American Beef Packers, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1971

187 N.L.R.B. 996 (N.L.R.B. 1971)

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Beef Packers , Inc., and Arthur L. Morgan
Union, Local No. 3 and Amalgamated Meat Cutters
and Butcher Workmen of North America, Local
Union No. 641 , AFL-CIO, Party In Interest. Case
27-CA-2861
January 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On August 14, 1970, Trial Examiner James T.
Barker issued his. Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged in a
certain other unfair labor practice. Thereafter, Res-
pondent filed exceptions and a supporting brief, and
the Party in Interest, Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union
No. 641, AFL-CIO, hereinafter called Amalgamated,
filed cross-exceptions and a brief in support thereof.
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, cross-excep-
tions, and briefs,' and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, only to the
extent consistent herewith.2
The pertinent facts are as follows. The plant facility
involved in this case is a meatpacking plant located in
Fort Morgan, Colorado, which was purchased by
Respondent sometime in 1968. Sometime thereafter,
Respondent closed the plant for remodeling. It was
reopened about the first of September 1969. At or
about this time Amalgamated began its organization-
al drive among Respondent's employees at the Fort
Morgan plant.
i As the record and briefs adequately set forth the issues and positions
of the parties , Respondent 's request for oral argument is hereby denied
2 We hereby correct the following inadvertent factual errors in the Trial
Examiner 's Decision which in no way affect our decision herein Mr
Arthur L Morgan appeared on behalf of the Charging Party rather than
on behalf of the Party in Interest , and, contrary to fn 6 , there is no
evidence that a petition was ever filed by the Charging Party much less
withdrawn Instead the facts show that Amalgamated filed a representation
petition in Case 27-RC-3756 for a production and maintenance unit at the
On August 23, 1969, Mahmoud "Mike" Amours
was hired as Respondent's personnel director for all
its operations. About 2 weeks after he began working
Amoura was introduced in Omaha by Frank West,
Respondent's president, to four of Amalgamated's
representatives. At this meeting the Amalgamated
representatives told West that Amalgamated "had a
majority of the cards." Thereafter, Amoura was
contacted and arrangements were made for him to
meet with Amalgamated to discuss the question of
recognition. Amoura testified that he entered the
subsequent negotiating meetings on the "assumption"
that Amalgamated had the cards. However, at no time
was Amoura given proof of substance that Amalga-
mated in fact commanded a majority following.
Between September 12 and 19, 1969, representatives
of Respondent and of Amalgamated held three
meetings in Denver at which those parties negotiated
a collective-bargaining agreement. Before the last
meeting on September 19, Amoura asked one of
Amalgamated's representatives to furnish him with
evidence of Amalgamated's majority status, but this
was never done. At the final meeting on September
19, the parties signed a contract . It is undisputed that
the contract was never put into effect.
One of the two Amalgamated bargaining represent-
atives testified that he did not at any time on or before
September 19 present any evidence to any representa-
tive of Respondent establishing that Amalgamated
did represent a majority of the employees and that he
had no knowledge of any other Amalgamated
representative having done so. The second union
bargaining representative stated that he at no time
represented either to Amoura or West that Amalga-
mated represented a majority and that he had no
knowledge of another named union representative
having done so.
Amalgamated's president at first testified that he
did not know how many cards he had at the time of
the first meeting in Omaha. However, upon being
asked to approximate the number, he stated that he
had approximately 40 to 50 authorization cards at
that time and that there were approximately 80 to 100
employees altogether at that time. He was not asked
the number of cards that he had at any other relevant
time. After saying that he did not know how many
employees Respondent had on September 19, Amour-
a ventured a "guess" that Respondent employed
Fort Morgan facility on December 8, 1969 ; that petition was withdrawn on
December 16, 1969, after the Board advised Amalgamated that it could not
be processed because of a pending unfair labor practice , upon being
advised by the Board that it could refile , Amalgamated filed an identical
petition in Case 27-RC-3764 which is stayed pending a resolution herein,
and on December 23, 1969, the Operating Engineers filed a petition in Case
27-RC-3765 seeking an election in a unit of automobile maintenance
mechanics at the Fort Morgan plant
187 NLRB No. 135
AMERICAN BEEF PACKERS 997
"about 150" employees at the Fort Morgan plant at
that time. No party undertook to introduce payroll
records or other documentary evidence to establish
the number of employees who were employed in the
appropriate unit on September 12, 15, or 19, the three
dates on which negotiating meetings were held.
Moreover, while the General Counsel had in its
possession authorization cards at the hearing, it took
the position that its affirmative burden under the
allegations of the complaint did not require it to
undertake by use of authorization cards, or other
similar evidence of union affinity or affiliation, to
definitively establish the lack of majority status on the
part of Amalgamated on the dates critical to the
allegations of the complaint.
The Trial Examiner concluded that an inference
may properly be drawn in this case that no majority
existed at the time of the alleged acts of assistance
based on the failure of Amalgamated ever to proffer
signed authorization cards to Respondent before and
during the bargaining sessions and prior to the
execution of the contract with Respondent's bargain-
ing representative; on the refusal of Respondent ever
to give effect to the agreement which it had signed;
and on Amalgamated's failure to press for implemen-
tation of the contract either with the Company or by
filing, charges with the National Labor Relations
Board. He therefore found that the General Counsel
met itsprima facie burden of establishing Amalgamat-
ed's lack of majority, and, as Respondent introduced
no countervailing proof, concluded that Respondent
violated Section 8(a)(2) and (1) by engaging in
collective bargaining and executing a collective-bar-
gaining agreement at times when Amalgamated did
not represent a majority of its employees.
We disagree that in the circumstances of this case
the evidentiary facts, as found by the Trial Examiner,
are sufficient to support his finding that the General
Counsel has made out a prima facie case. Thus, while
there is no question concerning the validity of the
authorization cards obtained by the Amalgamated,
the General Counsel completely failed to prove the
number of employees who had authorized Amalga-
mated at the relevant times to represent them or the
number of the employees in the appropriate unit. The
only mention of the number of authorization cards
was that in the aforementioned testimony of Amalga-
mated's president as to the number of cards at the
Omaha meeting before negotiations began, and this in
no way constitutes proof that Amalgamated did not
represent a majority of the employees at the three
subsequent negotiating meetings in Denver. In any
event, this testimony was entirely speculative and was
only elicited after the witness said he did not know the
number. The circumstantial evidence relied on by the
Trial Examiner in drawing an inference of lack of
majority amounts to nothing more than conjecture. It
is no substitute for proof, which is the General
Counsel's burden, that Amalgamated did not in fact
represent a majority of Respondent's employees at the
relevant times. Accordingly, we shall dismiss the
complaint in its entirety.
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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was heard
at Denver, Colorado, on May 21, 1970. On March 13, 1970,
the Regional Director of the National Labor Relations
Board for Region 27 issued a complaint and notice of
hearing deriving from a charge filed on January 2, 1970, by
Arthur L. Morgan Union, Local No. 3, hereinafter called
Morgan. The parties, except Respondent, filed briefs with
me.
Upon consideration of the briefs of the parties and the
record in this case, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
an Iowa corporation engaged in the business of the
slaughter, processing, and sale of meat and meat products.
It maintains its principal office and place of business at
Oakland, Iowa, and operates several other places of
business, including one located at Ft. Morgan, Colorado.
During the 12-month period immediately preceding the
issuance of the complaint herein Respondent sold and
shipped meat and meat products valued in excess of
$100,000 directly from one or more of its places of business
to points in States other than the State where said meat and
meat products were produced. During the same period of
time Respondent has purchased and received goods and
materials at one or more of its places of business valued in
excess of $ 100,000 which goods and materials were shipped
directly from points in States other than the State in which
said goods and materials were received.
Upon these admitted facts I find that Respondent has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America , Local Union No. 641, AFL-CIO, herein
after called Amalgamated , and Arthur L. Morgan Union,
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 3, are admitted to be labor organizations within
the meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
under the direction of Willard Ferson who was assisted by
Louis Flores. Ferson had been "watching the progress of
the plant" and timed his organizational effort accordingly.'
A. The Issues
The principal issues raised by the pleadings in this case
are: (1) Whether Respondent violated Section 8(a)(2) of the
Act by meeting with representatives of Amalgamated and
negotiating a collective-bargaining agreement at a time
when Amalgamated did not represent a majority of
Respondent's employees in an appropriate unit, and (2)
whether Respondent engaged in conduct similarly violative
of Section 8(a)(2) of the Act by causing operations at its Ft.
Morgan plant to be closed down in order to assist
Amalgamated to obtain signed union authorization cards
from Respondent's production and maintenance employ-
ees.
The first issue raises the further question of whether the
General Counsel sustained his burden of establishing a lack
of majority on the part of Amalgamated, arising from
asserted conduct and admissions by agents of Respondent
and Amalgamated. If it is found that the General Counsel
sustained his burden, the additional question is raised
whether due process requirements are satisfied when, under
claims of confidentiality arising from the pendency of
"other litigation [involving] the parties," the General
Counsel refuses to make available to Respondent for use in
defense the signed authorization cards of unit employees
submitted to the Regional Director in support of a
subsequent representation petition filed by Amalgamated
B. The Alleged Unlawful Conduct
1. The setting
The Respondent's Ft. Morgan plant commenced opera-
tions in September 1969. It had earlier been acquired by
Respondent and had been closed for remodeling. Respon-
dent's president is Frank West. Mahmoud "Mike" Amoura
had been, since August 1969, personnel director of all of
Respondent's operations. Both West and Amoura have
their headquarters in Omaha, Nebraska.
Ray Wentz is district vice president of District 4 of
Amalgamated, Willard Ferson is an International repre-
sentative of Amalgamated, and Alvin Tucker is president
and business agent of Local 641 of Amalgamated.
Amalgamated commenced an organizational drive
among the Respondent's employees at the Ft. Morgan
plant in early September. The organizational effort was
i The foregoing is based on a consideration of the testimony of Alvin
Tucker and Willard Ferson Alvin Tucker placed August 30 as the
commencement of the organizational effort while Willard Ferson, who was
in charge of the effort, specified September as the time when the effort was
begun An analysis of the testimony of record on this subject convinces me
that the organizational drive commenced in early September The record
evidence concerning the commencement of operations of the plant and the
beginning of the organizational effort has a singularly elusive character
I have officially noted for background purposes the decision of the
Board in American Beef Packers, Inc, 176 NLRB No 42, which reveals
Respondent 's initial 1968 opening of the Ft Morgan plant, and an
organizing campaign by Morgan which, as the Board found on charges
filed by Amalgamated and the Operating Engineers, was unlawfully
assisted by Respondent in a manner similar to that alleged herein, and of
2. Respondent and Amalgamated meet
Between September 10 and 19, representatives of
Respondent and of Amalgamated held three meetings The
first meeting occurred on September 12.
Prior to the September 12 meeting Amoura, who had
entered the Respondent's employ on August 23, met with
Respondent's president, Frank West, in West's office in
Omaha. On that occasion he was introduced to Messrs.
Tucker, Ferson, and Wentz, and to another union
functionary, William Sigman. At this meeting the repre-
sentatives of Amalgamated informed West that Amalga-
mated "had a majority" of the employees. Thereafter,
Amoura was contacted and arrangements were made for
Amoura to meet with representatives of Amalgamated for
the purpose of discussing the question of recognition.2
3. An agreement is signed
At the two Denver meetings which preceeded September
19, Amoura, Tucker, and Ferson discussed a form
agreement containing a recognition clause and 25 other
articles covering, inter alia, union security, hours of work,
holidays, vacations, leaves of absence, seniority, adjustment
of grievances, checkoff, wages, and the terms of the
agreement At the September 19 meeting, Amoura and
Tucker affixed their respective signatures to the document.3
The recognition clause contained in the document which
Amoura and Tucker executed read as follows:
The Company recognizes the Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO as the sole and exclusive collective bargain-
ing agency for all employees in the bargaining unit
which includes all production and maintenance em-
ployees of American Beef Packers, Inc., Fort Morgan,
Colorado . . '
Additionally, the final article of the agreement, article
XXVI, entitled "Term of Agreement," read as follows:
This Agreement shall become effective and remain in
full force and effect from the-. Either party may on or
before sixty (60) days prior to-give notice to the other
party of the desire of the party giving such notice to
terminate the Agreement. If such notice is not given, the
Agreement shall renew itself for successive one (1) year
periods until such notice is given.
Moreover, above the space designated for signatures of
which Amalgamated is here the alleged beneficiary
2 The foregoing is based on a composite of the testimony of Mike
Amoura, Alvin Tucker, and Willard Ferson With respect to the
introductory meeting held in the office of President West in Omaha, I rely
on the testimony of Amoura The testimony of Tucker and Ferson
confirms the testimony of Amoura to the effect that the introductory
meeting between them occurred in the presence of Frank West in Omaha
on or about September 10 Additionally, the testimony of Tucker confirms
that arrangements were made for a meeting to be held in Denver with
Amoura to "discuss the possibility of getting recognition at [the Ft
Morgan ] plant "
I Attached to the document executed by Amoura and Tucker was a
schedule of wage rates applicable to the Ft Morgan plant
AMERICAN BEEF PACKERS
the representatives of the Amalgamated and the Respon-
dent, was a line which read,"Signed this day -of -, 1969."
Alvin Tucker testified convincingly and without contra-
diction that when he and Amoura affixed their respective
signatures to the document on September 19, no dates had
been supplied or included in the blanks contained in article
XXVI. The blanks revealing the date of signing were also
left open. However, both Amoura and Tucker specifically
testified that before signing the instrument they had
reached agreement on its substantive terms.4
The parties approached the three meetings in mid-
September which culminated in the affixing of signatures to
the document entitled, "Agreement," with the understand-
ing that the Respondent was disposed to grant recognition
to Amalgamated. Amoura entered the meetings
"assuming" by reason of the representation which the
Amalgamated officials had made to President West at the
Omaha meeting, that the Amalgamated commanded a
majority. Willard Ferson entered the meetings with the
impression gained from information conveyed to him by
Ray Wentz, vice president of District 4 of Amalgamated,
that the Respondent was prepared to extend recognition to
Amalgamated. Prior to the third meeting Amoura request-
ed Tucker to furnish him with evidence of Amalgamated's
majority status and Tucker failed to do so. He did not
present any evidence of majority status at the third meeting
on which occasion Amoura and Tucker affixed their
respective signatures to the document entitled
"Agreement "5
Mike Amoura testified without contradiction that no
provision of the Agreement has been given effect by
Respondent. He testified further that when Tucker failed to
present him with evidence of majority status at the
September 19 meeting, and in light of a "big turnover in the
plant," he "became suspicious maybe they didn't have"
majority status and consequently did not put the terms of
the Agreement into effect. Amoura further testified that at
no time subsequent to the meeting which transpired in early
September in Omaha, was he informed whether Amalga-
mated did or did not represent a majority of the employees.
Similarly, Alvin Tucker testified that he did not at any time
on or before September 19, present any evidence to any
representative of Respondent establishing that Amalgamat-
ed did, in fact, represent a majority of the employees.
Tucker further testified that he had no knowledge of any
other representative of Amalgamated having done so.
Additionally, Willard Ferson testified that he at no time
represented to either Mike Amoura or President West that
Amalgamated represented a majority and that he had no
knowledge of Ray Wentz having done so.
Alvin Tucker testified, in substance, that Respondent has
not given effect to the checkoff provision contained in the
Agreement. In this regard, Tucker testified that Amalga-
mated has never submitted a list of employees for whom a
dues checkoff have been authorized, and that he had no
knowledge of the Company having at any time checked off
dues for any employee.
4 Amoura testified that Respondent does not "now" recognize
Amalgamated, while Tucker testified recognition was never extended to
Amalgamated
5 The foregoing is based on a composite of the credited testimony of
Mike Amoura and Willard Ferson
4. The majority status issue
999
In his testimony, Mike Amoura ventured a "guess" that
on September 19 "about 150" employees were employed at
the Ft. Morgan plant. Alvin Tucker testified that he
estimated that at the time of the initial Denver meeting in
September Respondent employed approximately 80 to 100
employees at its Ft. Morgan plant. He further testified that
at the same point in time Amalgamated had in its
possession approximately 40 to 50 authorization cards of
employees.
No party undertook to introduce payroll records or other
documentary evidence to establish the number of employ-
ees which were employed in the production and mainte-
nance bargaining unit on September 12, 15, or 19.
Moreover, at the hearing, the General Counsel took the
position, in substance, that its affirmative burden under the
allegations of the complaint did not require it to undertake
by use of authorization cards, or other similar evidence of
union affinity or affiliation, to definitively establish the lack
of majority status on the part of Amalgamated on the dates
critical to the allegations of the complaint. Moreover, while
indicating a willingness to present to the Trial Examiner for
in camera examination, authorization cards in the posses-
sion of the Regional Office in connection with a pending
representation case, the General Counsel declined on the
basis of confidentiality to make authorization cards
available for use by Respondent in defense. At the hearing,
the Respondent served on the General Counsel's represent-
ative a subpoena duces tecum requesting the production of
the authorization cards. The counsel for the General
Counsel moved to quash the subpena on the ground that
the Respondent had failed to seek and obtain the approval
required under Section 102.118 of the Board Rules and
Regulations, Series 8, as amended. The Trial Examiner, at
the hearing, quashed the subpena on ground of noncompli-
ance with said provision of the Rules and Regulations.
Thereafter, the Respondent timely requested special
permission to appeal the ruling of the Trial Examiner and
simultaneously filed an appeal to the Board. By order dated
June 30, 1970, the Board granted permission to appeal but
denied the appeal.
After the initial meeting on or about September 12, the
Union received additional signed authorization cards. On
December 8, 1969, at which time Amalgamated filed a
representation petition in Case 27-RC-3756, Amalgamated
had obtained 176 signed authorization cards which were
submitted to the Board with its petition.6
5. The meeting of November 19
On November 19, Amalgamated held a meeting at the
Farmer's Union Hall in Ft. Morgan which was attended by
approximately 70 employees of Respondent. Willard
Ferson presided over the meeting and spoke to the
employees. In speaking to the employees Ferson observed
6 The parties stipulated that said petition was subsequently withdrawn
as was a representation petition filed by Morgan on December 19, 1969, in
Case 27-RC-3764 By its petition , Morgan sought a unit identical to that
sought by Amalgamated in its earlier petition
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Ray Wentz had been scheduled to appear at the
meeting and speak to the employees.? However, Ferson
informed the employees that Wentz had engaged in
discussions with Frank West, president of the Company,
and that Wentz thought the Company was prepared to
recognize Amalgamated. Questions were raised from the
floor concerning wages and there was some discussion of
wage scales. At the meeting some authorization cards were
distributed and some signed authorization cards were
returned to Ferson.
Prior to the meeting, on November 19, a flyer, over the
signature of Willard Ferson, was distributed to plant
employees. The flyer invited the attendance of the
production and maintenance employees at the meeting
designated to be held on November 19 "at 6:30 p.m." The
flyer also contained the following paragraphs:
Vice-President Wentz, director of District 4 of the
Amalgamated Meat Cutters and Butcher Workmen of
North America, will be present to explain to you an
offer made to him by your employer, Frank West, in a
meeting held last week.
This is a very important meeting! You will have the
opportunity to hear and discuss this offer from your
company. You will also vote to accept or reject this
company offer.
There is no credible evidence of record to reveal that in
arranging the meeting any consultation was held between
representatives of Respondent and of Amalgamated. There
is no credible evidence of record revealing that normal
work scheduled at Respondent's plant was modified or
interrupted to facilitate the holding of the meeting.8
Conclusions
The complaint alleges a violation of Section 8(a)(2) and
(1) of the Act, deriving from conduct of Respondent's
agent, Mike Amoura, in meeting with representatives of
Amalgamated and negotiating a collective-bargaining
agreement "notwithstanding the fact that Amalgamated
did not represent a majority of Respondent's employees in
an appropriate [production and maintenance] unit." This
case arises not in the traditional context of recognition
granted despite the pendency of rival claims for recogni-
tion, or in face of an existing question concerning
representation.9 There is alleged no antecedent intrusion of
management into the formation or affairs of the assertedly
assisted union so as to taint whatever authorization or
indicia of support the Union may have possessed from unit
7 Ray Wentz was unable to attend the meeting
a The allegation of the complaint, as amended at the hearing, pertaining
to the November 19 meeting , read as follows
On or about November 19, 1969, Respondent, by Mike Amoura, caused
its plant at Ft Morgan , Colorado, to be closed at 3 30 p in , in order to
assist Amalgamated to obtain signed union authorization cards from its
production and maintenance employees
9 Respondent's awareness of the interest of Morgan in organizing the
employees cannot be doubted but this is not a facit of this litigation
10 International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-
Altmann Texas Corp] v N L R B, 366 U S 738, Department Store Food
Corp of Penna, 172 NLRB No 129 (TXD), enfd 72 LRRM 2197 (C A
3)
Ii Department Store Food Corp of Penna, supra, Lunardi-Ceniral
Distributing Co, Inc, 161 NLRB 1443, Lake City Foundry Company, Inc,
173 NLRB No 159
employees. There is no contention that the work comple-
ment extant at the time of the contract's execution was not
representative.
It is, of course, the law that an employer violates Section
8(a)(2) of the Act by entending recognition to a labor
organization which does not represent an uncoerced
majority of employees in an appropriate unit.10 Similarly,
an employer renders illegal assistance to a labor organiza-
tion in violation of Section 8(a)(2) of the Act by executing a
collective-bargaining agreement containing a union-shop
provision, if, at the time of the execution of the agreement,
the labor organization has not been certified or properly
designated as the representative of a majority of employer's
employees.ii The extension of recognition or grant of a
union-shop provision is not made lawful merely because
the employer in good faith believed that the labor
organization commanded majority status, when in fact it
did not.12 The burden of establishing the lack of majority
status on the part of the allegedly assisted labor organiza-
tion remains at all times throughout the proceeding with the
General Counsel.13 Once the General Counsel makes out a
prima facie showing of an absence of majority, it becomes
incumbent upon the respondent to come forward with
evidence in refutation.14 A prima facie showing of lack of
majority may evolve from objective factors sufficient to
render improbable majority status on the part of the
asserted representative, and thus to create a permissable
inference that, in fact , no majority existed at the time of the
alleged act of assistance.15 The absence of circumstances
propitious to the union' s claim of majority, such as recent
rejection of the union, insufficient time or opportunity to
organize, actions inconsistent with majority status, hasty
recognition, or cursory perusal of authorization cards may
attend to aid the General Counsel in its burden of proof.
Such considerations have been found to be factors
militating against the existence of majority status.16
However, in the ultimate, to sustain an allegation of
employer conduct violative of Section 8(a)(2) of the Act, the
record must contain probative evidence of a substantial
nature sufficient to establish that, at times crucial under the
allegations of the complaint, the assisted union did not
command a majority.
As I comprehend the General Counsel's theory, the lack
of majority on the part of Amalgamated is a fact to be
concluded from a combination of circumstances and
inferences . These include the brief time lapse between the
commencement of the Amalgamated organizational cam-
paign and the grant of recognition; the failure of
12 International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-
Altmann Texas Corp] v N L R B, supra
is International Metal Products Company, 104 NLRB 1076
14 International Metal Products Company, supra
15 International Metal Products Company, supra, Ellery Products
Manufacturing Co, Inc, 149 NLRB 1338, Dixie Bedding Mfg Co v
N L R B, 269 F 2d 905 (C A 5) See also Carlton Paper Corporation, 173
NLRB No 26, International Association of Machinists, Tool and Die Makers
Lodge No 35 [Serrick Corp J v N L. R B, 311 U S 72, 80 (1940)
16 American Beef Packers, Inc, 172 NLRB No 42, Carlton Paper
Corporation, supra, Intalco Aluminum Corporation v N L R B, 72 LRRM
2368 (CA 9), enfg 169 NLRB No 136, Mears Coal Co, 175 NLRB No
136, Midtown Service Co, 171 NLRB No 161, enfd 73 NLRB 2634 (C A
2), Bernhardt Bros Tugboat Service v N L R B, 328 F 2d 757 (C A 7),
enfd 142 NLRB 851 Cf Kimbell [Jolog Sportswear, Inc] v N L R B, 290
F 2d 799 (C A 4), affg 128 NLRB 886
AMERICAN BEEF PACKERS 1001
Amalgamated representatives during the bargaining ses-
sions and prior to the execution of the contract with
Respondent's bargaining representative, Mike Amoura,
ever to proffer signed authorization cards for his inspec-
tion; the accompanying failure of Amalgamated, prior to
the grant of recognition, ever to lodge with Amoura an
affirmative claim of majority; the postrecognition efforts of
Amalgamated to obtain additional signed authorization
cards.; and the failure of Amalgamated ever to seek
enforcement of the collective- bargaining agreement, which
it had signed, by filing unfair labor practice charges with
the Board.
Considering the array of factors delineated by the
General Counsel as indicating a lack of majority status on
the part of Amalgamated on September 19 when the
collective-bargaining agreement was executed, I conclude,
in agreement with the General Counsel, that the evidence of
record is sufficient to establish, prima facie, the absence of
majority status on the part of the Union on or before
September 19. In reaching this conclusion, I find that Mike
Amoura entered contract negotiations with Amalgamated
at the direction of top management but without proof of
substance emanating either from management or Amalga-
mated that Amalgamated commanded a majority follow-
ing. Thereafter, during the 3-day negotiations Amoura
possessed doubt of Amalgamated's status. This is revealed
by his own testimony to the effect that on the first or second
day of discussions he requested Amalgamated to furnish
proof of majority and became suspicious when on the third
day no proof was furnished. To be certain, the organizing
campaign launched by Amalgamated was a brief one, but
not so truncated as to preclude successful recruitment of a
majority following.17 However, the refusal of Respondent
ever to give effect to the agreement which it had signed
provides convincing proof that management remained
unconvinced that Amalgamated's effort had provided the
designations necessary to support a majority claim. That
Amalgamated appears not to have thereafter pressed
Respondent for implementation of the contract terms,
strongly infers a lack of majority standing. This inference is
magnified by Amalgamated's related abstention from
perfecting avowed contractural recognition rights through
institution of unfair labor practice charges.18
As the General Counsel met its burden of establishing a
prima facie case of lack of majority, it became incumbent
it In the circumstances prevailing in September 1969, the 1968 effort of
Morgan to organize employees of Respondent does not serve to detract
from the likelihood of a successful drive by Amalgamated Although
Morgan had been successful , through company assistance , in obtaining
cards from the employees employed at the plant in 1968, this drive had
been interrupted by a subsequent plant closure. There is no evidence as to
the number of former employees who returned to comprise the work
complement in September 1969 when the plant reopened
18 That Amalgamated abstained from filing charges and later renewed
recruitment efforts and filed a representation petition suggests a rapidly
expanding work force, but the complaint raises no issue as to the
nonrepresentative character of the work complement on September 19
iv As found, the record reveals that the authorization cards in question
came into the possession of the Regional Director as part of a showing of
interest on the part of Amalgamated in connection with its representation
petition filed in Case 27-RC-3756 on December 8, 1969 The pertinent rule
precludes the Regional Director or attorneys in the employ of the Board
from producing files, documents, reports, memorandums, or records of the
Board pursuant to a subpoena duces tecum, or otherwise, without the written
consent of the Board or the Chairman of the Board if the official or
on Respondent to introduce countervailing proof. It
refrained from introducing testimony and sought instead to
rest its case on the disclosures to be garnered from signed
authorization cards in the possession of the General
Counsel. Conceding that he possessed no insight into the
number of such cards signed by employees which would
bear dates coinciding with or preceding September 19,
counsel nonetheless asserted Respondent's dependence on
and entitlement to access to the cards for the purpose of
defending against the allegations of the complaint.
Respondent declined the General Counsel's suggested
proffer of the cards to the Trial Examiner for the purpose of
permitting an in camera study and analysis of the cards by
the Trial Examiner to permit him to determine the facts
which Respondent sought to establish.
As the record colloquy developed at the hearing, it
became apparent that the Respondent desired to have
access to the cards for the single and sole purpose of
determining the number of cards in possession of the Board
which had been dated on or before September 19. It
became apparent also that, having ascertained this fact,
Respondent recognized the need of proceeding to establish
the number of employees in the bargaining unit on the three
dates pertinent in September. The subpoena duces tecum
which the Respondent served on the counsel for the
General Counsel seeking possession of the authorization
cards was quashed by the Trial Examiner on motion of the
counsel for the General Counsel. The General Counsel's
motion was premised on Respondent's failure to have
obtained the written permission of the Chairman of the
National Labor Relations Board, as required by Section
102.118 of the Board Rules and Regulations , Series 8, as
amended.19
Although, as the record reflects, the Trial Examiner was
initially disposed to view this issue as one controlled by due
process considerations, upon careful analysis of the record,
including Respondent's stated purpose for desiring access
to the authorization cards, the Trial Examiner concludes
and finds that, the in camera procedure for determining the
very facts which the Respondent sought to adduce,
provided for Respondent a reasonable and fair opportunity
to establish facts which were crucial to its burden of going
forward with the evidence.20 Possession of the cards and
opportunity personally to examine them would have
availed the Respondent nothing of substance, relevant and
document is subject to the supervision or control of the Board. The rule
further provides
Whenever any subpoena ad testificandum or subpoena duces tecum, the
purpose of which is to adduce testimony or require the production of
records as described (in Section 102 118 of the Board 's Rules and
Regulations ] , shall have been served on any such person or other
officer or employee of the Board , he will , unless otherwise expressly
directed by the Board or the chairman of the Board move
pursuant to the applicable procedure . whether by petition to revoke,
motion to quash . or otherwise , to have such subpena invalidated on
the ground that the evidence sought is privileged against disclosure by
this rule
20 The record sufficiently reveals that Respondent's counsel was given
ample latitude by the Trial Examiner to weigh his options and determine
his course of procedure That Respondent was not misled to its detriment
by the Trial Examiner's due process observations is clear from the
cautionary observations as to the apparent sufficiency of the evidence to
sustain the General Counsel's burden of proof, and the delineation given as
to the permissible limits of use to which the authorization cards could be
put in the instant proceeding , even if available to Respondent.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material to the issues of the case, which the in camera
procedure would not have accorded. It is to be remembered
that the cards to which Respondent sought access were
cards submitted to the Board by Amalgamated, the alleged
assisted union. Considering the unity of interest which
prevailed in this proceeding between Amalgamated and the
Respondent on the issue of Amalgamated's majority status,
it is apparent that Respondent would not have endeavored
to impune the validity of the cards by attacking the
genuineness of signatures or the free will of the signators.
All that would have inured to the Respondent from
possession of the cards would have accompanied an in
camera study of the cards by the Trial Examiner.21
In light of the Respondent's failure to obtain the requisite
consent of the Chairman of the National Labor Relations
Board for production of the authorization cards; as the
Trial Examiner, in the circumstances, properly granted the
motion of the counsel for the General Counsel to quash the
subpena; and as the Board subsequently denied the
Respondent's request for special permission to appeal from
the ruling of the Trial Examiner, the determination of the
majority status issue , and the legal issues flowing from such
a determination must, of necessity, be herein decided.
Having concluded from the evidence that the General
Counsel met its prima facie burden of establishing
Amalgamated's lack of majority at the time of the contract
negotiations and contract execution, and as Respondent
came forward with no evidence to overcome the proof
adduced by the General Counsel,22 I conclude that
Respondent and Amalgamated engaged in collective
bargaining at a time when Amalgamated did not represent
a majority of Respondent's production and maintenance
employees. I further find that the Respondent and
Amalgamated executed a collective-bargaining agreement
at a time when the status of Amalgamated as collective-
bargaining representative of unit employees was similarly
deficient.23
I attach no special significance to the fact that, prior to
signing the contract, the signators did not complete the
blanks in the text of article XXVI specifying the effective
inclusive dates of the agreement. The act of signing the
agreement may not be viewed as entirely ritualistic. In
affixing their respective signatures, Amoura and Tucker
were purposefully engaged. They intended a meaningful
result for they conceded they had agreed on all substantive
21 Intertype Co v N L R B, 401 F 2d 41 (C A 4), enfd 164 NLRB No
108, Davis v Braswell Motor Freight Lines, 62 LRRM 2682 (C A 5). see
also N L R B v General Armature & Mfg Co, 29 LRRM 2062, of Olson
Rub Co v NLRB,291 F2d655(CA 7)
22 The testimony of Tucker that when the agreement was signed
Respondent employed 80 to 100 employees and that Amalgamated had 40
to 50 authorization cards is manifestly insufficient to support a contrary
finding
23 1 find no merit in the contention of Amalgamated , advanced in its
brief , that the General Counsel failed in his burden of establishing the
appropriateness of the bargaining unit The unit of employees adversely
affected by the unlawful assistance is a single -plant unit of production and
maintenance employees, presumed to be an appropriate unit for collective-
bargaining purposes
24 Waukesha Lime and Stone Co, Incorporated, 145 NLRB 973, enfd
343 F2d 504 (CA 7), Reynolds Corporation, 74 NLRB 1622, 1651,
International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-
Altmann T e x a s Corp] v NLRB, 336 U S 731, Lake City Foundry
Company, inc, 173 NLRB No 153 (TXD), cf Consolidated Builders, Inc,
99 NLRB 972, Playboy Club of New York, Inc, 173 NLRB No I I I
terms. The least that could be attributed to their act was a
signification of this latter fact. If they intended, by leaving
open the date blanks, to defer the effective date of the
instrument and actual recognition of Amalgamated until
Amalgamated had secured the necessary majority, Respon-
dent was engaging, nonetheless, in conduct which under
Section 8(a)(1) and (2) of the Act is proscribed as an act of
assistance , and is alone sufficient to require a remedial
order of the Board.24 That Respondent has not given effect
to, or in any manner implemented, the contract does not
alter the unlawful nature of the conduct.25
Accordingly, in the circumstances above delineated, I
find that Respondent violated Section 8(a)(2) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, 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 Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that Respondent violated Section 8(a)(1)
and (2) of the Act by executing a collective-bargaining
agreement which, by its terms, granted exclusive recogni-
tion to Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union No. 641, AFL-CIO, at a
time when Amalgamated was a minority union and did not
represent an uncoerced majority of unit employees; and I
have further found that said collective-bargaining agree-
ment contained a union-security clause and other substan-
tive provisions governing the terms and conditions of
employment of unit employees. I shall, accordingly,
recommend that Respondent, in writing, notify Amalga-
mated that, by reason of the unlawful nature of the action
25 Waukesha Lime and Stone Co, incorporated, supra
I adhere to my ruling, made at the hearing, dismissing the allegations of
section VI (b) of the complaint The complaint , as framed , specified
assistance on the part of the Respondent . by and through its agent Mike
Amoura, in obtaining signed authorization cards from production and
maintenance employees There is hardly a scintilla of evidence relating to
the involvement of Amoura or any other company employee in the events
of the meeting Moreover, the record contains no evidence of an
interruption of normal production to assist Amalgamated in conducting the
meeting or obtaining access to the employees Indeed , the record does not
reveal when the meeting actually commenced and, perforce, does not
establish worktime incursions Moreover, in context of the specific wording
of paragraph VI(b) of the complaint, I adhere to my ruling made at the
hearing that the testimony of Ferson, International representative of
Amalgamated, relating to what he told employees attending the November
19 meeting concerning certain alleged statements made by Frank West,
president of Respondent, to Ray Wentz, district vice president of
Amalgamated, is not relevant to the issues of paragraph VI(b) of the
complaint nor material and probative under the issues of paragraph VI(a)
of the complaint
AMERICAN BEEF PACKERS 1003
to which it was a party, it is vitiating and otherwise
declaring a nullity, its September 19, 1969, acceptance of
the terms and provisions of the collective-bargaining
agreement. I shall further recommend that Respondent give
no piospective affect to the terms of said agreement.
Moreover, I shall recommend that the Respondent post a
notice informing unit employees that the September 19,
1969, agreement is a nullity and is void and of no
prospective force and effect.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union No. 641, AFL-CIO, and
Arthur L. Morgan Union, Local No. 3, are labor
organizations within the meaning of Section 2(5) of the Act.
3. By engaging in collective-bargaining negotiations
with representatives of Amalgamated and by executing a
collective-bargaining agreement containing substantive
provisions governing the terms and conditions of employ-
ment of employees of Respondent, both at a time when
Amalgamated did not represent a majority of employees in
the unit of employees for which Amalgamated endeavored
to bargain collectively, the Respondent engaged in conduct
violative of Section 8(a)(1) and (2) of the Act.
4. 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 omitted from publication.]