company to extend the contract. He informed Mills that
the parties would have to make the determination of
what to do themselves. Before the overall meeting
ended, the mediator in the presence of both parties asked
Partee whether the Company would extend the contract
and Partee responded that Mills had their answer on that
already, thus, by implication, reiterating his position
taken on February 20 that the Company would not
extend the contract to avoid a strike. The mediator re-
cessed the meeting subject to call by himself based on
whatever further information he might receive from the
parties. Mills informed the meeting that the problem
would be presented to the union membership that
evenings and that he did not know what they would do.
4. The strike
The evening of February 20 Mills had met with the
Local's membership. He had reviewed for them the ne-
gotiations, including union proposals and company re-
sponses. He told them he felt the Company was not bar-
gaining in good faith, that the Union had not received
any counterproposals, 4 and that he thought the Compa-
ny was set to take a strike. The membership authorized a
strike, leaving it up to the negotiating committee to actu-
ally call the strike, should they see fit, and if there were
no movement in the negotiations.
Subsequent to the unproductive session with the medi-
ator on February 24, and after Mills had left Laurel, the
local committee decided to strike on Tuesday, February
27, the day after the contract expired. On that day the
day shift commenced work at 7:48 a.m. In midshift,
about 10:45 a.m., without notice to the Company, the
employees went out on strike. At the time of the hearing
the strike continued.
There is no question but that the strike was called to
support the Union's bargaining demands. At issue in this
proceeding is whether company unfair labor practices
also caused or prolonged the strike. Prior to the strike,
the only evidence of company bad faith in bargaining on
substantive topics occurred February 20 in the discus-
3 The record indicates he already had met with the local members on
February 20.
4 Mills apparently did not consider Partee's proposal of sec. 2 of the
old contract provision on union recognition to be a counterproposal.
which in fact it was.
sions about grievance procedure and arbitration propos-
als. But that conduct only involved minor points. How-
ever, at the conclusion of the February 20 meeting, in
connection with efforts to arrange the next meeting,
Mills noted that the current contract would end Febru-
ary 26 and he was willing to continue meeting in an
effort to reach agreement before then. He thereby ap-
plied economic pressure on the Company by suggesting
the absence of a contract and, by implication, the possi-
bility of a strike. In response, the Company, by degrees,
hardened its position to the point where, in the end, it
flatly stated the contract would expire on February 26,
rejected any extension, and indicated certain important
provisions would cease to apply. Resort to economic
pressure by either or both parties in support of bargain-
ing demands is not, in itself, conduct indicative of bad
faith. But, here, the Company, in the process of harden-
ing its position, also kept shifting its position, apparently
to avoid terms to which the Union might agree. This
shifting of position was, I find, conduct evidencing a
desire to avoid agreement. While it is true that progres-
sively shifting to harder positions is consistent with hard
bargaining, it is also consistent with an ultimate purpose
of not reaching agreement and getting rid of the Union.
If, in fact, that was its bargaining intent, then several
months later it took advantage thereof when it withdrew
recognition from the Union and unilaterally granted a
wage increase to employees who were working in spite
of the continuing strike. Considering the overall evi-
dence, I find the shifting position on February 20 was
also conduct evidencing bad faith. This, together with
the bargaining conduct respecting grievance procedures
and arbitration, warrants the finding, which I make, that
the Company was not bargaining with a sincere purpose
of reaching an agreement.
That evening, partially in response to that conduct, the
union membership authorized the strike. And a day or so
later the union negotiating committee called the strike
for February 27. Based on this sequence I find that the
strike was in part caused, and thereafter prolonged, by
Respondent's above-described conduct in which, as
found hereinafter, it was not bargaining in good faith as
required by Section 8(a)(5) and (d) of the Act. Accord-
ingly, the strike was an unfair labor practice strike. Gen-
eral Athletic Products Co., 227 NLRB 1565, 1576 (1977).
5. The fourth session-March 21
February 27, the day the employees struck at L.aurel,
Mills had occasion to speak with mediator Tolbart in
Jackson, Mississippi. He asked him to arrange another
meeting with the Company. Tolbart set up a meeting in
Laurel for March 21.
At the start, Tolbart stated he had called the meeting
because he understood there had been a work stoppage
and wanted to see if he could get the position of each
party. Partee again deferred to Mills, who declared the
Union was present, wanted a contract, and was willing
to stay and negotiate until they obtained one. According
to his testimony, he said, "We don't want a work stop-
page, but whatever is agreed to here has got to be some-
thing that will address the issues out there where we can
1491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly represent these people." He also said the Union
was not tied to the particular language he had proposed
but was tied to something whereby it could properly
represent the employees.
Partee responded as in the past that it was impossible
to make counterproposals on the basis of the Union's de-
mands, there being no way that they could address all of
the numerous issues. He proposed instead the previous
contract. He said the Company was willing to discuss
minor changes within that frame.
Mills replied there was no way the Union could agree
to the old agreement because there had been too many
problems under it and they had to straighten out some of
these problems which he began to detail. At that point
the mediator interrupted him and once again separated
the parties. The record does not reveal what, if anything,
further transpired at the March 21 session, but it is ap-
parent that no agreement was reached.
6. The fifth session-March 28
The next session, March 28, was also called by media-
tor Tolbart. Although Mills technically was still the
Union's chief negotiator, he was, for the first time, joined
by International Representative Jerry Levine, an attor-
ney and member of the legal staff of the International.
That session was the last in which Mills participated. As
described by Levine, he and Mills shared the responsibil-
ity of union spokesman at the March 28 meeting. From
that point on, Levine took over as union spokesman.
Tolbart opened the meeting by asking for the position
of the parties. According to Levine, Partee stated, "The
Union's position was to give the Company a take-it-or-
leave-it offer. The Company position is that the contract
is okay, we're willing to listen to any specific problem,
but will not change the entire contract." As in the first
session, Mills again began by reviewing the entire union
proposal section by section with Partee responding as
they went along. Overall their positions remained un-
changed, the Mills' review apparently only serving to
orient Levine as to the bargaining situation.
Union Recognition. Near the outset, and at least at one
other time during the session, Levine injected a new note
of uncertainty and disagreement by declaring the Local
was not the agent of the International as described in the
introductory sentence of the Union's proposal as well as
in the two prior agreements. This prompted Partee to
note that only the International had been certified by the
Board and, if the local were not the agent of the Interna-
tional, it lacked the necessary status to bargain for the
employees. He speculated that perhaps the Company
should not be bargaining with the Local. However, nei-
ther party proposed new language to replace the descrip-
tion of the Local as the agent of the International, and
the question raised by Levine was left open and, accord-
ing to him, remained a matter of disagreement. Levine
must bear full responsibility for this disagreement.
As already noted, the prior agreement contained an
additional section under recognition which the Union
now construed as a limitation on its representative func-
tions and, therefore, omitted from its proposal. Partee
proposed that the new agreement include this old lan-
guage, stating that, in the circumstances, limiting lan-
guage was justified to prevent unnegotiated alteration of
contract rights through arbitration decisions during the
term of the contract. As an example of such possible al-
teration, he pointed to the Company's right to contract
out work under the prior agreement. The Union argued
that the limiting language was unnecessary. Levine
stated that the Board certification was not for employees
as stated in the old section 2, but rather for the work
that particular employees perform. Partee accused the
Union of being inflexible, an accusation which Mills
denied, stating that the Union was not tied to any par-
ticular language, but rather was tied to achieving a pro-
vision by which it could represent the employees. He ex-
pressed willingness to consider alternative language to
that proposed, if it would satisfy this demand of the
Union. The positions of the parties remained unchanged
from previous sessions, the Company agreeing to the lan-
guage proposed by the Union, but the Union not agree-
ing to the Company's counterproposal that the language
of section 2 of the recognition clause of the old agree-
ment be added. In a word, they disagreed. The conduct
of neither party on this topic evidenced bad faith.
On the topic of Union Representation the position also
remained unchanged, although they engaged in consider-
able discussion. The Union reiterated its proposal that
there be no contractual limit on the number of shop
stewards and grievance committeemen to be named. As
to unlimited stewards, Partee asserted that, in the past,
the Union had, in fact, not designated all the stewards
authorized under the contract even though the Company
was required to deal with stewards. As to grievance
committeemen, Levine justified the proposal by declar-
ing the Union was not wedded to any particular number
but desired flexibility to permit makeup of a committee
suitable to the grievance being considered. He did not,
however, suggest any language to reflect this particular
need, the proposal only being to leave unspecified the
number of committeemen to be named by the Union. No
agreement was reached on either the stewards or the
committeemen. The Union further proposed that em-
ployees involved in grievance handling be paid by the
Company for the time spent. Again the Company was
unwilling to pay this cost, saying that it was union busi-
ness and should be paid with union funds.
Although the proposal regarding stewards was some-
what removed from reality because of the history of not
naming all the stewards contractually authorized, the
proposal, in the light of the explanation made earlier,
was not unreasonable. It is difficult to understand why
neither party suggested simply increasing the authorized
number. The fact that the Union did not suggests that its
true purpose had nothing to do with realities in the plant
but, instead, as Partee put it, was of a cosmetic nature so
that it would not appear in the contract that the Union
was limited in how many stewards it could have. On the
other hand, the Company's refusal to consider paying
stewards or committeemen for time spent on grievances,
on the ground that such activity was union business,
seems at odds with its desire to have some control via
the contract on the maximum number of these function-
aries. As to Levine's idea for a more flexible grievance
1492
SANDERSON FARMS
committee, the evidence indicates that, in the past, an ap-
propriate grievance committee member often was un-
available when needed and Sanderson, apparently with
the approval of the steward and chief steward involved,
simply called someone else from the department in-
volved to act as a stand-in. There is no evidence this did
not work satisfactorily, but it is at least arguable that, in
such circumstances, management was involved in select-
ing the union committeemen on an ad hoc basis. It is dif-
ficult to understand why the Company did not affirma-
tively attempt to work out some accommodation in this
regard. Given the background here, the fact that the
Company did not suggests a bargaining strategy of point-
ing out the unacceptability of union proposals but not
coming forward with affirmative proposals to deal with
even obvious bargaining problems. This strategy necessi-
tated that all movement originate from the union side.
This conduct, standing alone, was not unlawful but,
when considered with other conduct evidencing a pur-
pose to avoid agreement, tends to support a finding that
that was Respondent's purpose.
Pension Plan. According to Mills, Levine inquired
whether the Company had a pension plan. Partee replied
it did and that it was in effect. Levine asked for copies of
the plan. Partee did not have them with him but prom-
ised to provide them. Levine also asked about the cost of
the pension plan, figures which Partee was unprepared
to provide but also promised to send him. Similarly,
Levine inquired whether the Company had provisions
for the actuarial reduction of the pension for an early re-
tiree. Partee said he had no knowledge in this respect,
but promised to send Levine information on the subject.
Levine testified that he subsequently received all this in-
formation. The interchange on these matters and the sub-
sequent supplying of the information indicate good faith
of the parties in this regard.
Checkoff. According to Mills the parties' position re-
specting checkoff remained unchanged. Levine described
the discussion as very brief. According to him the Union
wanted "standard" language for the period during which
employees could revoke authorization. He described the
language in the old contract as not being "standard." In
his testimony he did not elucidate on what he meant by
"standard" but, from other evidence in the record, I
infer he was referring to the wording of the form then
preferred by the International. In describing the session
Levine testified, "The Company's position was sort of
negative," but he did not specify further. The paucity of
discussion at this meeting could hardly be described as
significant bargaining.
Management-Rights. The next topic addressed was
management-rights. In support of the union proposal to
eliminate old provisions, Mills cited instances of employ-
ees having been discharged for excessive absences.
Partee responded that the Company had to have a man-
agement-rights clause and, in answer to questions from
Levine, reaffirmed this position respecting each of the
three sections of the management-rights provisions in the
old contract. He accused the Union of attempting to
frustrate agreement by insisting on eliminating manage-
ment-rights from the contract. Levine did not retreat, he
observed that even in the absence of a management-
rights clause an employer has the right to manage a busi-
ness, and that the Union here was not seeking to deprive
the Company of that right. It is clear, however, that the
Union was firm in its proposal to eliminate whatever ad-
vantage the Company previously enjoyed by virtue of its
contractual management rights. The positions of the par-
ties remained unchanged on this topic. I find no evidence
of bad faith in the discussions.
Plant Rules. Mills next turned to his proposal that
plant rules be negotiated with the Union. Levine in-
quired whether plant rules existed and asked for copies
of any. Partee admitted there were plant rules and prom-
ised to supply copies. Mills argued that the Union's right
to negotiate on plant rules was essential for adequate rep-
resentation. Partee argued in reply that these needs were
already being fulfilled because the Union could contest
the reasonableness of rules through grievance and arbi-
tration. To this Mills responded that it was foolish for
the Union to take a matter to arbitration if the power of
the arbitrator to decide the matter was already limited
by contract. While there appeared to be back-and-forth
discussion, there was no resolution. The plant rules pro-
posal was new, there being no comparable provisions in
the old contract. The interchange of views on this topic
did not involve conduct evidencing bad faith.
Grievance Procedures. With respect to grievance proce-
dures, Mills reiterated the same points he had made in
earlier sessions respecting his proposals. Specifically he
mentioned that the old definition of a grievance was too
narrow and needed broadening, that the time for filing a
grievance should be enlarged, and that the Company
should forfeit on any grievance to which it did not pro-
vide a timely answer. He also made an argument against
the old provision which limited awarding of backpay in
a grievance to the time subsequent to the filing of the
written grievance. To this Partee responded that the
Company would reexamine the question and get back to
the Union at a later point, thus demonstrating a new
willingness to consider variations from the old contract
and, possibly, adjust unjust situations. Partee complained
that the Union was inflexible. Levine asked where he got
that idea and Partee replied that he understood the
Union's position to be fixed. Levine denied this, saying
that the union position was subject to negotiation. This
indicates some union willingness to adjust its proposals.
No agreement, however, resulted on grievance proce-
dures. I find no evidence of bad faith in their inter-
change.
Arbitration. They then turned to arbitration, discussing
first the use only of Federal Mediation Service arbitra-
tors which the Union characterized as less costly. Partee
indicated tentative agreement provided his examination
of a current list of Federal Mediation Service arbitrators
did not include unacceptable names. Thus, on this point
also there was progress. They also discussed the union
proposal that arbitrators be given greater decisional lati-
tude. So far as the record reflects, no resolution was
reached on this point. The discussion on arbitration re-
vealed no evidence of bad faith.
Bulletin Board. According to Mills, he again raised the
proposal respecting a union bulletin board and again the
1493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company disagreed. Whether or not any discussion oc-
curred does not appear in the record.
Second Shift. At this point Levine injected a new
topic. Since the strike began, the Company had notified
the Union by letter of its intention to abandon the second
shift. The Union's general counsel had asked, also by
letter, for certain information on that subject. At the
time of the March 28 session he had not yet received
that information, so Levine asked Partee if he could have
it. Partee replied he had not had time to get the informa-
tion together but that he would, and would transmit it
by letter to the Union's counsel. He subsequently did so.
Although not a topic of contract negotiation, the matter
of information respecting abandonment of the second
shift is indicative of a company attitude of good faith in
recognizing the Union's right to know as employee rep-
resentative.
No-Strike/No-Lockout. Mills next addressed the union
proposals regarding no-strike/no-lockout under which
the Union avoided a categorical undertaking that there
would be no strikes, as it had in the old agreement, but
instead undertook not to call or engage in strikes to
change the contract or strikes to support a grievance
subject to arbitration. Mills argued that under the previ-
ous contract, employees could not strike in protest of
unfair labor practices. He also argued, in support of his
proposal, that the Union wished to limit its liability for
wildcat strikes and that its commitment to take reasona-
ble steps to get striking employees back to work was a
sufficient no-strike undertaking. Partee replied that,
under the old provision, the Union could have its day in
court if any damage claim were made against it based on
an unauthorized strike, and he declared that no court
would hold the Union liable for damages if it had taken
reasonable steps to get the employees back to work. He
said that all the Company got out of a contract was the
Union's pledge that there would be no strike and the
Company intended to retain that provision.
In the course of the meeting, Levine made a new
verbal proposal, namely, that the parties delete all lan-
guage respecting the banning of strikes or lockouts and
all provisions respecting arbitration of disputes. Partee
rejected this out of hand, characterizing it as an invita-
tion to industrial warfare.
Levine's proposal to eliminate the already accepted
concepts of no-strike/no-lockout and arbitration was cer-
tainly not conducive to reaching an agreement or an in-
dication of a desire by the Union to reach agreement. Of
course, he may not have been serious. The proposal may
have been a stratagem to put the topics of strikes and
lockouts on the one hand and grievance and arbitration
on the other on an equal footing. This is speculation,
however, there being no evidence he was not serious. By
contrast, Partee's shrinking from the risk of industrial
warfare, coupled with a counterproposal on no-
strike/no-lockout which had existed for the previous 6
years in conjunction with established grievance and arbi-
tration procedures, was more indicative of a desire to
bargain to agreement.
Timeclock. According to Mills, he also discussed his
proposal that employees be paid in accordance with
timeclock entries rather than by a foreman's notebook
entries. There appears to have been some discussion be-
tween Partee and him about the system in use in the
plant, but it does not appear whether there was accept-
ance or rejection by the Company of the proposal. It is a
matter on which the General Counsel had the burden of
proof, a burden which does not appear to have been car-
ried.
At the end of the fifth meeting the Union's position re-
mained essentially what it had been all along. It made no
other proposal except its initial ones which were amend-
ed, in minor respects, on the topics of union representa-
tion, participation of an International representative in
grievance procedures, the list for arbitrators, and the ad
hoc proposals made by Levine. No additional agreements
were reached.
The Company's position, which had been stated earlier
several times, remained essentially the same. Its counter-
proposal was the terms of the old agreement. Respecting
the Union's proposals, Partee again stated he was unable
to respond because of the large number of proposals and
because he was in the dark as to the Union's view of
their relative importance. On the other hand, Mills testi-
fied that he stated the Union's priorities as he went
through the entire proposal. The record, however, does
not reflect that he pointed out their relative importance
in the course of the negotiations. At the hearing, he testi-
fied that the Union's main priorities were the recognition
clause, management-rights, the seniority provisions, the
grievance and arbitration procedures, the authorization
of arbitrators to decide matters covered by the no-strike
clause, and abolition of the so-called zipper clause. I find
that, while there was some basis on which Partee might
have speculated as to the Union's priorities, the Union
did not give any clearcut signal to management as to
whether any topics were more important than any
others., Mills simply put them all on the table.
7. The sixth session-April 10
On April 10 the parties and mediator Tolbart met for
the sixth bargaining session.
Pension and Insurance. As the meeting opened Partee
supplied Levine with copies of a booklet describing the
company pension plan and a copy of a letter Partee had
sent to the International's general counsel containing in-
formation he had requested earlier. In addition, a compa-
ny official named Walters presented data on insurance
costs. He described certain contemplated changes in ma-
ternity benefits effective May 1, made to comply with
changes in the law. Partee asked for union agreement.
Levine replied he would let him know later. At the next
two meetings they discussed the insurance question fur-
ther and, on April 19, Levine agreed to the changes
scheduled for May 1. The whole sequence dealing with
insurance demonstrated effective good-faith bargaining
by both sides.
Plant Rules. The Company also supplied the Union on
April 10 with copies of its written plant rules (also called
work rules) which Levine had requested. Sanderson ver-
bally described when particular rules had gone into
effect.
1494
SANDERSON FARMS
The parties then discussed certain of these rules, the
first being the rule on absences. Employee members of
the union committee asserted they had never seen parts
of this rule. They further complained that, in practice,
supervisors did not adhere to the rule as written.
During the discussion of plant rules, it became appar-
ent that, in practice, all rules were not promulgated in
written form. A number, which management asserted
were, in any case, universally known to employees, were
verbal rules. These included rules limiting employee use
of restrooms while on duty, the wearing of hairnets and
rings while on duty, and employee use of company park-
ing facilities. The one most objectionable to employees
was the rule on restrooms. The normal plant schedule
for a daytime shift included a regular morning break, a
midday lunch break, and an afternoon break in the event
that the production line remained in operation long
enough to require one. If it did not, the employees were
released to go home. Management expected employees
to use these various breaks to use the restrooms. Some
employees were of the view that this deprived them of
free time which they had earned. In addition to the regu-
lar breaks, the verbal rule on restrooms allowed employ-
ees to leave the production line in order to use the rest-
room, when necessary, and provided a substitute was
available to relieve the employee. The rule limited such
extra restroom breaks to three per week for each em-
ployee. Those taking a greater number were subject to
counseling, a warning, or discipline.
The Union, and particularly employee members of the
local committee, objected to the limit of three extra rest-
room breaks per week. They further objected to the ad-
ministration of the existing rule on the ground that, on
occasion, relief of an employee in distress was not pro-
vided or was unreasonably delayed. They cited incidents
which they claimed were abuses of the rule. Partee took
notes, saying he would respond.
At some point during the April 10 meeting, local com-
mittee members also complained of the inequity of the
rules on tardiness and absenteeism, as applied by some
supervisors, asserting that being late as little as 6 minutes
had been treated as an absence with possible discipline at
a later time, while an absence of more than 1 day for the
same reason had also been treated as only one absence.
They also discussed the system of regular breaks, but
the record does not reveal the content of the discussion.
Finally, within the general topic of plant rules, the
local committee members complained of the existing
system whereby employees were paid according to nota-
tions made by a supervisor in a notebook rather than ac-
cording to the timeclock. Apparently, the only function
of the timeclock was to document tardiness and ab-
sences. Partee took notes on all these complaints.
At the April 10 session these "bread and butter" com-
plaints of the plant employees began to emerge, and at
subsequent sessions became increasingly apparent. With
his takeover of the helm of union negotiations, Levine
increasingly involved local committee members in nego-
tiations. What resulted was a de facto change in empha-
sis from the "shotgun" approach of Mills based on the
numerous changes sought in his far-ranging proposal, to
a greater concentration on the specific complaints of
local employees. This change in focus put these local
complaints in the forefront of issues being pressed by
Levine and thereby indicated by action, whether verbal-
ized or not, some degree of union priority respecting the
issues put forward. I do not find that on April 10 such
was apparent, or ought to have been apparent, to compa-
ny negotiators. But, as time went on, and Levine contin-
ued and increased the emphasis on local issues, the thrust
of union contentions, and therefore the relative priority
of local problems, became more apparent and company
negotiators, at some point, either knew, or ought to have
known, that those matters had become top priority for
the Union.
Management-Rights. At this session Levine and Partee
had considerable discussion of management-rights. In
connection with their talk on plant rules, Levine com-
plained that, under the old contract, the management-
rights clause gave management sole authority to promul-
gate plant rules without consulting the Union, and such
rules were not subject to the grievance procedures
except on the grounds of unreasonableness. Even unrea-
sonableness could not be taken to arbitration, the arbitra-
tor being limited to whether the rule was violated or not.
He also asserted that, under the old contract, manage-
ment was exempted from negotiating with the Union
prior to exercising any of its management-rights. He con-
tended that the law required such negotiations with the
Union. At the hearing, however, Levine admitted that
broad grants of management-rights in the old contract
were modified by subsequent specific provisions in the
agreement.
Mills, in his proposal, had entirely deleted manage-
ment-rights provisions. On April 10 Levine verbally
modified the proposal to include a management-rights
clause worded as follows:
That except as specifically abridged by a provision
in this agreement, the Company retains the right to
exercise all the rights and functions of management.
This was a revision of section 1 of the management-func-
tions article of the old contract, deleting all reference to
grievance procedures.
Partee rejected the revised proposal, saying the Com-
pany needed much more. Levine asked for a counterpro-
posal, but Partee offered none. Levine then asked him if
he still insisted on the language of the entire section I of
the old provisions on management-rights (which ex-
cluded their exercise from full grievance and arbitration).
Partee replied he did, that the Company would not enter
into a contract requiring daily bargaining. Levine said he
was not asking for daily bargaining; he only wanted the
objectionable language deleted. Levine asked if Partee
was willing to change any portion of the old manage-
ment-rights provisions. Partee replied no.
Throughout the whole exchange on management
rights, all the affirmative efforts to adjust came from
Levine. Admittedly some of his arguments were errone-
ous, but he had to pull each specific position out of
Partee by asking additional questions. The net effect was
to force the Union to do all the accommodating. It
would be easy to exaggerate the extent of that accommo-
1495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dation. But, by contrast, the Company made no affirma-
tive effort. Its part in the interchange bespeaks foot-drag-
ging in an effort to adhere to an intransigent position on
management rights. This is not to say that that bargain-
ing posture was, by itself, unlawful, but, when consid-
ered with other evidence of bargaining attitude, such
conduct is some evidence of an intent by means of sur-
face bargaining to avoid agreement. NLRB v. Truitt Mfg.
Co., supra; General Electric Co., 150 NLRB 192 (1964);
Irvington Motors, 147 NLRB 565 (1964), enfd. 343 F.2d
759 (3d Cir. 1965); Fitzgerald Mills, supra.
No-Strike/No-Lockout. During this sixth meeting, the
parties also extensively discussed the topic of no strikes
or lockouts as proposed in Mills' package. Under this
proposal, the Union would promise, for the term of the
agreement, not to engage in strikes to change contract
provisions or to support grievances subject to arbitration.
This contrasted with its undertaking, under the old con-
tract, not to engage in strikes for any purpose.
Partee objected to this more limited strike ban being
proposed, saying that the Company needed a total no-
strike commitment. He argued that, under the old man-
agement-rights clause, the Union with this more limited
no-strike commitment could strike regarding the exercise
of all management rights because they were not subject
to arbitration. He said Levine had opened the door wide
for strikes. To this, Levine cogently replied that the
union proposal on management rights would subject
their exercise to grievance and arbitration procedures
and, therefore, under the Union's no-strike proposal it
would not be able to strike. It is apparent that the
Union's bargaining purpose was to arrive at arbitration
provisions coextensive with the undertaking not to strike.
Partee then voiced additional objections to the union
proposal on the ground that the Union's undertaking to
ensure that unauthorized strikers would return to work
was inadequate. He pointed to case law indicating the
practical need for an employer to have union duties, in
this regard, spelled out specifically in an agreement.
Levine responded that the Union was itself not seeking
to strike during the contract term and would endeavor to
get unauthorized strikers back to work. But Partee con-
tended the proposal did not accomplish that. He ex-
pressed apprehension that the loose language proposed
was a way to get around court decisions requiring good-
faith union steps to return strikers to the job. He said,
under the proposal, the Union could go through the mo-
tions while a strike continued and avoid liability for it.
All he wanted was for the Union to do what the case
law required-to take those reasonable steps needed to
end a work stoppage. Levine then suggested that Partee
put something in writing for his consideration. Partee
agreed to do so. On this aspect of the topic, the bargain-
ing resulted in some progress.
They engaged in some further inconclusive discussion
over the wording of section 3 of the old no-strike provi-
sion, Levine contending that it even prohibited strikes to
protest unfair labor practices. Levine argued such a pro-
vision was inappropriate, the Union having an absolute
right to strike against unfair labor practices in all circum-
stances.
Probationary Period. Regarding the Union's proposal
for a 30-day probationary period for new hires, instead
of the old 90-day period, Levine asked Partee why the
Company objected to the shorter period. Partee de-
scribed in detail the plant's operation as a justification for
the longer period. He noted, in particular, the perishable
nature of the product, the processing of which was
under the surveillance of Government inspectors; the
high volume production line which, once started, could
not be stopped until all produce on the line was proc-
essed; and the need for employees to properly perform a
variety of job assignments.
This was the last topic discussed on April 10. Follow-
ing the above justification, the union representatives cau-
cused separately and drafted a revised proposal to con-
tinue the 90-day probationary period but move up the
normal 10-cent-per-hour raise at the end of the period to
60 days after hire. Mediator Tolbart delivered this revi-
sion to the company delegation. He reported back short-
ly to the Union that the Company said no, that there was
no counterproposal.
There were, of course, certain economic aspects to the
revised proposal. But there was no explanation offered as
to why it was rejected. The circumstances were such
that some explanation rather than a flat, unexplained re-
jection was in order. I find these circumstances to be an
additional indicia of company surface bargaining. Fitzger-
ald Mills, supra.
8. The seventh session-April 18
Insurance. The negotiators met for the seventh time on
April 18. Partee opened the session by alluding to insur-
ance costs and maternity benefits under the company in-
surance program discussed earlier. He corrected some
earlier information, saying the plan was now slated to
become operative May 1. He asked for union approval.
Levine promised a reply the next day.
Second Shift. Most of the meeting was devoted to dis-
cussing the feasibility of continuing a second shift, but
the specifics of the interchange are not in the record.
Restrooms. Levine brought up the subject of restrooms,
but here, too, what was said is not apparent in the
record.
Attendance. The last topic discussed, attendance prob-
lems, was also raised by Levine. Since the previous
meeting, management officials had examined personnel
records about the incidents of attendance-rule abuse by
supervisors, about which local committee members had
complained. Using this company data, management offi-
cials orally began to refute the incidents described by
local union representatives on April 10. As the presenta-
tion progressed, the local representatives became upset,
asserting the company statements were untruthful, that
the records were wrong. A general commotion resulted.
Partee then stopped the oral presentation and simply
delivered to Levine the notes developed from company
records and which explained the company position. The
notes conflict with the April 10 description of the inci-
dents by local representatives. No resolution of the
matter was reached on April 18. This was the last item
1496
SANDERSON FARMS
dealt with that day. The parties adjourned to the follow-
ing day, April 19.
9. The eighth session-April 19
In the eighth session, Levine continued his efforts
begun April 10 to focus more sharply on the human
problems implicit in the requirements that production
line employees be on duty and remain on duty on the
line. He thus continued signaling with added emphasis
that these were "up-front," first-priority topics for the
Union.
Insurance. Partee had opened the April 19 session by
asking for Levine's response to his insurance proposal
made the day before. Levine again put him off, saying he
would answer later because he had something else in
mind to consider. Employee Jo Ann Yates was present
with a small child and Levine proposed to have the
meeting hear first from her. There was no apparent ob-
jection.
Restrooms. Written plant rules dealt with tardiness and
absenteeism, but not with extra breaks for use of the rest-
rooms, the rules for which were promulgated orally by
line foremen. One of the incidents of alleged supervisory
abuse regarding such relief, to which local committee
members had referred on April 10, had involved Jo Ann
Yates, it was alleged, was held on duty on the line,
which caused her to have a miscarriage. Management ne-
gotiators had responded in writing on April 18 to the
effect that Yates was never talked to about leaving the
line for restroom relief. This appeared to be a virtual
denial that anything unusual had occurred.
At Levine's request Yates appeared in person on April
19 to report what had occurred. She told the assemblage
that in early January, while she was pregnant, she was
working on the line and requested special relief between
breaks to go to the restroom. She was told she could not
be relieved. She made a second request but was not, she
said, relieved until 45 minutes had elapsed since her first
request.5 Later, that night at home, she suffered a mis-
carriage.
On April 19 the local committee also cited an incident
involving female employee Tommy Bynum who had also
requested, and had been refused, permission to leave the
line for an extra restroom relief. As a result she soiled
her clothing.
In the bargaining which followed these presentations,
Partee expressed sympathy but suggested that the situa-
tion be handled by supervision's voluntary efforts to im-
prove administration of the rule. Levine rejected such an
approach as inadequate, characterizing the entire proce-
dure as dehumanizing, and declaring that contract lan-
guage was required to meet the problem. Partee dis-
agreed, saying that contract language was neither neces-
sary nor desirable. Levine then asked for a guarantee
that such incidents would not recur, but Partee refused.
This was followed by lengthy separate caucuses of the
parties during which Levine drafted a proposal for extra
5 Joe Sanderson Jr. testified that his own subsequent investigation (pos-
sibly in preparation for trial) indicated the delay had been 25 minutes.
There is no indication any real investigation was made at the time of the
incident.
restroom relief which mediator Tolbart delivered to
company negotiators. He proposed: (a) no employee be
denied the right to use a restroom; (b) the Company
would attempt to have sufficient "extra board" employ-
ees to allow line relief without "undue delay" and,
should no relief be available, the line employee could use
the restroom "without penalty"; (c) the personnel man-
ager would counsel employees who make unnecessary
restroom trips; (d) supervisors would not "interrogate"
employees about use of the restroom; and (e) the forego-
ing contract provisions should not be construed as an in-
vitation to employees to use the restroom at will and
abuse could result in progressive discipline.
Upon receiving this union effort to meet both the pro-
duction and humane aspects of the situation, Partee did
not immediately respond. Instead he sent word through
the mediator that he wished to continue negotiating as to
the discontinuance of the second shift, a topic discussed
at the previous session. This would have been a switch
away from restroom relief, the topic then being consid-
ered and obviously a matter of top union priority. While
discontinuance of the second shift may have been of first
concern to management, it was not then the subject
before the parties. Levine became annoyed and insisted
on dealing with the restroom problem before changing to
another topic and refused to talk with Partee about the
second shift. Partee accused the Union of not being will-
ing to meet.
When Tolbart finally got them into the same room
about 2 p.m., Levine and Partee exchanged heated
words. Without condoning the ill-tempered outbursts of
either of these experienced negotiators, I find Levine's
position the more reasonable. All along the Company
had pressed for an indication of union priorities in order
to reduce the issues. By shifting his emphasis in bargain-
ing, Levine had plainly signaled that breaks in general,
and in particular extra restroom relief, were top-union
priorities. In the circumstances the Company could rea-
sonably be expected to respond promptly in a manner
aimed toward resolution of that problem. Instead Partee
made a pro forma response by finding faults in the union
proposal, but made no affirmative suggestions for adjust-
ment. He ended up rejecting the whole proposal as unac-
ceptable. Specifically, he told Levine the Company
would not agree to maintain an adequate extra board for
restroom relief on the gound that it could not guarantee
it. He took this position, even though the Union had not
sought a guarantee. He indicated the Company could not
assure relief without "undue delay," as proposed, be-
cause that meant immediate relief and management could
not promise immediate relief. He asserted that, under Le-
vine's proposal, employees could leave the line at will
and management would be powerless to prevent it, that
employees could stop the production line, even when un-
warranted. He faulted the proposed limitation on fore-
men questioning employees about restroom relief. He
took this position, even though many of the foremen are
male while many of the line employees are female. He
claimed that limiting the counseling about restroom
abuse to the personnel manager was an unwarranted lim-
itation on supervision. He characterized Levine's general
1497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclaimer that the provision was not an invitation to use
restrooms at will as "meaningless."
Levine made numerous further adjustments and dele-
tions in his proposal, specifically directed to meeting Par-
tee's objections, but to no avail. Although most of the
afternoon session was spent on restrooms, no progress
was made. All efforts to solve problems were on the
union side. Partee only raised objections and, in the end,
rejected everything proposed.
Insurance and Second Shift. At some point in the early
afternoon, having delivered the company position to Le-
vine's restroom relief proposal, Partee declared he had
now "responded" to the proposal. He asked that Levine
respond to the Company's new insurance program to
which Levine had deferred his response. Sometime
during the session Levine agreed to that program. Also
during the afternoon Partee again raised the issue of con-
tinuance of the second shift. Levine asked for, and
Partee agreed to allow him access to, company records
relating to the second shift. The interchange between
them regarding insurance and second shift involved no
bad-faith conduct.
But the same cannot be said for company bargaining
on restroom relief. Irrespective of any later treatment of
the issue, company bargaining on April 19 indicated an
intransigent attitude and an unwillingness to make any
effort to resolve the mutual problem. Company negotia-
tors did not display the open mind, the desire to reach
agreement, or the effort to reach common ground of
which the Supreme Court spoke in NLRB v. Truitt Mfg.
Co., supra. Partee just went through the motions of bar-
gaining. Tower Hosiery Mills, 81 NLRB 658 (1939), enfd.
180 F.2d 701 (4th Cir. 1950).
10. The ninth session-May 1 sessions
On May 1 the parties met for the ninth time and with
the intention of continuing the next day, if necessary. As
it turned out, the May I session, which began during the
day, was resumed that evening, and the scheduled May 2
session was canceled because Partee could not attend.
The daytime talks dealt with restrooms and regular
breaks. Agreement was reached on restrooms but not on
breaks.
Restrooms. The discussion commenced with a reiter-
ation of the previously stated company position that the
restroom relief question did not require contract lan-
guage and the matter should be left for unilateral han-
dling by supervision in administering a so-called open
door policy vis-a-vis employees and through continued
availability of the plant nurse. Levine then suggested
contract language, used in another union's agreement
elsewhere. With this in hand, company negotiators cau-
cused, returning with the following proposal on restroom
relief:
Emergency relief shall be provided for emergency
to the plant medical facilities and restrooms.
The Union agreed to this proposal, thus seemingly put-
ting to rest that issue. But, even in achieving this ulti-
mate agreement, most of the effort toward agreement
was union generated. I do not find that the May I reso-
lution of the issue cured or wiped out the evidentiary
significance of company conduct on April 19.
Breaks. The subject of breaks, although related to rest-
room relief and attendance, was dealt with separately,
and involved arrangements for normal breaks during a
day shift. Discussion, although extensive, resulted in no
agreement.
The Union wanted a system of regular breaks, includ-
ing a midmorning break, and an ensured afternoon break.
Nonluncheon breaks had been 10 minutes. Levine draft-
ed and submitted to Partee a written proposal enlarging
these to 15 minutes and guaranteeing an afternoon break.
Partee persuaded Levine that the time enlargement was
an economic matter which should be deferred with the
other economic questions. He took the balance of the
proposal for consideration.
On the general concept of breaks, it appears that em-
ployees thought of them as earned free time on which
they were somehow being short changed. Specifically,
with respect to afternoon breaks, they were unhappy be-
cause such breaks were not always given. By contrast,
management apparently thought of employees only earn-
ing pay for work performed and conceived the breaks as
unearned releases designed to promote more efficient
performance.
Joe Sanderson Jr., responding for the Company, re-
ferred to the underlying mechanical and health consider-
ations which defined the entire operation. These in-
volved close and continuous sanitary controls by in-plant
U.S. Department of Agriculture inspectors and, on the
mechanical side, the fast-moving, high-capacity, convey-
or line necessitating a rolling schedule for breaks. Sched-
uling of afternoon breaks was further complicated by
variability in the length of afternoon operations. The
conveyor line, of necessity, continued operating until in-
coming unprocessed poultry was exhausted for the day
but did not continue thereafter. The supply of poultry
varied from day to day with the result that employees
were sometimes released prior to receiving an afternoon
break.
The negotiators discussed breaks throughout the day
without resolving the matter. None of the bargaining
conduct indicates bad faith.
At the end of the day session they expected to contin-
ue the next day. But, after the daytime session ended,
Partee notified the parties of an emergency preventing
his attendance the next day. Instead they immediately re-
sumed negotiations during the evening of May I. The
parties were joined by mediator Tolbart and for the first
time by a second mediator, Robert Smith. 6 Both media-
tors sought to identify and narrow the issues, Tolbart
meeting separtately with the Company and Smith with
the Union. From then on all bargaining sessions except
the last one on June 5 were conducted with the parties
being separated and with communication through media-
tor Smith. On May 1 Smith asked Levine to indentify
the issues which needed to be resolved before agreement
could be reached and specifically if he (Smith) could talk
6 In his testimony Levine placed the sequence described here as occur-
ring on May 15, but he was unsure. I find, based on the credited testimo-
ny of Joe Sanderson Jr., that the described sequence occurred May I.
1498
SANDERSON FARMS
with the local committee members in this regard. Levine
agreed and allowed local committee members to voice
those matters uppermost in their minds. By allowing this
procedure Levine implicitly focused on those matters as
being high priority matters among the union issues. And
he further allowed Smith to get the impression, although
Levine did not specifically say so, that solution of those
problems would likely result in a contract. On this basis
Smith listened and made notes of 18 items requiring
agreement. Company negotiators did not learn of this list
of priority items until a company caucus on the morning
of May 15 when Smith orally submitted the items to
them.
The company position on May I, expressed to the
Union through the mediators, was that too many union
proposals still remained on the table for the Company to
be able to respond. Partee asked that the Union narrow
the issues. Levine countered that the Union needed some
idea of company views, but had none, and needed some
idea of company views before further narrowing the
issues. Both sides then retreated to earlier general posi-
tions. Partee expressed a desire to negotiate on the real
problems rather than cosmetic contract changes. But
when Levine asked him for specific proposals, he pro-
posed the text of the old contract. The evening session
ended on this note with no apparent progress toward
agreement.
11. The 10th session-May 15
Breaks. The May 15 meeting opened in the morning
with a discussion of Levine's proposal on breaks made
on May 1. Partee expressed disagreement with certain
language used and submitted a written counterproposal
with different language. After a discussion between the
parties, the union committee caucused separately to con-
sider the counterproposal. During the union causcus,
Levine drafted two new written proposals, one relating
to breaks and the other to plant rules, which mediator
Smith delivered to the company negotiators. Levine's
proposal on breaks was not in the form of contract lan-
guage, but rather a statement of agreement to the compa-
ny counterproposal on the condition that certain changes
be made which would enlarge the breaks from 10 to 12
minutes, continue breaks for certain nonline employees,
and improve the timing of afternoon breaks. At the same
time Smith delivered Levine's two proposals, he also
verbally conveyed to company negotiators the lists he
had made of the so-called 18 points which included
breaks and plant rules.
There ensued a discussion which encompassed past
practice, as well as Partee's counterproposal and Le-
vine's last proposal. Sanderson, speaking for the Compa-
ny, expressed firm opposition to changes from past prac-
tice. This position included rejection of an assured after-
noon break and of longer breaks because of an increase
in cost. Probing by the mediator and Levine then re-
vealed that the cost of existing 10-minute breaks had al-
ready been accounted for. Thus, the Company's position
was largely specious because the union proposal would
have involved only a modest increase in cost. But San-
derson remained adamant in rejecting any change from
past practice. No agreement was reached.
The Company's bargaining on breaks thus revealed an
inflexible attitude which, when evaluated with the large-
ly unfounded cost argument, evidenced unwillingness to
reach agreement on that issue. NLRB v. Truitt Mfg. Co.,
supra; Tower Hoisery Mills, supra.
The 18 Points. These were notes that mediator Smith
had made May I on matters of prime concern to local
committee members. 7 Smith told company negotiators
that resolution of the problems on those subjects was
what was needed to get an agreement. On questioning by
Partee as to whether agreement on the indicated topics
was all that was needed, Smith stated that Levine had as-
sured him that whatever the union committee wanted
would suit him fine. I infer he referred to comments of
Levine on May 1 when Smith talked to the committee.
Other than this apprising of company negotiators of the
18 points and of Levine's purported comment, there ap-
pears to have been no communication on May 15 be-
tween the parties respecting the 18 points.
Plant Rules. During the afternoon of May 15, the dis-
cussion turned to the work-rules language drafted by
Levine in the morning which would permit the Compa-
ny to make and enforce reasonable work rules, after due
notice to the Union, and to employees and provided that
the reasonableness could be tested through grievance and
arbitration. The discussion included consideration of the
old management-rights provision on which Partee con-
tinued to insist and under which the mere promulgation
of work rules was not subject to grievance and arbitra-
tion.
Levine's proposal and bargaining position was pre-
mised on the contention that, under the old contract, the
reasonableness of a plant rule could not be tested in any
circumstance. The record, as a whole, indicates that,
under past practice, the reasonableness of a plant rule
was legally open to question in the context of a specific
situation being grieved and arbitrated. The effect of Le-
vine's plant rules proposal, together with his proposed
(as well as the old) grievance and arbitration provisions,
would have been to allow the Union to test by grievance
and arbitration the general reasonableness of a rule when
promulgated as well as thereafter in the context of a spe-
cific grievance controversy.
Partee argued for the old system, and Levine for his
erroneously premised proposal. No agreement was
reached. I find no evidence of company bad faith in its
bargaining conduct on this issue during the May 15 ses-
sion.
12. The I th session-May 16
On May 16, the parties began by meeting separately at
the suggestion of Smith. He told the company committee
that Levine, contrary to what he had earlier understood,
I The subjects involved were absentee policy, vacations, job status .lon
return from leave of absence, paycheck distribution, funeral leave. days
before and after holidays, grieving of plant rules, distribution of warning
letters and removal of old ones, sharpening of plant knives, personal and
emergency telephone calls, breaks after 10 hours work. pay for duty on
safety committee, overtime roster, pay protection for senior employees
over new hires, right to bid on old job after reassignment, wages. over-
time and jury pay, and accident and health benefits
1499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was enlarging the issues beyond the 18 points and, until
the issues were narrowed, he saw no point in the parties
meeting together. The difficulties of the bargaining situa-
tion are demonstrated by Levine's own testimony that he
did not consider they had resolved the restroom issue
even though they had agreed on May I to contract lan-
guage governing that topic.
Having informed the company representatives on May
15 about the 18 points, and having been questioned by a
skeptical Partee as to whether development of the list
truly constituted a narrowing of the issues, Smith, on
May 16, went back to the Union with the question
whether the Union was dropping all other issues. Levine
told him no, that the Union was only itemizing the most
important issues. Thus, Levine reaffirmed that the 18
topics were top priority issues for the Union. Smith then
reported to the Company and later returned to the
Union, reporting that the Company understood the union
position on the 18 points and needed time in which to
respond to them.
At that time Levine, through Smith, made a written
request for information from the Company on health and
safety statistics, plant accident rates, and Equal Employ-
ment charges. At the next meeting, June 4, the Company
supplied the requested information.
13. The 12th session-June 4
Little occurred on June 4 because mediator Smith did
not arrive until late afternoon. He then met first with the
company committee, telling them he was going to in-
quire of the union representatives whether there were
any changes in union positions, any clarifications, or any
reduction or narrowing of the issues. He subsequently re-
ported back to the Company that he could not get
Levine to state that only the 18 points were on the table,
that there appeared to be other things as well that barred
agreement.
At his suggestion, the parties agreed to a meeting of
Smith, Partee, Joe Sanderson Jr., and Levine without the
presence of the local committee so that Levine alone
could hear the company response on the 18 points. This
meeting was scheduled for the following day, June 5.
14. The 13th session-June 5
This was the last bargaining session held. Levine
wanted it "off the record," but Partee refused because of
the pending unfair labor practice charges filed by the
Union on May 29. Levine then agreed to proceed "on
the record."
According to the credited testimony of Joe Sanderson
Jr., Levine began the substantive discussion by stating
that the Union considered the matter to be serious. The
Union found the old contract reprehensible, that it con-
tained language contained in no other union contract,
that the Union could not represent the employees under
such a contract, and it was not going to have such lan-
guage in the next contract. He emphasized the union po-
sition by referring to the strike, to union efforts to orga-
nize another of the Company's plants, to steps taken to
enlist assistance from another union representing compa-
ny employees in another of its plants, to the Union's
campaign to boycott company products, and to his intent
to enlist the help of every government agency he could
against the Company.
The ensuing discussion between Levine and Partee
became heated and emotional. During the discussion
Partee repeatedly referred to the 18 points to which he
was prepared to respond and which, he said, were de-
scribed to him by Smith as the issues barring agreement.
Smith confirmed that understanding. Levine refused to
adopt Smith's description. Instead he said to Smith, "I
told you that if these [the 18 points] were agreed upon,
other things would basically fall into line." I view the
differences between the words of Smith and Levine as
immaterial.
Partee asked that Levine identify the other issues
beyond the 18 points. Levine refused unless the Compa-
ny first responded to the 18 points. He also rejected Par-
tee's suggestion that they go through the initial union
proposal, point by point, to identify the areas currently
in dispute. Partee then refused to respond to the 18
points without having the other outstanding issues identi-
fied.8 The meeting ended on that note, with no positive
results, when Levine walked out.
At the June 5 session, Levine shifted his focus back
from one emphasizing priority of the 18 points of local
interest to one where the initial proposals of Mills, for a
contract substantially different from the prior contract,
were pushed to center stage. Thus, the number of issues
was again enlarged, and, in view of Levine's statement of
what the Union considered serious, some basis existed for
company negotiators to believe that the 18 points in re-
ality lacked the priority previously attributed to them.
Although the Company had no right to insist that the
Union abandon issues of concern to it, it was plainly en-
titled to be informed with reasonable particularity what
those issues currently were. In the circumstances the
Union was in no position to insist on a response to the 18
points as a precondition to further discussion.
I find that company conduct on June 5 did not evi-
dence bad-faith bargaining.
Smith and Levine left the June 5 meeting together.
They agreed between themselves that it would be best to
let matters cool off for a time and before Smith would
schedule further bargaining sessions.
C. The Decertifcation Petition
Also on June 5, employee Lavenia Jordan filed a peti-
tion (15-RD-422) with Region 15 of the the Board seek-
ing decertification of the Union as representative of the
employees. On July 5 the Regional Director for Region
15 dismissed the petition on the ground that the Union's
unfair labor practice charges against the Company,
which are the basis of the present proceeding, had previ-
ously been filed on May 29, had administratively been
determined to have merit, and would be the subject of a
Board complaint against the Company. The Regional Di-
rector ruled that a question concerning representation of
the employees could not be raised in those circum-
8 I make no finding as to the nature of the Company's intended re-
sponse to the 18 points, the record being devoid of evidence thereon.
1500
SANDERSON FARMS
stances. On July 13 the petitioner sought Board review
of the Regional Director's dismissal of the petition and
on August 14 the Board affirmed the Regional Director's
dismissal of the petition.
D. Company Withdrawal of Recognition from the
Union and Unilateral Pay Raise
About the end of July, Levine contacted mediator
Smith and requested he arrange further bargaining ses-
sions. Smith subsequently informed Levine he would at-
tempt to schedule sessions for August 8 or 9. On August
7 he telephoned Levine that Partee refused to meet be-
cause the Company might withdraw recognition from
the Union.
By letter of August 9 to Levine, which he received
August 14, Partee, on behalf of the Company, withdrew
recognition from the Union as representative of the em-
ployees. The stated grounds for withdrawal of recogni-
tion were: (1) the decertification petition, which had
been dismissed because of blocking unfair labor practice
charges, but should not have been because the charges
lacked merit; and (2) company doubt as to the continuing
majority status of the Union based on, (a) the number of
employee signatures (377) filed as a showing of interest
with the decertification petition, (b) dwindling employee
support for the strike as indicated by fewer employees on
the picket line, (c) union indifference to agreement
shown by its refusal to reduce outstanding issues, and (d)
union unwillingness on June 5 to state which issues were
barring agreement.
I find none of these asserted grounds to be a valid
basis for withdrawing recognition from an incumbent
certified union whose status as majority representative is
presumed to continue. Celanese Corp., 95 NLRB 664
(1951). The filing of a decertification petition does not
establish that employees do not support the union nor
does employee signing of a showing of interest list estab-
lish their ultimate preference where such events occur as
here, in the context of employer unfair labor practices.
Autoprod, Inc., 223 NLRB 773 (1976). Picket line inac-
tivity may or may not result from a change of heart and,
in any case, a change of view about a strike does not es-
tablish a change of view about union representation. The
presumption of continued majority status of the union is
not thereby rebutted. See Salina Concrete Products, 218
NLRB 496 (1975); King Radio Corp., 208 NLRB 578, 583
(1974). Assuming, without finding, that the Union failed
in its bargaining duty to the Company, it did not thereby
forfeit its entitlement to its Board certification or the
rights of employees to its representation.
In his letter of August 9, Partee also informed Levine
that, on August 10, the Company would announce gen-
eral pay increases at its Laurel plant which were already
in effect in its other plants. The Company, in fact, did so
without bargaining with the Union.
E. Concluding Findings Regarding Company
Bargaining
Hard bargaining characterized the entire course of ne-
gotiations. At certain sessions, as already found, compa-
ny conduct went beyond hard bargaining and indicated a
purpose to avoid agreement. As early as the second ses-
sion on February 20, the Company demonstrated inflexi-
bility in failing to make any reasonable effort to reach
agreement regarding grievance and arbitration proce-
dures. And, by its shifting position during discussion of a
possible extension of the expiring contract, it demonstrat-
ed that its bargaining generally was inflexible.
Again, at the fifth session on March 28, in discussing
the grievance committee, the Company's sterile tactic of
only criticizing the union proposal, without making any
affirmative effort to deal with issue at hand, evidenced a
purpose to avoid agreement. The Company had a duty
to make a serious effort to reach common ground with
the Union. NLRB v. General Electric Co., 418 F.2d 736,
762 (2d Cir. 1969), cert. denied 397 U.S. 965.
On April 10, during the sixth session, company bar-
gaining on management rights evidenced a tactic of sur-
face bargaining for the purpose of avoiding agreement.
Company rejection, without explanation, of a union pro-
posal on compensation during the probationary period
for new hires similarly evidence such surface bargaining.
At the seventh and eighth sessions, on April 18 and 19,
company bargaining regarding restroom relief revealed
an intransigent attitude and unwillingness to reach an
agreement.
And, again on May 15, at the 10th session in its bar-
gaining about regular breaks, its conduct evidenced un-
willingness to reach agreement.
Although these demonstrated incidents of unwilling-
ness to reach agreement did not involve all sessions or all
issues, they did involve matters essential to agreement
and therefore delayed and frustrated agreement. This
was bad faith, surface bargaining. NLRB v. Herman Sau-
sage Co., 275 F.2d 229 (1960).
Respondent argues that the Union, rather than the
Company, engaged in bad-faith bargaining. Of course,
union conduct is not the subject of this complaint, there
being no allegations of union unfair labor practices. And,
on those occasions in which the Company engaged in
bargaining conduct which it is found herein evidenced
bad-faith bargaining, no conduct of the Union necessitat-
ed that the Company act as it did. What might have been
the course of negotiations, had the Company not failed
in its bargaining duty on those occasions, is, of course,
open to some speculation. What this record does estab-
lish is that, on those occasions found above, company
conduct impeded and frustrated the bargaining process.
The defense founded on asserted failure of the Union
to properly bargain thus comes down to a tu quoque ar-
gument that on other occasions (for example the June 5
session), the Union frustrated bargaining and, therefore,
it would have made no difference even if the Company
had, on all occasions, fulfilled its statutory duty. But, as
already noted, it is possible that negotiations could have
achieved an agreement if, at the times Respondent failed
in its bargaining duties, it had, instead, fulfilled them.
Absent a nexus between the asserted bad-faith bargaining
of each party, I conclude that the Act does not contem-
plate that unlawful conduct of one justifies similar con-
duct of the other.
1501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, Respondent's withdrawal of recognition from
the Union and unilateral institution of raises, without bar-
gaining with the Union, were the final phase of an appar-
ent strategy. This strategy began with avoiding agree-
ment by inflexibility and surface bargaining and was fur-
ther advanced by its inviting a strike which, if in the re-
sultant test of economic strength it won, would inevita-
bly force dependent employees to abandon the strike,
and finally arguably support the company claim that the
Union could no longer lawfully represent the employees.
Thus, the end result of the strategy could be company
freedom from the strictures of union representation. Such
stategy, however, does not satisfy Respondent's bargain-
ing obligations under the Act because it was a device for
profiting from its own unfair labor practices. See Neely's
Car Clinic, 242 NLRB 335 (1979).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
Respondent's unfair labor practices set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close and substantial
relation to trade, traffic, and commerce among the sever-
al States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2), engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. All production and maintenance employees of Re-
spondent at its Laurel, Mississippi poultry processing and
rendering plant, including shipping and receiving em-
ployees and cafeteria employees, but excluding all office
clerical employees, salesmen, over-the-road truckdrivers,
watchmen, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
3. The Union and the Local are labor organizations
within the meaning of Section 2(5) of the Act.
4. At all times since June 9, 1972, the Union has been
the representative for purposes of collective bargaining
of a majority of the employees in the aforesaid appropri-
ate unit within the meaning of Section 9(a) of the Act.
5. Commencing February 20, 1979, and until June 5,
1979, Respondent negotiated with the Union without an
intention of entering into a final or binding collective-
bargaining agreement, and, in so doing, failed to bargain
with the Union in good faith, and thereby engaged in
and continues to engage in unfair labor practices with
the meaning of Section 8(a)(1) and (5) of the Act.
6. On February 27, 1979, employees of Respondent in
the aforesaid bargaining unit ceased work concertedly
and began a strike which continues and was in part
caused by and has been prolonged by the aforesaid unfair
labor practices.
7. By withdrawing recognition from the Union on
August 9, 1979 and thereafter refusing to recognize and
bargain with the Union, Respondent engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
8. By announcing on August 10, 1979 and by imple-
menting on August 12, 1979, a 20-cent-per-hour across-
the-board wage increase affecting employees in the
aforesaid appropriate unit without affording the Union
an opportunity to negotiate and bargain as the exclusive
representative of employees in the unit, Respondent en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I shall recommend
that it cease and desist therefrom, post appropriate no-
tices, and take certain affirmative action designed to ef-
fectuate the purposes and policies of the Act, including,
upon request, bargaining in good faith with the Union,
and reinstatement of unfair labor practice strikers upon
their unconditional offer to return to work. Reinstate-
ment shall mean reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to seniority and other rights
and privileges. They are to be made whole for any loss
of earnings they may suffer as a result of Respondent's
refusal, if any, to reinstate them in a timely fashion, by
paying to each of them a sum of money equal to that
which each would have earned as wages during the
period commencing 5 days after the date on which each
unconditionally offers to return to work to the date of
Respondent's offer of reinstatement less any net earnings
during such period, with interest theron to be computed
in accordance with the formula F. W. Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
[Recommended Order omitted from publication.]
1502