Cal-Pacific Poultry, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1967

163 N.L.R.B. 716 (N.L.R.B. 1967)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 609 Railway
Exchange Building, 17th & Champa Streets, Denver,
Colorado 80202, Telephone 297-3551.
Cal-Pacific Poultry, Inc. and Meat Cutters
Local No. 439, Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO. Case 21-CA-7170.
March 30,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 8, 1966, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Decision and a supporting brief,
and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Cal-Pacific
Poultry, Inc., Pomona, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order. 1
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner : Pursuant to due
notice, a hearing in this matter was held before me in Los
Angeles, California , on August 9, 1966 . The parties fully
participated . Upon a charge filed by Meat Cutters Local
No. 439 , Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, herein called the
Union , on April 15, 1966 , the General Counsel of the
National Labor Relations Board , herein the Board , issued
a complaint dated June 6, 1966 , alleging that Cal-Pacific
Poultry, Inc., herein Respondent , violated Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended,
herein the Act.
Briefs from all parties have been received and
considered.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged
primarily in the business of poultry processing and at all
material times had its office at Pomona, California. During
all material times it has sold and shipped poultry valued in
excess of $50,000 directly to customers located outside
California. It, at all material times, has been engaged in
commerce and in a business affecting commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION
At all times material, the Union has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
At various times beginning about March 18, 1966,1 did
Respondent through Max Posik, its secretary-manager,
offer directly to individual striking employees wage
increases or other benefits in excess of those offered to the
Union during contract negotiations as an inducement to
desert the strike; about April 11, did Posik ignore the
Union and present contract proposals directly to
employees?
B. Preliminary Findings
All Respondent's production and maintenance
employees, excluding all office clerical employees, guards
I The Recommended Order in the Trial Examiner's Decision is
hereby amended by substituting for paragraph 2(d) therein the
following paragraph:
"Post in conspicuous places at its place of business in
Pomona, California, including all places where notices to
employees are customarily posted, copies of the attached
notice marked `Appendix.' Copies of said notice, both in
English and Spanish, to be furnished by the Regional
Director for Region 21, shall, after being signed by a duly
authorized representative of Respondent, be posted by it
immediately upon receipt thereof, and be maintained by it for
60 consecutive days, thereafter, in such conspicuous places.
Respondent shall take reasonable steps to insure that said
notices are not altered, defaced, or covered by any other
material."
i Hereinafter, all dates refer to 1966 unless otherwise stated
163 NLRB No. 103
CAL-PACIFIC POULTRY 717
and supervisors within the meaning of the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of the Act.
Prior to May 19, 1965, a majority of the above-described
employees in the appropriate unit selected the Union as its
representative for the purposes of collective bargaining
with Respondent and at all material times since said date
the Union has been the representative for the purposes of
collective bargaining of a majority of said employees and
has been and is the exclusive representative of all
employees in the above-described unit for the purposes of
collective bargaining. On May 19, 1965, the Regional
Director of Region 21 approved a settlement agreement in
Case 21-CA-6268 between Respondent and the Union
wherein Respondent agreed to recognize and bargain with
the Union as exclusive bargaining representative of the
employees in the above-described unit.
About March 18, 41 of the 45 employees in the unit went
on strike, called by the Union for economic reasons arising
out of unsuccessful bargaining.2 Between the time the
settlement agreement was approved and the date of the
strike there were about 14 bargaining meetings between
Respondent and the Union.
March 18, the day the strike began, was payday.
C. The Events Beginning on March 183
On March 18, Gloria Garcia, a striking employee went to
Posik's office to pick up her paycheck. Posik asked her
why she was striking against him. Garcia replied she was
not getting enough money. When Posik asked how much
she was making, she replied $1.40 an hour. Posik
thereupon offered her $1.60 an hour if she would leave the
strike and go back to work. Posik added that if things
continued as they had, he would close the plant.
Francisco X. Sandoval credibly testified in this
proceeding that on March 18, Posik offered Sandoval, as a
striker, a "good position and salary in case [he] went to
work for him." Sandoval thanked him and left. A week
later, Sandoval met with Posik to collect his last paycheck.
Posik offered him the same conditions for returning to
work, adding there would be a good position and salary if
Sandoval would work for Posik. About a week later, on the
picket line, Posik talked to Sandoval and told him the job
he had previously offered was still open and "they have
$500 for me to take care of my family." It is clear to me
from all the evidence that Sandoval's wife expected a baby
at this time and Posik knew it and that Posik said all
Sandoval had to do to get $500 for his family was to go
back to work.
Sadie Noreiga, a striking employee, credibly testified
that on April 15, she asked Posik for her vacation check.
Posik said he would give her her vacation check if she left
the strike and went back to work. She replied she would
not go back to work because she was not being paid
enough money. In reply to Posik's question as to her pay,
she replied it was $1.35 an hour. Posik told her he would
give her $1.75 per hour if she would go back to work. While
Posik told her she could have her vacation if she went
back to work, such was not in accord with existing
company rules. Posik told her that if she worked 2 more
weeks, "or go back to work, I would get my vacation."
Alice Trejo, a striking employee, credibly testified that
she and Yolanda Rodriques' on April 15, had a
conversation with Posik. Trejo and Rodriques asked for
their vacation checks. Posik asked the ladies to come back
to work. Trejo replied she was being paid only $1.40 an
hour. Posik said they would be paid much more and
"would be in for a big surprise," if they would return to
work.
John Trice testified credibly that during the course of
the picketing he asked Posik when he was going to sign a
contract with the Union. Posik replied that Trice was
working for the picketing Union and when the employees
voted the Union out, he would sign a contract.5
When Posik offered Garcia a 20-cent wage increase on
March 18, Respondent had offered the Union a 7-1/2-cent
across-the-board wage increase. When Posik offered
Romero and Noreiga a 40-cent raise on April 4 and 15,
Respondent was offering 10 cents an hour across the
board to the Union. It was not until May 23, that
Respondent raised its wage increase offer to the Union to
17-1/2 cents. This was its highest offer.
On April 11, striking employee Paul Romero had a
conversation with Posik in the latter's office when Romero
was seeking his vacation check. Posik told Romero he had
a contract between the Union and another employer which
Posik could have signed. Romero asked for a copy of the
contract to show to the strikers so he could find out if the
strikers wanted that contract. Posik gave the contract to
Romero for this purpose. Posik said that Romero belonged
inside the plant, working, and that the strike would not
help him. Posik offered Romero $2.15 an hour or more if
he would leave the strike and return to work. Romero was
making $1.75 per hour. Romero took the contract and gave
it to another employee whose wife read it to the strikers
that night. They voted to turn it over to the union
representative. The next day, the representative,
Hackman, and a committee of the strikers returned the
contract to Posik with an admonition to deal with the
Union and not the strikers.
Concluding Findings
Respondent, through Posik, interfered with, restrained,
and coerced its employees by offering its striking
employees higher wage rates than had been offered the
Union and "big surprises" and salaries if they would
desert the strike and return to work for Respondent.
Similarly did Respondent violate Section 8(a)(1) of the Act
by threatening to close the plant if existing conditions
continued,6 and by offering a striker $500 for his family if
he would return to work, and by offering striking
employees vacation checks conditioned upon their
deserting the strike, and by telling a striker Respondent
would sign a contract if the employees "voted the Union
out." Respondent further interfered with, restrained, and
coerced employees in violation of Section 8(a)(1) of the Act
by providing a striking employee with a copy of another
employer's contract with the Union so as to determine
2 This further establishes the Union's majority.
3 Striking employees of Respondent testified as to these events
I find they were honest witnesses and credit their testimony As to
material matters, Posik testified only in a broad conclusionary
manner and his general denials are not accepted in the face of
detailed credited testimony from General Counsel 's witnesses
" Rodriques credibly corroborated the testimony of Treio
5 A stipulation among the parties to correct the transcript so as
to reflect the above is approved
6 This threat was uttered in conjunction with the offer of much
higher wages if the striker ceased striking
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether the strikers would accept the terms of that
contract. By all of this conduct Respondent was seeking to
bypass and undermine the Union which was the exclusive
bargaining representative of Respondent's employees.
Thus, also, by this conduct beginning on the day the strike
began, Respondent has to date refused to bargain with the
Union in violation of Section 8(a)(5) of the Act.
Especially considering the fact that there were only 41
strikers and further considering the comparatively
widespread nature of Respondent's violations, I find that
the violations were made known to substantially all of the
strikers. By its unfair labor practices, Respondent has
prolonged the strike which since the date it began has
been one against unfair labor practices as well as for
economic reasons. Consequently, the employees who had
not been permanently replaced prior to the unfair labor
practices beginning on the date of the strike's beginning,
are entitled to reinstatement to their previous, or
substantially equivalent, positions, upon their
unconditional request, and suitable provision for such
reinstatement will therefore be made in the remedy to be
recommended below.
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 Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(5) and (1) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act. The nature of the violations strikes
at the heart of the Act and calls for a broad order.
As it has been found that Respondent prolonged the
strike, and that it became one against unfair labor
practices, as well as for economic reasons, when
Respondent first committed unfair labor practices on
March 18, I shall recommend that upon unconditional
request by or on behalf of any employee who went on
strike on March 18, and was not permanently replaced
before Respondent committed an unfair labor practice on
March 18, the Respondent immediately reinstate such
employee to his former or substantially equivalent
position, without prejudice to his seniority and other rights
and privileges, discharging, if necessary to effect such
reinstatement, any employee who was hired since the
unfair labor practices of March 18; tat in the event of a
failure or refusal by the Respondent to reinstate any
striker entitled to reinstatement, as provided herein,
Respondent make such striker whole for any loss of pay he
may suffer by reasons of such failure or refusal, together
with interest at a rate of 6 percent per year; and that such
loss of pay and interest be computed in accordance with
the formula and method prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. At all material times Respondent has been an
employer within the meaning of the Act.
2. At all material times the Union has been a labor
organization within the meaning of the Act.
3. All Respondent's production and maintenance
employees, excluding all office clerical employees, guards
and supervisors within the meaning of the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all material times the Union has been the
exclusive representative of all employees in the
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain collectively with
the Union as found above, Respondent has violated
Section 8(a)(5) of the Act.
6. By interfering with, restraining, and coercing
employees in the exercise of their Section 7 rights as found
above, Respondent has violated Section 8(a)(1) of the Act.
7. The economic strike which began on March 18 was
on the same day converted into an unfair labor practice
strike by the unfair labor practices of Respondent
beginning at that time.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this
proceeding, it is recommended that Respondent, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages
and other terms and conditions of employment with the
Union as the exclusive bargaining representative of the
employees in the unit hereinabove found appropriate.
(b) Threatening employees or promising them benefits
so as to interfere with, restrain , and coerce them and
particularly to induce, encourage, and cause them to
desert a lawful strike called by their Union and to return to
work under working conditions better than those offered to
the Union in bargaining negotiations.
(c) In any manner interfering with the efforts of the
Union to bargain collectively with Respondent, or in any
manner interfering with, restraining , or coercing
employees in their Section 7 rights.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargai-, collectively with the Union as
the exclusive representative of the employees in the
above-described appropriate bargaining unit , with respect
to their rates of pay, hours of employment, wages, and
other conditions of employment and, if an agreement is
reached, embody it in a signed contract.
(b) Upon request by, or on behalf of, any employee who
went on strike on March 18 and was not permanently
replaced before Respondent committed its unfair labor
practices of March 18 and thereafter, immediately
reinstate such employee to his former or substantially
equivalent position, without prejudice to his seniority and
JAY KAY METAL SPECIALTIES CORP. 719
other rights and privileges, discharging, it necessary to
effect such reinstatement , any employee hired since
Respondent committed unfair labor practices on
March 18, and in the event of a failure or refusal to
reinstate any striker entitled to reinstatement as provided
herein, make such striker whole in accord with "The
Remedy" herein.
(c) Preserve until compliance with any order for
reinstatement or backpay made by the Board in this
proceeding is effectuated, and make available to the Board
or its agents, upon request, for examining and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant to a determination of the backpay and
reinstatement rights provided under the terms of such
order.
(d) Post at its place of business in Pomona, California,
including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix." Copies of said notice, to be furnished by the
Regional Director for Region 21, after being signed by a
duly authorized representative of Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
such conspicuous places. Respondent shall take
reasonable steps to insure that said notices are not altered,
defaced, or covered by any other material.7
(e) Notify the said Regional Director, in writing, within
20 days of the receipt of this Decision, what steps
Respondent has taken to comply therewith.8
IT IS FURTHER RECOMMENDED that , unless on or before
20 days from the date of its receipt of a copy of this
Decision and Recommended Order the Respondent notify
the Regional Director that it will comply with the foregoing
recommendations, the Board issue an order requiring
Respondent to take the action aforesaid.
In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words " a Decision and Order "
8 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respon'+e-t has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT interfere with , coerce, or restrain our
employees by offering our striking employees higher
wages than we have offered to them through Meat
Cutters Local No. 439 , Amalgamated Mgat Cutters
and Butcher Workmen of North America , AFL-CIO,
hereafter called the Union.
WE WILL NOT offer our striking employees either
higher wages , or "big surprises ," or salaries or any
other benefits to induce them to desert a strike
against us or to return to work for us. Neither will we
make any threats such as that the plant will close
down if the strikers do not return to work.
WE WILL NOT offer any of our employees who are
on strike $500 or any other amount of money to desert
the strike and return to work.
WE WILL NOT offer to pay striking employees
vacation pay to which they are not entitled if only they
will desert the strike.
WE WILL NOT tell a striking employee or any
employee that we will sign a contract if the employees
vote the Union out.
WE WILL, upon request, bargain collectively with
the Union as the exclusive representative of a
bargaining unit consisting of all our production and
maintenance employees, excluding all office clericals,
guards, and supervisors as defined in the Act, with
respect to wages, hours, and other conditions of
employment. If we reach an agreement we will
embody it in a signed contract.
WE WILL NOT by refusing to bargain as required
above or by threats or promises or bypassing or
attempting to undermine the Union or in any other
way or manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request by, or on behalf of, any
employee who went on strike on March 18, 1966, and
was not permanently replaced on that date before we
committed unfair labor practices, immediately
reinstate such employee to his former or a
substantially equivalent position, without prejudice to
his seniority and other rights and privileges,
discharging, if necessary to effect such reinstatement,
any employee hired since we committed unfair labor
practices on March 18, 1966, and in the event of a
failure or refusal to reinstate any striker entitled to
reinstatement as provided herein we will reinburse
such striker for any loss of pay he may suffer by
reason of such failure or refusal.
CAL-PACIFIC POULTRY, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California 90014, Telephone 688-5229.
Jay Kay Metal Specialties Corp. and Tool, Die
and Moldmakers Guild , Independent,
Petitioner. Case 29-RC-451.
March 31, 1967
DECISION ON REVIEW
On June 13, 1966, the Regional Director for
Region 29 issued a Decision and Direction of
163 NLRB No. 86