Tyson's Foods, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 10, 1968172 N.L.R.B. 2008 (N.L.R.B. 1968) Copy Citation 2008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tyson's Foods, Inc. and Food Handlers Local 425, AFL-CIO , affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO' Tyson 's Poultry Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO.2 Cases 26-CA-2500 and 26-CA-2546 September 10, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 14, 1968, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceed- ing, 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 Respondent had not engaged in certain other unfair labor practices al- leged in the complaint. Thereafter, the General Counsel and the Respondent filed exceptions to the trial Examiner's Decision, and supporting briefs, and the Charging Parties filed cross-exceptions to the Trial Examiner's Decision and a supporting brief.' 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, cross- exceptions, briefs, and the entire record in the case, Herein referred to separately as the Union i Herein referred to separately as Amalgamated Union and Amalga- mated are herein also referred to as the Charging Parties ' The General Counsel filed a motion to strike a certain allegation in the Charging Parties' brief claiming that it constituted an improper and un- justified attack on the counsel for General Counsel's integrity, and the Charging Parties filed an opposition to this motion Specifically, the Charg- ing Parties alleged in fn 4 of their brief to the Board that the General Counsel "consciously attempted to keep out of the record the best evidence relevant to his case and consequently to the Charging Parties' case " We have examined the record carefully and find no basis for the Charging parties' contention It is evident, as the General Counsel points out, that the question of the admissibility of the evidence offered by the Charging Parties, to which counsel for the General Counsel objected, was a question for the Trial Examiner's determination, and as we point out in fn 6, infra, we find the Trial Examiner's rulings in that regard to be correct However, we believe that it would serve no useful purpose to strike the ob- jectionable material from the Charging Parties' brief ' Pursuant to the provisions of Section 3(b) of the National Labor Rela- and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only in- sofar as they are consistent herewith. The complaint alleged in principal part that the Respondent violated Section 8(a)(3) and (5) of the Act by putting into effect an increase in the em- ployees' base rate without notification to or bar- gaining with the Union, and that such action was taken in order to undermine the Union and en- courage the employees to decertify the Union.' The Trial Examiner found, and we agree, that the Respondent did not violate Section 8(a)(5) of the Act by putting into effect an increase in the em- ployees' base pay from $1.37 per hour to $1.41 per hour since such action was taken only after Amal- gamated's vice president, Rose, acceded to Respon- dent's request to put such increase into effect.' Although absolving Respondent from any intent unilaterally to increase the employees' base rate of pay, the Trial Examiner nonetheless concluded that the Respondent had violated Section 8(a)(5) in another respect, to wit, that it had, without notice to or consultation with the Union, increased the rates of pay of employees on premium pay thereby in effect initiating a plantwide increase, and that such action was taken for the purpose of undermin- ing the Union's majority status. We do not agree. We cannot conclude from our reading of the record that the General Counsel's complaint al- leged anything other than the increase in the base rate as the violation of Section 8(a)(5) of the Act. No other issue was in fact litigated, and we agree with the Respondent that on this ground alone the Trial Examiner's finding is unwarranted. Further- more, even if we were to assume that the complaint alleged such unfair labor practice and that the issue was litigated, there is no showing that the increase in pay for employees working on premium pay amounted to anything more than an adjustment in their base rate which was the same as for non- Lions Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel ' The Trial Examiner found it unnecessary to pass on the 8 (a)(3) allega- tion of the complaint because, in his opinion, a finding of an 8(a)(3) viola- tion in connection with the wage increases of June 6 would not call for any additional remedy in this case However, the General Counsel and the Charging Parties except to the Trial Examiner's failure to resolve the issue In our opinion, there is nothing in the record to justify an inference that Respondent's action in granting an increase in the employees' base rate of pay was motivated by any reason other than its desire to halt the high turn- over in its labor force it was experiencing due to losing employees to com- petitors in the area who were paying higher wages " The Charging Parties contend, however, that the Trial Examiner should have credited the testimony of Amalgamated's Vice President Rose that he did not acquiesce in Respondent's request to raise the employees' pay rate The Trial Examiner, however, credited the testimony of Respond- ent's president, Tyson, and its attorney, Gilker, that such consent was, in fact, given, and we can find no basis in the record for reversing the Trial Examiner's credibility findings 172 NLRB No. 224 TYSON'S FOODS, INC. premium employees. The respondent maintains that the adjustment in the rate of pay for employees on premium pay was merely to maintain the existing differential, and indeed the wording of the June 6 notice posted by the Respondent would support such conclusion. On the record as a whole we find that the Respondent did not violate Section 8(a)(5) of the Act.' Accordingly, we shall order that the com- plaint in its entirety be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be , and it hereby is, dismissed in its entirety. ' The Charging Parties attempted to introduce evidence establishing that Respondent 's conduct in the course of negotiations evidenced a general refusal to bargain in good faith The General Counsel objected to the in- troduction of such testimony on the ground that the complaint alleged no more than a refusal to bargain by the unilateral increase in the base rate of pay, and that despite the seemingly broad language in par 15 of the com- plaint , it was not the General Counsel's intent to allege otherwise The Trial Examiner sustained the General Counsel's objections and ruled that the proffered testimony was not admissible We are of the opinion that the Trial Examiner did not abuse his discretion in so ruling In our opinion, the receipt of the Charging Parties ' testimony would have had the effect of amending the complaint without the General Counsel's consent See United Steelworkers of America, AFL-CIO (Luxaire, Inc.) v. N L.R.B , 393 F . 2d 661 (C.A.D.C) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: The instant proceeding was initiated with the filing of a charge against Tyson's Foods, Inc., in Case 26-CA-2500 by Food Handlers Local 425, AFL-CIO, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, on July 26, 1966, and with the filing of a charge against Tyson's Poultry Company in Case 26-CA-2546 by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. After further proceedings more fully set forth below in part III, A, 1, Outline of events and proceedings, the General Counsel, by John J. A. Reynolds, Jr., Re- gional Director for Region 26, on July 10, 1967, is- sued an order consolidating the two cases and a complaint alleging that Tyson's Foods, Inc., and Tyson's Poultry Company had violated Section 8(a)(5) and (1) of the Act by certain conduct "com- mencing on or about June 6, 1966." Thereafter the named Respondents filed an answer to the con- solidated complaint. A hearing was held before me at Fayetteville, Arkansas, on January 30 and 31, 1968, in which all parties participated. After the conclusion of the hearing all parties filed briefs with 2009 the Trial Examiner which have been fully con- sidered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Tyson's Foods, Inc., is the parent corporation and owns all the stock of Tyson's Poultry Company (no longer in active business) and Tyson's Poultry, Inc., and owns the controlling stock of Arkansas Animal Foods, Inc. All these corporations are operated as a single , integrated enterprise. Don Tyson is the president of all the corporations. The latter two corporations operate adjoining plants at Springdale, Arkansas, where they are engaged in processing poultry and poultry by products. Tyson's Foods, Inc., the parent corporation, and Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., are herein referred to jointly as the Company. During the year preceding the issuance of the complaint, the Company shipped more than $50,000 worth of poultry from its Springdale plants to out-of-state destinations. Upon these facts I find, as the Com- pany admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Food Handlers Local 425, AFL-CIO, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO (herein called the Union ), and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (herein called the Amalgamated), are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Company's Grant of Wage Increases on June 6 As more fully stated below, the General Counsel took the position throughout the hearing in this case that the sole issue involved was whether the Company's action in raising the employees' wage rates on June 6, 1966, while bargaining negotia- tions between the Company and the Union were in progress-action allegedly taken without bargaining with the Union about the matter-constituted bad- faith collective bargaining in violation of Section 8(a)(5) and (1) of the Act. Counsel for the General Counsel expressly stated that the com- plaint did not raise any issue concerning the Com- pany's general bad faith throughout the negotia- tions. It will be helpful, in my opinion, in un- derstanding the General Counsel's position regard- ing the narrow scope of the consolidated complaint in this case-a construction of the consolidated 354-126 O-LT - 73 - pt. 2 - 55 2010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint which I adopted at the hearing- if I set out at the beginning an outline of the salient facts bearing upon the issue of the Company 's grant of the wage increases on June 6 , 1966, and of the proceedings leading up to the issuance of the com- plaint herein . This outline does not purport to cover all of the events and proceedings within the period of time covered. 1. Outline of events and proceedings May 14, 1965: The Board certified Food Han- dlers Local 425, AFL-CIO, affiliated with Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, hereinafter called the Union, as the exclusive bargaining representative of all production and maintenance employees of Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc. (Case 26-RC-2224), at their plants at Spring- dale, Arkansas . Bargaining between the Union and the Company commenced shortly thereafter. November 15, 1965: The Company gave the Union a complete written proposal at a bargaining meeting , including a proposal on wages. March 15, 1966: The Company gave the Union a revised proposal on wages , offering $ 1.37 per hour for grade I employees and $1.40 per hour for grade 2 employees . The Union counterproposed a base rate of $1 .46 per hour, with an additional increase in the second and third years of the contract. April 6, 1966: The Union sent the Company a letter requesting that it be furnished with ( 1) a list of employees in the bargaining unit setting forth the grades and job classification of each employee and (2) information concerning " the elements , condi- tions , requirements , duties and/or functions of em- ployees for each job classification." April 26, 1966: Company President Don Tyson met with T . J. Lloyd, president of the Amalga- mated , Jasper C . Rose , vice president of the Amal- gamated , at the office of the International Union in Chicago . Tyson counterproposed a $1.41 base rate effective May 1, 1966 , $ 1.44 base rate effective February 1, 1967, $1.52 base rate effective August 1, 1967, $1.63 base rate effective February 1, 1968, and $1.67 base rate effective August 1, 1968. The Union adhered to its demand for a $ 1.46 base rate . No agreement on wages was reached. May 5 , 1966: This bargaining meeting was held at the Hilton Inn in Kansas City, Missouri. Representing the Company were President Tyson and Plant Manager Buddy Wray. Among those representing the Union were Secretary-Treasurer Parker and Amalgamated Vice president Rose. The Company adhered to its previous wage offer. The Union counterproposed a $1.41 base rate, to be raised to $1.46 per hour on September 1, 1966, provided that agreement was reached on an entire contract . No such agreement was reached. May 17, 1966: Tyson met with Secretary-Treas- urer Parker and Amalgamated Vice President Rose in the office of his attorney , James A. Gilker, in Fort Smith , Arkansas. The Company renewed its offer of a $1.41 base rate which was rejected by the Union. The Company stated that it wanted to put the $1.41 increase into effect immediately. The Union refused to agree , Union Secretary-Treasurer Parker stating that the offer was not clear and that the Union had not been given information which it had requested concerning the duties and classifica- tion of employees and as to premium jobs. Gilker said that the Company was going to post a notice stating that the Union was refusing to permit the Company to put into effect a 5-cents-per- hour in- crease for the men and a 9-cents-per-hour increase for the women. May 17, 1966: The Company sent the Union a list of the names of 182 employees, with notations indicating whether they were in grade 1, grade 2, grade 3 , or were probationary employees. May 17, 1966: The Company sent the Union a letter stating the Company's desire to place the $1.41 base rate into effect immediately. In the letter the Company attributed the employees' failure to receive a lesser increase many months earlier to the Union's objections and expressed the hope that the Union "will take no action which might put in question the Company's right to install this wage adjustment immediately ." The Company posted a copy of this letter on its bulletin board about this time. May 19, 1966: The Union sent the Company a letter requesting that it defer putting the wage in- crease into effect pending the outcome of a bar- gaining meeting scheduled for the coming week. May 24, 1966: The Union in a letter to the Com- pany protests the Company's action in posting on its bulletin boards its letter regarding its desire to put into effect the $ 1.41 base rate . In the letter the Union renewed the request made in its April 6 letter for a statement of the requirements , duties, and functions of the employees in each of its job clas- sifications. May 24, 1966: The employee Edith Douthit and three of her fellow employees started soliciting from other employees signatures on papers contain- ing the following heading : "WE THE EM- PLOYEES OF TYSON'S PROCESSING PLANT AT SPRINGDALE, ARKANSAS NO LONGER WISH TO BE REPRESENTED BY LOCAL 425 MEAT CUTTERS UNION." Thereafter, Personnel Manager H. D. Knight is made aware of the circula- tion of a petition outside the plants "to get rid of the Union." May 27, 1966: At a bargaining meeting at the Hilton Inn in Kansas City, Missouri , attended by President Tyson, Attorney Gilker, Secretary-Trea- surer Parker, and Vice President Rose , Gilker again asked to put the $1.41 base rate into effect . Parker accused the Company of already having posted a notice regarding the $1.41 base rate . Gilker told him that the letter had been taken down. Parker said that he could not agree to the Company's putting the increased base rate into effect. When TYSON'S FOODS, INC. pressed for an explanation , Parker stated that there was a problem of retroactive pay, no agreement had been reached on premium jobs , and that the Union was not satisfied with the employee data furnished by the Company with its letter of May 17. June 1 , 1966: Employee Edith Douthit mailed to the Little Rock , Arkansas , Resident Office of the Board the original signed union renunciation papers which had been circulated among the employees from May 24 through 30. The papers contain what appear to be the signatures of 139 persons.' June 2 , 1966: Amalgamated Vice President Rose calls Attorney Gilker and tentatively arranges a bargaining meeting at the Hilton Hotel in Kansas City, Missouri , for the morning of June 6. Gilker says he will check with President Tyson and call him back . Rose said that he would be out of his of- fice and to notify his secretary if this tentative date was agreeable. June 3 , 1966: Gilker calls Rose 's secretary and tells her that the tentative arrangement for a meet- ing in Kansas City on the morning of June 6 was satisfactory. June 6 , 1966: Attorney Gilker and President Tyson went to Kansas City and waited for Rose and the other union representatives to show up. When they had not arrived by 11:15 a.m ., Gilker called Rose 's office in Chicago and requested assistance in locating him . About 30 minutes later Rose called Gilker at the Hilton from Washington, D.C. Rose apologized, saying that he had not gotten the message setting up the meeting . During the call Gilker stated that the Company wanted to put the $1.41 base rate into effect immediately . Rose stated that this was agreeable to him and to go ahead and put it into effect. June 6 , 1966: The Company posted the following notice: Effective Monday , June 6 , 1966, the follow- ing base rate will be in effect: Starting rate ......... $1.35 per hour After 30 working days ..... $ 1.41 per hour All present premium rates will be increased to maintain their present differential above base rate. Many other increases and improvements in company benefits have been proposed to the Union and would have been already placed into effect except for their delays and stalling tactics. Tyson 's, in line with our past policies, will al- ways be the poultry plant with the greatest take -home pay , steadiest work and best job security. ' There is no controversy between the parties concerning the limited facts recited in the foregoing outline There is a very serious factual con- troversy concerning the events discussed below leading up to the Com- pany's grant of the wage increases on June 6, 1966 The facts set forth in the outline are based upon my resolution of the sharply conflicting 2011 You will be pleased to see further announce- ments which will be made as soon as possible.' July 11, 1966 : Petition to decertify the Union is filed with the Board 's Regional Office in Memphis, Tennessee ( Case 26-RD-131). July 26 , 1966: The Union filed a charge with the Regional Office alleging that the Company engaged in unfair labor practices in violation of Section 8(a) (1), (2), (3 ), and (5 ) of the Act by assisting in the circulation of the union renunciation papers, by discriminating against returning strikers, and by refusing to bargain collectively in good faith with the Union since on or about February 1, 1966. September 19, 1966 : The Amalgamated filed its charge with the Regional Office against the Com- pany alleging substantially the same violations as were contained in the Union 's previous charge and adding allegations based upon unilateral action with respect to base and other rates of pay in September 1966. Late September : The Regional Director for Re- gion 26 , notified the parties that he was refusing to issue a complaint on the charges filed by the Union and the Amalgamated. Early October : The Union and the Amalgamated filed their appeals from the Regional Director's rul- ing. November 3, 1966 : Regional Director issued his Decision and Direction of Election in Case 26-RD-131. December 1, 1966: Election is held with the Union losing 133 to 43, with 7 challenged ballots. June 20, 1967: The General Counsel sustained the refusal of the Regional Director to issue a com- plaint based on the charges filed by the Union and the Amalgamated , except with respect to allega- tions " that the wage increase ( of June 6 , 1966) not only constituted unlawful unilateral action but was motivated by a desire to undermine the Union and give impetus to the decertification movement, and reflected the absence of a good faith effort by the Company to reach agreement with the Union." July 10 , 1967: Regional Director issued the con- solidated complaint alleging (pars . 12, 13, and 14) that the Company put into effect the wage increase set forth in notice of June 6, supra , " without notifi- cation to , or bargaining with the Union , and also in order to undermine the Union and to encourage their employees to decertify the Union as their col- lective bargaining representative ," in violation of Section 8 ( a)(1), (3), and ( 5) of the Act. Paragraph 15 of the consolidated complaint alleged as follows: Commencing on or about June 6, 1966, and at all times thereafter, Respondents negotiated with the Union in bad faith and with no inten- tion of entering into any final or binding col- lective bargaining agreement. testimony of President Tyson and Attorney Gilker, on the one hand, and of Vice President Rose. on the other The reasons for my resolution of the conflicting testimony are set forth below 2 The Company admits posting the notice and putting the increase into effect at this time 2012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The issue involved As indicated above, the General Counsel took the position that the granting of the wage increases on June 6, 1966, was the only issue involved under the consolidated complaint, and that paragraph 15 of the complaint was intended only as a conclu- sionary allegation regarding the grant of the wage increases on June 6 and was not intended to allege a continuing course of bad-faith bargaining com- mencing on June 6, 1966. Consistent with this posi- tion counsel for the General Counsel throughout the hearing objected to the admission of any evidence not relating to the grant of the wage in- creases and as to any events occurring after June 6, 1966. The union strenuously objected to any such limitation of the issues. I overruled the Union's ob- jections at the hearing and excluded much evidence which the Union sought to adduce under its theory of its rights as the Charging Party in the case. The Union urges that I should reconsider my evidentiary rulings and reopen the case to afford it an opportu- nity to put in the evidence which it contends it is entitled to deduce in this case. I have considered the decisions cited by the Union in support of its posi- tion but am not persuaded that I was in error in sustaining the General Counsel's position regarding the scope of the consolidated complaint. Piasecki Aircraft Corporation v. N.L.R.B. , 280 F.2d 575, 588 (C.A. 3), involved a similar question of the right of the charging party to adduce evidence which was inconsistent with the General Counsel's position as to the scope of the complaint. Upholding the Board's limitation of the issues to those formulated by the General Counsel, the court stated as follows: The Board was within its province in accord- ing determination of the scope of the com- plaint to the General Counsel, Section 3(d),6 who did not contend that Piasecki was contrac- tually obligated to bargain with the Union. Rather the General Counsel sought to ground Piasecki's obligation to bargain on Section 8(a)(5) and it was within his domain to so for- mulate the complaint and its prosecution. Amalgamated Utility Workers v. Consolidated Edison Co., 1940, 309 U.S. 261, 264-265, 60 S.Ct. 561, 84 L.Ed. 738. , - He [the General Counsel ) shall have final authority on behalf of the Board , in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board , and shall have such other duties as the Board may prescribe or as may be provided by law To the same effect are Wellington Mill Division, West Point Manufacturing Co. v. N.L.R.B. , 330 F.2d 579, 590-591 (C.A. 4); Frito Company, Western Division v. N.L.R.B., 330 F.2d 458, 460-464 (C.A. 9); Philip Carey Manufacturing Co., ' See also International Union, United Automobile , Aircraft, and Agricul- tural Implement Workers of America, GO v N L R B , 231 F 2d 237, 242 Miami Cabinet Division v. N.L.R.B., 331 F.2d 720, 733-734 (C.A. 6); Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B., 339 F.2d 795, 799 (C.A. 2).3 The foregoing decisions of the courts fully sustain the Board 's position taken early in the administra- tion of the Taft-Hartley Act that " the decision whether to issue a complaint , and the management of the prosecution before the Board is entrusted to the sole discretion of the General Counsel ...... (Emphasis supplied .) Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company,) 92 NLRB 547, fn. 1; Dallas Concrete Company, 102 NLRB 1292, enfd. 212 F.2d 98 (C.A. 5); General Electric Com- pany, Battery Products, Capacitor Department, 163 NLRB 198. In view of the authorities cited above I adhere to my rulings made at the hearing excluding evidence proffered by the Union relating to viola- tions of Section 8(a)(3) and ( 1) of the Act arising out of alleged discrimination against returning strikers and violations of Section 8(a)(5) and (I) of the Act based upon the Company 's alleged bad faith throughout the bargaining negotiations. 3. The evidence regarding Company's action in granting increases in the employees' wages on June 6 without bargaining with the Union about the matter; conclusions Attorney Gilker testified that Vice President Rose called him on June 2 and proposed that the parties meet for another bargaining conference on June 6 at the Hilton Inn in Kansas City, Missouri. Gilker tentatively agreed but said that he would have to check with President Tyson to see if he would be available. Rose stated that he would be out of the office, but to notify his secretary if the tentative arrangement was satisfactory. The next day, after consulting with Tyson, Gilker called Rose at the headquarters of the Amalgamated in Chicago. Upon being informed by Rose's secretary that Rose was not in , Gilker left the message with Rose 's secretary that he and Tyson would be at the Hilton Inn in Kansas City on the morning of June 6, as Rose had proposed. Rose 's secretary said that she was expecting Gilker's call and that she was authorized to confirm the arrangements for June 6. Vice President Rose acknowledged that he had spoken to Gilker on June 2 or 3, but did not testify concerning the nature of his conversation with Gilker on this occasion . Rose did testify, however, that he had no knowledge of setting up a meeting for June 6 . Rose 's secretary was not called as a wit- ness . I credit Gilker's testimony concerning the making of the arrangements for the June 6 meeting. Gilker and Tyson gave mutually corroborative testimony concerning the events of June 6. They (C A 7), International Union of L leurieal Radio and Machine Workers, AFL-CIO v N LRB , 289 F 2d 757, 760-761 (C A D C ) TYSON'S FOODS, INC. 2013 went to the Hilton Inn in Kansas City and waited in the lobby for Rose and the union delegation to ar- rive. When the union representatives had not ar- rived in about 30 to 40 minutes Gilker and Tyson decided to go up to the room to be more accessible in case Rose should be attempting to reach them by telephone. Gilker and Tyson waited in the room until 11 :15 a.m. Concluding that something was wrong, Gilker called the headquarters of the Amal- gamated in Chicago and asked for Rose. Gilker was informed by the telephone operator that Rose was not in the city. After considerable probing, Gilker was finally told by an individual who identified him- self as Bill Burns that he thought Rose was at a meeting at the Executive House in Washington, D.C. Burns said that he would try to locate Rose in Washington and have Rose call Gilker at the Hilton in Kansas City. Gilker immediately tried to reach Rose at the Executive House but was unsuccessful. At 11:40 a.m. Rose called Gilker from Washington, D.C. Gilker further testified that while this conversa- tion with Rose was going on Tyson was sitting alongside him on the bed and that he held the telephone between the two of them. Tyson gave similar testimony. In Gilker's words: I got on him a little about standing us up and having us travel to Kansas City. We always went to Kansas City for his convenience. We had no obligation to go there. He had to come here if he wanted to negotiate, but we did that for his convenience and he stood us up. I re- minded him of the fact that we had been doing all the traveling so that they could come down and go back in one day, and that I felt he had an obligation to us to get with it, because he blew the meeting. Rose's reply, according to Gilker, was: "The girl must have goofed up," but that he was in Washington and he was very, very, very sorry, and that he hadn't gotten the message that there was to be a meeting. Gilker's testimony continues: We told him that we had a serious problem about the $1.41, and that we wanted to put it into effect. We talked just for a moment about another meeting. He was very involved at the time and said that he would call me on it later, but he agreed. He said it was agreeable with him for us to put the $1.41 into effect while we were still negotiating. Tyson's version of the conversation with Rose cor- roborated Gilker's in all its details. The Company offered in corroboration of the foregoing testimony a telephone bill showing that a telephone call from Kansas City, Missouri, to Chicago, Illinois, on June 6, 1966, was charged to Gilker's account, and also a handwritten note on Hilton Inn notepaper containing the telephone number of the Executive House in Washington, D.C., and the following notation: Bill Burns-1115 AM-Monday June 6, 1966 Jap Rose returned call at 11:40- Gilker testified that he made these notations on a pad near the telephone while making the telephone calls on June 6, 1966. Rose was called to the stand as a witness for the General Counsel on the first day of the hearing, be- fore Gilker and Tyson gave testimony concerning the incidents of June 6. Their testimony was given on the second day of the hearing. After testifying that he was in Washington, D.C., on June 6, in con- nection with bargaining negotiations with a nearby Virginia poultry company, Rose was questioned by counsel for the General Counsel as follows: 0. (By Mr. Rhoads) Do you recall receiving a phone call from Kansas City on June 6, 1966? A. I don't recall a particular phone call, I get several calls a day, and for me to tell you here today that I can remember a year and a half ago of getting telephone calls on a certain day like that, I don't know. I was attending a conference. I had several negotiations pending in the east, in the south, and I was getting telephone calls, and I just don't remember of talking to anyone on the 6th. 0. Do you recall speaking to Mr. Gilker on the 6th of june? A. That date I do not recall. I know I had spoken with him several days earlier on the 2nd or 3rd. Q. Do you remember the subject of your conversation on that date? A. No, I don't. I never keep notes of my telephone calls. Q. Did you on June 6, 1966, grant approval for Tyson's to put into effect the $1.41 base rate which had been discussed previously in bargaining sessions with them? A. Well, I previously said I couldn't recall talking to Mr. Gilker on that date, but had I talked with him that date I couldn't have given any agreement or approval of putting a rate into effect. Although the hearing was not held until January 30, 1968, almost 20 months after the telephone conversation of June 6, 1966, both Gilker and Tyson had good recollections of the incident and their testimony coincides on all of the details of the conversation with Rose on this occasion. On the other hand, Rose, while remembering certain details covering his activities on June 6, professed to have no recollection of the telephone call to Gilker on that day and argumentatively asserted that he could not have acquiesced in the Com- pany's request to put the $1.41 base rate into effect because he lacked authority from the Union to do so. Although it became apparent during the first day of the hearing from the General Counsel' s examina- tion of Rose that there was a serious controversy about a purported telephone conversation between 2014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rose in Washington, D.C., and Gilker in Kansas City on June 6, 1966, neither the General Counsel nor the Union sought to bring in any evidence cor- roborating Rose's testimony that he had no knowledge of any bargaining meeting scheduled for June 6 and that he did not recall talking to Gilker over the telephone that day. Rose's secretary, who made the final arrangements for the June 6 meet- ing, was not called as a witness by either the General Counsel or the Union and no explanation was offered for their failure to call her. Nor was Bill Burns called to the stand. It was recalled that it was Burns to whom Gilker testified he talked at the Chicago headquarters of the Amalgamated on June 6, 1966, and who assertedly relayed on to Rose in Washington, D.C., the message to call Gilker in Kansas City. Rose was not recalled to the stand after Gilker and Tyson had given their detailed and mutually corroborative testimony concerning their conversation with him on June 6. Rose left town after the first day of the hearing, assertedly on an important union mission. Under all the circumstances I have not the slightest hesitancy in crediting the straightforward and plausible testimony of Gilker and Tyson in preference to Rose's uncorroborated, evasive, and argumentative denials. For these reasons I conclude that Rose gave his consent over the telephone on June 6, 1966, to the Company's putting into effect on that day the $1.41 base rate.; However, the Company did not obtain the Union 's consent to granting wage increases all the way up the line. Yet the Company in its June 6 notice announced as follows: All present premium rates will be increased to maintain their present differential above base rates. At no time had the Company sought the Union's consent to grant a general increase . As Gilker's own testimony makes clear, the $1.41 base rate was all that Gilker, in the June 6 telephone conversa- tion with Rose, sought the Union 's permission to put into effect . Up to this point in the negotiations the discussion of wages centered largely about base rates. Standing alone , the Company's action in granting a general wage increase without even in- forming the Union of its intentions in this regard raises a serious question whether it was treating the Union with the good faith which the Act requires. ' The General Counsel and the Union argue that even if Rose gave his consent to the wage increase such action is not binding on the Union, which was the certified bargaining representative , because only the Union itself had authority to give such consent , and that Rose, a vice president of the Amalgamated, was not authorved to speak for the Union but was only assisting in the negotiations at the Union 's request I need not decide the precise scope of Rose's authority to bind the Union by his representations to the Company The question before me on this aspect of the case is whether under all the circumstances the Company in putting the $1 41 base rate into effect, acted in bad faith in relying on Rose 's consent to the increased base rate being instituted while negotiations were still in progress Viewing the Company's action on June 6 in light of all the circumstances of the case, I conclude that the Company did not fulfill its statutory collective- bargaining obligations. It should be borne in mind that the Company had never complied with the Union's repeated requests for information concerning the duties and responsi- bilities of the various job classifications within the Company's three grade levels. Although the Com- pany has a number of different operations on its production lines , it never revealed to the Union which wage rates were assigned to what operations. Nor did it disclose to the Union what standards the Company followed in advancing employees from one grade level to the next . The Company parried the Union's written request of April 6 for job clas- sification information with the insincere plea that it did not understand the kind of information desired. This information was essential to any intelligent consideration of wage levels at the Company's plant. This was one of the reasons for the Union's earlier refusal to acquiesce in the establishment of the $1.41 base rate, as the Company had been in- formed. Another factor contributing to my conclusion concerning the Company's bad faith in putting into effect the plantwide wage increases on June 6 is the timing of the Company's action, about 2 weeks after certain employees started circulating union renunciation papers, activity of which the Company was aware, and just after the expiration of the cer- tification year. In view of the timing of the Company's grant of the plantwide wage increase, and bearing in mind the fact that the Company had threatened at the May 17 meeting to post a notice blaming the Union for blocking a pay increase for the employees, a threat which the Company carried out when it posted on its bulletin board a copy of its May 17 letter to the Union, and the further fact that the Company in its notice of June 6 announcing the general increase in wage rates again faulted the Union for delaying other increases and improve- ments in company benefits, I conclude that the Company's action in instituting plantwide increases to maintain previously existing wage differentials was a deliberate effort on the part of the Company to discredit the Union in the eyes of the employees and to give encouragement and support to the In resolving this question the following facts are pertinent Amalgamated Vice President Rose participated in all of the bargaining meetings after the one on March 15, 1966 The meeting on April 26, 1966, was actually held at the headquarters of the Amalgamated in Chicago Rose was an impor- tant spokesman for the Union at this and subsequent meetings ( This is not to suggest , however, that Rose superseded Union Secretary -Treasurer Parker as the only union spokesman.) It was either Rose , or Lloyd, the president of the Amalgamated , who arranged the last four or five bargain- ing meetings It was Rose, I find, who set up the June 6 meeting at which he failed to appear Under all the circumstances I conclude that no bad faith can be attnbuted to the Company in relying on Rose's consent to the Company's inaguration of the new increased base rate. TYSON'S FOODS, INC. movement to secure the revocation of the Union's bargaining authority.' Since such action regarding a plantwide increase was taken without consultation with the Union and, as I have found, was taken in an effort to undermine the Union's majority status, the Company's conduct violated Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Benne Katz, etc., dlbla Williamsburg Steel Products Co., 369 U.S. 736. In reaching this conclusion I have fully con- sidered the Company's contention that it was motivated solely by prudent business considerations in ordering the June 6 wage increases and not by any desire to undermine the Union. In support of this argument the Company asserts that it was ex- periencing very high turnover due to losing em- ployees to higher paying competitors, and that as a result it was unable to operate its production lines efficiently. I do not doubt that high turnover was a factor in the Company's action on June 6. How- ever, the whole sequence of events commencing on May 17 (which was almost exactly the end of the certification year) leads me to conclude that a sig- nificant factor behind the Company's action in granting the wage increases on June 6 was its desire to get rid of the Union. In any event, in acting uni- laterally with respect to mandatory subjects of col- lective bargaining then under discussion in bargain- ing negotiations with the Union, the Company has violated Section 8(a)(5) and (1) of the Act. The Katz case, supra.' CONCLUSIONS OF LAW 1. Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., are subsidiaries of Tyson's Foods, Inc., and are engaged in an integrated poultry business. 2. Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., administer a common labor policy. 3. All production and maintenance employees of Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., employed at the adjoining plants at Spring- dale, Arkansas, excluding office clerical employees, professional employees, truckdrivers, salesmen, buyers, routemen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. s While 139 signatures had been obtained by May 30, it c;oes not appear that the Company was aware of this fact " While the complaint alleges that the Company's action on June 6 vio- lated Sec 8(a)(3) and (I) of the Act, as well as Sec 8(a)(5) and (I ), the General Counsel does not press this point in his brief In view of this fact 2015 4. At all times since May 14, 1965, Food Han- dlers Local 425, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, has been the exclusive certified bargain- ing representative of the employees in the ap- propriate bargaining unit stated above. 5. By raising wage rates on June 6, 1966 ( not in- cluding the increase in the base rates to $ 1.41 per hour), without bargaining collectively with the aforesaid certified bargaining representative about the matter, Tysons Foods, Inc., and its subsidiaries, Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc., have engaged in an unfair labor practice in violation of Section 8(a)(5) of the Act. 6. By the foregoing action Tyson's Foods, Inc., and its subsidiaries, Tyson's Poultry, Inc., and Ar- kansas Animal Foods, Inc., have interfered with, restrained, and coerced, and are interfering with, restraining , and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and have thereby engaged in and are engaging in unfair labor practices within the meaning of Sec- tion 8 (a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company violated Section 8(a)(5) and (I) of the Act by taking unilateral ac- tion regarding mandatory subjects of collective bar- gaining while such matters were under negotiations with the Union, my Recommended Order will direct that the Company cease and desist from such conduct and from like and related forms of inter- ference, restraint, and coercion. Affirmatively, my Recommended Order will provide that the Com- pany, upon request, bargain collectively with the Union as the exclusive representative of all em- ployees in the aforesaid appropriate bargaining unit. Nothing herein shall be construed to require the Company to discontinue or rescind any of the wage increases hertofore granted to its employees. [Recommended Order omitted from publica- tion. and the further fact that a finding of a violation of Sec 8 ( a)(3) and (I) of the Act in connection with the wage increases of June 6 would not, in my opinion, call for any additional remedy in this case, I see no reason to con- sider this aspect of the complaint Copy with citationCopy as parenthetical citation