Tyson's Foods, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1968

172 N.L.R.B. 2008 (N.L.R.B. 1968)

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