The Denham Co.

National Labor Relations Board - Board Decisions

Dec 24, 1970

187 N.L.R.B. 434 (N.L.R.B. 1970)

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No H . Denham and Geraldine A. Denham , d/b/a The
Denham Company and Creamery , Condensery
Employees & Drivers Union, Local 517, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case
20-CA-5734
December 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 13, 1970, Trial Examiner Richard D.
Taplitz issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that those allegations be
dismissed. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, No H. Denham and Geraldine A.
Denham d/b/a The Denham Company, Hanford,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.3
MEMBER JENKINS, dissenting, in part:
I agree with my colleagues' findings that Respon-
dent engaged in conduct violative of Section 8(a)(1)
and that Respondent violated Section 8(a)(5) by
making unilateral changes in the terms and working
conditions of its employees. To remedy these viola-
tions, I would, like my colleagues, direct Respondent
to cease and desist from its unlawful conduct, make
its employees whole for any losses they may have
suffered by reason of the unilateral changes, and, of
course, bargain with the Union, upon request. I would
not, however, find unlawful Respondent's refusal to
assume the collective-bargaining agreement negotiat-
ed with the Union by Respondent's predecessor, nor
would I require Respondent to honor that agreement.
See my dissenting opinion in The William J. Burns
International Detective Agency, Inc., 182 NLRB No.
50.
i in affirming these findings , we do not rely on the Trial Examiner's
discussion regarding the March 1968 Welfare Agreement This agreement
terminated in September 1968 and, therefore , it is not pertinent to a
determination of the existence of a current contract However, there is
ample support in the record, for the Trial Examiner's finding that Swift
and the Union had a written agreement as to wages and money benefits
We note a typographical error in the fifth sentence in fn 23 of the Trial
Examiner's Decision, which should correctly read " that Nardini's
regular
2 These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner to which the Respondent has
excepted The Trial Examiner's credibility findings are not contrary to the
clear preponderance of all relevant evidence Accordingly , we find no basis
for disturbing those findings Standard Dry Wall Products, inc, 91 NLRB
544, enfd 188 F 2d 362 (C A 3)
9 In footnote 31 of the Trial Examiner 's Decision substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Trial Examiner: This case was
tried at Fresno, California, on February 26 and 27, March
31, and April 1, 1970. The issues litigated were framed by a
complaint dated November 3, 1969,1 as amended, alleging
that No H. denham and Geraldine A. Denham, d/b/a The
Denham Company, herein called the Company, violated
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended, and an answer as amended, filed by the
Company, which admits many of the factual allegations of
the complaint but denies that the Company violated the
Act. The complaint, which was based on a charge filed on
August 28 by the Creamery, Condensery Employees &
Drivers Union, Local 517, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, alleges in addition to
various independent violations of Section 8(a)(1) of the Act
that the Company violated Section 8(a)(5) of the Act in
substance by refusing as a successor-employer to honor the
bargaining obligations in effect between the Union and
Swift & Company, herein called Swift. Specifically the
complaint alleges that the Company unilaterally changed
wages and employee benefits, bargained directly with
employees and refused to meet and bargain in good faith.
All parties appeared at the hearing and were given full
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses, to argue orally and
to file briefs. Briefs which have been carefully considered
' All dates are in 1969 unless otherwise specified
187 NLRB No. 53
THE DENHAM COMPANY
were filed on behalf of the General Counsel and the
Company
Introduction and Issues
For many years, Swift operated an ice cream manufactur-
ing and wholesale business at a plant located at 520 Lacey
Boulevard in Hanford, California, herein called the
Hanford plant On July 28 or 29, 1969, the Company
purchased the Hanford plant from Swift and since that time
has engaged in business at the Hanford plant as a
manufacturer and wholesaler of ice cream and related
products From the early 1940's until the sale of its plant,
Swift maintained a relationship with the Union The exact
nature of that relationship is one of the central issues in this
case, but certain facts are not in dispute The answer admits
that on or about July 28, 1969, when Swift sold the Hanford
plant to the Company, all production and maintenance
employees and truckdnvers employed by Swift at the
Hanford plant, excluding office clerical employees, guards,
and supervisors as defined in the Act, constituted a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act The answer also
admits that the same categories of employees employed by
the Company at the Hanford plant constitute an appropri-
ate unit In addition, the parties stipulated at the hearing
that since on or about July 28, 1969, the Company
performed substantially the same manufacturing, distribut-
ing, and sales functions, with respect to ice cream and ice
cream products as was previously performed by Swift and
that the Company utilized substantially the same equip-
ment at the same location Some evidence was introduced
to indicate that after the purchase, the Company expanded
from Swift's operation by bottling a soft drink known as
Butchie Boy and by distributing frozen turkeys It is clear
from that testimony, however, that these innovations were a
very minor part of the Company's business and that the
Hanford plant was under Swift and continued under the
Company as primarily an ice cream manufacturing
establishment
The answer further admits that a majority of the
Company's employees performing manufacturing, distrib-
uting, and sales functions were, and are, the former
employees of Swift employed in the bargaining unit
described above Respondent's Exhibit 5 shows the names
of 13 employees of Swift in the bargaining unit for whom
payments were made for the Union's pension plan for
hours worked in the month which ended with the sale of the
Hanford plant to the Company No H Denham, who was
the manager for Swift at the Hanford plant for several years
immediately prior to the sale and who became the owner
and manager of the Company at the time of the sale,
admitted in his testimony that Respondent's Exhibit 5
showed all of the nonsalaried and nonsupervisory employ-
ees just before the Company purchased the facility, that
these were the same employees who became employees of
the Company the following day and that there was no
substantial change in the employee complement when the
Company took over At another point in his testimony,
2 Paragraph XII(a) of the complaint which alleges that the Company
engaged in surveillance of employees union activities was dismissed at the
end of the General Counsels case on the unopposed motion of the
435
Denham admitted that all of these employees were
members of the Union This credible testimony is
consistent with that of the union representatives and
employees and there is no contradictory evidence
Thus, many of the background facts in this case are not in
dispute The Company bought Swift's ice cream manufac-
turing plant at Hanford, California, and continued
manufacturing ice cream at the same location with
substantially the same machinery, equipment, and employ-
ee complement The sale changed Denham's status from
the manager for Swift at the Hanford plant to the manager
and owner of that plant In addition, at the time of the sale,
all of Swift's employees in an appropriate production and
maintenance unit were members of the Union It is also
undisputed that shortly after the Company purchased the
business from Swift, the Company lowered the wages of
many of the employees, reduced their vacations, abolished
contributions toward a pension plan, and reduced the scope
of their employer-financed health insurance benefits
The Company raised a number of issues as part of its
defense and contended (1) that the Union approved of the
changes implemented by the Company, (2) that even if
under the noncontested facts it were found to be a
successor to Swift, it had no obligation to honor any
bargaining relationship that Swift had with the Union
because (a) even though Swift followed the industry
practice with regard to wages and benefits, Swift did not
bargain with the Union and had no contract, either oral or
in writing, with the Union, (b) the Union was unlawfully
assisted by Swift, (c) a majority of employees in the
bargaining unit renounced the Union shortly after the
purchase, (d) the Union's actions with regard to Swift were
such as to preclude good-faith bargaining and therefore
relieved the Company of any duty to bargain
Though the Company does not contest the fact that a
majority of the employees in the unit were members of the
Union at the time of the sale, the Company is in effect
asserting that the Union did not represent an uncoerced
majority of the employees
The Company contends that a majority of the employees
renounced the Union shortly after the purchase The
complaint alleges and the answer denies that the Company
sought to undermine the Union in violation of Section
8(a)(1) of the Act by giving the impression of surveillance of
union activities, by threatening to close the plant unless the
employees abandoned the Union, by promising the
employees increased wages to induce them to abandon the
Union, by interrogating employees, and by promising
employees assistance in obtaining withdrawal cards from
the Union 2
Upon the entire record3 of the case and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
As indicated above, the Company purchased Swift's
Company
3 Certain corrections in the transcript are duly noted
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanford plant on or about July 28, 1969. The complaint
alleges and the answer, as amended, admits that during the
period from July 28, 1969, through October 27, 1969, in the
course and conduct of its business operations, the
Company received in excess of $25,000 for ice cream
products supplied under contract with the United States
Army at Fort Ord, California, and the United States Navy
at the naval air station at Leemore, California, and that
projected on an annual basis, the Company's revenues from
its sales to the United States Army and the United States
Navy for a 12-month period could reasonably be expected
to exceed $100,000. By the opening of the hearing, the
Company had further actual experience and it was
stipulated that during the period October 1, 1969, through
February 20, 1970, the Company supplied the U.S. Army in
Fort Ord, California, ice cream and ice cream products
valued at approximately $70,000. It was further stipulated
that the Company is the sole exclusive supplier of ice cream
and ice cream products to the United States Army at Fort
Ord on a regular and usually daily basis pursuant to a
contract with the United States Government and that the
United States Army at Fort Ord, California, annually
purchases over $100,000 worth of goods directly from
suppliers located outside the State of California.
The basic jurisdictional standards established by the
Board are set forth in the case of Siemons Mailing Service,
Inc., 122 NLRB 81. In that case the Board held that an
employer will meet the Board's jurisdictional standards if
through an indirect outflow of goods it sells goods or
services valued at over $50,000 to users meeting any of the
Board's jurisdictional standards except indirect outflow or
indirect inflow. However, in that case the Board also said,
"We will also continue our past practice of treating sales of
goods or services to enterprises or organizations which are
themselves exempted from the Board's jurisdiction as
indirect outflow, where such enterprises' or organizations'
operations are of the magnitude necessary for assertion of
jurisdiction over comparable nonexempt organizations."
The United States Army is an exempt organization under
the Act. It is of such a magnitude that a comparable
nonexempt organization would certainly be subject to the
Board's jurisdiction. As the Company has sold goods
valued in excess of $50,000 to the U.S. Army at Fort Ord
during the past year and the Army at that location annually
purchases goods valued at over $100,000 directly from
suppliers located outside of California, the Company meets
the Board's jurisdictional standards. St. Francis Pie Shop,
Inc., 172 NLRB No. 16; Wayne R. Sherwood d/b/a Grounds
Service, 130 NLRB No. 165.4
4 In view of this finding , it is unnecessary to consider either the General
Counsel's alternative theory that the Board should assert jurisdiction on the
ground that the Company's operations have a substantial impact on
national defense or the allegation in the amended complaint that
jurisdiction can be based on the Company's projected business with
Challenge Cream and Butter Association.
S At that time ,'the Union was part of Local 431 of the Teamsters
6 The details of this understanding are discussed more fully, infra
Though the industry contracts for the prior years were not put in
evidence , the contracts from 1966 to 1968 and from 1968 to 1970 each have
a clause which states
Article 55, More Favored Conditions
Section 1
I find that the Company is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Relationship Between Swift and the Union
1. The bargaining relationship
In the early part of 1940, the Union undertook an
organizational drive at Swift's Hanford plant.5 Ted C.
Wills, the secretary-treasurer of the Union, discussed the
Union with the employees, received authorization cards
designating the Union as the collective-bargaining agent for
them and showed the cards to the local manager of Swift.
After negotiations, agreement was reached and a collective-
bargaining agreement was signed. This agreement was the
same as the one the Union had with other members of the
dairy industry with regard to wages, hours, and working
conditions except that the contract with Swift did not have
a union shop provision. The Union agreed to the omission
of the union shop clause because Swift's national policy, as
told to Wills by the Swift manager, was not to enter any
collective-bargaining agreement which contained a union
shop clause. However, the Union and Swift had an
understanding outside the contract that all employees in the
bargaining unit would be members of the Union and all
employees did sign up.6 For a number of years, Swift and
the Union entered into such written collective-bargaining
contracts. Swift was never a member of the multiemployer
bargaining unit (herein called the industry group) which
negotiated an industrywide agreement known as the Fluid
Milk and Ice Cream Contract (herein called the industry
contract). On some undisclosed date, the industry contract
was changed to provide that if the Union entered into a
more favorable contract with anyone in the ice cream
industry, the more favorable terms would apply to the
entire industry.? The Union took the position that the lack
of a union security provision in its contract with Swift
might be considered more favorable than the union-
security clause contained in the industry contract and
therefore might jeopardize that clause. The Union and
Swift therefore agreed that they would not sign another
contract.8
In the years that followed, a working arrangement was
followed whereby the Union kept Swift informed of what
If, during the terms of this contract, a Local Union party hereto
enters into a written contract with a firm engaged in the processing
and distribution of fluid milk and ice cream products , which contains,
in thejudgment of an Employer member of the Association , a condition
more favorable than a comparable condition in the Association
contract, the Association members shall have the right to elect to
incorporate such condition into the contract to which he is a party.
A similar election may be made if a condition having no counterpart
in the Association contract is contained in a Local Union' s written
contract with an independent firm
8 These findings are based on the credible and uncontradicted
testimony of Ted C Wills.
THE DENHAM COMPANY
was happening at the negotiating sessions with the industry
group ; the final agreement with that group would be given
to Swift , there would be various exchanges of letters
between Swift and the Union; and Swift would increase
wages and money benefits to conform to the amounts
which were then being paid by the industry group. Wills
testified that the Union bargained concurrently with the
industry group and Swift , while Denham testified that Wills
merely informed Swift of the Union's progress with the
industry group . I do not believe that Wills' conclusion that
his dealings with Swift prior to the Union's agreement with
the industry group amounted to negotiations . There were
no counterproposals , there was no give and take and, in
effect, all the Union was doing was keeping Swift informed
of what was happening at the industry group bargaining.
However, that does not establish that the Union either had
or did not have a binding agreement with Swift . The Union
contends that it had a binding contract with Swift whereby
Swift agreed to follow all the provisions of the industry
contract except for the union -security clause . The Compa-
ny, on the other hand , contends that Swift had no contract
of any kind with the Union and that Swift followed the
wage and benefit structure of the industry contract, not
because of any obligation stemming from a contract, but
solely because Swift desired to do it. Resolution of this
contract question , however , must be made , not on the basis
of the contentions of the party , but on the hard facts
relating to the dealings between Swift and the Union and
the documents that flowed from those dealings.
The evidence with regard to the 1966 dealings between
Swift and the Union as it related to the industry contract
which ran from September 1, 1966, to September 1, 1968, is
as follows . On June 29, 1966, Donald E. Forsythe, who at
that time was manager of Swift , wrote to Ted Wills,
secretary - treasurer of the Union, as follows-
This will acknowledge your letter of June 20, with
reference to Fresh Milk and Ice Cream Collective
Bargaining Agreement . As you know, we have no
contract with your union, but, as you suggested in your
letter , we will get together and discuss our particular
situation at any time it is convenient with you.
I will appreciate it if you will let me know in advance so
I can arrange my affairs to meet with you on whatever
date you suggest.
On December 30, 1966, Wills wrote to No Denham, who
had replaced Forsythe as manager , saying:
Enclosed are two Fluid Milk & Ice Cream Agreements
that have been negotiated with the dairy industry. This
is the same agreement I discussed with you and you
took to your Chicago office. During our last conversa-
tion you informed me you were going to put the
enclosed wages and conditions into effect.
You will note on Page 16, Article 24 Pensions there is an
increase of 5 cents per hour effective September 1, 1967
Will you please inform if this is all the notice that is
necessary or must I give you a special notice as we do
have a signed agreement in regards to the pension rate.
If I don' t hear from you I assume the new pension rate
will be put into effect September 1, 1967.
On January 25, 1967, Denham acknowledged receipt of
Wills' December 30 letter and stated:
437
.. . at a later date , prior to 9-1-67 we will be
submitting to you, for your signatures , a revised
agreement covering the companys contribution to the
Union Pension Trust Fund.
As in the past , we will continue to follow the wage
and hours provisions of the industry agreement.
On September 8, 1967, Denham for Swift and Wills for the
Union signed a formal written agreement whereby Swift
agreed to make certain payments to the Union 's pension
trust fund which they referred to as the Western
Conference of Teamsters Pension Trust Fund.
The documents relating to the 1968 dealings between
Swift and the Union shed additional light on their
relationship . The current industry contract is effective from
September 1, 1968, to September 1, 1970. On December 4,
1968, Wills wrote Denham as follows:
Enclosed is a copy of the latest proposed settlement
for your record , of our Fluid Milk and Ice Cream
Agreement . This proposal has been accepted by a
majority vote of our members.
I will be looking forward to seeing you in the near
future... .
The following document dated January 24, 1969, and
signed by Denham and Wills, shows a conclusion to the
dealings between Swift and the Union:
Mr. Ted C. Wills
Secretary-Treasurer
Creamery Employees & Drivers Local No. 517
Del Webb Center - Suite 1107
Fresno, California 93721
Dear Mr . Wills.
With respect to employees represented by the
Creamery Employees & Drivers Local No. 517 at our
Hanford , California Ice Cream Plant , it is agreed that
the Fluid Milk and Ice Cream agreement between the
Joint Council of Teamsters No. 38, Unions 87, 137, 150,
381, 386 , 439, 517 and 684 and the Milk and Ice Cream
Employers effective September 1, 1968 to September 1,
1970 will apply to the above employees in the same
manner as in the past.
It is understood that the wages and benefits provided
for in such agreement represent all the wages and
benefits which the Company is obligated to provide
over the term of the agreement.
Confirmed:
/s/ Fred C. Wills
Creamery Employees & Drivers
Local No.517
Very truly yours,
/s/ No Denham
Manager
On February 17, 1969 , Wills wrote to Denham mention-
ing that there had been changes in the welfare plan and
pension plan required under the new agreement and asking
whether his letter would be sufficient to cover them or
whether an additional letter would be necessary . Denham
replied on February 27, asking for copies of the modifica-
tions in the welfare and pension plans, stating that because
of the changes Swift would prefer to continue the benefits
on a month -to-month basis until modifications were
received and approved . The letter concluded "this will not
effect our pay scale which will be based on the wage and
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours provisions of the industry agreement." Wills credibly
and without contradiction testified that the costs of the
increase in benefits had not been included in the industry
contract because they had only negotiated benefits and the
trustees had still to go out and buy those benefits. Swift
paid on a month-to-month basis until the costs were
determined and then paid the difference on a retroactive
basis . Thereafter, on March 11, 1968, Swift and the Union
signed an agreement which began as follows:
AGREEMENT
This agreement is made by and between Swift &
Company Ice Cream Plant, Hanford, California,
hereinafter called the "Company," and Creamery
Employees and Drivers Union, Local 517, hereinafter
called the "Union." The Union represents a bargaining
unit of employees of the Company.
This agreement witnesses that the Company has
agreed to make certain payments for the benefits of its
employees in said bargaining unit, upon the following
terms and conditions:
The agreement goes on to spell out dollar amounts to be
paid by Swift into the Union's welfare fund, which they
refer to as the Milk & Ice Cream Employees Welfare Fund.
Though Swift did follow the wage and money benefit
provisions of the industry contract, there was conflicting
testimony as to whether the other aspects of the contract
were followed. The Union acknowledged that the union-
security provisions in the industry contract were not
followed. As to the processing of grievances, John Kikkert,
the union field representative, credibly testified that the
only grievances he recalled processing since he started
servicing the Swift bargaining unit in 1955 related to getting
a girl holiday pay, seniority of some employees, and a
question about a supervisor driving a truck. There is no
testimony that the arbitration procedure set forth in the
industry contract was ever utilized. There is no evidence
that the Union demanded enforcement of article 2, section
3 of the contract by court action or use of the arbitration
clause of the contract. That clause reads:
SECTION 3. TRANSFER OF COMPANY TITLE
OR INTEREST
(a) This agreement shall be binding upon the parties
hereto, their successors, administrators, executors, and
assigns. In the event an entire operation or portion
thereof is sold, leased, transferred or taken over by sale,
transfer, lease, assignment or receivership or bankruptcy
proceeding (unless otherwise provided by law), such
operation shall continue to be subject to the conditions
of this agreement for the remainder of its then existing
term.
(b) In the event the Employer fails to require the
purchaser, the transferee or lessee to sign this contract
or to otherwise assume the obligations of this contract,
the Employer shall be liable to the Union and to the
employees covered for all damages sustained as a result
of such failure. When the purchaser, transferee or lessee
signs this agreement or otherwise assumes its obliga-
tions, the Employer shall be under no further liability to
the Union or to the employees by reason of this Article.
9 As indicated above, on the basis of the past practice, I interpret the
word "benefits" to mean money benefits
10 Wills testified that the employees signed after they worked for a time
(c) The Employer shall give notice of the existence of
this agreement to any purchaser, transferee, lessee or
assignee of the operation covered by this Agreement,
with a copy to the Union not later than the effective
date of the sale, transfer, lease or assignment.
Reading the documents together and fitting them into the
actions of Swift and the Union, I find that they did not
agree to apply all the terms of the industry contract except
for the union-security clause . It was understood by both
Swift and the Union that their agreement related only to
wages and money benefits. This, of course, did cover a wide
field by including such items as wages , holidays, vacations,
pension, and welfare benefits. I find that Swift and the
Union had a written contract dated January 24, 1969,
which was signed by Wills for the Union and Denham for
Swift. That contract is set forth in full above. The language
of the agreement is not keyed to voluntary action by the
Company but is that of a formal written agreement. In
plain words it states that "It is agreed" that the industry
contract "will apply" to the unit employees in the same
manner as in the past. Though the last phrase is subject to
interpretation, the next paragraph, as well as the independ-
ent evidence of the past practice, makes it clear. That
paragraph states that it is understood that the wages and
benefits provided in the industry contract represent all the
wages and benefits which the Company is obligated to
provide over the term of the agreement . The fact that this
document incorporates parts of the industry contract by
reference makes it no less effective or binding. Swift
sidestepped the ordinary type of negotiations by letting the
industry group do the legwork, but after the industry group
reached an agreement and the Union presented Swift with a
package that Swift accepted, they had a binding collective-
bargaining contract.
In conclusion, I find that Swift and the Union were
signatories to a collective-bargaining agreement whereby
Swift agreed to pay the employees in the bargaining unit the
wages and benefits9 that are set forth in the industry
contract. I further find that this written contract between
Swift and the Union was in full force and effect at the time
that Swift sold the Hanford plant to the Company.
2. The union security and checkoff
arrangement with Swift
For at least 10 years before the sale, Swift and the Union
had an understanding under which employees in the unit
would sign applications for membership in the Union and
authorizations for the checkoff of dues on the same day
that employees started their employment with Swift.io
When the employee reported for work, the union plant
representative or field representative, Kikkert, would
contact him and then give him the membership application
and dues deduction authorization to sign. Though there is
no evidence that any employee had ever refused to sign and
therefore no test as to what would happen in such an event,
there was a requirement that the employee sign. The signing
was handled by union representatives and not by the
However, his earlier testimony was that they filled out the applications and
checkoffs when they came to work
THE DENHAM COMPANY 439
Company, but from the point of view of the new employee,
the signing was simply a part of the hiring process i i
B The Events Surrounding the Sale
I Prior to the union meeting
On July 24, 1969 , Denham called Wills on the telephone
and requested that he be at the Hanford plant on July 28
because there were things concerning the Union that would
be discussed In addition , the Company's plant superin-
tendent , William 0 king , 12 telephoned John Kikkert, the
Union 's field representative , and asked him to be present at
the Hanford plant on the 28th Wills did not go to the plant
on the 28th , but Kikkert did Denham and Kikkert had
lunch together on that day The subject matter of the
conversation at that meeting is in sharp dispute Only the
two of them were present Denham testified that after
talking about personal matters he told Kikkert that Swift
was having difficulties with its profit structure in the ice
cream business , that Swift had already sold other ice cream
operations , that Swift was then making a decision about the
Hanford operation , and that he (Denham) was contemplat-
ing buying it He averred he told Kikkert if he were going to
go ahead and buy it , he would propose to lower salaries to
$150 a week for the packaging personnel , $20 a day for
people on a call basis , and $165 a week for those running
the machines , and that in addition, the premiums would be
paid on the health and welfare for 30 days at which time he
would like to sit down and negotiate changes According to
Denham , Kikkert replied , "Golly, I wish Ted were
here-well, okay," and that the "well, okay" remark was
keyed to his proposals Kikkert acknowledged that he had
lunch with Denham on the 28th and, while he testified that
he didn't remember exactly what was said , he was certain
that business was not discussed at all and he specifically
denied that Denham said anything about buying the plant,
lowering the wages, or ending the welfare payments
Kikkert categorically denied ever telling Denham "I wish
Ted were here - well, okay" or at any time authorizing
lower wages I credit Kikkert After listening to both Wills
and Kikkert testify and after observing them on the witness
stand , it was quite apparent that Wills is very much the
boss Wills was the one who had authority when it came to
major dealings with Swift or the Company and Kikkert's
responsibility was a very secondary one The authorization
of a wage decrease for a substantial number of employees
in the bargaining unit is certainly a very major matter and
11 Denham testified that the girls in the office would have the
employees sign the checkoff authorization and that this was part of the
initial hiring process However at another point in his testimony Denham
averred that the Company referred the employees to the shop steward who
gave them the membership application cards and the dues checkoff forms
Wills testified that either the Union s plant representative or Kikkert went
to the new employees and the cards were not given by managerial
employees The testimony of the employees themselves showed a somewhat
varied experience Employee Lane averred that he was the shop steward
during the 1950 s or early 60 s that he told an employee she had to join the
Union or quit work and that he had been told to do so by the plant
manager Employee Rutter testified that when he went to work in 1948 or
1949 he was told by the shop steward and the plant superintendent that it
was a union shop and they would like to see him join the Union Employee
Leavens testified initially that he was told by the shop steward on the first
day of his employment that he had to join but later in his testimony he
acknowledged that he was asked by the shop steward if he wanted to join
Denham's assertion that Kikkert took it upon himself to
authorize a major change in the agreement signed by Wills
and Denham is difficult to believe when faced with the flat
denial by Kikkert 13
Kikkert met with Denham and C E Olson, who was a
representative of Swift, in Denham's office immediately
after lunch Olson told Kikkert that Swift was in the process
of trying to sell the plant to Denham and that he was telling
Kikkert because the contract stated that in case of sale the
Union had to be notified Kikkert asked Denham if he was
taking over the unexpired term of the contract and Denham
said he could not answer because he was still negotiating to
buy the Company 14
On July 28, at 4 30 p m ,15 Denham called all the
employees at the plant to a meeting C E Olson, the Swift
representative, was present and he informed the employees
that Denham was taking over the plant At that time he
distributed leaflets dated July 28, 1969, which read
We want you to know first hand about a change of
management at our plant, which has been operated by
Swift & Company for many years
Effective July 28, the business will be operated by
The Denham Company We are sorry to see our
operations come to an end and certainly regret that we
must make this announcement
As we explained in the meeting, this was not a hasty
decision A great deal of time and effort was devoted to
studying our situation
One of the conditions of the sale was that The
Denham Company will offer employment to all the
present Swift employees for a mmunum period of 30
days
Again, we are sorry to see our relationship come to
an end and wish you the best of everything in the future
Signed, C E Olson
During the meeting the employees were notified that there
was another meeting scheduled for 7 30 that evening
The 7 30 meeting was attended by Plant Superintendent
King, Donald E Forsythe (who had been plant manager
until 1966 and who at that time was an independent
insurance salesman), and a number of employees, some of
whom were salaried and some of whom were in the
bargaining unit Forsythe gave an insurance presentation to
the employees and handed out cards that they could sign if
they were interested Though Forsythe testified that the
presentation was keyed to salaried employees, he acknowl-
edged that at least seven bargaining unit employees were
Forsythe who was the Swift manager from 1963 to 1966 testified that
employees were required to join the Union when they started working but
he acknowledged that he never told an employee that the employee had to
join that he didn t know who had passed out the cards and that he knew
of no employee who had refused to join
12 The Company s answer admits that King was plant superintendent
and a supervisor within the meaning of Section 2(l 1) of the Act
13 In making this credibility resolution I have also considered the
reliability of Denham s testimony on other material matters which are
discussed infra
11 Olson did not testify at all and Denham s testimony made no
mention of this after lunch meeting I find Kikkert s testimony upon which
these findings are based to be credible
15 There was a conflict of testimony as to whether the date was the 28th
or the 29th However at that time literature was distributed to the
employees bearing the date July 28 so that date is used
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present . Subsequently, 100 percent of the bargaining unit
employees signed the insurance forms. There was a sharp
conflict in testimony as to what else was said at this
meeting. Fitting together the credible evidence, I believe the
following events did take place at the "insurance"
meeting .16 Forsythe told the employees that he was
speaking for Denham and that the union health plan was
no longer going to cover them. He described to them an
alternate health plan in which the Company would pay
premiums. He explained that the Company's plan did not
include coverage of the employees ' families, as had the
Union's plan, and, if such coverage was desired, the
employees would have to pay for it themselves.17 King also
addressed the employees and gave them a "pep talk" in
which he told them that the Company would expand its
product line. He told them that there would be a number of
changes, including pay adjustments which he would discuss
individually with the employees, reduction in the length of
vacations, and elimination of pensions, seniority, and
overtime.
King's statements were basically consistent with the
events which occurred shortly after the meeting . On July 31,
King 18 spoke individually with employee Lane and told
him that they were all taking a wage cut, that Lane's wages
would be changed to a weekly basis and he would be paid
$150 rather than the $165 he had been making, that Lane
would receive 2 weeks rather than 4 weeks vacation, that
vacation time would start accruing from the date Denham
purchased the plant, and that there would be no paid
overtime.19 On August 5, King met with employee Garcia,
told her that they had a cut in pay and that the women
would get $20 a day or $100 a week. He asked her what she
thought and she answered that she needed the job and the
$20 was better than nothing. Prior to that she had been
making $137 a week on an hourly rate. On July 31, King
told employee Perntt that the pay adjustment would reduce
Perritt's pay from $165 to $150. On July 31, King told
employee Rutter that his pay was being reduced from $165
to $150 for a 40-hour week and that there would be no
overtime.
After signing the formal documents relating to the sale,
Denham called Wills and told him that the purchase had
been completed and that the Company was going to be
operated as The Denham Company. Wills congratulated
him and wished him good luck.
On July 29 and 30, the union office received calls from
16 According to employee Joseph Rutter, Forsythe told them that he
was there on behalf of Denham, whose daughter was sick , that Denham
had taken out a policy of insurance with him because the union insurance
would expire soon, and that the Company's insurance would only cover the
individual and not the individual's family and so if they wanted to take out
family insurance they would have to pay for it themselves Rutter also
testified that at this meeting King told the employees that there would be
no more vacation plan, that there would be no more seniority , that there
would be adjustments in pay worked out with the employees in the near
future, and that vacations would be reduced from 4 weeks to 2 weeks a
year Employee Eugene Lane testified that Forsythe told them that he was
speaking for Denham, who had to be out of town, that there would be no
more Union, that they would have to pay insurance for their families, and
that there would be no more seniority . Employee Leon Perritt 's version of
this meeting was that Forsythe told them that he was speaking for Denham
and that Denham couldn't afford the fringe benefits of the Union, that
either Forsythe or King told them there would be reduction in vacation,
and that King said there would be a pay adjustment that would be worked
employees saying that the plant was going nonunion and
that they would be losing the pension and health plans,
seniority, and vacations. Kikkert went to the plant to see
Denham and was told that he was not in. He returned on
about August 1 and had a conversation with Denham with
no one else present.20 Kikkert asked Denham about the
rumors that he had heard that Denham was trying to
operate without a union contract. Denham replied that it
was up to the employees to decide whether they wanted to
remain in the Union. Kikkert asked whether Denham
would pay for the August premium into the health and
welfare plan. Denham replied that he had already made
arrangements with Forsythe for a different coverage of the
employees. Denham also said that the summer was half
over and unless profits came in he would have to close the
plant down or package ice cream for other employers, in
which case he would sell the property and operate from a
different location. He mentioned that under his arrange-
ment with Swift he had to offer 30 days employment to the
employees. In addition, Denham talked about producing
other products such as yogurt. Kikkert then requested and
received permission to speak to the employees in the plant
and the meeting ended.
Kikkert spoke to the employees who asked him about
such matters as the wage cut, loss of seniority, and loss of
vacations. Kikkert told them that there would be a meeting
set up. By a letter dated the same day, August 1, the
employees were notified that a special union meeting of the
Swift employees would be held August 7 at 7:30 p.m. in
Armona, California.
Sometime between August 1 and the union meeting of
August 7, Wills met with Denham in Denham's office at the
Hanford plant. Kikkert and Company Office Manager
Keever were also present. Wills asked whether Denham
would honor the agreement that the Union had with Swift
and Denham answered that it was entirely the decision of
the employees and that he would recognize the Union
provided the employees wanted it. Wills asked whether
Denham would sign the union shop agreement and
Denham replied that he would not but he would agree to
carry out the agreement exactly on the same basis as had
been carried out by Swift. Wills then said that he would call
a meeting of the employees to discuss the subject. These
findings are based on the credited testimony of Wills as
corroborated by Kikkert. Denham testified that he did not
recall a meeting with Wills and Kikkert in which he told
out later Forsythe testified that he gave an insurance presentation and
nothing more. He acknowledged that King made a pep talk to the
employees and spoke about different products that the Company could
handle , but he denied that anything was said on such matters as wage
reductions Employees Edgar Leavens and Angelo Nardini testified that
Forsythe's version of the meeting was correct
17 Forsythe 's presentation of a company plan would make sense to the
employees only if they knew that they were no longer to be covered by the
broader union health plan The Company never did make contributions to
either the Union 's health or pension plan.
18 King did not testify The following findings are based on the credited
and unchallenged testimony of the employees named
19 Lane credibly testified that there had been some overtime work
before but not very much
20 The findings with regard to this conversation are based on the
credited testimony of Kikkert Denham did not testify concerning this
conversation
THE DENHAM COMPANY 441
Wills he would be willing to sign the union contract if a
majority of the employees wanted the Union. Specifically,
when asked whether he recalled Wills and Kikkert saying
anything at any of the meetings concerning a contract,
Denham answered, "No, because it has always been
accepted that there was no contract." However, in a pretrial
affidavit dated October 10, 1969, Denham swore that he
had a meeting on August 4 with Wills and Kikkert and one
of them asked him about the contract. This was a subject of
great importance to both the Company and the Union and
it is not the type of thing that is usually forgotten. The
conflict between Denham's testimony on the stand and his
affidavit sheds doubt either on Denham's veracity or on his
ability to recall important matters. The Company contends
that the testimony of Wills and Kikkert should be
discredited because their allegation that the meeting took
place between August 1 and August 7 is somehow
inconsistent with the Union's August 1 notice to employees
about the special meeting. The Company also points to the
fact that its records show that Denham was out of town and
away from the plant on August 4 and 5. However, Denham
was back in the plant on August 6. Wills did mention the
calling of a meeting to Denham after the notice for the
meeting had been sent out, but that was explained by
Kikkert's testimony concerning his meeting with Denham
on August 1, which was the date of the notice.
2. The union meeting
The union meeting took place on August 7. In addition to
Wills, Kikkert, and Union Treasurer Johnny Vass, it was
attended by 12 employees of the Company 21 The 12
employees, all of whom were union members, signed their
names showing their attendance at the meeting. Wills and
Kikkert gave a report of their meetings with Denham. Wills
told them that Denham had made the statement that the
decision as far as the Union contract continuing was up to
the employees. Wills asked the employees if they wanted
the Union to continue to represent them. A number of
things were said at this meeting and various employees
spoke up complaining of their loss of wages, vacation,
seniority, pension plan, and better welfare plan. One of the
employees asked whether withdrawal cards could be
secured and Wills replied that the Union would not give out
a withdrawal card as long as the employee continued to
work in the industry. Another employee asked what would
happen if Denham closed the plant. Wills replied that he
did not think that Denham would have bought it if he could
not make a go of it, but that if he did close the plant the
employees could always draw unemployment. At some
point in the meeting, a secret vote was suggested and
Kikkert passed out blank pieces of paper to all the
employees. The employees were told to write yes on the
paper if they wanted the Union to continue to represent
them and no if they did not. After the vote was taken, it was
21 These employees were Rutter, Walker, Perntt, Leavens, Nardmi,
(whose status as an employee is discussed below) Garcia, Haley, Lane,
Mueller, Howard, Filippi, and Hawkins In stipulating the names on the
Swift payroll that were later carried on the Company's payroll, all of these
employees appeared except for Nardmi The stipulation also included the
name of Borba as an employee but left open the status of Bartima,
Verheul, Marvin, and Nardmi
22 Earlier that morning, Leavens told Denham that the employees
counted by employees Rutter and Walker who found that
12 ballots which constituted 100 percent of the voters were
for the Union. The result was announced by Kikkert. Wills
explained to the employees that he had to have something
to take back to Denham, so a petition was prepared by
Kikkert and circulated among the employees for their
signatures. At the time, Wills told them they should sign it if
they wanted to continue their membership in the Union
and wanted the Union to represent them, that this decision
was theirs and that if they didn't want to sign it, it was up to
them. Wills was sitting about 20 or 25 feet away from the
employees when they signed. The petition was circulated
and signed by all 12 employees. It read:
I hereby designate Local Union 517 of the I.B.T.,
Chauffeurs, Warehousemen and Helpers of America as
my agent to bargain collectively for me on wages, hours,
working conditions and for a union shop agreement.
3. The events of August 8
On August 8, which was the day after the union meeting,
Denham had all the unit employees called into his office
about 8 o'clock in the morning.22 King was also present.
Denham testified that he told the employees there would be
year-round employment and new products undertaken;
that an employee asked him if they had to belong to the
Union and he answered that it was up to them; that
employee Garcia said that they were 100 percent behind
them; that he asked for the same support that the
employees had given to Swift; and that one of the
employees suggested that employees leave the room and
have a separate meeting.
Employees Nardini and Leavens corroborated Denham's
testimony and in addition Leavens added that at the
meeting Garcia had said they didn't need the Union. Two
other employees, Lane and Garcia, testified to strikingly
different versions of this meeting. Lane averred that
Denham said that he knew about the union meeting the
night before and that he couldn't and wouldn't go union;
that if he had to go union he would close the place down
within 15 days; that the employees would all make progress
by staying with him; and that he would try to see that there
was a Christmas bonus in their pay envelopes for
Christmas. Lane also testified that Denham said that if he
closed the plant he would make a distribution outlet out of
it and no more ice cream would be made. The only part of
Denham's testimony that Lane corroborated was that
Denham did request their cooperation, discussed new
products, and that he hoped to work the plant year-round.
Employee Garcia in large measure corroborated the
testimony of Lane. She averred that Denham said that he
had heard that they had a union meeting; that if the
employees went Union he would close the plant in 15 days;
that Denham asked her how she felt about working for
them and that she replied that $20 was better than nothing.
wanted to know how the plant was going to be operated
Denham testified that he had a conversation with Leavens at a function
unrelated to work in May 1969 and they discussed the possibility of his
buying the plant Denham avers that Leavens told him that if he did buy it,
there would be no need for a union Leavens, who testified on behalf of the
Company, remembered the meeting but his testimony omitted any mention
of a "no need for a union" remark I do not credit Denham
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She acknowledged that Denham did tell the employees that
the choice of joining the Union was up to them. However,
she put this in the context of his further statement that if
they went Union, he would shut the plant down in 15 days.
The testimony of Denham, Leavens, and Nardini on one
hand and Lane and Garcia on the other obviously cannot
be reconciled. In deciding which of them is telling the truth,
it is helpful to look at the events which occurred
immediately after the meeting . It is uncontested that the
employees met in the coffee room immediately after the
meeting and discussed Denham's remarks and whether they
wanted to stay in the Union. The meeting ended with a
voice vote at which the employees unanimously voted for
leaving the Union. Someone asked who was going to give
the word to the office and Nardini' s name was suggested.
Nardini then went into Denham's office and told him the
result of the vote. Denham replied that it was too important
a decision to take by voice vote and there should be a secret
ballot. Nardini asked Denham if the girl in the office could
fix up ballots and he said that it could be done. The ballots
were brought to the coffee room by King who left after
handing them to Nardini. The vote was taken and the
ballots counted by Nardini, who told Denham the results
and then sealed the ballots. The ballots were opened during
the hearing . They showed that 100 percent of the employees
voted against the Union. The ballots were signed by the
employees. The following names appeared on the ballots-
Borba , Garcia, Haley, Leavens, Mueller, Lane, Perntt,
Rutter, Marvin, and Nardini.23
Twelve employees voted for the Union at the union
meeting on August 7. Eight out of those twelve employees
were also present at the meeting which occurred after
Denham spoke to the employees on August 8 and all of
them at that time voted against the Union. In the context of
this case where there had been many years of amicable
bargaining between the Union and Swift, where there was
no evidence of employee discontent with the Union and
where the employees knew that loss of union representation
meant a direct and substantial cut in wages and fringe
benefits , it is difficult to picture any motivation the
employees would have had to change their vote other than
that they thought they were faced with a choice between the
plant's closing (which meant the loss of theirjobs) and their
renunciation of the Union (which meant reduction in wages
and benefits). The Company's contention that the employ-
ees were coerced into voting for the Union at the union
meeting of August 7 is frivolous. Wills' remark that
withdrawal cards could be obtained only by employees who
left the industry was a statement of union policy and in no
way coercive. Withdrawal cards generally give certain
status within the Union even though a member isn't active.
Such status is within the control of the Union and the
Union's refusal to issue such withdrawal cards to persons
who stay within the industry does not coerce those persons
to stay in the Union. Likewise, Wills' statement that the
23 It is noted that all of these names except for Borba and Marvin
appeared on the petition in favor of the Union signed by the employees at
the union meeting the day before The General Counsel contended that
Nardini was a supervisor However, the evidence in the most favorable
light for the General Counsel established that Nardini sometimes made out
work schedules, sometimes changed work assignments when King was not
present pursuant to King's outstanding instructions, and every once in a
employees could collect unemployment insurance if the
Company closed was not improper and in no sense forced
the employees to accept the Union. The employees at their
meeting on August 8 were convinced that their jobs
depended on remaining out of the Union. The testimony of
Lane and Garcia which relate to Denham's statements to
the employees just before the employee meeting fully
explains the origin of that conviction. The testimony of
Denham, Leavens, and Nardini as to Denham's remarks
makes the subsequent action of the employees completely
inexplicable. I believe that Lane and Garcia were telling the
truth and that the testimony of Denham, Leavens, and
Nardini was not worthy of credit.
Denham and Nardini's credibility is further undermined
by a major discrepancy between their testimony and
affidavits that they swore to prior to trial. Nardini testified
with regard to Denham's August 8 meeting with employees
that Denham did not say anything about the employees
reconsidering the vote they had taken the night before.
However, in his affidavit, Nardini swore that "The
employees voted to have the Union. Denham had heard
about it. The next day he called us together and asked us to
reconsider. He asked if we'd have a meeting about it." In a
similar vein, Denham testified that at the time he called the
December 8 meeting he did not know that the Union had
held a meeting the night before. Yet, in his affidavit,
Denham averred, "I knew the Union did have a meeting. I
guess, I heard about the meeting from the employees. The
next day, Leavens said the employees wanted to see me. I
called them all in to my office." In sum I find that at his
August 8 meeting with the employees, Denham told them
that he knew of the union meeting the night before, he
would close the plant if they chose the Union, that he would
stop making ice cream and become a distributing plant in
such an event, that he would try to give them a Christmas
bonus if they stayed out of the Union and that in
connection therewith he asked employee Garcia how she
felt about it.
4. The events on August 11
Denham's meeting with employees was on Friday,
August 8. The following Monday, August 11, Denham,
together with King and Office Manager Keever, met with
Wills and Kikkert. Wills told them that at the August 7
union meeting the employees had voted to stay with the
Union and have the Union represent them. Denham replied
that he understood that it happened, and that Wills had
done an excellent job at the meeting but that since the
meeting the employees had come to him and told him that
they had now changed their minds and they no longer
wanted to be part of the Union. Denham said that Nardmi
was now a spokesman for the employees and asked whether
Nardini should be called in. Wills answered in the negative.
Because Denham had said that the employees had changed
while filled in for King In addition , King had been a supervisor sometime
before the incidents in this case However , it is uncontroverted that King's
regular function was that of rank-and-file employee and that any other
functions were performed on an irregular and spasmodic basis He was
during this time a member of the Union in good standing I find that he
was an employee within the meaning of the Act
THE DENHAM COMPANY 443
their minds, Wills did not give Denham the petition that the
employees had signed at the union meeting . At this
meeting , Wills asked whether the employees' reports that
wages had been cut were true and Denham replied that not
all the employees had been cut. Wills mentioned that Swift
had not paid the proper prorated vacatiori pay and Keever
answered that he thought Swift had overpaid.24 Wills
mentioned the loss in benefits that the employees would
incur if the plant went nonunion and particularly the loss of
the pension plan. He pointed out that Denham's father was
drawing benefits under the union pension plan. Denham
mentioned the possibility that he could become a
distributor and operate with three or four people.
On August 11 about 4:30 p.m., which was after his
meeting with Wills, Denham met with a number of
employees. Denham told them that he met with Wills and
Wills had left a defeated man. Beyond that statement, the
employees who testified concerning the meeting were not
consistent in their testimony. Employee Lane testified that
Denham said that he would get withdrawal cards for the
employees. Employee Garcia testified that the subject of
withdrawal cards came up in the context of her telling
Denham that if they didn't go union she would like to have
withdrawal cards so that she could freeze her pension
Employee Rutter testified that someone brought up the
subject of withdrawal cards and Denham replied that he
would get a lawyer to see if he could get them for the
employees. Denham flatly denied that he promised
employees assistance in obtaining withdrawal cards. In
view of the conflicting testimony between the witnesses for
the General Counsel on the subject of the withdrawal card,
and particularly that of Garcia who testified that she was
the one who discussed withdrawal cards rather than
Denham, I find that General Counsel has not established
by a preponderance of the evidence that Denham promised
employees assistance in obtaining withdrawal cards as
alleged in the complaint. However, at this meeting Denham
said that he had new contracts to bid on and asked each
employee present where that employee stood.25 In the
context of Denham's earlier remarks and particularly those
on August 8 in which he threatened to close the plant if the
employees chose the Union, I believe that Denham's
questions concerning how the employees stood referred to
whether they had chosen the Union and the employees so
understood it.
C. Analysis and Conclusions
1 The successor issue
a. The legal framework
In John Wiley and Sons, Inc. v Livingston, 376 U.S. 543
(1964), the United States Supreme Court held that a
successor-employer could be required to arbitrate with a
union under a collective-bargaining agreement even though
the predecessor company had disappeared through a
24 Subsequently, Wills wrote to Swift and additional vacation pay was
paid to a number of employees
25 Perritt credibly testified that Denham asked each employee how he
stood Rutter credibly testified "Well , Mr Denham said he had some new
contracts he was about to sign but he wanted to know how the employees
felt about working with him and cooperating with him So he asked each
merger. A merger situation was equated with one where a
business entity remained the same despite the replacement
of one owner by another . Under this continuing business
entity theory, the Board has consistently required succes-
sor-employers to honor bargaining obligations of their
predecessors .26 The Board 's policy was well summed up by
Trial Examiner George J. Bott in Will Coach Lines, Inc., 175
NLRB No. 87. In that case , the Board adopted the Trial
Examiner's Decision which held in part:
The Union represented and bargained collectively
for E & OV's drivers for many years before that
company was sold to Respondents . Respondents
refused to bargain with the Union when it took over E
& OV's operations , and itjustifies its refusal on various
considerations connected with the transfer and change
of ownership. It has long been established, however,
that a change in ownership in an enterprise does not
automatically extinguish the rights of employees or their
representatives and absolve the new owner from any
duty to recognize the union which represented his
predecessor's employees or to comply with any of the
terms of a labor contract which covered those
employees. Since it is the "employing industry" which
the Act seeks to regulate , 10 the predecessor 's obligations
may devolve on the successor in certain circumstances.
Critical questions in determining the extent of the new
employer's obligations are whether there has been a
"substantial continuity of identity in the business
enterprise" or "the enterprise remains essentially the
same ," after the change in ownership . ll The basic
question had also been described as "whether respon-
dent continued essentially the same operation, with
substantially the same employee unit ..." 12 In at-
tempting to answer these critical questions and
determine whether a new employer is a "successor
employer" obligated to bargain with the Union which
represented his predecessor 's employees, the Board and
the courts consider many factors. What combination of
factors is controlling is not always easy to determine,
but prime considerations are the continuation of the
business without substantial interruption , in such a
form as to make the bargaining unit readily discernible,
with some or all of the former employees employed at
their old jobs.13
10 N L R B v Cotten, d/b/a Kiddie Kover Mfg, Co, 105 F 2d 179, 183
(C A 6)
11 John Wiley & Sons, Inc v Livingston, 376 U S
12 Maintenance Incorporated, 148 NLRB 1299, 1301;
13 Overnice Transportation Company v N L R B, 372 F 2d 765 (C A 4),
Randolph Rubber Company, Inc, 152 NLRB 496, Firchau
Logging Company, Inc, 126 NLRB 1215, 1221
In The William J. Burns International Detective Agency,
Inc, 182 NLRB No. 50 , the Board clarified this area of law
by holding that absent unusual circumstances, the Act
"requires the successor-employer to take over and honor a
collective-bargaining agreement negotiated on behalf of the
employing enterprise by the predecessor." Not only is the
individual how they felt and which way they would go, if they would stand
behind him "
26 See Wackenhut v International Union , United Plant Guards, 332 F 2d
954 (C A 9), Overnice Transportation Co v N LR B, 372 F 2d 765 (C A 4)
and cases cited therein for judicial approval of this doctrine
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
successor-company bound to the contract as if he were a
signatory thereto, but its failure to maintain the contract is
a violation of Section 8(d) and 8(a)(5) of the Act. The Board
also held that "the obligation to bargain imposed on a
successor-employer includes a negative injunction to
refrain from unilaterally changing wages and other benefits
established by a prior collective-bargaining agreement even
though that agreement has expired."
In the instant case, the Company continued Swift's
business without interruption at the old location with the
same employees, machinery, and equipment. As a result of
the sale, the manager for Swift became the owner-manager
of the Company. The Company clearly meets all the criteria
set up by the Board to determine whether a purchasing
employer is a successor-employer of a continuing business
entity. I find that the Company is such a successor-
employer. However, where unusual circumstances prove
that the normal obligations flowing from a successorship
status, including the duty to honor the contract, would not
be appropriate, those normal obligations will not be
imposed. The Company has raised a number of defenses in
order to show such "unusual circumstances."
b. The Company's defenses
The threshold contention of the Company is that it did
not refuse to bargain with the Union because the Union
approved of the changes implemented by the Company.
The only evidence of such approval is the testimony of
Denham with regard to his conversation with Kikkert on
July 28 in which Kikkert allegedly authorized the changes.
As set forth in detail above, I do not credit Denham's
assertion and I do credit Kikkert's denial. I found above
that the Company unilaterally and without bargaining with
the Union reduced the wages of most of the employees,
canceled the pension plan, reduced the scope of the welfare
plan, and abolished seniority and overtime shortly after it
purchased the Hanford plant from Swift. In Denham's
August 1 conversation with Kikkert, and his conversations
a few days later with Kikkert and Wills, he equivocated on
whether or not he would recognize the Union by saying it
was up to the employees. Thereafter on August 11, he flatly
told Kikkert and Wills that the Union did not represent the
employees. The Company points out that the Union never
made any effort to bargain with it after August 11, and
didn't send bills for the welfare and trust funds until much
later . However, the Company's refusal even to acknowledge
that the Union represented the employees made any further
efforts of the Union to deal with the Company an exercise
in futility and no such useless gestures were required of the
Union. The Company did not bargain with the Union. The
more serious question posed by the Company is whether it
had any obligation to bargain with the Union.
The Company contends that even if it were a successor, it
had no duty to bargain with the Union because Swift
merely followed the industry practice with regard to wages
and benefits and did not bargain or have a contract, either
oral or in writing, with the Union As a subsidiary
argument, the Company urges a finding that the Burns case
has no application to the instant situation because neither
Swift nor the Company had a written contract with the
Union . However , these contentions are not supported by
the facts . As set forth in detail above , Swift did have a
collective-bargaining relationship with the Union which
reached fruition in a signed contract dated January 24,
1969.
Another contention of the Company is that Swift illegally
assisted the Union in obtaining its membership , thereby
making any bargaining relationship between the Company
and the Union improper and unlawful and any collective-
bargaining agreement void and unenforceable . Though the
complaint did not allege any unlawful union -security
practices by Swift or the Union , this matter was litigated at
the hearing in order to allow the Company to develop it as a
possible line of defense . As indicated above , I have found
that the agreement and understanding between Swift and
the Union was that employees were required to join the
Union in less than 30 days and that the employees were
given application cards and dues authorization checkoff
forms on the first day of employment as part of the hiring
process. As to the original recognition of the Union by
Swift , there is no evidence in the record to contradict Wills'
credible testimony that in the early 1940's he organized the
Swift employees and secured bargaining authorization
cards from them before recognition . It is also noted that the
written contract between Swift and the Union did not
contain any unlawful union-security provision either on its
face or in the parts of the industry contract which were
incorporated by reference.
A company and union violate the Act where they
maintain and enforce an agreement under which employees
are required to join the Union in less than 30 days27 and
they also violate the Act where they engage in conduct
which leads employees to believe thatjoining the Union or
signing checkoff authorizations is part of the hiring process.
Zidell Explorations, Inc., 175 NLRB No. 137 ; Paranite Wire
& Cable Div., Essex Wire Corporation, 164 NLRB 319;
Western Building Maintenance Company, 162 NLRB 778.
Where an employer unlawfully assists the union in
obtaining its majority status and then recognizes the union
on the basis of that status, the Board will normally order the
employer to withdraw and withhold recognition from the
assisted union unless and until that union is certified by the
Board. Department Store Food Corp. of Penna, 172 NLRB
No. 129 enfd . 415 F.2d 74 (C.A. 3). The effect of such an
order is to set aside any contract that has been based on
such unlawful recognition . In Zidell Explorations, Inc.,
supra, the Board found that an employer violated the Act
by requiring new employees at the time of their hire to
execute dues and initiation checkoff authorizations as well
as applications for membership , and deducted the dues and
fees during the initial 30 days of their employment. The
Board did not, however , find the initial recognition of the
Union to be unlawful and refused to set aside the contract,
saying "it has long been established by Board and court
cases that employer acts of unlawful assistance occurring
after the execution of a lawful contract , and during the
contract term , do not justify a remedial order suspending
27 Except for certain situations in the construction industry not
applicable here
THE DENHAM COMPANY 445
recognition of the assisted union during the contract term
or directing that the contract be set aside."
In the instant case , the Union's initial recognition was
lawful. The contract between Swift and the Union was
lawful on its face. Even though the practices relating to
union security and checkoff described above may have
been unlawful , they were not of such a nature as to taint the
basic underlying relationship between Swift and the Union.
The Company as a successor cannot, of course, be required
to succeed to any unlawful practices that its predecessor
engaged in . However, the existence of such practices, which
were outside of the contract, did not relieve the Company
of any duty it may otherwise have had to honor the lawful
bargaining obligation and contract that Swift had with the
Union.28
The Company's next contention is that it should not be
required to bargain with the Union because a majority of
the employees in the bargaining unit renounced the Union
shortly after the purchase. As found above, a substantial
majority of the employees reaffirmed their support of the
Union on August 7 at the union meeting ; on the following
day, Denham told the employees that he knew of the union
meeting , that he would close the plant if they chose the
Union, that he would stop making ice cream and become a
distributing plant in such an event, and that he would try to
give them a Christmas bonus if they stayed out of the
Union; and shortly thereafter, a majority of the employees
voted to stay out of the Union. As is more fully set forth
below, Denham's conduct at the August 8 meeting was
violative of the Act and I find that the employees' vote
against the Union on August 8 flowed directly from and
was coerced by Denham's unlawful conduct. That vote
therefore was not a true indication of the employees'
desires.29
The Company's final argument is that the Union's
attitude with regard to the most favored employer clause in
the industry contract precluded good-faith collective
bargaining and has discharged the Company of its duty to
bargain with the Union. A most favored employer clause,
such as the one contained in the industry contract, can
arguably have the practical effect of hamstringing a union
in its bargaining with other employers. However, in the
instant case , Swift's refusal to sign any contract that
contained a union-security clause and the Union' s refusal
because of the most favored employer clause to sign a
contract without one resulted in exchanges of letters and
other working agreements as set forth above. An amicable
bargaining relationship evolved and it is not contended that
either refused to bargain. In Dolly Madison Industries, 182
NLRB No. 147, the Board found th,.t a company's
insistence to the point of impasse on a most favored
employer clause was not a violation of Section 8(a)(5) of the
Act because such a clause was a mandatory subject of
bargaining. In that case, the clause was similar to the one
herein in that it provided that if the union entered into a
more favorable agreement with a competitor of the
employer, the employer's collective-bargaining agreement
would be automatically amended so as to give the employer
the full benefit thereof. The Board has held that such a
clause is not only lawful but a mandatory subject of
bargaining. It would be inconsistent to find that such a
clause automatically prevents a union from bargaining in
good faith with other employers. The Company, rather than
attempting to test the Union's desire to bargain in good
faith, prevented the issue from arising by refusing to
recognize that the Union represented a majority of its
employees. The Company cannot justify its refusal to
bargain on the speculation that the Union, if it were
allowed the opportunity, might not have bargained in good
faith. It is also noted that under the Burns case the Union
was not required to reopen the contract for negotiations but
could insist on the Company's adherence to the contract
that it had with Swift. Cf. Kota Division of Dura Corporation,
a subsidiary of Walter Kiddy & Company, Inc., 182 NLRB
No 51.
c. Conclusions as to successorship
For the reasons set forth above, I find that the Company
is a successor-employer of a continuing business entity, that
there are no unusual circumstances present that would
exempt the Company from the obligations of a successor-
employer as set out in the Burns case , and that the
Company therefore had the duty to honor Swift's
bargaining obligations and contract with the Union and to
refrain from making unilateral changes in the wages, hours,
and working conditions of the employees. I further find
that by making unilateral changes with respect to wages,
vacations, pensions, health insurance, seniority, and
overtime, by refusing to acknowledge the Union as a
collective-bargaining representative of the employees, and
by refusing to adopt, honor, and enforce the contract
between Swift and the Union, the Company violated
Section 8(a)(5) and (1) of the Act.
Section XI(b) of the complaint alleges that the Company
refused to bargain by bargaining directly with employees
through King and Forsythe at the "insurance" meeting. I
do not believe that what occurred at that meeting can
properly be called individual bargaining. The Company
had made a change and it was being announced at that time
to the employees. The fact that the employees were given
the option of obtaining additional insurance from Forsythe
on their own does not indicate that the Company was
bargaining individually with them. I therefore recommend
that the "direct bargaining" allegation in the complaint be
dismissed.
28 It is noted that Swift would have been in a poor position to raise an
attack on its own bargaining obligation because of unlawful conduct in
which it took part Denham stands in the place of Swift not only as a
successor but as an individual who, as Swift's chief representative at the
Hanford plant, participated in such conduct Though in some cases the
rights of the employees might be the prime concern no matter who raised
the issue, in this case Denham is pointing to misconduct in which he
participated as a justification for reducing the pay and benefits of those
employees
29 The Company's contention that a lack of majority is shown by
evidence that employee Leavens told Denham some time before that the
employees would not need the Union, and that a majority of the unit
employees at the insurance meeting of July 28 filled out company
insurance forms, has little substance I found that Leavens did not make
such a remark The signing of the insurance application forms was merely
an acceptance by the employees of what the Company had done rather
than an indication that they no longer desired to be represented by the
Union
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The alleged independent violations
of Section 8(a)(1) of the Act
a. Impression of surveillance
Section XII (b) of the complaint alleges that the Company
gave the employees the impression that it was engaging in
surveillance of their union activities . The only evidence in
the record in support of this allegation is that relating to the
statement of Denham to the employees on August 8 that he
knew of the union meeting the night before . It is noted that
before the meeting both Wills and Kikkert told him that a
meeting was planned . Employees may well have volun-
teered to him information about the meeting . Standing
alone , I do not believe that Denham 's remark was either
calculated to interfere , or would have the likely effect of
interfering , with rights of the employees by giving them the
impression that he was spying on their union activities. I
therefore recommend that that section of the complaint be
dismissed.
b. Threats and promises
Section XII (c) and (d) of the complaint allege that the
Company unlawfully threatened to close the plant and
promised wage increases to discourage union activity. I
have found that at the August 8 meeting Denham did tell
the employees that he would close the plant if they chose
the Union , that he would stop making ice cream and
become a distributing plant in such an event and that he
would try to give them a Christmas bonus if they stayed out
of the Union . Such a threat to close is not protected as free
speech . As the United States Supreme Court said in
N. L. R. B. v. Gissel Packing Co., 395 U.S. 575 (1969):
We therefore agree with the court below that
"conveyance of the employer's belief , even though
sincere, that unionization will or may result in the
closing of the plant is not a statement of fact unless,
which is most improbable , the eventuality of closing is
capable of proof ." 397 F.2d, at 160.... As stated
elsewhere , an employer is free only to tell "what he
reasonably believes will be the likely economic
consequences of unionization that are outside his
control," and not "threats of economic reprisal to be
taken solely on his own volition ." N.L.R.B. v. River
Togs, Inc., 382 F.2d 198,202,. . . (C.A. 2d Cir. 1967).
Equally valid was the finding by the court and the
Board that petitioner 's statements and communications
were not cast as a prediction of "demonstrable
economic consequences ," 397 F.2d at 160, . . . but
rather as a threat of retaliatory action.. . .
In Paranite Wire & Cable Division, Essex Wire Corporation,
164 NLRB 319, the Board evaluated the free speech
argument and concluded that an employer violated Section
8(a)(1) of the Act by threatening to close the plant if the
employees did not ratify a contract.
I find that Denham 's threat to close the plant and to
cease manufacturing ice cream if the employees chose the
Union was an unlawful threat of retaliatory action and
interfered , with , restrained , and coerced employees in the
rights guaranteed to them by Section 7 of the Act in
violation of Section 8(a)(1) of the Act.
Denham 's statement that he would try to give the
employees a Christmas bonus if they stayed out of the
Union was a clear promise of benefit to discourage union
activity . Though the promise was only that an effort would
be made to give the Christmas bonus rather than that the
bonus would be given , the statement was nonetheless an
unlawful interference with Section 7 rights and therefore a
violation of Section 8(a)(1) of the Act.
c. Interrogation
Section XII (e) of the complaint alleges that the Company
unlawfully interrogated employees . With regard to the
employees' meeting after Denham 's speech on August 8,
the General Counsel has not established by a preponder-
ance of the evidence that the Company sponsored or took
part in the vote taken at that meeting . It was not established
that Nardini , who was present at the meeting , was either an
agent or supervisor of the Company . No finding can
therefore be made that the Company interrogated its
employees through the voting at that meeting . However, I
have found that at Denham 's August 8 meeting with the
employees he asked employee Garcia how she felt about
"it" in the context of threats and promises which were
keyed to undermining the Union. In addition, on August
11, Denham asked a number of employees at a meeting
how the employees stood and that his question was in
reference to whether they had chosen the Union . I find that
Denham 's questioning of Garcia on August 8 and of other
employees on August 11 was unlawful interrogation which
probed into their union sentiments and interfered with their
rights under Section 7 of the Act in violation of Section
8(a)(1) of the Act.
d. Conclusions as to the independent 8(a)(1)
violations
In sum , I find that on August 8 the Company threatened
to close the plant and become a distributing plant if its
employees chose the Union , promised them benefits if they
stayed out of the Union , and on August 8 and 11
interrogated its employees concerning their union senti-
ments, all in violation of Section 8(a)(1) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
occurring in connection with the Company 's operations
described in section I, above , have a close , intimate, and
substantial relation 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.
V. THE REMEDY
Having found that the Company has engaged in unfair
labor practices violative of Section 8(a)(1) and (5) of the
Act, I shall recommend that it cease and desist therefrom
THE DENHAM COMPANY
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Company is a successor to Swift
and as such is bound by the contract that Swift had with the
Union, I shall recommend that the Company: cease and
desist from refusing to bargain with the Union and upon
request bargain collectively with the Union as the exclusive
representative of all the employees in the unit set forth
below ; cease and desist from making unilateral changes in
the wages , hours, and conditions of employment of said
employees in derogation of the rights of the Union and the
employees under the Act; and honor, adopt, and enforce
the contract between the Union and the Company's
predecessor , Swift . I shall also recommend that the
Company cancel the unilateral changes, give retroactive
effect to the contract and make whole, with 6 percent
interest , employees for all losses suffered by reason of the
Company's unilateral changes and refusal to adopt, honor,
and enforce the contract. As found above, that contract
covers wages and other money benefits to the employees.
This "make whole" recommendation shall therefore apply
to loss of wages , vacation benefits , and premiums for
pension and health and welfare benefits. With regard to the
premiums on the pension plan, retroactive payments can be
made to the pension trust. With regard to the health and
welfare plan, the Company did supply some employer-paid
coverage. The employees will be made most nearly whole
with regard to the health and welfare benefits if the
Company pays to the employees that amount which the
employees contributed to the premiums to obtain family
coverage. In the event that any employee suffered a loss
that would have been covered under the health and welfare
plan prior to the successorship but was not covered
thereafter, the employee can only be made whole by the
payment of that amount to him by the Company. I
recommend that such payments be ordered.
CONCLUSIONS OF LAW
Upon the foregoing findings of fact and the entire record
in the case, I make the following conclusions of law:
1. The Company is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act: All production and
maintenance employees and truckdrivers employed by the
Company at its Hanford plant , excluding office clerical
employees, guards, and supervisors as defined in the Act.
4. By failing and refusing on or about July 28, 1969, and
thereafter , to bargain with the Union as the exclusive
bargaining representative of the Company's employees in
the above-described appropriate unit , by unilaterally
changing wages, hours , and conditions of employment in
derogation of the rights of the Union and the employees
under the Act, and by failing to honor, adopt, and enforce
447
its contract with the Union as successor to Swift, the
Company has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and 8(a)(1)
of the Act. By the foregoing conduct, by telling employees
that the plant would close if they chose the Union, that the
Company would stop making ice cream and become a
distributing plant in such an event , and that an attempt
would be made to give the employees a Christmas bonus if
they stayed out of the Union , and by interrogating
employees concerning their union sympathies , the Compa-
ny has interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed to them
by Section 7 of the Act and therby has violated Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case , I recommend
that the Company, No H. Denham and Geraldine
Denham, d/b/a The Denham Company, its agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively , upon request, with
the Union as the exclusive bargaining representative of its
employees in the above-described unit.
(b) Unilaterally changing wages, hours, or conditions of
employment in derogation of the rights of the Union and its
employees under the Act.
(c) Refusing to adopt , honor, and enforce its contract
with the Union, as successor to Swift.
(d) Threatening its employees to close the plant and to
become a distributing plant if they chose the Union.
(e) Promising its employees benefits if they stay out of the
Union.
(f) Interrogating its employees about their union
sympathies.
(g) In any manner interfering with , restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain collectively , upon request , with the Union.
(b) Cancel the unilateral changes and honor , adopt, and
enforce its contract with the Union , as successor to Swift,
and give retroactive effect to the contract.
(c) Make its employees whole for any losses they may
have suffered by reason of its unilateral changes and failure
to honor, adopt , and enforce the contract in the manner set
forth in the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records and reports and other records necessary to
ascertain the amount due employees.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its Hanford, California, place of business
copies of the attached notice marked "Appendix A.1130
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by the
Company's authorized representative, shall be posted by
the Company immediately upon receipt thereof 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 the Company to insure that said notice is not
altered, defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this decision, what steps have been
taken to comply therewith.31
Dated:
30 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
31 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps the
Company has taken to comply therewith "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT refuse to bargain collectively, upon
request, with Creamery Condensery Employees &
Drivers Union, Local 517, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive bargaining representative of
our employees in the following appropriate unit:
All our production and maintenance employees
and truckdrivers employed at our Hanford plant,
excluding office clerical employees, guards and
supervisors as defined in the Act.
WE WILL NOT unilaterally change wages, hours, or
conditions of employment in derogation of the rights of
the Union and our employees under the Act.
WE WILL NOT refuse to adopt , honor , and enforce our
contract with the Union , as successor to Swift & Co.
WE WILL NOT threaten to close our plant and to
become a distributing plant if our employees choose the
Union.
WE WILL NOT promise our employees benefits if they
stay out of the Union.
WE WILL NOT interrogate our employees about their
union sympathies.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their rights to
join or assist the Union or otherwise engage in activities
protected by the Act.
WE WILL bargain collectively , upon request , with the
Union.
WE WILL cancel the unilateral changes and honor,
adopt , and enforce our contract with the Union as
successor to Swift & Co ., and give retroactive effect to
the contract.
WE WILL make our employees whole for any losses
they may have suffered by reason of our unilateral
changes and failure to honor , adopt , and enforce that
contract with interest at 6 percent.
Dated By
No H. DENHAM AND
GERALDINE A. DENHAM,
D/B/A THE DENHAM
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047,
San Francisco, California 94102, Telephone 556-0335.