City Packing Co.

National Labor Relations Board - Board Decisions

Apr 24, 1952

98 N.L.R.B. 1261 (N.L.R.B. 1952)

CITY PACKING COMPANY 1261
CITY PACKING COMPANY AND TRINITY PACKING COMPANY and UNITED
PACKING HOUSE WORKERS OF AMERICA , LOCAL 369 . Case No.
16-CA-958. April -94, 19-52
Decision and Order
On November 15, 1951, Trial Examiner W. Gerard Ryan issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report 1 and a support-
ing brief. The Respondents filed no exceptions.
The Board 2 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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner 3 with the following addition :
The Remedy
The General Counsel excepts to the Trial Examiner's failure to
include in his recommended order a provision requiring the Respond-
ents to reinstate, upon application, the unfair labor practice strikers
and to make them whole for any loss of pay they have suffered or
may suffer because of the Respondents' refusal, if any, to reinstate
them. We find merit in this exception. As found by the Trial
Examiner , the strike, which began on January 25, 1951, and was still
in progress at the date of the hearing, was caused and prolonged by
the Respondents' unfair labor practices. The strikers, therefore,
were entitled to reinstatement, upon application, irrespective of
whether or not their positions have been filled by Respondents.4
Accordingly, in order to restore the status quo as it existed prior to
the time the Respondents engaged in the unfair labor practices and
thereby effectuate the policies of the Act, we shall order that the
3 The General Counsel excepted only to the failure of the Trial Examiner to recommend
an affirmative remedy for the unfair labor practice strikers.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston ,, Murdock, and Styles].
3 In the absence of exceptions by the Respondents and the General Counsel to the Trial
Examiner 's findings and conclusions of law , we limit our review of the proceeding to the
question of the appropriateness of the relief requested in the General Counsel 's exceptions
to the remedy.
s Rubin Brothers Footwear, Inc, 91 NLRB 10, 15; Julian Freirieh Co., 86 NLRB 542,
549, American Bread Company, 44 NLRB 970, 979.
98 NLRB No. 203.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents shall, upon application, offer reinstatement to their
former or substantially equivalent position,5 without prejudice to
their seniority or other rights and privileges, to all their employees
who went-on strike on January 25, 1951, or thereafter, dismissing,
if -necessary,-any person-hired on or after that date .6 We shall also
order that the Respondents make whole those employees who went on
strike on January 25, or thereafter, for any loss of pay they have
suffered or may suffer by reason of the Respondents' refusal, if any, to
reinstate them, by payment to each of them of a sum of money equal
to that which he normally would have earned as wages during the
periods: (1) From five (5) days after the date of his application
to November 15, 1951, the date of the Intermediate Report, and (2)
from the date of our Decision and Order herein to the date of the
Respondents' offer of reinstatement. Loss of pay will be computed
on the basis of each separate calendar quarter or portion thereof
during the above-described periods from the first day of January,
April, July, and October. Loss of pay shall be determined by
deducting: from a sum equal,'to that which he normally would have
earned for each quarter or portion thereof, his net earnings,7 if any,
in other employment during that period. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other
quarter."
We shall also order, in accordance with the Woolworth decision 9
that the Respondents, upon request, make available to the Board and
its agents all records necessary for the determination of reinstatement
rights and back pay due.
Order
Upon the entire record in the case , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondents City Packing
Company and Trinity Packing Company, Fort Worth, Texas, their
officers, agents , successors , and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the United Packing
House Workers of America , CIO, as the exclusive representative of
6 The Chase National Bank of the City o f New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
6 See cases cited in footnote 4, above.
4 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where , which would not have i?een incurred but for this unlawful discrimination, and the
consequent necessity of his seeking employment elsewhere Crossett Lumber Company,
8 NLRB 440 Monies received for work performed upon Federal , State, county, municipal,
or other work-relief projects shall be considered earnings . Republic Steel Corporation
v N L. R B., 311 U S. 7.
F. W Woolworth Company, 90 NLRB 289.
u Ibid.
CITY PACKING COMPANY 1263
all their employees in the appropriate units with respect to rates of
pay, wages , hours of employment , or other conditions of employment.
(b) By interrogation , promises of benefit , or by any other means
circumventing the Union as their exclusive bargaining representative,
soliciting employees who went on strike on January 25, 1951 , to aban-
don their concerted activities.
(c) In any other manner interfering with, restraining , or coercing
their employees in the exercise of the right to self -organization, to
form labor organizations , to join or assist United Packing House
Workers of America, CIO, or any other labor organization , to bargain
collectively through representatives of their own choosing, and to
engage in collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized in
Section 8 ( a) (3) of the Act, as guaranteed in. Section 7 thereof.
2. Take the following affirmative action which the Board finds
effectuate the policies of the Act :
(a) Upon request , bargain collectively with the United Packing
House Workers of America , CIO, as the exclusive representative of
all the employees in the appropriate units, and embody any under-
standing reached in a signed contract.
(b) Upon application , offer immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges , to all those employees
who went on strike on January 25 , 1951 , or thereafter , dismissing,
if necessary , any person hired by the Respondents on or after that
date, and make them whole, in the manner set forth in the section
entitled "The Remedy ," for any loss of pay which they have suffered
or may suffer by reason of the Respondents ' refusal , if any, to rein-
state them.
(c) Make available to the Board and its agents all records neces-
sary for the determination of reinstatement rights and back pay due.
(d) Post at their plants in Fort Worth, Texas, copies of the notice
attached hereto and marked "Appendix A." 10 Copies of said notice,
to be furnished by the Regional Director of the Sixteenth Region,
shall, after being duly signed by the Respondents , be posted by them
immediately upon receipt thereof, and maintained by them for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted . Reason-
able steps shall be taken by the Respondents to insure that said notices
are not altered , defaced , or covered by any other material.
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order"
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order what steps
the Respondents have taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the, policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT by promises of benefit, or any other means, solicit
employees who went on strike on January 25, 1951, to abandon
their concerted activities.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist UNITED PACKING
HOUSE WORKERS OF AMERICA, CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and
to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as authorized in Section 8 (a) (3),
of the Act.
WE WILL bargain collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining units described herein with respect to rates of
pay, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining units are :
All production and maintenance employees of the City
Packing Company at the Fort Worth plant, including city
drivers, but excluding over-the-road drivers, office and cleri-
cal employees, professional employees, guards, and super-
visors as defined in the Act.
All production and maintenance employees of the Trinity
Packing Company at the Fort Worth plant, including city
drivers, but excluding over-the-road drivers, office and cleri-
cal employees, professional employees, guards, and super-
visors as defined in the Act.
WE WILL offer to all employees who went on strike on or about
January 25, 1951, or thereafter, immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
CITY PACKING COMPANY 1265
out prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may suffer as. a
result of our refusal to reinstate them upon such application.
All of our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing in UNITED PACK-
ING HOUSE WORKERS OF AMERICA, CIO, or any other labor organiza-
tion, except to the extent that this right may be affected by an agree-
ment in conformity with Section 8 (a) (3) of the Act.
Crrr PACKING COMPANY,
Employer.
By
(Representative ) (Title)
TRINITY PACKING COMPANY,
Employer.
Dated ------------------ By --------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by United Packing House Workers of America, Local 369,
herein called the Local, and an amended charge filed by the Local and United
Packing House Workers of America, CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, herein called respectively the
General Counsel and the Board, through the Regional Director for the Six-
teenth Region (Fort Worth, Texas), issued a complaint dated May 16, 1951,
against City Packing Company and Trinity Packing Company, herein called
respectively Respondent City and Respondent Trinity, alleging that the
Respondents had engaged in and were engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (1) and (5) and Section 2
(6) and (7) of the Labor Management Relations Act, 1947, herein called the
Act. Copies of the complaint, the charge and the amended charge upon which
the complaint was based, together with notice of hearing thereon were duly
served upon the parties.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondents: (1) On and after October 17, 1950, jointly and severally
refused to bargain collectively with the Union in respect to rates of pay, wages,
hours, and other conditions of employment; and (2) interrogated their em-
ployees concerning their union sympathies, activities, and- membership ;
promised and granted benefits to their employees for refraining from assisting,
becoming members of, or remaining members of, the Union ; encouraged and
caused employees to attend bargaining conferences ; unilaterally changed work-
ing conditions and solicited striking employees to return to work ; thereby
causing and prolonging the strike which occurred on or about January 25, 1951.
In their answers filed on June 5, 1951, the Respondents admitted certain allega-
tions of the complaint and denied the commission of any unfair labor practices.
At the same time, written motions were filed by the Respondents (1) for sever-
ance; (2) for dismissal of the complaint; and (3) for more definite statements
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the complaint or, in the alternative, for a bill of particulars. I reserved
decision on the motions for severance and for dismissal of the complaint. I
granted in part and denied in part the motion for a bill of particulars The
General Counsel supplied a bill of particulars.
Pursuant to notice, a hearing was held,iu Fort Worth, Texas, from June 12
to June' 16, 1951, inclusive, before W. Gerard Ryan, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner.' All the parties partici=
pated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues.
At the conclusion of the General Counsel's case-in-chief, the Respondents
moved to withdraw their motions for severance and for a bill of particulars,
which motions were granted without objection. The Respondents also moved
to withdraw their written motion to dismiss ind that the matters alleged therein
in support thereof be considered as a supplemental part of the Respondents'
answers. The motion was granted without objection. Thereupon, the Re-
spondents rested their case without calling witnesses and Inoved\for dismissal
of the complaint. That motion is disposed of in accordance with,the findings
and conclusions hereinafter set forth. The General Counsel's motion to conform
the pleadings to the proof in immaterial and minor matters was granted. The
General Counsel offered a brief oral argument. Only the Respondents have
submitted a brief.
On the entire record in the case, and from` my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Respondents are Texas corporations having their principal offices and
places of business at Fort Worth, Texas.
The Respondent City in the course and conduct of its business operations at
the Fort Worth plant during the 12-month period ending August 31, 1951, which
period is representative of all times material hereto, purchased raw materials
consisting principally of live animals valued in excess of $1,000,000, more than
50 percent of which was shipped to the Fort Worth plant from points outside
the State of Texas. During the same period, the Respondent City produced
meat products valued in excess of $1,000,000, more than 33 percent of which was
sold and shipped to points outside the State of Texas.
The Respondent Trinity in the course and conduct of its business at the Fort
Worth plant during the 12-month period ending August 31, 1950, which period
is representative of all times material hereto, purchased raw materials consisting
principally of meat, cans, and corrugated boxes valued in excess of $500,000,
more than 5 percent of which was shipped to the Fort Worth plant from points
outside the State of Texas. During the same period, the Respondent Trinity
produced meat products valued in excess of $500,000, more than 50 percent of
which was sold and shipped to points outside the State of Texas.
I find that the Respondent City and the Respondent Trinity are each engaged
in commerce within the meaning of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
United Packing House Workers of America, Local 369, and United Packing
House Workers of America, CIO, are labor organizations within the meaning of
Section 2 (5) of the Act.
2 The transcript of the record at times erroneously refers to Trial Examiner "Masoner "
CITY PACKING COMPANY
III THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1267
1. The appropriate units and representation by the Union of a majority therein
The answer of the Respondent City admitted, and I find, that all production and
maintenance employees at its Fort Worth plant. including city drivers, but exclud-
ing over-the-road drivers, office and clerical employees, professional employees,
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. The answer further admitted, and I find, that on October 16, 1950,
the Union teas certified by the Board as the exclusive representative for the
purposes of collective bargaining of all employees in the foregoing unit; and,
at all times since, has been the exclusive representative of all employees
described in said unit for the purposes of collective bargaining, in respect to
rates of pay, wages, hours, and other conditions of employment.
The answer of the Respondent Trinity admitted, and I find, that all production
and maintenance employees at its Fort Worth plant, including city drivers, but
excluding over-the-road drivers, office and clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act. The answer further admitted, and I find, that on October
17, 1950, the Union was certified by the Board as the exclusive representative
for the purposes of collective bargaining of all employees in the foregoing unit ;
and, at all times since, has been the exclusive representative of all employees
described in said unit for the purposes of collective bargaining, in respect to
rates of pay, wages, hours, and other conditions of employment -
2. Introduction
The Respondents occupy a building in Fort Worth in which their operations
are carried on. The Respondent City is engaged in slaughtering animals and
occupies the first floor and part of the second floor. The Respondent Trinity
is engaged in canning meat and occupies part of the second floor Following
the Board's certifications on October 16 and 17, 1950, that the Union was the
exclusive bargaining representative for the employees of the Respondents in
the appropriate units already described, negotiations commenced with a pre-
liminary, introductory conference on October 20, 1950, and continued through
a series of meetings, estimated from 12 to 20, at various dates until January 24,
1951? No agreement having been reached with the Respondents, the Union called
a strike on January 24, 1951, to be effective the day following. The strike of
the Respondents' employees occurred as announced and was still in effect at the
time of the hearing.
The sole authorized bargaining representative for both Respondents was their
attorney, Dexter W. Scurlock. The union bargaining committee for the em-
ployees of the Respondent City was A. J. Pittman, A. J. Shippey, Frank J. John-
son, J. R. Saunders, R. D. Jones, Willie Clarence (Tex) Alexander, Raymond
Martin, and J. O. Alexander. The grievance committee representing the em-
2 One bargaining conference iNas held on November 8, 1950, with respect to employees
of the Respondent Trinity. After discussion of the clauses contained in the Union's pro-
posed contract which the Respondent Trinity had received before the meeting, it was
mutually understood there would be no further negotiations until "something was worked
out" with respect to a contract with the Respondent City and, thereafter, no further
meetings were had. The following portions of this report, except where otherwise
indicated, refer to the situation with respect to the Respondent City
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of the Respondent City was the same as the bargaining committeee. The
union bargaining committee for the employees of the Respondent Trinity was W.
L. McMahon, Charles Stewart, Nancy Hutto, Lucille Booth, and Betty Sue Haley.
3. The refusal of the Respondent City to bargain
The negotiation sessions between October 20, 1950, and January 24, 1951,
averaged 2 hours and sometimes lasted 2% to 3 hours. The union submitted
one proposed contract in writing which the Respondent City received prior to
the October 27 meeting. The Respondent City submitted one written counter-
proposal in November and a second counterproposal in December 1950. The
-Union submitted no written counterproposal. At no time did the Respondent
City ever refuse, when requested, to discuss with the Union, clause by clause, the
-provisions of the various proposals.
While tentative agreement had been reached on several items, other than
wage increases, the Respondent City always withheld final agreement on any item
,so that up to the final meeting on January 24, 1951, the net result of all the
meetings was that the parties were as far apart, if not farther, as when they
started. Such tentative agreement is indicated in the second set of counter-
-proposals submitted on December 5, 1950, wherein the Respondent City proposed
kertain concessions with respect to vacations with pay, seniority provisions
(omitting its previous proposal which limited seniority rights to employees under
50 years of age), and leaves of absence without pay ; all of which it had pre-
viously rejected. In January 1951, when the Union sought from Scurlock final
agreement on those matters which had been tentatively agreed upon in confer-
ences with his law partners during the absence of Scurlock, he replied that he
was willing to listen to all the union committee had to say but they were wasting
their time in'discussing such matters,'unless they agreed on the amount of money
-for wage increases.
Not only was the Respondent City adamant in refusing to bargain or negotiate
.concerning wages but it failed after several requests to offer any written data
,containing figures or prices as the basis for its incentive wage plan. As late
as January 19, 1951, during oral discussion of the incentive plan, the Respondent
-City was asked for its scale of prices and replied that it had no price plan. But
on January 24, the Respondent City produced its incentive pay plan which then
revealed for the first time the pay rates it was using in determining the money
to, be paid for slaughtering and boning animals and how much would be payable
thereunder if a certain number of animals were slaughtered. It is also signifi-
cant that wage and price controls became effective on the following day. Thus
the Union was presented with a plan which was to be effective on the very day
when wage and price controls were effective, without having had any prior
.opportunity to examine and note its objections or suggestions. The attitude
of opposition to bargaining with the union committee was discernible by the
proposal of the Respondent City that the incentive plan be discussed by company
officers directly with the employees present at the meeting of January 24,8 sep-
arately and apart from their lawful representatives ; thus attempting to go over
the heads of the representatives directly to the employees in order to disparage
the bargaining representatives and undermine their prestige or authority.
It is clear that an impasse had been reached on the question of wage increases.
The Union was adamant that it would not consent to any incentive plan that
was not preceded by a general wage increase for all employees. The Respondent
City was equally insistent that any wage increases would have to result from
Some of whom had been invited to the meeting by the Respondent City.
CITY PACKING COMPANY 1269
an incentive wage plan, with the exception of small hourly increases for non-
productive employees who would not be covered by the incentive plan. While
the Board has recognized that wage increases can, unilaterally, be made effective
once the parties have reached, as a result of good faith bargaining, an impasse
in the bargaining negotiations,' the opposite result is reached where the impasse
occurs where good faith bargaining is lacking. In the instant case, the impasse
may not have been reached had the Respondent bargained in good faith as
lawfully required.' The responsibility for the impasse must be charged to the
Respondent. I have considered the facts that the Union never submitted any
written counterproposals ; that it refused to go into discussion of the Respondent
City's amount of profit as a reason for its asserted inability to pay ; that on
January 24, 1951, the Respondent City offered its books for the purpose of an
audit by the Union which offer the Union did not avail itself of ; that the Com-
pany met often with the union representatives and never refused, upon request,
at any meeting, to discuss clause by clause the matters at hand ; that the Com-
pany stated in early December there should be a meeting to conclude a contract
before the holidays ; and that, in January, it stated to the Union that an agree-
ment should be reached on wages before wage and price controls became
effective. While such appear at first to be plausible reasons to support the
appearances of good faith, upon examination they prove to be not conclusive.
Underlying all the negotiations, on and after December 7, 1951, there was ever
present the Respondent City's insistence upon its unilateral control of the
incentive wage plan (expressed in its second counterproposal as not to be the
subject of either negotiations or bargaining). Its delay, after several requests,
to furnish written data necessary for intelligent discussion of the merits of
the plan ; its refusal to make final the agreements tentatively arrived at, apart
from the subject of wage increases ; and its unilateral inauguration of rules
(including grievance procedures) during the course of negotiations are all acts
relied upon by the Respondent to remove from the sphere of collective bargaining
the subject of wages. My examination and evaluation of that conduct leads
me to conclude that the Respondent has not participated in such a manner as
to make a collective bargaining agreement reasonably possible. Although the
Respondent City does not have to capitulate or make concessions,` its over-all
attitude and position must reflect a sincere endeavor to make collective bar-
gaining work. While it is not a violation of Section 8 (a) (5) to propose, in
good faith, unilateral control over a particular subject,' such proposal cannot
be maintained to the point of impasse B
Delay in furnishing written data used as the basis for establishing the incentive
pay plan also is subject to the test of good faith. Since the Respondent City had
a legal duty to furnish such wage data in the discharge of its obligation to
bargain,9 its delay in supplying it until January 24, 1951, may be viewed legiti-
mately as a significant part of its entire course of conduct in determining whether
the Respondent has exercised good faith in its bargaining negotiations with the
Union.
The Respondent City's withholding acquiescence from matters of lesser impor-
tance than the wage issue when tentative agreement had been indicated and the
unilateral posting of rules (including grievance procedures) withdrawing certain
+ W. W. Cross & Company, Inc., 77 NLRB 1162.
See N. L. R. B v. Andrew Jergens Company, 175 F. 2d 130 (C. A. 9).
Reed & Prince Manufacturinq Company, 96 NLRB 850.
P Alabama Marble Co ., 83 NLRB 1047 ; Standard Generator Serv. Co., 90 NLRB 790.
8 American Nat. Ins Co., 89 NLRB 185.
9 Leland •Gtfford Company , 95 NLRB 1306 and cases cited
998666-vol . 98-53-81
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges theretofore possessed by the employees before the advent of the Union
indicate to me its basic unwillingness to accept the principle of collective
bargaining."
T conclude therefore, upon the basis of the entire record, that the Respondent
City exhibited bad faith in the bargaining negotiations and, accordingly, find
that at all times on and after December 5, 1950, the Respondent City refused
to bargain in good faith with the Union, thereby violating Section 8 (a) (5) and
Section 8 (a) (1) of the Act. Further support to my conclusion with respect
to the Respondent City's lack of good faith in the bargaining negotiations is
found in the conduct of Superintendent Walthal and salesman White, as found
infra, for which the Respondent City bears responsibility, in personally soliciting
strikers to return to work and, particularly, Walthal's statement indicating that
the Respondent City had no intention of signing a contract with the Union.
4. The refusal of the Respondent Trinity to bargain
in view of the fact that on November 8, 1950, Scurlock, as sole bargaining
representative for the Respondent City and the Respondent Trinity, agreed with
the Union to postpone collective bargaining with respect to the Respondent
Trinity until "something was worked out" with respect to a contract with the
Respondent City, and since I have found above that the Respondent City did
not bargain in good faith with the Union, I find that the stipulation had force
and effect only so long as the Respondent City bargained in good faith and that
when the Respondent City refused to bargain in good faith the stipulation became
ineffectiN e. I therefore find that the Respondent Trinity failed to bargain in
good faith with the Union on and after December 5, 1950, thereby violating
Section 8 (a) (5) and Section 8 (a) (1) of the Act. Further support to that
finding is found in the conduct of Foreman Laughlin for which the Respondent
Trinity bears responsibility in personally soliciting strikers to return to work
as found infra.
I further find that the strike of the Respondents' employees which occurred
on January 25, 1951, was a strike in protest of the unfair labor practices found
herein, and was prolonged by the unlawful conduct of the Respondents set forth
infra. -
B. Interference, restraint, and coercion
1. Interrogation and promises of benefit
On November 3, 1950, the grievance committee of the Union sought to have
a meeting with Sol Rosenthal, the president of the Respondent City. Frank
Johnson, an employee of the Respondent City and a member of the committee,
asked Sol Rosenthal to meet the committee. Rosenthal refused to see the
committee but did see Johnson in his office, during which time Rosenthal inquired
what Johnson's position in the union was; to which Johnson replied that he was
chairman of the Local and a member of the grievance and bargaining com-
mittees. Rosenthal then asked Johnson if that would interfere- with Johnson
accepting a better job if it were offered, to which Johnson answered that it
would not as he could always resign those positions at any time. Later that
same day, Johnson sought out Robert Rosenthal, who also was an executive
of the Respondent City, to see if he would not prevail upon his father, Sol
Rosenthal, to see the grievance committee. During their conversation, and
following mention by Robert Rosenthal about the possibility of settling, with
101n its first counterproposal , the Respondent City had substantially accepted the
Union's proposed grievance procedure.
CITY PACKING COMPANY 1271
Johnson's help, the questions pending between the company and the Union,
Robert Rosenthal explained to Johnson that he intended to reorganize the man-
agement of the Company and told Johnson that Johnson had a great part to
play in that if he would accept it and work with him. Robert Rosenthal con-
tinued to state that he intended to put Johnson into a position where he could
have a good job in the future, after working up to it gradually from foreman
of the killing floor to some higher position where Johnson would have time to
study the other departments and thus qualify himself for still higher promotion.
Rosenthal cautioned Johnson, however, that all that would take time and not
to expect anything then.
Approximately 1 week before the strike on January 25, 1951, Granville L.
Tomlin, an employee of the Respondent City, was told by his foreman that Robert
Rosenthal wanted to see him at the office Upon reporting to the office, Rosenthal
directed Tomlin to Scurlock, who was across the street in the company's main
office. Scurlock addressed Tomlin by inquiring, "What in hell are they [the com-
mittee] going to do anyway?" Tomlin replied that he had no knowledge as to
what the committee was going to do, because he was not a member of the com-
mittee and had never attended a meeting Scurlock then asked Tomlin if there
was anyone on the killing floor who was qualified to be its boss and whether
Tomlin could "handle it." Tomlin replied that he certainly could handle it, but
that he would not consider it. Scurlock then told him that the job was not being
offered to him and Tomlin replied, "\Vell, I am just beating you to it. I am
just telling you in advance that I wouldn't have it."
During the last part of November or early December 19.50, Raymond A.
Martin, an employee of the Respondent City and a member of the union com-
mittee, was told by his foreman that Scurlock wanted to see him outside the plant
in front of the office. Scurlock informed Martin he had come to take Martin to
San Antonio" Martin declined and inquired why Scurlock had chosen him
whereupon Scurlock told him that he was about the only man to whom he had
talked that seemed to have any sense at all. Martin asked Scurlock why he
did not take one of the foremen and Scurlock explained that he wanted to take a
beef-boner. When Martin pointed out that there was a foreman who was a
beef-boner, Scurlock turned away and left. Rosenthal then stated to Martin :
"Why don't you cooperate with him, because it might mean a whole lot to you :"
Martin replied he did not see how he could go because of some personal business
but promised to let Scurlock know the next day. The following day, Martin
informed Rosenthal he would not go with Scurlock.
By the foregoing acts of interrogation and promises of benefits, I find that the
Respondent City interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by the Act, thereby violating Section 8 (a) (1)
of the Act.
2. Encouraging employees to attend bargaining conferences
The bill of particulars sets forth one occasion, namely, January 24, 1951, on
which the General Counsel claims the Respondents encouraged employees to
attend bargaining conferences. In the past, employees who were not members
of the committee had attended some bargaining conferences at the invitation
of the union committee whose purpose in having them there was that they could
see for themselves what occurred at the meetings. At one meeting Scurlock in-
quired who the nonmembers of the committee were and the committee told him.
It appears from the testimony of Tomlin that Scurlock had spoken of going to San
Antonio with Martin and employee Ferguson, there to obtain, if possible, certain data that
might be helpful in arriving at a basis for a piecework or incentive pay plan.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They were allowed to stay without objection. There were at least two meetings
where a large number of employees were present and took charge of the conversa-
tion and expressed themselves in many particulars to Scurlock. On January 24,
1951, Robert Rosenthal approached employee Tomlin who was at work on the
killing floor and told him that he and Sol Rosenthal and a few more were going
to be at the meeting that night and that he (Robert Rosenthal) would like Tomlin
to be present. Tomlin, who was not a member of the bargaining committee, told
him that he would think it over, but did not go to the meeting. On the same day,
the foreman told employee Ferguson that Robert Rosenthal wanted to see him in
the office. When Ferguson arrived in the office, Rosenthal told him he wanted
him to attend the meeting that night. Ferguson protested that he was not on
the bargaining committee and would prefer not to go. Rosenthal informed him
that he had talked to the Government conciliator and it would be all right for
Ferguson to attend. Ferguson went to the meeting. On the same day, Travis
Bush, an employee of the Respondent City but not a member of the bargaining
committee, was told by his foreman that Robert Rosenthal wanted to see him in
the office. Rosenthal told Bush there would be a meeting that night and invited
him to attend. Bush told him he would try to be there. Rosenthal told him how
he could get to the meeting and Bush did attend the meeting."
While the background of previous attendance of employees at bargaining con-
ferences suggests that no strict formality was observed as to the right of those
present to attend the conferences, nevertheless, in view of the fact that the Re-
b"pondent City proposed at the outset of the meeting that night that the employees
and officials of the Respondent City confer together outside the presence of the
union bargaining committee (as already referred to supra) I conclude that the
invitations extended by the Respondent City to its employees who were not mem-
bers of the committee constituted an attempt by the Respondent City to insure the
presence of employees at the meeting with whom management could confer,
apart from the union bargaining committee. That such plan did not materialize
does not lessen the fact that the invitations were part of a plan to interfere with,
restrain, and coerce the employees in the exercise of their lawful rights ; and the
Respondent City thereby violated Section 8 (a) (1) of the Act.
3. Unilateral change of working conditions
On or about December 6, 1950, the Respondent City posted rules changing
working conditions of its employees, without negotiating with the Union con-
cerning them.. The rules also included grievance procedures. In its first coun-
terproposal, the Respondent City stated that the Union's proposed clauses on
adjustment of grievances was acceptable, and then, on December 6, without
notice to the Union, posted the rules, including grievance procedure at variance
with those it had indicated were acceptable. Some of the rules changed workinW
conditions and instituted new ones. The practice of smoking, use of intoxicating
liquor, assignment of wages, or transaction of private business, during working
hours, were forbidden. It is not so much what the rules themselves contain
as the timing of their posting. It came at a time when negotiations were being
held with the Union. Certain privileges were thus withdrawn at a time when
it would appear to the employees to be a direct result of the Union entering upon
the scene. They could compare their position before the advent of the Union
when they had such privileges and their position subsequent to the advent
of the Union when the privileges were withdrawn. It was a subtle way of
12 Robert Rosenthal also asked employee Willie (Tex) Alexander to attend the meeting
but Alexander was a member of the bargaining committee.
CITY PACKING COMPANY 1273
penalizing them for their union advocacy. In the circumstances of this case,
the withdrawal of previous privileges was likely to have been construed by the
employees not only as an expression of disapproval by the Respondent of the
Union's advent but as an act distinctly penalizing them for their union member-
ship, sympathies, or activities I accordingly find that the unilateral changing
of working conditions during the time when the Respondent City and the Union
were negotiating for a contract, interfered with, restrained, and coerced the
employees in the exercise of the rights guaranteed in the Act and constituted a
violation of Section 8 (a) (1) of the Act.
4. Soliciting strikers to return to work
On or about May 1, 1951, employees Valentine Keating and Louis Johnson who
were out on strike were asked by the Respondent City's superintendent (Walthal)
to return to work. Walthal offered them an increase in pay from their former
pay of $1.35 per hour to $1.481/2 per hour. Neither accepted the offers. Keating
then asked Walthal why the Company did not get the whole thing settled so
that all could return to work, to which Walthal replied that he did not think
the Company would ever sign a contract with the C. I. O.
On or about May 25, 1951, salesman Smith telephoned to employee Willie
(Tex) Alexander, who was one of the Respondent City's employees participating
in the strike, and asked him to return to work. Smith promised him his pay
would be $1.48% per hour compared with his former rate of $1.35 per hour.
Alexander refused to return to work.
Approximately 1 month after the strike, Hank Laughlin, a foreman for the
Respondent Trinity, approached three or four employees who were on strike and
inquired if they wanted to return to work. They informed him that they did not.
He then asked Dorothy M. Rogers, individually, if she wished to return to work
and she replied in the negative. Sometime following, in May or June 1951,
Rogers telephoned to Laughlin and asked if she could return to work. She
returned to work for 1 day and received 85 cents per hour from the Respondent
City compared to 75 cents per hour which she had received from the Respondent
Trinity before the strike ; and, in addition, the Respondent City provided trans-
portation for her to and from work.
As the strike was caused by the Respondents' unfair labor practices and the
strikers could not therefore be legally replaced, the personal solicitation by the
Respondents of the strikers to return to work was an independent violation of
Section 8 (a) (1)'u
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondents described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices,
I shall recommend that they cease and desist therefrom and take certain
affirmative action which will effectuate the policies of the Act.
13 N. L. R. R, v. Mackay Radio d Telegraph Co , 304 U. S. 333 ; Reed d Prince Manufac-
turing Company , supra.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondents have refused to bargain collectively with
the Union, I shall recommend that the Respondents cease and desist therefrom,
and also that upon request they bargain collectively with respect to wages,
hours, and other terms and conditions of employment, and if understanding is
reached embody such understanding in a signed contract.
The scope of the Respondents' illegal conduct as found above discloses a pur-
pose to defeat self-organization among their employees. Because of the Re-
spondents' unlawful conduct and their underlying purpose, I am convinced that
,the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed and that danger of their commission in the future
is to be anticipated from the Respondents' conduct in the past. The preventive
purposes of the Act will be thwarted unless the recommendations are coextensive
with the threat. In order, therefore, to make effective the interdependent
guarantee of Section 7, to prevent a recurrence of unfair labor practices and
thereby minimize industrial strife which burdens and obstructs commerce and
thus effectuate the policies of the Act, I shall recommend that the Respondents
cease and desist from in any manner infringing on the rights guaranteed in
Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case,
I make the following :
CONCLusIONs OF LAW
1. United Packing House Workers of America, Local 369, and United Packing
House Workers of America, CIO, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent City at its
Fort Worth plant, including city drivers, but excluding over-the-road drivers,
office and clerical employees, professional employees, guards, and supervisors
as defined in the Act, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9'(b) of the Act.
3. All production and maintenance employees of the Respondent Trinity at
its Fort Worth plant, including city drivers, but excluding over-the-road drivers,
office and clerical employees, professional employees, 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.
4. United Packing House Workers of America, CIO, was on October 16 and
October 17, 1950, and at all times thereafter has been, the exclusive representa-
tive of all of the employees in the above appropriate units, within the meaning
of the Act.
5. By interfering with, restraining, and coercing their employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. By refusing on December 5, 1950, and at all times thereafter, to bargain
collectively with United Packing House Workers of America, CIO, as the ex-
clusive representative of their employees in the aforesaid appropriate units, the
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (5) 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.
[Recommendations omitted from publication in this volume.]