Kuna Meat Co.

National Labor Relations Board - Board Decisions

Sep 18, 1991

304 N.L.R.B. 1005 (N.L.R.B. 1991)

1005
304 NLRB No. 129
KUNA MEAT CO.
1 We note that the judge’s discussion of the parties’ October 12, 1988 bar-
gaining session erroneously attributed testimony by Union Secretary-Treasurer
Raymond Davis to Jerome J. Duff, one of the Respondent’s attorney-nego-
tiators.
2 We agree with the judge’s finding that the Regional Director acted reason-
ably in setting aside an informal settlement agreement in Case 14–CA–19509–
2. The Board has held that it will permit the setting aside of a settlement
agreement and the litigation of presettlement unfair labor practice issues if
there has been a failure to comply with the agreement, or if subsequent unfair
labor practices have been committed. E.g., Nudor Corp., 281 NLRB 927, 928
(1986); Sheet Metal Workers Local 80 (SIE Heating & Cooling Co.), 236
NLRB 41, 42 (1978). By its postsettlement bad-faith surface bargaining, uni-
lateral changes, and withdrawal of recognition from the Union, the Respondent
both breached the express terms of the settlement agreement and engaged in
subsequent 8(a)(5) unfair labor practices.
We also agree with the judge’s rejection of the Respondent’s affirmative de-
fense based on its allegation that the Board’s compliance agent approved the
Respondent’s conduct throughout the postsettlement compliance period. Even
if the allegation was true, the Board has found that the General Counsel and/or
the Board are not estopped from processing complaint allegations because a
respondent has acted on advice received from Board agents. Dubuque Packing
Co., 287 NLRB 499, 542 (1987), enf. denied on other grounds 880 F.2d 1422
(D.C. Cir. 1989); Capitol Temptrol Corp., 243 NLRB 575, 589 fn. 59 (1979).
In finding that the Respondent violated Sec. 8(a)(5) by ceasing payments
into the contractual benefit funds in March and April 1988, we note that the
delinquencies continued thereafter.
In adopting the judge’s finding that the Respondent violated Sec. 8(a)(5) by
failing and refusing to bargain in good faith with the Union, we do not rely
on the judge’s quotation of language from Tomco Communications, 220 NLRB
636 (1975), or on the notation (‘‘12 x New hires—advise will be Non-U’’)
in the February 6, 1988 checklist prepared for the Respondent by Attorney
Duff.
In finding that the Respondent bargained in bad faith, the judge relied in
part on a letter in which the Respondent sought information from the Board’s
Regional Office as to the procedures for terminating a bargaining relationship.
We note that the Respondent stipulated that it sought this information and did
not object to the admissibility of the stipulation.
In affirming the judge’s finding that the Respondent violated Sec. 8(a)(1)
by interrogating individuals on May 12, 1988, about a union meeting, we rely
on the legal standard set forth in Rossmore House, 269 NLRB 1176 (1984),
rather than on Johnnie’s Poultry Co., 146 NLRB 770 (1964), which was cited
by the judge.
3 Because the provisions of employee benefit fund agreements are variable
and complex, we leave to the compliance stage the question of whether the
Respondent must pay any additional amounts into the benefit funds in order
to satisfy our ‘‘make-whole’’ remedy. Any additional amounts shall be deter-
mined in the manner set forth in Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). Furthermore, any sums owed by the Respondent to employ-
ees as a consequence of its unlawful unilateral changes shall be computed in
the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970).
Member Raudabaugh notes that some of the unlawful conduct in this case,
regrettably, was committed by the Respondent’s attorneys. Unlawful conduct
is particularly reprehensible when committed by attorneys who are sworn to
uphold the law. The attorneys in this case were not named as respondents. In
cases where attorneys are named as respondents and are found to have com-
mitted unlawful conduct, Member Raudabaugh would not hesitate to order
meaningful remedies against such attorneys.
1 All dates are in 1988 unless otherwise indicated.
2 The following employees constitute the involved unit:
Head meat cutter, journeymen and apprentice meat cutters, semi-skilled
employees, custodians, porters and laborers employed at the Employer’s
St. Louis facility, EXCLUDING office clerical and professional employees,
guards, and supervisors as defined in the Act.
3 Upon a charge filed August 9, the complaint was amended (G.C. Exh.
1(k)), to indicate that on March 10, Respondent ceased making contributions
to the pension plan as required by the collective-bargaining agreement between
Kuna and the Union; that on April 10, Kuna ceased making contributions to
the aforementioned health and welfare fund; and that on April 25 Kuna imple-
mented a different health insurance plan for the unit.
Kuna Meat Company and Meat Cutters Union
Local No. 88, United Food and Commercial
Workers International Union, AFL–CIO. Cases
14–CA–19509–2 and 14–CA–19861
September 18, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 7, 1990, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kuna Meat Company, St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Dorothy D. Wilson, Esq., for the General Counsel.
Jerome J. Duff, Esq., of St. Louis, Missouri, for the Re-
spondent.
Donald K. Anderson Jr., Esq., of St. Louis, Missouri, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed May 20, 1988,1 as amended on July 6 by Meat Cutters
Union Local No. 88, United Food and Commercial Workers
International Union, AFL–CIO (Union) against Kuna Meat
Company (Kuna), a complaint was issued July 6 alleging that
Kuna violated Section 8(a)(1) and (5) of the National Labor
Relations Act (Act), collectively by (1) withdrawing its rec-
ognition of the Union on April 25; (2) ceasing on April 30
to pay contributions to the Union Health and Welfare Fund,
discontinuing health and welfare coverage of the involved
unit2 and implementing a different health insurance plan for
the unit, without prior notice to the Union and without hav-
ing afforded the Union an opportunity to negotiate and bar-
gain as the exclusive representative of the unit;3 and (3) in-
terrogating its employees on May 12 regarding their and their
fellow employees’ union membership, activities, and sym-
pathies (G.C. Exh. 1(d). On September 8, the Regional Di-
rector for Region 14 of the National Labor Relations Board
(Board) approved an informal settlement agreement in that
case. On January 4, 1989, the Union filed a charge in 14–
CA–19861, which charge was amended on February 7, 1989,
and on February 7, 1989, an amended consolidated complaint
was issued which consolidated the above-described cases, va-
cated and set aside the settlement agreement, reiterated the
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The complaint was amended at the hearing to include the allegation that
Respondent also withdrew recognition of the Union on January 1, 1989.
5 Such changes included changing the health and welfare and pension plans
covering the unit, reducing the number of holidays and vacation days for the
unit, implementing a profit sharing plan about January 1, 1989, and imple-
menting new classifications and wage scales for the unit.
6 The Respondent pleads the following affirmative defenses:
(a) The Union has not represented a majority of the unit employees since
April 25, 1988.
(b) The subject labor agreement expired, without qualification, on or before
November 30, 1988.
(c) All references in the amended consolidated complaint to the union spon-
sored medical plan and/or pension plan are moot by reason of the subject set-
tlement agreement and related compliance procedures. All required payments
to these plans were made through the compliance agent. Timely notice of the
termination of the plans on November 30, 1988 was given to the Union, the
plans’ administrator and to the compliance agent, without objection and with
the approval of the compliance agent.
(d) The absolute failure of the Regional Director to notify the Employer of
any violation of the subject settlement agreement and the related compliance
procedure between September, 1988, and February 7, 1989 (5 plus months)
constitutes a waiver and estoppel to any further alleged unfair labor practice
by the Employer.
(e) Any alleged unfair labor practices attributed to the Employer on or after
August 8, 1988, (6 months prior to the issuance of the subject amended, con-
solidated complaint on February 7 . . . [1989]) is barred by Sec. 10(b),
NLRA.
(f) The actions and conduct of the Regional Director in setting aside the
subject settlement agreement, without notice or warning to the Employer, are
arbitrary and capricious in every respect and constitute a gross abuse of his
administrative authority and/or discretion.
(g) By reason of the affirmative defenses pleaded thus far herein, the issues
alleged in the amended consolidated complaint are res judicata.
7 The Charging Party adopts the brief of General Counsel.
8 One of the entries on the list is very interesting, namely, ‘‘12x New hires-
advise will be Non-U.’’ [Emphasis in original.]
9 In his affidavit to the Board, Davis indicated that five attended the meet-
ing. Steward Robert Hock testified that seven employees attended the meeting.
above-described violations,4 alleged that Respondent violated
Section 8(a)(1) and (5) of the Act, collectively, for the
above-described reasons and because Respondent (A) during
meetings it had with the Union in September, October, and
November 1988, set time limits on contract negotiations, and
made contract proposals designed to frustrate reaching a col-
lective-bargaining agreement with the Union thereby failing
to bargain in good faith with the Union; and (B) on Decem-
ber 1 implemented its final contract proposal and made nu-
merous changes affecting the unit,5 without reaching a valid
impasse and, therefore, without having afforded the Union a
sufficient opportunity to negotiate and bargain, and alleged
that by the acts set forth in (A) and (B) above, Respondent
failed to comply with the aforementioned informal settlement
agreement and, therefore, it was vacated and set aside. Re-
spondent denies violating the Act.6
A hearing was held on May 15–18, 1989, in St. Louis,
Missouri. Briefs were filed by General Counsel and the Re-
spondent.7
On the entire record in this proceeding, including my ob-
servation of the witnesses and their demeanor, and after con-
sidering the aforementioned briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Kuna, a Missouri corporation, is a wholesale processor and
distributor of food products with a facility in Saint Louis.
The complaint alleges, Kuna admits, and I find that at all
times material it has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that the
Union is now, and has been at all times material, a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union has represented a unit of Respondent’s employ-
ees for as many as 25 years, with the most recent contract
effective from April 23, 1985, to April 24, 1988, at midnight
(G.C. Exh. 2). On February 6, Respondent’s president, Don-
ald Bippen, forwarded a letter (G.C. Exh. 4), to the Union
which reads as follows:
We herewith give you notice that our company ter-
minates its collective-bargaining agreement with you, as
at midnight, April 24, 1988.
If you have any questions, you should contact our at-
torney, A. Michael Sullivan. . . .
The letter was sent pursuant to a checklist dated February 6
(G.C. Exh. 20(d)), which list is attached hereto as Appendix
A.8 [Ommitted from publication.] The list was prepared by
Jerome J. Duff, an attorney who was retained to represent
Respondent in its contract negotiations and related matters.
Raymond Davis, who is secretary-treasurer of the Union,
held a prenegotiation meeting with the employees in the in-
volved unit on February 11. Seven9 of the 11 employees in
the involved unit attended. It was agreed that the Union
would propose to continue the terms of the collective-bar-
gaining agreement in effect at the time, with a 4-percent
wage increase for a 3-year period.
On February 22, Davis forwarded a letter to Respondent
indicating that the Union wanted to negotiate a new contract
and he requested the Respondent to contact the Union re-
garding the commencement of negotiations.
On February 29, Sullivan met with the Union’s attorney,
Donald Anderson Jr., to discuss the topics to be negotiated
and to arrange the meetings.
On March 31, Respondent made its payment to the
Union’s health and welfare fund but it did not make the pay-
ment to the Union’s pension plan (G.C. Exh. 16). Respond-
ent also failed to make a timely payment in April 1988 to
the health and welfare fund.
At the first negotiating session, which was held on April
18, Union representatives Anderson and Davis gave the
Union’s written proposal to the Company’s representatives,
Sullivan and an associate. The proposal called for a 3-year
contract with 4 percent increases across the board each year
(G.C. Exh. 6). Sullivan said that he would present the pro-
posal to his client and get back to Anderson to set up another
meeting. Davis testified that he requested that the health and
welfare and pension remain intact.
On April 21 or 22, Davis went to Respondent’s facility
and told Shop Steward Hock, that while the contract was ex-
piring, the Union and Kuna had another negotiating session
coming up. Donald Bouckaert, who is an employee of Re-
spondent and a member of the involved unit, testified that
Shop Steward Hock told him to go to work on Monday,
April 25.
1007KUNA MEAT CO.
10 Apparently notice of the meeting was posted on the bulletin board on ei-
ther April 21 or 22.
By letter dated April 22, Sullivan advised the Union that
he would meet on April 25 at Anderson’s office (G.C. Exh.
7).
On April 25, an employee meeting was held at 4:30 a.m.
at Kuna.10 Bouckaert testified that the meeting was attended
by the meatcutters, Donald Bippen, Sullivan, and Audie
Faulstick, who is an insurance agent; that Faulstick told the
employees that the Employer would be providing medical in-
surance and the employees were asked to select a primary
physician from a listing provided to them; and that the em-
ployees were told that there would be another meeting to ex-
plain the plan to their spouses. Sullivan testified that Re-
spondent had prepared for a strike on April 25 and when
there was none ‘‘a decision was made that the Union was
not interested anymore, and, therefore, we no longer had any
relationship with the Union.’’
The parties stipulated that Kuna had medical insurance
coverage through Blue Choice [sic] for the period April 25,
1988, through January 14, 1989, and had medical coverage
for their unit employees through Aetna from January 1, 1989,
to the time of the hearing herein.
The representatives of Kuna and the Union met, as sched-
uled, on April 25. In attendance were Anderson and Tim
McGuire, who is an associate, Davis, Edward O’Reilly, who
is the president of the Union, Sullivan, and Duff. Sullivan in-
troduced Duff. Davis testified that the union representatives
were informed that Kuna considered the contract terminated
and Kuna was withdrawing its recognition of the Union be-
cause the Union no longer represented a majority of the em-
ployees; that Kuna representatives had previously met with
the employees and Kuna had abolished the health and wel-
fare and pension programs of the Union; that he advised
Kuna representatives that there might be a withdrawal liabil-
ity involved in leaving the pension program; that Duff said
that he had done his homework and that there would be zero
liability; that Sullivan requested that the administrator of the
pension program be contacted to determine what the liability
would be; that Kuna representatives took the position that the
Union did not represent the employees because it had not
filed a grievance in about 2 years and the members did not
attend union meetings; that Duff said that the Union had
goofed since the contract had expired and the Union did not
strike or inform the employees what was the Union’s inten-
tion; that he telephoned the administrator’s office and he left
the room while Sullivan talked with someone in that office;
that Sullivan later said that he was going to meet with some-
one in the pension fund manager’s office in order to deter-
mine what the withdrawal liability situation was and then the
Union would be contacted for another meeting; that Kuna
did not make any contract proposal during this meeting; and
that before this meeting, Kuna did not inform the Union
about plans to implement a new medical coverage for the
employees or that it was going to cease coverage by the
Union’s plan.
The Union called a meeting of the 11 involved employees
on May 2. Seven showed up. Davis, who presided at the
meeting, asked the employees present to sign a card to show
that they still supported the Union. Only two of the employ-
ees signed. Davis had assured the employees present that the
Employer would not know who signed or who did not sign.
About a week later, steward Hock, who apparently attended
the meeting, told Davis that the reason that more of the em-
ployees did not sign the cards was that they knew in advance
that one of the employees present, Robert Campey, was
going to report back to the Company what was said and what
was done at this meeting.
Bouckaert testified that about 2 weeks after April 25,
Kuna held a meeting at a restaurant on a Saturday to further
explain the medical insurance to the involved employees;
that Faulstick said that there would be no dental coverage
under the plan; that under the union plan the employees did
have dental coverage; that Donald Bippen then said that the
employees could get a dental plan with the union dues that
they were not paying; and that a meeting was scheduled for
the following Saturday to discuss profit sharing but the meet-
ing was subsequently canceled.
On May 9. Sullivan forwarded a letter to the Union (G.C.
Exh. 8), which reads, in part, as follows:
This letter will confirm our meeting on April 25,
1988, at which time I advised you that our client, Kuna
Meat Company, had purchased Health and Welfare In-
surance on its employees, in lieu of any insurance that
would be provided through your Union. Further, that no
further contributions would be made to the Health and
Welfare Plan of Local 88.
On May 12, Duff and Sullivan interrogated a number of
the employees who attended the above-described May 2
union meeting. Bouckaert testified that while he was working
he was told to go to Donald Bippen’s office; that Donald
Bippen, Duff, and Sullivan were there; that Duff introduced
himself and explained that he knew that the employees had
a meeting at the union hall on May 2 and he knew what hap-
pened at the meeting; that Duff said that he understood that
a card was passed out for the employees to sign to indicate
whether or not they were going to be with the Union and
no one signed the card; that he told Duff that he, Bouckaert,
had signed the card and that he did not know whether the
other employees signed except that another employee present
at the union meeting, Campey, threw his card on the table
and said that he would not sign the card; that he told Sulli-
van that he thought that the employees had to take a vote
to get out of the Union and Sullivan said that this was wrong
and some large companies, when the contract is up, lock the
employees out and pick out who they want to work but Kuna
would not do this; and that neither Duff nor Sullivan told
him that he did not have to talk to them or that no action
would be taken against him if he did not talk to them. Re-
garding these meetings, Sullivan testified that the purpose of
the meetings was to find out what happened at a union meet-
ing on May 2; that he, Duff, and Bippen met with one em-
ployee at a time; that they spoke with between five and
seven employees; that Duff told the employees that the Em-
ployer was preparing to end the relationship with the Union
and that he had learned from unsolicited information that
these individuals had been called into a meeting at the union
office the week before; that Campey said that he had not
signed a card; that Bouckaert said that he had signed a card;
and that Bippen was present throughout the meetings. Donald
Bippen testified that Sullivan did tell Bouckaert that large
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Duff, Sullivan, Anderson, Davis, Lee Ives, and Jim King, both business
representatives of the Union, were present. Also, Dave Gallagher, a business
representative of Local 682 of the Teamsters, attended at the behest of Davis.
That Union had a contract with Kuna.
12 Under the expired contract if Kuna did not get enough volunteers, it
would assign the overtime by reverse seniority or, in other words, the least
senior person could be compelled to work overtime.
corporations can lock employees out and pick who they want
from the parking lot but Kuna would not do that; and that
Sullivan and Duff did the talking and he was there as an ob-
server.
On May 16, a negotiating session was held at Sullivan’s
offices. Duff, Sullivan, Anderson, O’Reilly, and Davis were
present. With respect to this meeting, Davis testified that
Duff told O’Reilly that he was remiss in his duties in not
attending the first two meetings; that there was a lengthy dis-
cussion on health and welfare and pension withdrawal liabil-
ity; that the Kuna representatives indicated that the Union
failed to represent the involved employees and they were
aware that Davis had held a meeting of the employees and
from what the employees told them the Union no longer rep-
resented a majority of the employees; and that nothing in the
way of negotiation topics or contract proposals were dis-
cussed in that meeting.
As noted above, the Union filed a charge in Case 14–CA–
19509–2, a complaint was issued on July and an informal
settlement agreement (G.C. Exh. 9), was entered into on Sep-
tember 8. Respondent agreed that it would not withdraw rec-
ognition from the Union, unilaterally discontinue coverage
for employees under the Union’s health and welfare insur-
ance plans, implement its own insurance coverage, and uni-
laterally discontinue payments for employees under the
Union’s pension plan. Respondent agreed that it would meet
and bargain with the Union in good faith, resume payments
to the Union’s pension plan and reinstate coverage for its
employees under the Union’s health and welfare insurance
plan, make its employees whole for any losses they may
have suffered because it changed insurance plans, and pay to
the Union’s pension all moneys due on behalf of its employ-
ees for the period when it failed to make contributions.
Duff forwarded a letter to Anderson on September 9 (G.C.
Exh. 10b), which reads, in part, as follows:
For all purposes related to this settlement and the relat-
ed compliance period, Kuna considers that Monday,
November 7, 1988 is the last day of the compliance pe-
riod. Unless you specifically advise otherwise, within
the next week, we will assume that you are in agree-
ment with this calculation.
The next negotiating session was held on September 14.
Present were Duff, Sullivan, McGuire, O’Reilly, and Davis.
Regarding this meeting, Davis testified that
The Company stated . . . that they were there as a
result of a compliance order, and they were going to
negotiate with the Union, but that there was no enforce-
ment of obtaining a contract at the end of the negotia-
tions.
They were there to negotiate only; that there was a
lengthy discussion over the health and welfare, and
pension program, and Sullivan requested the Union to
supply some documents; and that either Duff or Sulli-
van indicated that they would not negotiate beyond No-
vember 7 since they did not ‘‘feel like they was com-
pelled to negotiate beyond that point.’’
Kuna’s negotiation agenda for the meeting of September
20 includes, in part, the following: ‘‘UNION’S POSITION
IN REGARD TO COMPLETION OF NEGOTIATIONS
PRIOR TO NOVEMBER 7, 1988 IN ORDER TO AVOID
ANY EXTENSION BEYOND THAT DATE.’’ (G.C. Exh.
11.) Davis testified, with respect to this meeting, that the
Union’s expressed position was that it realized that the com-
pliance order would end November 7 but the Union was
there to negotiate a contract and it would meet far beyond
that date.
At the September 27 negotiating session the parties re-
viewed the contract article by article from article 1 to about
article 13.11 According to Davis’ testimony, at this meeting
Kuna proposed that (1) employees not be paid overtime until
they had worked 40 hours; (2) the workweek would be 6
days; (3) the free floating holidays and the birthday holiday
in the expired contract be eliminated; (4) the probationary
period be changed from 31 days to 6 months; (5) vacations
would be reduced from a maximum of 6 weeks to a maxi-
mum of 2 weeks; (6) there be only one classification and that
would be head meatcutter and there was no need for the
journeyman, apprentice, semi-skilled, the laborer, and porter;
(7) while the last contract between Kuna and the Union pro-
vided that the Employer could have a second and third shift
if it negotiated with the Union regarding wages and working
conditions, Kuna now wanted to be allowed to have a second
and third shift without any reference to negotiations with the
Union; (8) while the last contract between Kuna and the
Union called for overtime to be voluntary,12 Kuna now want-
ed overtime to be mandatory; and (9) while the expired con-
tract had portion control language, Kuna wanted to delete
this language so that it would not be required to have meat
cut on the premises.
On October 3 Duff forwarded a memorandum to a Board
compliance officer seeking information about the procedures
for decertification and withdrawing recognition from the
Union.
Duff, Sullivan, Anderson, and Davis attended the October
4 negotiating session. Davis testified that at this session
Kuna proposed to delete the articles dealing with the unload-
ing of trucks, the leave of absence clause, and the successor
and assignee clause; that Kuna wanted to eliminate their obli-
gation to pay any employee who was hurt on the job for the
first 3 days after the injury until workmen’s compensation
takes effect; that Kuna wanted to delete any reference to dis-
crimination of sex in the company proposal, since the Com-
pany did not have any female employees in the bargaining
unit and it did not expect to hire any female employees; that
Kuna agreed to the separability clause; that Kuna agreed to
leave sick leave in the contract but at its discretion it would
decide how to pay an employee for sick leave; that while the
Union was discussing a 3-year contract, Kuna indicated that
it wanted a 1-year contract; that while the last contract al-
lowed Kuna to have part-time help, it had to negotiate hours
and working conditions with the Union; and that Kuna want-
ed to eliminate this obligation.
The October 11 negotiating session was attended by Duff,
Sullivan, Anderson, Davis, and Mel Traub, of the Meat-
1009KUNA MEAT CO.
13 Under the last contract between Kuna and the Union, the head meatcutter
made $13.75 an hour and the journeymen meatcutters made $12.50 an hour.
Kuna’s written proposal contains the following language: ‘‘KUNA WILL
ALSO DESIGNATE A RED CIRCLE (OVER SCALE) PAY RAISE FOR
ANY OF THESE ELEVEN UNIT EMPLOYEES, AT KUNA’S OPTION
AND SOLE DISCRETION.’’ Kuna did not, however, present a proposal dur-
ing negotiations that would guarantee that each of the current employees
would not have their wages reduced.
14 The Union’s position in G.C. Exh. 13 was that there would be a head
meatcutter, a journeyman, an apprentice, a utility man with a knife, and a util-
ity man without a knife.
15 Davis held a ratification meeting on November 3. Five members attended.
A ballot was passed out with the understanding that the members would have
10 days to consider the proposal. On November 14, three members mailed
back their ballots with two voting to reject the proposal and one voting to ac-
cept the proposal.
cutters, Local 88. Kuna presented a written proposal (G.C.
Exh. 12). Davis testified that Kuna proposed (1) freezing the
bargaining unit at 11 employees and Duff said that through
the years, by attrition, the unit would evaporate and cease to
exist; (2) having one head meatcutter and the rest of the em-
ployees would be called utility employees; (3) paying the
head meatcutter $12.75 an hour and the utility people $8 an
hour;13 (4) providing a health and welfare and pension pro-
gram with the cost to Kuna being no greater than what it had
paid under the last contract; and (5) a quality clause, which
stated that if an employee, in Kuna’s opinion, was not per-
forming up to the Employer’s standards, the employee would
receive 31-day notice, which would not be subject to the
grievance procedure, and if there was insufficient improve-
ment, the employee would be terminated without recourse to
the grievance or arbitration procedure of the contract.
Duff, Sullivan, Anderson, and Davis attended the negotiat-
ing session on October 12. Duff testified, regarding the meet-
ing, that the Kuna representatives insisted that Kuna’s pro-
posal be presented to the employees; that he indicated during
the meeting that he did not agree with the proposal and he
would not present the proposal to the employees but that he
would present a final proposal.
On October 14 Duff, in a three-page memorandum to a
Board compliance agent, requested information from the
Board regarding the procedures for decertification, withdraw-
ing recognition from the Union, when and how Kuna could
do that.
At the October 18 meeting, which was attended by the
same representatives, Kuna dropped its request for a frozen
unit. The recognition clause and the classification of employ-
ees were the main topics of discussion at this meeting.
The October 25 negotiating session was attended by the
same representatives. The Union presented a one-page pro-
posal relating to the recognition clause and the job classifica-
tion of employees (G.C. Exh. 13). Recognition or bargaining
rights and classification14 was discussed and Kuna represent-
atives again asked that Kuna’s October 11 proposal be re-
ferred to the employees for a vote.
On October 28, Kuna presented its final offer with a cover
memorandum (G.C. Exh. 14). The memorandum states, in
part, as follows:
IT IS KUNA’S INTENTION TO TERMINATE
THESE NEGOTIATIONS AT 5:00 P.M. ON
WEDNESDAY, NOVEMBER 9, 1988. KUNA WILL
NOT AGREE TO EXTEND THESE NEGOTIATIONS
BEYOND THAT DATE UNLESS KUNA IS PER-
SUADED TO DO SO BY THE NLRB COMPLIANCE
OFFICER.
Also the memorandum states that other than the modifica-
tions to articles 1 and 3, Kuna’s final proposal remains ex-
actly as set out in its October 11, 1988 proposals. Article 1
deals with recognition and article 3 deals with classification.
With respect to the latter, it specifies that newly hired utility
employees shall perform any job assigned, except the duties
of the head meatcutter, and that present nonunion employees
of Kuna will continue to perform any job assigned, including
delivery operations, as nonbargaining unit employees who
are not covered by the terms and conditions of the 1988–
1989 labor agreement. Sullivan testified that there was con-
siderable discussion about the procedure the Union planned
to use to take the vote on the contract offer and that Kuna
was very concerned about the fact that the Union was going
to take 10 days to get a vote on Kuna’s final offer since
there was a question of whether the 10 days would take it
outside the asserted end of the compliance period.
The parties stipulated that there was a brief negotiating
meeting on November 9.
The next meeting between Kuna and the Union was held
on November 21. Duff, Sullivan, Anderson, and Davis were
present. The Union informed Kuna that its final offer had
been rejected.15 The Union suggested that the expired con-
tract be extended for 1 year for a cooling off period. Davis
testified that Kuna took the position that it had met the com-
pliance requirements and that it had no obligation to nego-
tiate further. It was agreed that the rejection would be dis-
cussed with Kuna’s management and the parties would meet
the following day.
The meeting on November 22 was very short with Kuna
representatives indicating that they did not intend to nego-
tiate further and that they had information that a decertifica-
tion petition would be filed.
By letters dated November 30, Sullivan advised the
Union’s pension fund and its welfare fund that Kuna was ter-
minating its participation, General Counsel’s Exhibits 17 and
18, respectively.
On December 2, Duff forwarded the following letter (G.C.
Exh. 19), to Anderson:
This will reconfirm our previous advices [sic] that
the NLRB mandated negotiations have terminated by
absolute impasse. Kuna has received the acknowledge-
ment of its termination of participation in the Local 88
Welfare fund from the board of Trustees. Kuna has a
replacement medical Plan.
This will further confirm that Kuna will proceed to
implement the employment conditions spread in Kuna’s
final (rejected) offer, with the exclusion of any ref-
erences to Union recognition, Union membership or
Union participation in any term or condition of employ-
ment.
On January 1, 1989, Respondent implemented its profit
sharing plan. Donald Bippon testified that when Kuna imple-
mented its profit sharing plan it withdrew its recognition of
the Union; that as of January 1989 the 10 employees in the
above-described unit had their vacation reduced by 5 days;
and that the employees were told that the reason for this was
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the cost of the profit sharing plan, which cost Respondent
$200 more a month than it paid into the Union’s pension
plan.
As noted above, on January 4, 1989 the Union filed the
aforementioned charge. The following day a decertification
petition was filed by employee Bruce Boston in Case 14–
RD–1238. The petition was dismissed by the Regional Direc-
tor and the dismissal was affirmed by the Board.
Respondent’s Exhibit 6 is a letter to the Union dated Janu-
ary 9, 1989 which reads as follows: ‘‘[t]his letter is to inform
you that the list of signatures below are those of Kuna Meat
employees who had belonged to . . . [the Union] and have
now self-organized. The decertification procedures have been
initiated with the . . . Board.’’ The letter has 10 signatures.
Regarding the letter, Boston testified that he obtained all of
the signatures thereon; that he went from person to person
in the plant to obtain the signatures and two of the employ-
ees were in the break room when he obtained their signa-
tures; and that he obtained all of the signatures before he left
Kuna’s facility in its truck at 8 a.m. Employee Richard
Nickolaus testified that he signed the letter in the afternoon
about 3 or 4 p.m.; that he thought he was outside of work
in the parking lot; and that he gets off work at 1 p.m. Em-
ployee Walter Brown testified that ‘‘[i]t seemed like we
signed it at the office at Kuna Company.’’ And employee
Bouckaert testified that Boston asked him to sign the letter
while he, Bouckaert, was working; and that Boston aggra-
vated him and he lost his temper and he said ‘‘give me the
damn thing, I’ll sign it. . . .’’
On January 14, 1989, Respondent changed the involved
employees medical plan from Blue Choice [sic] to Aetna. It
was stipulated that the Blue Choice [sic] plan did not provide
dental coverage, life insurance [sic] or disability and the em-
ployees were not permitted to select their own doctor; and
that while the Aetna plan does provide life insurance and dis-
ability, it does not provide for dental coverage.
B. Contentions
On brief General Counsel contends that the March and
April pension payments and the April health and welfare
payment were contractually required and, absent agreement
of the Union, Respondent’s failure to comply with the con-
tract constitutes a midterm modification of the agreement and
violates Section 8(a)(5) of the Act; that inasmuch as the pro-
visions of health and welfare coverage is a mandatory subject
of bargaining, Respondent also violates Section 8(a)(5) by ei-
ther changing or supplementing the medical coverage of unit
employees unless it has first notified and bargained, which
it did not, with the Union; that Respondent violated Section
8(a)(1) and (5) of the Act by ceasing payments to the
Union’s pension and health and welfare plans and by imple-
menting new medical coverage for unit employees; that a
Union enjoys a rebuttable presumption of majority status
upon the expiration of a collective-bargaining agreement; that
the Employer may rebut the presumption by establishing ei-
ther that the Union in fact did not enjoy majority status or
that the refusal to bargain was predicated on a good-faith and
reasonably grounded doubt, supported by objective consider-
ations of the Union’s majority status; that while according to
Sullivan, Respondent based its April 25 withdrawal of rec-
ognition on the following factors: (1) minimal contact with
the Union, (2) lack of grievances, and (3) a number of letters
from the Union to enforce the union-security clause, General
Counsel questions whether Respondent established at hearing
that any of these factors existed on April 25; that even if Re-
spondent could establish it had information which would es-
tablish a good-faith doubt of the Union’s majority status, that
must be raised in a context free of unfair labor practices; that
here Respondent had already unilaterally ceased payments to
the Union’s health and welfare and pension plans and, there-
fore, Respondent’s assertion of a reasonable doubt was ‘‘fa-
tally tainted by its commission of the 8(a)(5) unfair labor
practice of unilaterally ceasing the contractually mandated
fringe-benefit contributions for the vast majority of the unit
employees,’’ Abbey Medical/Abbey Rents, 264 NLRB 969
(1982), enfd. 709 F.2d 1517 (9th Cir. 1983); that regarding
Respondent’s admitted withdrawal of recognition on about
January 1, 1989, Sullivan explained he believed the parties
were at an impasse in November, and as he understood total
impasse, that means that there is no recognition; that no evi-
dence can be found in the record whatsoever to support this
withdrawal of recognition; that regarding the petition for de-
certification filed on January 5, 1989, by Boston and the let-
ter signed by employees on January 9, 1989, obviously both
of these events occurred after Respondent withdrew recogni-
tion from the Union on January 1, 1989; that Respondent
cannot rely on events occurring after its withdrawal of rec-
ognition because these events may have been prompted or
skewed by Respondent’s conduct; that there is no showing,
other than the January 9, 1989 letter, that the decertification
petition was supported by a majority of the employees, and
at least one employee signed the letter out of frustration, and
another employee testified that while he did not consider
Boston to be management, he considered Boston to speak for
management; that the January 1, 1989 withdrawal of recogni-
tion also violated Section 8(a)(5) of the Act; that regarding
the interrogation on May 12, if Respondent was attempting
to poll its employees to support its withdrawal of recogni-
tion, it had no reasonable basis for doubting the Union’s con-
tinued majority status at the time it withdrew recognition and
could not, after taking such action, rely on evidence of em-
ployee dissatisfaction disclosed through the instant interroga-
tion; that Respondent’s action may well have contributed to
an erosion of support for the Union; that to the extent Re-
spondent attempts to characterize the questioning as a poll,
it was unlawful; that the necessary assurances to employees
were not provided; that while Duff did not state his remarks
to Bouckaert in the form of a question, Duff made declara-
tive statements and waited for Bouckaert to either agree or
disagree; that whether an interrogation is unlawful is deter-
mined by considering the totality of the circumstances; that
the coercive nature of this interrogation is readily established
by the fact it occurred in the office of and in the presence
of Respondent’s chief executive officer, employees were
brought in individually, and the nature of the subject matter,
i.e., whether employees had signed cards showing support for
the Union from whom Respondent had withdrawn recogni-
tion; that the test of whether an employer violated Section
8(a)(1) and (5) of the Act by failing to bargain in good faith
with a union is whether the totality of the employer’s con-
duct throughout the course of its bargaining evidences an in-
tent to frustrate the bargaining process rather than a sincere
purpose to reach an agreement; that the totality of cir-
cumstances here establishes beyond doubt that Respondent
1011KUNA MEAT CO.
16 General Counsel points out that while Respondent’s final offer did not
freeze the unit, Respondent expressly stated that current nonunion employees
would not be included in the unit or covered by the agreement, but would con-
tinue to perform any job assigned and Kuna would not be bound by or subject
to any form of union jurisdictional restrictions. General Counsel submits that
Respondent could readily circumvent hiring any new employees in the unit by
classifying them as warehousemen and then exercising its right to assign them
whatever work it wanted. Thus it seems, according to General Counsel, that
under Respondent’s final offer Kuna would have discretion whether to include
new employees in the unit. It is also pointed out by General Counsel that Re-
spondent’s very broad management-rights clause insured that Respondent
would have absolute discretion to do whatever it wanted without interference
from the Union; that Respondent even deleted the requirement that discharges
be for cause; and that the only ‘‘restriction’’ on its right to discharge would
be the quality clause which gave Respondent the sole right to determine qual-
ity.
17 General Counsel points out that Respondent’s proposals, which changed
only slightly from the beginning of bargaining to the end, were designed to
be wholly unacceptable to the Union and to preclude the possibility of agree-
ment. Assertedly, the proposals placed the Union in a position where simple
reliance on the rights arising from its status as the majority representative
would be more advantageous than signing any contract Respondent was pre-
pared to offer. Further, General Counsel submits that Respondent offered no
real justification for the proposed changes, and the fact that when Respondent
implemented its final offer, it failed to implement many of the provisions,
completely undermines any claim of business necessity for the proposals and
further confirms that the proposals were simply designed to preclude agree-
ment.
had no intent to reach agreement when one considers (1) Re-
spondent’s insistence from the outset that negotiations would
not extend beyond the 60 days of the compliance period, (2)
Respondent’s continued questioning of the Union’s majority
status during the time when it was supposed to be recogniz-
ing the Union as the majority representative and bargaining
with the Union, and (3) the nature of the proposals them-
selves which in their initial and final form would have given
Respondent almost total discretion to do whatever it wanted
during the term of the contract; that an examination of the
circumstances of this case should commence with the fact
that negotiations in September began after Respondent
ceased paying into the Union’s health and welfare and pen-
sion plans and withdrew recognition from the Union; that
while Respondent then entered into an informal settlement
agreement and commenced meeting with the Union, from the
outset Respondent made it clear it would only bargain with
the Union for the 60 days mandated by the terms of that set-
tlement agreement; that Respondent was only going through
the motions of these postsettlement negotiations without in-
tent to reach agreement and was anxiously counting the days
until it could again withdraw recognition from the Union;
that while waiting for the arrival of the ‘‘cut off date’’ dur-
ing ‘‘negotiations,’’ Respondent was also investigating the
procedures for decertification and how it could withdraw rec-
ognition from the Union notwithstanding the fact that it had
agreed, pursuant to the settlement agreement, to recognize
and bargain with the Union as the bargaining representative
of its employees; that the themes throughout Respondent’s
contract proposals were to decrease wages and benefits and
to give Respondent the sole ‘option’ or ‘discretion’ to do
whatever it wanted without interference with the Union;16
that Respondent proposed to gut the contract and preclude
any possibility of agreement;17 that Respondent deleted the
requirement that discharges be for cause; that Respondent’s
contract proposals were so unacceptable and without jus-
tification as to compel the conclusion that Respondent had no
intention of reaching an agreement with the Union; that Re-
spondent failed to bargain in good faith with the Union in
violation of Section 8(a)(5) of the Act; that the January 1989
changes regarding the health and welfare and pension plans
were violative of Section 8(a)(1) and (5) of the Act because
any impasse reached was a result of Respondent’s refusal to
bargain in good faith and was not ‘‘legally cognizable,’’
Hudson Chemical Co., 258 NLRB 152, 157 (1981); that re-
garding Respondent’s affirmative defenses, the record does
not support a finding that the majority of employees did not
wish to be represented by the Union on April 25, or at any
other time; that while the collective-bargaining agreement ex-
pired by its terms on April 25, that did not eliminate Re-
spondent’s obligation to notify and bargain with the Union
before changing any term or condition of employment of the
employees covered by that agreement; that while Respondent
went through the motions of bargaining with the Union in
September and October, because it did not bargain in good
faith it did not reach a valid impasse and, therefore, was not
thereafter free to change any existing conditions of employ-
ment; that since approval of the settlement agreement was re-
voked, the events occurring before than are nor res judicata
or moot, nor are they barred by Section 10(b) of the Act;
that the Regional Director’s revocation of approval was not
an abuse of discretion; that regarding comments allegedly
made by the compliance agent that ‘‘everything was per-
fect,’’ and she was ready to close the file, the Board has re-
peatedly held that statements of a Board agent indicating that
a charge would be dismissed are irrelevant; and that the
Board is not estopped from processing complaint allegations
because of what an agent may have said to representatives
of Respondent.
Respondent, in its seven-page brief, argues that it entered
into an approved settlement agreement on September 8, and
the settlement should have served to wipe out any prior ques-
tionable conduct on the part of the Employer; that it ‘‘is sat-
isfied that it properly fulfilled the compliance . . . contin-
gency by an exhaustive negotiation with the Union’’; that the
only other significant fact, which is described throughout the
entire record of this ‘‘overburdened proceeding,’’ is that the
Employer and the Union failed to reach an agreement; that
‘‘the underlying reason for the failure to reach an agreement
is spread in the simple sentences of . . . [R. Exh. 6], the let-
ter signed by all ten (10) of the involved unit of employees,
to the Union’’; that Respondent’s Exhibit 6 ‘‘speaks more
eloquently than anything else in the 716-page transcript of
this case to demonstrate why this complaint should be dis-
missed’’; that three very recent unpublished U.S. Court of
Appeals cases support both its negotiation position and its
good-faith belief that the Union does not represent a majority
of the unit employees; that the U.S. Supreme Court’s 1988
decision in Laborers Health Trust Fund v. Advanced Con-
crete Co., 108 S.Ct. 830, mandates the essential elements of
impasse and the Employer is absolutely satisfied that it had
reached an impasse in accord within the U.S. Supreme
Court’s definition and, simultaneously, the Employer was
then justified in its withdrawal of recognition; that only then
did the Employer begin to unilaterally implement its terms
and conditions of employment in accord with its negotiation
position; that the Employer knew that the substitution of its
profit sharing plan for the Union’s pension plan would cost
the Employer approximately $200 per month more than the
Union’s pension plan and this expense ‘‘should not be lost
in the maze of the General Counsel’s hysterical accusations
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about rescinding dental plans, disability plans and vacation
time’’; and that this ‘‘NLRB proceeding has plagued every-
one long enough and, in good sense should be ended.’’
C. Analysis
Collectively, paragraphs 7A and 7B of the consolidated
amended complaint allege that on or about March 10 and on
or about April 20, respectively, Respondent ceased paying
contributions to the pension plan and to the union health and
welfare fund, respectively, as required by the collective-bar-
gaining agreement in effect between Respondent and the
Union. Since the Union did not agree to the cessation of pay-
ments to the pension plan and the health and welfare fund
and since mandatory subjects of bargaining were involved,
Respondent’s refusal to make these payments were unlawful
midterm modifications of the collective-bargaining agreement
in violation of Section 8(a)(5) of the Act. Michigan Drywall
Corp., 232 NLRB 120 (1977).
Paragraph 7C of the consolidated amended complaint al-
leges that on or about April 25, Respondent implemented a
different health insurance plan for the unit. As set forth by
the Board in SAC Construction Co., 235 NLRB 1211, 1218
(1978):
The law is well established that unilateral changes of
‘‘wages and hours and terms and conditions of employ-
ment’’ by an employer obligated to bargain with the
representative of its employees in an appropriate unit
violates Section 8(a)(5) of the Act. Master Slack and/or
Master Trousers Corp. et al., 230 NLRB 1054 (1977).
Benefits, such as payments into health, welfare, and
pension funds on behalf of employees, constitute an as-
pect of their wages and a term and condition of em-
ployment which, along with wage rates, survive the ex-
piration of a collective-bargaining agreement and can-
not be altered without bargaining. Harold W. Henson,
d/b/a Hen House Market No. 3, 175 NLRB 596 (1969),
enfd. 428 F.2d 133 (C.A. 8, 1970).
Also, as concluded by the administrative law judge in
Parkview Furniture Mfg. Co., 284 NLRB 947 at 971 (1987),
which conclusions were affirmed by the Board:
[It] is well settled that on the expiration of a collective-
bargaining agreement the law imposes a continuing
duty on both parties to attempt in good faith to reach
a new agreement and therefore an employer may not
unilaterally alter the terms and conditions of employ-
ment set forth therein, as it relates to mandatory sub-
jects of bargaining, in the absence of an impasse in ne-
gotiations,107 the Union’s loss of majority status,108 or
a waiver.109
107 Taurus Waste Disposal, 263 NLRB 309 (1982); S. Freedman
Electric, 256 NLRB 432 (1981).
108 SAC Construction Co., supra; South Texas Chapter, AGC, 190
NLRB 383 fn. 5 (1971)
109 American Distributing Co. v. NLRB, 715 F.2d 446 (9th Cir.
1983). As stated by the Board in Cauthorne Trucking, 256 NLRB 721
(1981):
[T]he Board has held that health and welfare and pension fund plans
which are part of an expired contract constitute an aspect of em-
ployee wages and a term and condition of employment which sur-
vives the expiration of the contract. . . . Thus, an employer may
not unilaterally alter payments into such plans unless: (1) the
changes are made subsequent to the parties reaching a bargaining
impasse and the union has rejected the changes prior to the impasse,
(2) the employer demonstrates that, at the time the changes were
made, the union did not represent a majority of the unit employees
or that the employer had a good-faith doubt, based on objective con-
siderations, of the union’s continuing majority status, or (3) the
union has waived its right to bargain regarding the changes.
As noted above, health and welfare coverage is a mandatory
subject of bargaining. The Union did not waive its right to
bargain regarding this change. Indeed, Respondent did not
even give the Union prior notice or the opportunity to bar-
gain before implementing this change. Clearly there was no
impasse in negotiations at the time for, as noted above, there
were no negotiations at that time. When this change was
made the Respondent did not have a good-faith doubt, based
on objective considerations, of the Union’s continuing major-
ity status. How could it have a good-faith doubt when Re-
spondent itself had already commenced its unlawful cam-
paigning to undermine the Union’s support? As noted infra,
its unlawful conduct was meant to affect the Union’s status.
Consequently, Respondent violated Section 8(a)(1) and (5) of
the Act.
Paragraph 8 of the consolidated amended complaint, as
here pertinent, alleges that on or about April 25 Respondent
withdrew its recognition of the Union as the exclusive collec-
tive-bargaining representative of the unit. Respondent’s with-
drawal of recognition occurred in the context of serious un-
fair labor practices and, therefore, violated Section 8(a)(1)
and (5) of the Act. Unlawfully refusing to make payments
to the health and welfare fund and to the pension plan during
the term of the contract, which as noted above are midterm
modifications of the collective-bargaining agreement, are the
type of unfair labor practices which, if not remedied, would
affect the Union’s status. Also, Respondent unlawfully im-
plemented a different health insurance plan. Respondent had
not remedied its unlawful conduct regarding these mandatory
subjects of bargaining when it withdrew its recognition of the
Union. Respondent has not demonstrated that before it com-
menced its campaign of unlawful conduct it had a good-faith
doubt based on objective considerations. Abbey
Medical/Abbey Rents, Inc., 264 NLRB 969 (1982). As the
United States Court of Appeals for the Ninth Circuit stated
in Clear Pine Mouldings v. NLRB, 632 F.2d 721, 730
(1980):
Reasonable doubt as to the majority status must only be
asserted in good faith and may not be raised in the con-
text of an employer’s activities aimed at causing dis-
affection from the union. NLRB v. Sky Wolf Sales, 470
F.2d at 830. As this court recently stated, ‘‘It would be
inequitable to allow the Company to raise the issue of
the Union’s majority status when the Company has ac-
tively attempted to destroy that status. To allow this de-
fense would be to condone the independent unfair labor
practices.’’ NLRB v. B. C. Hawk Chevrolet, Inc., 582
F.2d 491, 495 (9th Cir. 1978).
Respondent failed to demonstrate a reasonably based good-
faith doubt of the Union’s majority status. Consequently, it
could not lawfully withdraw recognition from the Union and
when it did it violated Section 8(a)(1) and (5) of the Act.
Paragraph 5 of the consolidated amended complaint al-
leges that on May 12, Respondent, at its St. Louis facility,
1013KUNA MEAT CO.
unlawfully interrogated its employees regarding their union
membership, activities, and sympathies and the union mem-
bership, activities, and sympathies of their fellow employees.
As noted above, Respondent had already withdrawn recogni-
tion of the Union. Obviously, therefore, it could not have re-
lied on information it obtained more than 2 weeks after it
withdrew recognition. Respondent’s attorneys in Donald
Bippen’s office with Donald Bippen present, interrogated
employees, one at a time, about a union meeting which oc-
curred after Respondent, as discussed above, unlawfully
ceased making payments to the Health and Welfare Fund and
the pension plan, unlawfully implemented its own medical
plan, and unlawfully withdrew recognition from the Union.
What occurred was interrogation. Respondent wanted to find
out the results of the union meeting; it wanted to find out
whether there was any justification, albeit belated or skewed,
for refusing to recognize the Union. As pointed out in John-
nie’s Poultry Co., 146 NLRB 770, 775 (1964), in interrogat-
ing employees to verify majority status,
The employer must communicate to the employee the
purpose of the questioning; assure him that no reprisal
will take place and obtain his participation on a vol-
untary basis; the questioning must occur in a context
free from employer hostility to Union organization and
must not be itself coercive in nature.
Here no legitimate purpose existed for Respondent’s interro-
gations, which, in my opinion, were coercive, and no assur-
ances against reprisal were extended to the employees. Re-
spondent violated Section 8(a)(1) of the Act.
Paragraph 9 of the consolidated amended complaint al-
leges that during the months of September, December, and
November 1988, Respondent and the Union met for the pur-
pose of engaging in negotiations with respect to wages,
hours, and other terms and conditions of employment of the
unit; that during this period Respondent engaged in acts and
conduct including setting time limits on contract negotiations,
and making contract proposals designed to frustrate reaching
a collective-bargaining agreement with the Union; and that
Respondent has thereby failed and refused to bargain in good
faith with the Union. As the Board stated in Reichhold
Chemicals, 288 NLRB 69, 70 (1988):
The Board’s task in cases alleging bad-faith bargaining
is the often difficult one of determining a party’s intent
from the aggregate of its conduct. . . .
Each party to collective bargaining ‘‘has an enforce-
able right to good faith bargaining on the part of the
other.’’ Enforcement of that right is one of the Board’s
most important responsibilities. Indeed, the fundamental
rights guaranteed employees by the Act—to act in con-
cert, to organize, and to freely choose a bargaining
agent—are meaningless if their employer can make a
mockery of the duty to bargain by adhering to propos-
als which clearly demonstrate an intent not to reach an
agreement with the employees’ selected collective-bar-
gaining representative. [Footnotes omitted.]
In Hotel Roanoke, 293 NLRB 182, 184 (1989), the Board
stated:
In determining whether a party has bargained in bad
faith, the Board looks to the totality of the cir-
cumstances in which the bargaining took place. Port
Plastics, 279 NLRB 362, 382 (1986); Atlanta Hilton &
Tower, 271 NLRB 1600, 1603 (1984). The Board looks
not only at the parties’ behavior at the bargaining table,
but also to conduct away from the table that may affect
the negotiations. Port Plastics, 279 NLRB at 382.
In reviewing the totality of Kuna’s conduct, including con-
duct that occurred away from the bargaining table, it is my
opinion that the evidence establishes that Respondent vio-
lated the Act by refusing to bargain in good faith with the
Union.
With respect to conduct that occurred away from the bar-
gaining table, as noted above, Duff, who orchestrated Re-
spondent’s role, in his February 6 checklist wrote ‘‘12 x
New hires—advise will be Non-U.’’ When, as a part of a
settlement agreement, Respondent agreed to negotiate, Duff,
more than once, sought information from the Board, while
negotiations were taking place, regarding the procedures for
decertification and withdrawing recognition from the Union.
In my opinion, this conduct, in addition to conduct treated
below, tends to show that Respondent never intended to
make an honest effort to attempt to conclude an agreement
with the Union.
As noted above, Duff, at the outset of negotiations, indi-
cated that Respondent would not negotiate beyond a speci-
fied date in November. Notwithstanding the fact that the
Union did not agree, Respondent continued to adhere to this
position. In my opinion, Respondent’s insistence was one
more indication that Respondent was not bargaining in good
faith. Respondent’s insistence on this point ‘‘was effective
notice to the employees’ bargaining representative that . . .
[Respondent’s] will was to prevail, whatever the Union de-
sired.’’ Moore Drop Forging Co., 144 NLRB 165 (1963).
Regarding Respondent’s above-described contract propos-
als, it is noted that in Tomco Communications, 220 NLRB
636 (1975), the Board stated:
Rigid adherence to proposals which are predictably un-
acceptable to the Union may indicate a predetermina-
tion not to reach agreement, or a desire to produce a
stalemate, in order to frustrate bargaining and under-
mine the statutory representative.
As General Counsel points out on brief, the themes
throughout Respondent’s contract proposals were to decrease
wages and benefits and to give Respondent the sole option
or discretion to do whatever it wanted without interference
with the Union. Regarding wages, while Respondent pro-
posed to reduce all the wages of those in the unit, it also
proposed that it alone have the right to decide whether it
wanted to pay any of the employees in the unit over scale
(‘‘red circle’’). No business justification was demonstrated
for these changes.
With respect to grievance and arbitration, since Respond-
ent’s proposed quality clause, as General Counsel points out,
gives Respondent the sole discretion to determine if an em-
ployee’s performance or productivity is substandard, Re-
spondent would only need to claim that the employee’s pro-
ductivity was poor. Respondent would then have total discre-
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 As noted above, Respondent pleads a number of affirmative defenses,
none of which have any merit. The Regional Director acted reasonably in set-
ting aside the aforementioned settlement agreement. Otherwise, matters raised
by Respondent in its affirmative defenses do not require specific treatment
herein.
tion, not subject to the grievance procedure, to discharge the
employee.
Respondent proposed a very broad management-rights
clause, namely, one which gave Kuna the right to schedule,
transfer, assign, supervise, promote, demote, hire, suspend,
discharge, change the size and composition of the work
force, establish policies, work rules standards and regula-
tions, determine products and product lines, determine or
change the methods and means of operations and, among
other things, carry out all the ordinary functions of manage-
ment whether or not previously exercised by Kuna. Addition-
ally, Kuna proposed removing the requirement that discharge
be for cause.
In my opinion, the foregoing, in addition to positions
taken by Respondent regarding other matters, i.e., freezing
the unit (subsequently dropped), portion control, overtime,
and the nondiscrimination clause, demonstrates that through-
out the negotiations Kuna had a fixed intent not to reach
agreement with the Union. The totality of Kuna’s conduct
and proposals establishes that it failed and refused to bargain
in good faith with the Union in violation of Section 8(a)(5)
and (1) of the Act.
Paragraph 10 of the consolidated amended complaint al-
leges that on or about December 1, Respondent implemented
its final contract proposal and made numerous changes af-
fecting the unit, including changing the health and welfare
and pension plans covering the unit, and implementing new
classifications and wage scales for the unit, and implement-
ing a profit sharing plan on or about January 1, 1989; that
these subjects relate to wages, hours, and other terms and
conditions of employment of the unit and are mandatory sub-
jects for the purposes of collective bargaining; and that Re-
spondent engaged in these acts and conduct without reaching
a valid impasse and, therefore, without having afforded the
Union a sufficient opportunity to negotiate and bargain with
respect to such acts and conduct. Since Respondent did not
bargain in good faith, no real impasse was reached. Con-
sequently, Respondent violated Section 8(a)(1) and (5) of the
Act by implementing the above-described changes.
And finally, paragraph 8 of the consolidated amended
complaint alleges that on or about January 1, 1989, Respond-
ent withdrew its recognition of the Union as the exclusive
collective-bargaining representative of the unit. As noted
above, Respondent unlawfully failed and refused to bargain
in good faith. It had not remedied its unlawful conduct when
it withdrew its recognition on January 1, 1989. It did not act
in good faith. Consequently it could not lawfully withdraw
recognition and when it did, it violated Section 8(a)(1) and
(5) of the Act.18
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act and at all times material is the
representative for purposes of collective bargaining for the
employees in the unit consisting of the following:
Head meat cutter, journeymen and apprentice meat cut-
ters, semi-skilled employees, custodians, porters, and la-
borers employed at the Respondent’s St. Louis facility,
excluding office clerical and professional employees,
guards, and supervisors as defined in the Act.
3. By coercively interrogating its employees concerning
their union membership, activities, and sympathies and the
union membership, activities, and sympathies of their fellow
employees, Respondent has violated Section 8(a)(1) of the
Act.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act by:
(a) Ceasing contributions to the involved pension plan on
March 10, 1988, without prior notice to the Union and with-
out having afforded the Union an opportunity to negotiate
and bargain.
(b) Ceasing contributions to the Union’s Health and Wel-
fare Fund on April 10, 1988, without prior notice to the
Union and without having afforded the Union an opportunity
to negotiate and bargain.
(c) Implementing a different health insurance plan for the
unit on April 25, 1988, without prior notice to the Union and
without having afforded the Union an opportunity to nego-
tiate and bargain.
(d) Withdrawing recognition of the Union as the exclusive
collective-bargaining representative of the unit on April 25,
1988, and January 1, 1989.
(e) Setting time limits on contract negotiations and making
contract proposals designed to frustrate reaching a collective-
bargaining agreement with the Union during negotiations in
September, October, and November 1988.
(f) Implementing on December 1, 1988, its final contract
proposal and making numerous changes affecting the unit,
including the health and welfare and pension plans covering
the unit, reducing the number of holidays and vacation days
for the unit, implementing new classifications and wage
scales for the unit, and implementing a profit-sharing plan on
January 1, 1989.
5. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices within the meaning of Section 8(a)(1) and
(5) of the Act, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion.
It shall also be recommended that Respondent be ordered
to recognize the Union and to bargain in good faith, on re-
quest, with the Union as the exclusive bargaining representa-
tive of its employees in the above unit, and in the event that
an understanding is reached, to embody such understanding
in a signed agreement.
Having found that Respondent has made unilateral changes
in certain terms and conditions of employment in violation
of Section 8(a)(5) and (1) of the Act, I recommend that Re-
spondent revoke, upon request, said unilateral changes. Also,
I recommend that Respondent be ordered to make whole its
employees by making contributions to the health and welfare
fund and pension plan, as provided for in the terms and con-
ditions in the last collective-bargaining agreement between
1015KUNA MEAT CO.
19 Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981).
20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
21 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Respondent and the Union, which contributions have not
been made and which would have been made absent the Re-
spondent’s unlawful discontinuance of or refusal to make
such contributions, and by reimbursing unit employees for
any expenses, with interest, ensuing from the Respondent’s
failure to make such contributions.19 Employees should also
be made whole for any loss of earnings or other compensa-
tion they may have suffered by the unlawful refusal to apply
the terms and conditions of employment as set forth in the
collective-bargaining agreement which expired in April 1988,
until such time as Respondent bargains in good faith to im-
passe or enters into a collective-bargaining agreement, with
interest as authorized by New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Kuna Meat Company, St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning their
union membership, activities, and sympathies and the union
membership, activities, and sympathies of their fellow em-
ployees.
(b) Ceasing contributions to the involved pension plan and
to the Union’s health and welfare fund without prior notice
to the Union and without having afforded the Union an op-
portunity to negotiate and bargain.
(c) Unilaterally implementing a different health insurance
plan for the unit without prior notice to the Union and with-
out having afforded the Union an opportunity to negotiate
and bargain.
(d) Withdrawing recognition of the Union as the exclusive
collective-bargaining representative of the employees in the
appropriate collective-bargaining unit which is as follows:
Head meat cutter, journeymen and apprentice meat cut-
ters, semi-skilled employees, custodians, porters, and la-
borers employed at the Respondent’s St. Louis facility,
excluding office clerical and professional employees,
guards, and supervisors as defined in the Act.
(e) Setting time limits on contract negotiations and making
contract proposals designed to frustrate reaching a collective-
bargaining agreement with the Union.
(f) Refusing to bargain in good faith while at the same
time implementing contract proposals which make numerous
changes affecting the terms and conditions of employment of
the employees in the unit.
(g) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive representative of all employees in the aforesaid
appropriate unit, and if an understanding is reached, embody
such understanding in a signed contract.
(b) On request, rescind any and all unilateral changes the
Respondent has made in the terms and conditions of employ-
ment of the employees in the involved unit.
(c) Make whole its unit employees by making contribu-
tions to the health and welfare fund and pension plan and re-
imburse unit employees for any expenses, with interest, ensu-
ing from the Respondent’s failure to make such contribu-
tions.
(d) Make whole its unit employees, with interest, for any
loss of earnings or other compensation they may have suf-
fered by Respondent’s unlawful refusal to apply the terms
and conditions of employment as set forth in the collective-
bargaining agreement which expired in April 1988 until such
time as Respondent bargains in good faith to impasse or en-
ters into a collective-bargaining agreement.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its St. Louis, Missouri place of business copies
of the attached notice marked ‘‘Appendix B.’’21 Copies of
the notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively interrogate employees concerning
their union membership, activities, and sympathies of their
fellow employees.
WE WILL NOT cease contributions to the involved pension
plan and to the health and welfare fund of the Meatcutters
Union Local No. 88, United Food and Commercial Workers
International Union, AFL–CIO without prior notice to the
Union and without affording the Union an opportunity to ne-
gotiate and bargain.
WE WILL NOT unilaterally implement a different health in-
surance plan for the unit without prior notice to the Union
and without affording the Meatcutters Union Local No. 88,
United Food and Commercial Workers International Union,
AFL–CIO an opportunity to negotiate and bargain.
WE WILL NOT withdraw recognition of the Meatcutters
Union Local No. 88, United Food and Commercial Workers
International Union, AFL–CIO as the exclusive collective-
bargaining representative of the employees in the appropriate
collective-bargaining unit which is as follows:
Head meat cutter, journeymen and apprentice meat cut-
ters, semi-skilled employees, custodians, porters, and la-
borers employed at the Respondent’s St. Louis facility,
excluding office clerical and professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT set time limits on contract negotiations and
make contract proposals designed to frustrate reaching a col-
lective-bargaining agreement with the Meatcutters Union
Local No. 88, United Food and Commercial Workers Inter-
national Union, AFL–CIO.
WE WILL NOT refuse to bargain in good faith while at the
same time implementing contract proposals which make nu-
merous changes affecting the terms and conditions of em-
ployment of the employees of the unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the Meat-
cutters Union Local No. 88, United Food and Commercial
Workers International Union, AFL–CIO as the exclusive rep-
resentative of all employees in the aforesaid appropriate unit,
and if an understanding is reached, embody such understand-
ing in a signed contract.
WE WILL, on request, rescind any and all unilateral
changes we have made in the terms and conditions of em-
ployment of the employees in the involved unit.
WE WILL make whole unit employees by making contribu-
tions to the health and welfare fund and pension pland and
reimburse unit employees for any expenses, with interest, en-
suing from our failure to make such contributions.
WE WILL make whole unit employees, with interest, for
any loss of earnings or other compensation they may have
suffered by our unlawful refusal to apply the terms and con-
ditions of employment as set forth in the collective-bargain-
ing agreement which expired in April 1988, until such time
as Respondent bargains in good faith to impasse or enters
into a collective-bargaining agreement.
KUNA MEAT COMPANY