Tarlas Meat Co.

National Labor Relations Board - Board Decisions

Jan 18, 1979

239 N.L.R.B. 1400 (N.L.R.B. 1979)

DE)( ISIONS OF NATIONAI. .ABOR RELArIONS BOAR[)
Tarlas Meat Company and Amalgamnated Meat Cut-
ters & Butcher Workmen of North America, AFI,-
C(IO, 1Acal No. 545. ('ases 14 CA 10085 and 14
CA 10475
January 18. 1979
DEL(ISION ANI) ORDER
By MI MHIFRS JIi KINS. Mt RPiY X.Nl) TRI I SDl)l I
On January 23. 1978. Adnministrative L.aw Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Respondent filed exceptions and supporting briefs.
T'he Charging Party' filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(hb) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge as
modified herein.2
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(5) and (1) of
the Act by dealing directly with its employees and
thereby bypassing their duly established collective-
bargaining representative, promising its employees
improved wages and other benefits to induce them to
abandon a strike, and unilaterally granting wage in-
creases to employees, and that it independently vio-
lated Section 8(a)(l) of the Act by telling its striking
employees that if they did not return to work they
would be permanently replaced and the Respondent
would never have an obligation to reinstate them.
We further agree with the Administrative Law Judge
that the strike which commenced March I, 1977,3
was an unfair labor practice strike from its inception.
Respondent has excepted to all these findings, and
particularly to the Administrative Law Judge's con-
clusion that the strike was an unfair labor practice
strike. In support of this exception, the Respondent
emphasizes that the General Counsel disclaimed at
the hearing any allegation that the Respondent bar-
gained in bad faith at its negotiating sessions with the
H /erein also referred to as Ihe Inion.
2In adopting the findings and conclusions of the Administrative L.aw
Judge. we disavow his statement in the first senlence of Ihe remeds section
which implies that there is a finding of overall had-lfaith bargaining the
Administrative Law Judge made no finding of overall had-faith bargaining
by the Respondent. and the General (ounsel disclaimed at the hearing that
there was any allegation of bad-faith bargaining
All dates hereinafter are 1977 unless otherwise indicated
Union and contends th.:t its direct dealings wtih em-
ployees on February 18, 19, and 22 were "cured" by
its subsequent meetings with the Union on Febru-
arN 23 and 26. Thus. the Respondent argues that the
strike was not caused even in part by its unlawful
conduct but rather was commenced and continued
as an economic strike. We find no merit in this argu-
me n t.
With respect ta the General Counsel's disclaimer.
the Administrative Law Judge's conclusions that the
Respondent's unfair labor practices were at least one
of the causes of the strike does not depend on a find-
ing that the Respondent bargained in bad faith, and
therefore the Respondent's reliance on the disclaimer
is misplaced. Rat er, the Administrative Law Judge
found, and we agree. that the Respondent's unalwful
direct dealing with employees was one of the reasons
why the parties had not reached agreement by March
I and was thus a cause of the strike. In these circum-
stances, and considering the nature of the Respon-
dent's unlawful conduct, it is reasonable to infer that
the unfair labor practices contributed to the decision
to strike and it is not necessary to adduce specific
proof of the casual connection between the Respon-
dent's actions and the strike.4 For, dealing directly
with employees constitutes an attempt to undermine
the Union's status as exclusive representative and as
such cannot help but prevent and inhibit the parties
from reaching agreement.5
The Respondent contends, however, that its meet-
ings with the Union on February 23 and 26 "cured"
its prior unlawful conduct. But the Respondent cites
no authority for this proposition, and the undisputed
facts lead to the opposite conclusion. Thus, when
John Tarlas, one of the owner-partners of the Re-
spondent, made proposals directly to the employees,
they told him the matter should be discussed with the
Union, and the February 23 bargaining session
which followed was largely devoted to the Union's
complaints about these direct dealings by the Re-
spondent. However, and notwithstanding the
Union's expressed concern about its conduct, the Re-
spondent not only failed to disavow its actions vis-a-
vis the employees but later again bypassed the Union
in order to present its contract proposals directly to
the employees. In these circumstances, we agree with
the Administrative Law Judge that "the Union had
to strike if only to stop the employer's direct dealings
with the employees inside the plant, to force it-as
the statute demands-to speak with the Union and
4 Ihe Board has held in numerous cases that such a connection may he
inferred from the record as a whole. See. eg.. Auonmatic Plastic Molding
(;',ipli. 234 NtL.RB 681 (19781: Safeai Trails. Inc.. 233 NLRB 1075
(19717 trlirh'S 814. In . ilt u/. 231 NLRB 1237 (1977.; Randle-Eastern
.Arnhu/ltn,l S.criiei. In , 231)0 NL RB 542 (1977)
See Sali al I rais. Inr.. mlupra
1400
TARLAS MEAT COMPANY
only the Union. Furthermore, we note that very little
time elapsed between the dates of the Respondent's
initial direct dealings (February 18, 19, and 22). the
date the Union protested the Respondent's conduct
(February 23), and the strike's commencement on
March 1.
In light of the foregoing, we find, in agrement with
the Administrative Law Judge, that the Respondent's
unfair labor practices were at least one cause of the
March I strike, and that it was therefore an unfair
labor practice strike.6
The General Counsel excepts to the Adlninistra-
tive Law Judge's failure "to include in the Order and
Notice to Employees that, upon application, Respon-
dent must offer reinstatement to striking employees,"
inasmuch as the Administrative Law Judge found
that the strike was an unfair labor practice strike. We
find merit in this exception and shall therefore pro-
vide the remedy set forth below in addition to that
recommended by the Administrative Law Judge.
In the section of his Decision entitled "Conclu-
sions of Law," the Administrative Law Judge inad-
vertently failed to make certain Conclusions of Law
consistent with findings made in the text of his Deci-
sion. We shall therefore modify his Conclusions of
Law accordingly, and for the purpose of clarity have
sert forth such conclusions in their entirety.
CONCLUSIONS OF LAWy
I. Tarlas Meat Company is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, Local No. 545. is
a labor organization within the meaning of Section
2(5) of the Act.
3. All employees employed by the Respondent at
its Madison, Illinois, plant, including hotel supply or-
der fillers, cooler men, all-round helpers, dockwork-
ers, truck-loading and receiving employees, and
cleanup personnel, but excluding office clerical and
professional employees, guards and supervisors as
defined in the Act, and salesmen and drivers, consti-
tute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. At all times material herein. Amalgamated
Meat Cutters & Butcher Workmen of North Amer-
ica, AFL-CIO, Local No. 545. has been the exclusive
collective-bargaining representative within the mean-
6 h is well settled that a strike Is an unfair labor practice strike i"f an
unfair labor practice had anything to do with causing the strike." L R.B
v. Cast Optics Corporation. 458 F 2d 398. 407 (3d (Cir 1972). cert denied 40(
U.S, 850
ing of Section 9{a) of the Act for all of the Respon-
dent's employees employed in the unit described
above in Conclusion of Law 3.
5. The strike which commenced on March 1, 1977,
was an unfair labor practice strike from its inception.
6. By dealing directly with its employees and
thereby bypassing the duly established exclusive col-
lective-bargaining agent of those employees, the Re-
spondent has engaged in unfair labor practices with-
in the meaning of Section 8(a)(5) and (I) of the Act.
7. By promising its employees improved wages
and other benefits for the purpose of inducing the
employees to abandon a strike and return to work,
the Respondent has engaged in unfair labor practices
"within the meaning of Section 8(a)(5) and (1) of the
Act.
8. By unilaterally granting wage increases to its
employees, the Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(5)
and (I) of the Act.
9. B) telling its striking employees that if they did
not abandon the strike and return to work they
would be permanently replaced and it would never
be under an obligation to reinstate them, the Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
Am))l X ION\L RiE LI)tY
Hlaving concluded that the strike which began on
March 1, 1977. was an unfair labor practice strike
from its inception. we find that it will effectuate the
purposes of the Act to order the Respondent, in addi-
tion to taking the action recommended by the Ad-
ministrative Law Judge and designed to remedy the
unfair labor practices found herein, to offer to all
strikers who make unconditional offers to return to
work immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substan-
tially equivalent positions. without prejudice to their
seniority or any other rights and privileges previously
enjoyed. dismissing, if necessary, any person hired on
or after March I. 1977. and make them whole 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 payment 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 one unconditionally offers to
return to work to the date of the Respondent's offer
of reinstatement, less any net earnings during such
period. with backpay and interest thereon to be com-
1401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 N LRB 651 (1977).7
The Board has found that the 5-day period is a rea-
sonable accomodation between the interests of the
employees in returning to work as quickly as possible
and the employer's need to effectuate that return in
an orderly manner.8 Accordingly, if the Respondent
herein has already rejected, or hereafter rejects, un-
duly delays, or ignores any unconditional offer to
return to work, or attaches unlawful conditions to its
offer of reinstatement, the 5-day period serves no
useful purpose and backpay will commence as of the
unconditional offer to return to work.
Any dispute as to who is to be offered reinstate-
ment and what backpay, if any, is due shall, if neces-
sary, be determined at the compliance stage of this
proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Lab6r Re-
lations Board hereby orders that the Respondent,
Tarlas Meat Company, Madison, Illinois, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO, Local No. 545, by unilaterally granting
wage increases to its employees employed in the ap-
propriate bargaining unit. The appropriate unit is:
All employees employed by the Respondent
at its Madison, Illinois, plant, including hotel
supply order fillers, cooler men, all-round
helpers, dockworkers, truck-loading and receiv-
ing employees, and cleanup personnel, but ex-
cluding office clerical and professional employ-
ees, guards and supervisors as defined in the
Act, and salesmen and drivers.
(b) Refusing to bargain with the Union by dealing
directly with employees concerning matters over
which it is obligated to bargain with the Union,
thereby bypassing the Union and undermining its
status as the duly designated baegaining agent of
said employees.
(c) Telling its striking employees that if they do
not abandon the strike and return to work they will
be permanently replaced and it would never by un-
der an obligation to reinstate them.
7See, generally, Isis Plumbing & Heating Co., 138 NL.RB 716 (1962)
SDrug Package Company, Inc., 228 NLRB 108 (1977). Member Jenkins.
for the reasons set forth in the partial dissent in Drug Fackage (bompanr.
Inc., supra. would begin the Respondent's backpay obligation from the date
of each stnker's unconditional offer to return to work
(d) Promising employees improved wages and
other benefits for the purpose of inducing them to
abandon the strike and return to work.
(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Upon request. bargain with Amalgamated
Meat Cutters & Butcher Workmen of North Amer-
ica. AFL CIO, Local No. 545, as the exclusive repre-
sentative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment, and, if an agreement is reached, embody
such understanding in a signed agreement.
(b) Upon their unconditional application, offer
immediate and full reinstatement to their former po-
sitions or. if those jobs no longer exist, to substantai-
ally equivalent positions, without prejudice to their
seniority or other rights and privileges, to all those
employees who went on strike on March i. 1977, or
thereafter, dismissing, if necessary, any person hired
by the Respondent on or after that date, and make
them whole for any loss of pay which they may suffer
by reason of the Respondent's refusal, if any, to rein-
state them in conformity with the section of this De-
cision entitled "Additional Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents. for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its premises at Madison, Illinois, copies
of the attached notice marked "Appendix." 9 Copies
of said notice. on forms provided by the Regional
Director for Region 14, after being duly signed by
authorized representative of Respondent, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
9 In the event that this Order is enforced by a judgment of a Untied States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
1402
TARLAS MEAT COMPANY
APPENDIX
NOTICE To EMPLOYEil S
POSTED BY ORDER OF THt
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Amalga-
mated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Local No. 545.
herein the Union, by unilaterally granting wage
increases to our employees employed in the fol-
lowing bargaining unit:
All employees employed at our Madison,
Illinois, plant, including hotel supply order fil-
lers, cooler men, all-round helpers, dockwork-
ers, truck-loading and receiving employees.
and cleanup personnel, but excluding office
clerical and professional employees, guards
and supervisors as defined in the Act, and
salesmen and drivers.
WE WILL NOT refuse to bargain with the Union
by dealing directly with our unit employees con-
cerning matters over which we are obligated to
bargain with the Union, thereby bypassing the
Union and undermining its status as the duly
designated bargaining agent for our employees.
WE WILL NOT tell our striking employees that if
they do not abandon the strike and return to
work they will be permanently replaced and we
will not be under an obligation to reinstate
them.
WE WILL NOT promise our employees im-
proved wages and other benefits for the purpose
of inducing them to abandon the strike and re-
turn to work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act.
WE WILL, upon application, offer immediate
and full reinstatement to their former jobs, or, if
those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their senior-
ity or other rights and privileges, to all those em-
ployees who went out on strike on or after
March 1, 1977, dismissing, if necessary, any per-
son hired on or after that date, and WE WILL
make them whole for any loss of pay they may
suffer as a result of our refusal, if any, to rein-
state them within 5 days of such applications.
WE WILL. upon request, bargain concerning
rates of pay, wages, hours of employment, and
other terms and conditions of employment with
the Union as the exclusive representative of all
employees in the unit described above and, if an
agreement is reached, embody it in a signed con-
tract.
TARi ,S i.iFAI CO(1PANY
DECISION
SrsTEMINr OF THE CASE
THOMAS A Ricci. Administrative Law Judge: A hearing
in this proceeding was held on November 17, 1977, at St.
Louis. Missouri, on complaint of the General Counsel
against Tarlas Meat Company, here called the Respondent
or the Company. The complaint issued on August 6, 1977,
upon charges filed cn March 7 and July 1, 1977, by Amal-
gamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local No. 545, here called the Charg-
ing Party. The issue of the case is whether the Respondent
illegally refused to bargain in good faith with the Union in
violation of Section 8(a)(5) of the Act. Bnefs were filed
after the close of the hearing by all parties.
Upon the entire record, and from my observation of the
witnesses. I make the following:
FlNDIN(jS OF FA(EI
I THE BUIISINESS OF THE RESPONDENT
John Tarlas and Diane Karnages are copartners doing
business under the trade name Tarlas Meat Company, the
Respondent here. The Company has its principal place of
business in the city of Madison, Illinois, where it is engaged
in the nonretail sale and distribution of meat, groceries,
and related products. During the year ending December
31, 1976, a representative period, it purchased and caused
to be transported to its place of business, meats, groceries,
and other goods and materials valued in excess of $50,000,
of which an amount valued in excess of $50,000 was deliv-
ered to this location from out-of-state sources. I find that
the Respondent is engaged in commerce within the mean-
ing of the Act.
11 THE LABOR OR(;ANIZATION INVOLVED
I find that Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, Local No. 545, is a
labor organization within the meaning of Section 2(5) of
the Act.
III 1 HE UNFAIR LABOR PRACTICES
A. A Picture of the Case
The Union has admittedly since 1973 been the exclusive
bargaining agent for the Respondent's production employ-
ees. There were about eight or nine employees in this
I The coimplaint allege, the answer admits, and I find that the appr(prl-
ate hargainuni unit undelliing this refusal Io h.rgain case is as follows All
( ontlinued
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group at the beginning of 1977 when the Union and the
Company were bargaining towards a contract to replace a
recently expired one. Unable to reach agreement, the em-
ployees went on strike on March 1, 1977. Although bar-
gaining continued thereafter, agreement had still not been
achieved by the time of the hearing in this case in Novem-
ber, and the strike was still in progress.
The essential allegations of the complaint now are that,
apace with its direct bargaining negotiations with the union
agents, management officials carried on simultaneous deal-
ings with the employees themselves, talking to them indi-
vidually and in groups, attempting to convince them to
agree to terms and conditions of their employment, which
the Union itself was saying were unacceptable. Indeed the
complaint also alleges that during the strike, while striking
employees were on the sidewalk picketing, the Respon-
dent's representatives asked a striker to come back to work
at the higher rate of pay which the Company had offered
the Union but which the Union had rejected. That striker
individually accepted the offer and did return to work.
The pertinent facts are established clearly and directly
by uncontradicted and perfectly convincing oral evidence
given by the General Councel's witnesses. No contrary tes-
timony was offered by the Respondent. Thus, both the
facts and the law are clear in this case.
B. The Evidence; Analysis; Conclusions
The parties exchanged written proposals for contract re-
newal in January and February. In its proposals, a compre-
hensive document suggesting many changes in the old con-
tract, a number to the disadvantage of the employees, the
Company offered succesive raises of 25 cents per hour for
each of 3 years of a new contract. The parties referred to
this as the "25, 25 and 25" proposal. At one meeting in
January and at another in mid-February, the union repre-
sentatives, Shirley Williams, secretary-treasurer of Local
545, and James Pettegrew, its president, rejected the
Company's proposals, referring to them as "ridiculous."
After this had happened, Lindsey, the office manager and
an admitted supervisor, together with John Tarlas, one of
the owner-partners, twice called the employees into a meet-
ing with them in the plant, once on February 18 and again
on February 19. On February 18 the Company had four in
attendance, and the next day seven, including again the
first four. Lindsey explained the Company's proposals to
the employees in detail and tried to convince them to ac-
cept them. There was discussion of the "25, 25 and 25"
proposal, and also a number of others, including one re-
ducing the number of paid holidays from 10 to 7 annually
and one eliminating the contract clause guaranteeing so
many hours of work weekly. When the employees refused
to agree to this, as well as an unspecified number of other
company changes in the old contract, Tarlas entered the
employees of Tarlas Meat Company. including hotel supply order fillers.
cooler men, all-round helpers. dock workers, truck loading and receiving
employees. and cleanup personnel. but excluding office clerical and profes-
sional employees, guards and supervisors as defined in the Act. saleslmen,
and drivers.
conference, started talking, and raised his ante to the em-
ployees. He said he would go back to the 10 holidays, again
guarantee the workweek, and make it "50, 25 and 25" (that
is, a 50-cent-per-hour raise the first eyar) instead of "25, 25
and 25." The employees, some of them at least, still said
no. One of the meetings lasted as long as 5 hours. And
when some of the men suggested that the matter should be
referred to the Union, or a union representative should be
called in, "he [Tarlas] said it did not concern the union, it
concerned us and that was it." (This, according to the un-
contradicted testimony of employee Harold Miller.) As
employee Tom Druhe recalled it: "They [Lindsey and Tar-
las] said no, that it was our problem, not the union's prob-
lem."
The strike started on March 1. If this record showed
nothing more than these two meetings the Respondent held
with its employees- on February 18 and 19-it would suff-
ice to prove the clearest and most direct violations of Sec-
tion 8(a)(5) of the statute. Mead Photo Supply Corp. v.
N.L.R.B., 321 U.S. 678 (1977). The principle is so well es-
tablished and so directly proved here that it would be a
waste of time to cite further authority. Of course, when the
employees struck, it was because they did not like the
Company's demands that old conditions of employment as
set out in the old contract be surrendered. Equally true,
they wanted more-in economic benefits-than the em-
ployer was willing to give. But it is no less clear that the
Union had to strike, if only to stop the employer's direct
dealings with the employees inside the plant, to force it,-
as the statute demands,-to speak with the Union and only
the Union. How else could it stop the Respondent's com-
plete flouting of its duty to treat the Union as the exclusive
bargaining agent?
The union agents knew what had happened on February
18 and 19, for both union and management agents met
again on February 22, now with the employees present.
And again, despite much discussion of many items in dis-
pute, no agreement was reached.
And even with the strike starting on March I, the Re-
spondent did not cease its continuing bypassing of the
Union. In mid-March, Office Manager Lindsey, the very
negotiator for the Company in its dealings with the Union
representatives, came to the pickets in front of the plant
and handed the striking employees a copy of the
Company's contract proposals. There were three men
there, and he asked them to underline those items they did
not like, to make notations in the margins, and to mark
with a yes what they agreed to. The men took the docu-
ment home, discussed it among themselves, made certain
notations, and 3 or 4 days later returned it to Lindsey. A
day or two after that, Lindsey was back on the sidewalk
and told the men the Company agreed with some of their
ideas but not with others. That this continuing activity was
the most brazen disregard of the statutory mandate that an
employer must bargain with, and only with, the chosen
agents of its employees merits no discussion.
The complaint alleges that these unfair labor practices
by the Respondent "prolonged the strike." This is certainly
true, for if there is one thing that frustrates collective bar-
gaining with the majority representative, and causes noth-
ing but continuing and extended conflict, it is disruption of
1404
TARI.AS MEAl COMPANY
the unified action by separating one segment of the whole
from others. At the hearing, the GCeneral Counsel took the
position that the 8(a)(5) violations, particularly those oc-
curring after the strike started. "converted" the strike into
an unfair labor practice strike. This is the least that can be
said of the conditions that prevailed while the Respondent
was negotiating directly with its employees on the sidew alk
after March I. But I think it is essentialls a plas on words
to discuss this case in terms of a strike starting in protest
against illegal conduct or in classic words of an economic
strike being converted into an unfair labor practice one.
With the Company repeatedly trying to buy the employees
personally and individually to its way of thinking, and nev-
er mind the Union's right to speak on their behalf, what
choice did the Union have but to resort to an economic
struggle? I deem it completely immaterial what language
was used. This was an unfair labor practice strike in March
and it continued to be and still is today an unfair labor
practice strike.
Union agents and company spokesmen met a number of
times after the events set out above, discussed many differ-
ences between them, and even reached agreement on some.
On others, the dispute continues, Without even offering to
contradict the direct evidence of unfair labor practices. the
Respondent now contends in its brief that what bargaining
came later cured whatever unfair labor practices were com-
mitted. It asserts that it is now engaged in that pure and
proper collective bargaining which is supposed to follow a
Board decision, one where it orders bargaining as a remedy
in a 8(a)(5) case. Therefore, says the Company, forget
about the whole case and declare the strike now to be no
more than an ordinary economic one.
I find no merit in this contention. Robert Holmes was a
meatcutter order picker before the strike. On April 1, John
Williams, the Respondent's sales manager and an admitted
supervisor, came out to the picket line and said to him:
"Come back in and go to work for the Company. I'm sure
you will make more money than you will make from the
Union." Williams then offered Holmes $300 weekly pay.
Before the strike he had been earning $5.73 per hour.
Holmes did not accept the offer. On July 5, the office man-
ager, Lindsey, came out again to Holmes and told him if he
returned he would earn $300 weekly plus having benefits
paid by the Company. Again Holmes refused whatever the
offer was. Finally, on August 22, Holmes accepted the di-
rect offer to return to work; he is still at work while the
bargaining between the Union and the Company goes on.
But on the day of his return he was paid, and is still now
being paid, 50 cents per hour more than he was earning
before the strike. This is exactly the immediate raise the
Company was trying to sell the employees all along but
which the Union and the total group had been rejecting as
insufficient. The defense argument. again in the brief, that
Holmes is a supervisor is unsupported by the record evi-
dence. He testified without contradiction that he is "The
same as I was before," and he is giving no orders to any
employees.
Every day that this man Holmes works and is paid that
50-cent-per-hour raise, which the Union rejected but which
the Company afforded him individually. unilaterally. the
Respondent commits an unfair labor practice in violation
of Section 8(a)(8(a)(5). Th s means the unfair labor prac-
tices have never ceased. are still being committed, and the
strike continues to be an unfair labor practice strike.
On June 28 the Respondent mailed a letter to each of the
striking employees advising them that unless the, reported
to work at the regular starting time on or before Juls Ii .
1977. they would be permanently replaced and that the
Comlpany would never hit under an obligation to reinstate
them.! I find, as the complaint alleges. that by sending this
letter the Respondent violated Section 8(a)I) of the Act.
See /The litalhlw C orpa,,nion. 171 NLRB 1366 (1968).
Iv rit- RiFMDYn
It having been found that the Respondent has refused to
bargain in good faithl with the Union as the exclusive repre-
senta;tive of its empl. vee,;. it must be ordered to do so now
and to cease and desist from such practices in the future. It
must also he ordered to cease bargaining directly with its
employees in such a manner as to undermine the status of
a duly designated collective-bargaining agent. In view of
the nature of the unfair labor practices committed, the Re-
spondent must also be ordered to cease and desist from
violating the statute in any other manner.
IHE EFFit'T OF TIHF INF4IR LABOR PRA(CTI('FS I:PON
C(OMMFRCE
The activities of the Respondent set forth in section 11,
above, occurring in connection with the operations of Re-
spondent described in section 1. have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CON( I.L SIONS Oi LAW
I. By dealing directly with its employees and thereby
bypassing the duly established exclusive collective-bargain-
ing agent of those employees, the Respondent has engaged
in and is engaging in violations of Section 8(a)(5) of the
Act.
2. By the foregoing conduct, and by telling its stnking
employees that by persisting in such activities they will per-
manently lose all rights to reinstatement, the Respondent
has violated and is violating Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
T he letter stated in full
Please hbe adised that unless sou report to work at %,our regular
starting time on or before Juls I1. 1977 lou will he permanenll, re
placed bh the ( omnpain
II i, Important that Sou know the ramifications of sour failure ,t
report to ,work as indicated aho,e. It will mean that sour job will be
permanentls filled bh another Indisidual. t will also mean that that
(ormans w'ill be under no obhlgation tn reinstate sou if and when a
coilective-bargaining agreement is reached between your I nlon and
the ( ompan It wildl also mean that those emplo?,ees who fill positions
permilncnlil ill hbe entitled toi vote in important questlons. such as
whether or not an'. union should represent the emplosees of larlas
.lea.l (onlp.n,? VWe urge soiu to make cera;in that iou report back Io
.ork on or before the duae Indicated .abose
1405
DETISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '
The Respondent, Tarlas Meat Company. Madison. Illi-
nois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Bargaining directly with employees in such a manner
as to undermine the status of a duly designated collective-
bargaining agent.
(b) Telling its striking employees that by continuing
such activities they will forever lose all statutory rights to
reinstatement.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action desgined to ef-
fectuate the policies of the Act:
(a) Upon request recognize and bargain with the Union
as the exclusive representative of all employees in the ap-
In the event no exceptions aire filed as provided hs Sec 102 4t6 of Ihe
Rules and Regulations of the National .ahbor Relations Board, the findings.
conclusions. and reciomnl.nded Order herein shall. as prosided ill Sec
102 48 of the Rules and Regulations, he adoplred bh the Board and heconil
its findings. cnLlusions. and Order. and all ,objeciion, t:errcl shall he
deemed waived for all purposes.
propriate bargaining unit with respect to rates of pay. wag-
es, hours, and other terms and conditions of employment.
and, if an understanding is reached, embody it in a written
signed agreement. The appropriate bargaining unit is:
All employees of Tarlas Meat Company, including ho-
tel supply order fillers, cooler men, all-round helpers,
dock workers, truck loaading and receiving employ-
ees, and cleanup personnel, but excluding office clen-
cal and professional employees, guards and supervis-
ors as defined in the Act, salesmen, and drivers.
(b) Post at its place of business in Madison, Illinois,
copies of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional Director
for Region 14, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt tl ereof. and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
In the e'ent that Ihis Order is enforced hs a judgment of a United States
(ourt if Appeals. the s(words I[he notice reading "Posted by Order of the
Nalionatll I.labor RelatoIrs Board" shall read "Posted Pursuant to a Judg-
mernt of the l niled States ( Court of Appeals Enforcing an Order of the
N atinal laboI r Relations Board "
1406