Clinton Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1971

191 N.L.R.B. 879 (N.L.R.B. 1971)

CLINTON PACKING CO., INC. 879
Clinton Packing Co., Incorporated and Amalgamated 3. Delete Conclusion of Law 8.
Meatcutters & Butcher Workmen of North
America, Local Union No. 576 . Case 17-CA-4416
July 1, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On March 11, 1971, Trial Examiner Bernard J. Seff
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision,' the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings,3 conclusions, and recommendations4 of the
Trial Examiner, as modified below.
AMENDED CONCLUSIONS OF LAW
1. Delete Conclusions of Law 4(a) and 4(b), and
reletter 4(c) and 4(d) as 4(a) and 4(b), respectively.
2. Add the following to the end of Conclusion of Law
6: "and by threatening to close the plant if the Union
pressured it to reinstate these employees."
' The Respondent, although given an opportunity by the Trial Examiner
to secure legal counsel, chose to be represented at the hearing by its vice
president Subsequent to the hearing counsel was secured and filed the
exceptions and brief herein. The Respondent has requested oral argument
This request is hereby denied as the record, the exceptions, and the brief
adequately present the issues and the positions of the parties.
3 The correct citation to the case before Trial Examiner Samuel M
Singer, issued September 8, 1970, should be Case 17-CA-4258
In the second paragraph of the Remedy the Trial Examiner inadvert-
ently stated that Davis was reemployed as a foreman The Decision and the
record reveal that Davis was reinstated to his former position, and after two
weeks was promoted to foreman
While we find that the conduct of the Respondent noted in the Trial
Examiner's Conclusion of Law 4(b) is violative of the Act, we find that such
conduct does not constitute a refusal to bargain. We agree with Conclusion
of Law 4(d) that, by his statements to Snider and Quick on December 9,
Davis made an implied unilateral promise of a wage increase in violation of
the Act. We will modify the Conclusions of Law and the Order accordingly.
We do not adopt the remedy of the extension of the bargaining period
since the Respondent is found to have refused to bargain in violation of the
Act, and is ordered to bargain upon request and to embody any understand-
ing reached in a signed agreement.
191 NLRB No. 140
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that the Respondent, Clinton Packing Co., Incor-
porated, Clinton, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order as so modified:
1. Substitute the following for paragraph 1(b):
"(b) Refusing to bargain, upon request, with Amal-
gamated Meatcutters & Butcher Workmen of North
America, Local Union No. 576, as the exclusive repre-
sentative of the employees in the following appropriate
unit, by admitting that it would meet but would not
reach agreement until ordered to do so by the Board
and the circuit court, and by attempting to undermine
the Union by having its employees deal directly with it
concerning wage increases:
All production and maintenance employees em-
ployed by Respondent at its plant in Clinton, Mis-
souri, excluding office clerical employees, truck-
drivers, guards and supervisors as defined in the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Upon request bargain collectively with the
above-named labor organization as the exclusive repre-
sentative of all the employees in the above-described
appropriate unit, and embody in a signed agreement
any understanding reached."
3. Substitute the attached notice for the Trial Ex-
aminer's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before a Trial Examiner of the National
Labor Relations Board, at which all sides had the
chance to give evidence, it has been decided that we,
Clinton Packing Co., Incorporated, violated the Na-
tional Labor Relations Act, as amended, and we have
been ordered to post this notice.
Among the rights which the National Labor Relations
Act gives you, as an employee, is the right to bargain
collectively through a representative of your own
choosing. Accordingly, we hereby assure you that:
WE WILL NOT refuse to bargain with Amal-
gamated Meatcutters & Butcher Workmen of
North America, Local Union No. 576, as the ex-
clusive representative of the employees in the fol-
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing appropriate unit , by admitting that we
would meet but would not reach agreement until
ordered to do so by the Board and the circuit
court , or by attempting to undermine the Union
by dealing directly with employees concerning
wage increases:
All production and maintenance em-
ployees employed by us at our plant in Clin-
ton, Missouri, EXCLUDING office clerical
employees , truckdrivers , guards and super-
visors as defined in the Act.
WE WILL NOT threaten to close the plant if the
Union attempts to have us reinstate employees
whom we discharge.
WE WILL NOT attempt to undermine the Union
by bargaining directly with our employees con-
cerning wage increases or any other benefits.
WE WILL NOT permit employees to use our
phone at our expense to communicate with the
Board urging it to cease its prosecution of unfair
labor practice cases which may be brought against
us.
WE WILL immediately offer to reinstate Paul
Quick to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges.
WE WILL pay Paul Quick and James Davis the
money they lost as a result of their discriminatory
discharge with interest at 6 percent.
WE WILL, upon request , bargain collectively
with the above-named labor organization as the
exclusive representative of all the employees in the
above-described appropriate unit , and embody in
a signed agreement any understanding reached.
WE WILL NOT in any other manner interfere
with , restrain, or coerce our employees in the exer-
cise of their rights to self-organization , or to form,
join or assist the Union , or any other labor organi-
zation , to bargain collectively through representa-
tives of their own choosing , to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from engaging in any or all such activities.
CLINTON PACKING
CO., INCORPORATED
(Company)
Dated By
(Representative) (Title)
We will notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act.
This is an official notice notice must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 610, Federal Building, 601 East 12th
Street, Kansas City, Missouri 64106, Telephone 816-
374-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner: This proceeding was
heard before me in Clinton, Missouri, on December 17, 1970.'
The complaint which was issued on October 29 was based on
a charge filed on August 26. The complaint was amended at
the hearing and alleges that Respondent violated Section
8(a)(1), (3), and (5) of the Act. All parties appeared and were
afforded full opportunity to be heard and to examine and
cross-examine witnesses . Respondent was offered additional
time to meet the amended complaint but this offer was de-
clined. The General Counsel filed a brief which was received
by the Board on January 11, 1971. Upon the entire record and
my observation of the demeanor of the witnesses' I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company operates a meatpacking plant at Clinton,
Missouri . It annually ships to purchasers in other States, and
receives from vendors in other States , goods and services
valued in excess of $50,000 . The Company is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act. Amalgamated Meatcutters & Butcher Work-
men of North America, Local Union No. 576, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
' All dates are in 1970 unless otherwise indicated.
I All the evidence proffered by the General Counsel was supplied by the
Union's representative, Theodore Wolff, the alleged discriminatees, James
Davis and Paul Quick, and Respondent's employees, Julious LeClaire and
John Snider (incorrectly spelled Snyder in the previous cases enumerated
under Background , supra). The General Counsel 's witnesses impressed me,
apart from minor inconsistencies, with their demeanor , candor, and appar-
ent truthfulness . In most instances their testimony was mutually corrobora-
tive, and I credit it. The only witness for Respondent was Manager and Vice
President Clarence Turner. He disputed the testimony of the General Coun-
sel's witnesses, but I discredit the evidence adduced by him because of his
contradictions , improbabilities , and his obvious interest in the outcome of
the, proceedings Wherever some but not all of the testimony has been
credited, my determinations were based on Judge Learned Hand's observa-
tion- "It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it ; nothing is more common in all kinds
of judicial decisions than to believe some and not all." (NL.R.B. v. Universal
Camera Corporation, 179 F.2d 749, 754 (C.A. 2, 1950).
CLINTON PACKING CO., INC. 881
II. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Official notice is taken of the fact that Respondent has been
involved in a number of prior cases with the National Labor
Relations Board as follows: On December 16, 1969, in Case
17-RC-6198 the Board certified the Amalgamated Meatcut-
ters & Butcher Workmen of North America, Local Union
No. 576, as the bargaining representative in a unit consisting
Of.
All production and maintenance employees employed
by Clinton Packing Company, Clinton, Missouri, at its
plant in Clinton, Missouri EXCLUDING office clerical
employees, truckdrivers, guards and supervisors as
defined in the Act.
On March 31, 1970, in Case 17-CA-4103 Trial Examiner
David E . Davis found that Respondent had violated Section
8(a)(1) and (3) of the Act. His remedial order included, inter
alia, the requirement that Respondent reimburse John Sny-
der (correct spelling John Snider), Charles Benson, Bruce
Palmer, Paul Quick, and J. A. LeClaire for the period of their
discriminatory layoff and the payment to them of any loss of
earnings; reinstatement of Raymond Baumgarden and Don-
ald West with reimbursement of any loss of earnings suffered
by them by reason of the discrimination against them.
The names of the discriminatees are set forth above because
in some instances they represent the same men involved in the
instant case.
The Board issued its pro forma affirmance of Case 17-CA-
4103 on April 30, 1970.
Upon the Respondent's failure to comply with the Board
order the National Labor Relations Board petitioned the
Eighth Circuit Court of Appeals for Summary Judgment of
the said order. The court, in Case 20341 dated June 26, 1970,
issued its Judgment Enforcing the Board Order.
On September 8, 1970 , Trial Examiner Samuel M . Singer
issued his decision in Case 17-CA-4528 finding that Re-
spondent violated Section 8(a)(1) and (5) of the Act.
The Board issued a pro forma affirmance of this decision
on October 13, 1970.
In all of the prior proceedings and again in the instant case
Respondent was not represented by counsel and declined the
opportunity afforded him to secure an attorney.
The issues presented by the case are: Whether the dis-
charges of employees James Davis and Paul Quick con-
stituted violations of Section 8(a)(3) of the Act; whether the
Respondent's threat to close the plant down if the Union
continued to push for the reinstatement of Davis and Quick
constituted a violation of Section 8(a)(1) of the Act; whether
the Respondent attempted to bypass the Union as the collec-
tive-bargaining representative of the employees by dealing
directly with them in violation of Section 8(a)(5) of the Act;
whether the Respondent induced employees to repudiate the
Union in violation of Section 8(a)(1) of the Act.
The Company operates a small plant in Clinton , Missouri,
where it employs from 8 to 12 employees . It is engaged in the
business of slaughtering and boning hogs.
B. Alleged Unfair Labor Practices
On the first day the men were back at work after their
vacation, Union Representative Wolff had a meeting with
them, July 6, in,a motel located in Clinton. The men had
processed 74 large boars and were weary and tired. Wolff
testified that the men "asked if there was any way they could
slow the work down-could they have a slow down at the
plant to cut the work down." Wolff replied,
I told the boys at that time that this local union had
never been and would not be a party to a slowdown. All
I asked them was to put in a fair day's work for the pay
they received.
The Union and the Respondent had previously had several
meetings in an attempt to reach agreement on a contract. The
last proposal made by them had been turned down and there-
fore at the July 6 meeting Wolff asked the employees what the
average number of hogs slaughtered and boned per day was
in order that he could present a wage proposal predicated on
a piecework basis. One of the Company's employees, Larry
Campbell, had been keeping a record on a daily basis of the
production and attendance of the employees. This was being
used by the group to prove to Turner that their production
had maintained a fairly constant level. More particularly the
record kept by Campbell served to refute the statements made
by Turner who repeatedly charged that the employees were
engaging in a slowdown.
On July 9 Turner met with Wolff in Clinton. This time
Turner seemed agitated and he accused Wolff of "perpetrat-
ing a deliberate slowdown" among the employees on Tues-
day, July 7. Wolff told Turner that the Union would have no
part of a slowdown and that he (Wolff) had informed the
employees that it was their responsibility to give a fair day's
work for the pay they received. When Wolff asked Turner
about the production on July 7 Turner responded that the
men had only boned 22 or 27 hogs in the morning and only
killed 35 hogs in the afternoon. Turner felt that the men
should have accomplished more work that day. Wolff asked
how many people were at work on July 7 and Turner replied
that Employee Quick was off because he had been cut by a
boar 's tusk and required stitches and medication . He also said
that another employee, Lester Baumgarden, was not at work
that day. Wolff explained that there were only six production
employees present. The normal complement of production
employees on this day was eight but two were not present and
therefore the amount of production which the Company
could expect to be accomplished on the day in question was
diminished by the fact that two of the regular men were not
at work.
On July 10, Davis and Quick reported for work as usual
at about 6:45 a.m. During the course of the morning neither
felt well: Davis complained of arthritis in his hips which he
ascribed to the fact that he was standing on a wet concrete
floor and walking in and out of the refrigerator; Quick said
that he had a headache. Both Davis and Quick each remarked
to employees John Snider and Julious LeClaire that they were
not feeling well and that if they did not feel better they would
leave the job and go home at about noon. Quick and Davis
spoke to a cleanup man, Bruce Palmer, and requested that
when he went to the office he should tell Turner that both
men were not feeling well and that if they were not better they
would not be at work that afternoon. Palmer was not pro-
duced as a witness and it is not denied on the record that he
did in fact deliver the messages given him to Turner. At
approximately 11 or 11:30 a.m. Davis and Quick saw Turner
in his office and explained that they had gone there to get their
paychecks. Turner gave both of the men their checks and
then he said he would not stand for a slowdown. Quick and
Davis denied that any slowdown had taken place in the plant.
Davis also said that he had not been off sick much in the past
year and he testified that Turner replied that if the employees
kept it up he would fire them. Quick testified that Turner
made a remark that things were going to be changed insofar
as people taking off sick and that when Quick and Davis got
back to work on Monday, July 13, some changes were going
to be made. Turner did not tell either Davis or Quick on July
10 that he intended to fire them.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later, on July 10 , Turner called Wolff to complain that
Davis and Quick had left work saying they were not feeling
well and so far as Turner was concerned this was an indica-
tion to him of a union plot to engage in a slowdown which
had been in progress all week and which he, Turner, had
discussed with Wolff the night before . At this time Turner
told Wolff he was going to discharge both Davis and Quick.
Wolff asked him to reconsider this decision and ventured the
belief that because Quick had been cut by a boar 's tusk he had
probably received a tetanus shot and this could have made
him unwell. Shortly after this conversation with Turner,
Wolff spoke to Davis on the phone and asked him why he left
the plant. Davis explained that he felt arthritis in his hips was
causing him discomfort and therefore he left work in the
middle of the day. No contact was made with Quick because
he had no telephone and Wolff had no way of getting in touch
with him.
On July 13 Davis and Quick reported to work at their usual
time, 6:45 a.m., and were in the locker room getting ready to
go to work when Turner came in, gave them their checks, and
said he could not use them any longer . Turner told Davis that
he was discharged because his reason for leaving work was
inadequate . At approximately 10 or I1 o'clock that morning
Davis called Wolff and notified him that he and Quick had
been discharged.
Wolff and the union attorney, Robert Kimbrough, met
with Turner in his office at the plant late in the day on August
19. Those present at this meeting consisted of Kimbrough,
Wolff, Turner, and an employee , Gary Palmer, who was
employed in the office and who is not included in the
production and maintenance unit. Wolff testified that the
purpose of this meeting was the attempt on the part of the
Union to request Turner to reinstate Davis and Quick and
also to make an effort to set up another bargaining session
with the Company . During the course of this meeting it was
testified without refutation by Turner that Turner told Kim-
brough and Wolff:
If we continue to push the issue of reinstating Quick and
Davis he would shut the plant down.
Wolff then testified:
In regards to meeting or setting up a meeting for negotia-
tions Mr. Turner 's reply was that he would meet with us
at any time but it wouldn 't do any good so far as a
contract was concerned until the National Labor Rela-
tions Board of St. Louis (the Circuit Court of Appeals
in St Louis) which he was referring to the Federal Court
told him what to do but we went ahead and set up the
meeting for August 24, Wolff continued by saying that
so far as Campbell's production records were concerned
Turner said this was also part of the Union 's plot to slow
down production ; Turner said Campbell's records were
unreliable and the only reliable records were kept by the
Company. If Campbell persisted in keeping these things
he would be the next to go.
The next meeting took place on August 24 in the Safari
Motel which is located in Clinton . The Union was repre-
sented at this meeting by Attorney Kimbrough , Wolff, and
two production employees , Campbell and Snider. During the
course of this meeting the Union again requested that Turner
reinstate Quick and Davis., This topic came up a,number of
times' during the meeting. Turner again replied that if the
Union kept pressing him to reinstate these two employees he
was going to shut the, plant down . Once again when the
discussion turned to production , Turner reiterated that the
only reliable production records were kept by the Company
and if Campbell did not quit his recordkeeping he would be
the next employee to be fired . In this connection it should be
noted that Wolff testified he did not request Turner to
produce company records because he thought such a request
would be fruitless . Throughout the meetings held with
Turner he never offered to produce company production
records. It should also be noted that in the hearing room
when the Trial Examiner asked Turner if he had official
production records with him he said he did not have those
records with him.
Wolff went on to say that Turner again stated , "We would
meet we would discuss but he wasn't going to do anything
until ordered to do so by the Board and the Federal Court in
St. Louis."
At the conclusion of Wolff 's testimony Turner was asked
if he had any cross-examination . He said he did but his
"cross-examination" consisted not of questions directed to
Wolff but of a speech.'
The record shows that in the course of Turner 's remarks
while he was "cross-examining" he stated:
Mr. Wolff, you have testified several times here that
I said I would close the plant down if you didn't get
Kimbrough off my back or forced the issue of taking
Davis and Quick back . I believe and I think the words
I used was (sic) "If you are going to tell me how many
employees I must hire then we may as well close down."
Mr. Kimbrough said , "You are going to take those two
people back ." I said , "Oh, you can get rid of the other
people who replaced them?" I had already told him I
had hired people to replace them and I said "If you are
going to tell me how many people to hire I'm going to
close down."
I regard Turner 's denial that he said he would close the
plant if the Union kept insisting that Davis and Quick be
reinstated to be a fabrication . In the first place there is credi-
ble testimony in the record by Quick, Davis, and Wolff that
this is what he said . Further, it is clear that Turner was angry
at the pressure being exerted by the Union on him to reinstate
these alleged discriminatees. In the light of these circum-
stances it is reasonable to suppose that he spoke bluntly and
unequivocally to Kimbrough and Wolff . By the same token
it is unlikely that he employed the language quoted supra,
which bespeaks a calm and measured attitude out of charac-
ter with a man who admittedly was outraged at what he
called the union inspired "slowdown ." In the context of the
events as they were unfolded at the hearing , I! credit the
General Counsel's version and discredit Turner's denial.
The Company did not expect or require employees to work
when they were not feeling well. Turner himself made state-
ments on the record (which I accept as testimony) to the
effect that he never asked any man who told him he was sick
or had a headache to continue working . Davis, in the approxi-
mately 2 years during which he had been employed by the
Respondent , had been absent only twice . Quick had an aver-
age attendance record. It was testified without contradiction
that no employee had previously ever been discharged be-
cause he claimed he was sick and left his work . It was the
practice to accept explanations of the employees that they
were ill and in such event they were not expected to continue
working when they said they were ill. Employee Julious Le-
Claire, for example testified that he was absent quite often
(about 5 or 10 times) and'that he was not reprimanded_tor
warned that future absences would result in his discharge. No
action was taken against him by Respondent . Thus it is clear
that, with respect to the discharges of Quick and Davis,,they
received disparate treatment from that accorded to other
employees . The record shows that Davis and Quick were
known in the plant as active union protagonists and this fact
' I regard Turner's remarks , while ostensibly cross-examining Wolff, as
constituting testimony.
CLINTON PACKING CO., INC.
was well known to Turner . It is therefore clear that they were
not discharged for violating any company policy with respect
to absenteeism since there was no such policy. Turner dis-
charged these men on the pretext that they were engaging in
a slowdown and that they had absented themselves from
work on the basis of an unacceptable explanation of illness.
I find that Quick and Davis were discharged for their activi-
ties on behalf of the Union and as a consequence Respondent
violated Section 8(a)(3) and (1) of the Act.
Davis was originally hired by Respondent as a production
employee approximately 2 years ago . He was promoted to the
position of foreman , but after holding this supervisory job for
a period of time he found he did not like the responsibilities
involved in supervision and, at his request, he was returned
to the job of production employee. At the time of his dis-
charge, on July 13, he was operating in a nonsupervisory
status. Davis was rehired at the end of September and after
approximately 2 weeks was again promoted to the job of
foreman.
While acting in his capacity as a foreman he began a con-
versation with Snider and Campbell in the locker room on or
about December 9. Davis asked them if there was any way
he could avoid appearing as a witness in the unfair labor
practice case and explained that his reason for the request was
that he could not afford the time to appear as a witness. Davis
earns approximately $20 a day. The record shows that Davis
knew if he was successful in winning his case before the Board
he would receive a couple of months' pay which was far in
excess of the $20 he feared losing. Davis said he knew Snider
and Campbell were the spokesmen for the Union and he
admitted that he told Campbell and Snider that the ear-
ployees would be better off without the Union . He said that
the Union had been unsuccessful in securing a wage increase
and he told the men that he thought he could do better for
them if they were to get rid of the Union . Davis asked Snider
and Campbell to find out whether there was any way that the
case against the Respondent could be discontinued . It is not
disputed that Snider went into Turner's office and telephoned
Kimbrough in Kansas City to find out if the Union would
drop the case . Kimbrough told Snider that he did not think
this was possible but suggested that Snider call the Board.
With Turner's knowledge and permission Snider then called
Robert Funk, Board field attorney in St. Louis. Funk told
Snider the case would have to go on as scheduled . Roth the
call to Kansas City and the call to St . Louis to speak to the
Board attorney were made on Turner 's phone and apparently
were paid for by Turner.
After the above information was called to the attention of
the General Counsel on December 9 he added an amendment
to the complaint alleging that the Respondent was in viola-
tion of Section 8(a)(5) in that Turner was attempting to
bypass the Union as the collective-bargaining representative
of the employees by dealing directly with them in violation
of Section 8(a)(5) of the Act.
None of the evidence concerning the two phone calls to
Kansas City and St. Louis was denied by the Respondent.
The General Counsel contends that by thesea actions,, Rt-
spondtnt ,attemptes to bypass the collective-bargaining repre-
sentative of.theemploypes- and tried to induce=tie employees-
to withdraw from the Union.
Concluding Findings,
Turner's belief that his.emplbyees were engaged, in a slow-
_trdown- is not s ed by-the-,record .' Unsophisticated- em-
ployees who use work "slowdown" are unaware that it is
a word of art in:labor relations matters . Respondent's em-
ployees. clearly -intended only that their, workload be -reduced
to thepoint where they were expected to-do-a fair day's work
883
for a fair day's pay as explained to them and the Company
by the Union. Wolff and Davis credibly denied Turner's accu-
sation that the employees engaged in a slowdown.
Respondent sought to explain its discharge of Davis and
Quick on the-ground that they went home at noon claiming
they were sick. Turner was of the opinion that even if they
in fact had bodily complaints, such complaints were not seri-
ous enough to justify absenting themselves in the middle of
a day's work. It was established and I find that other em-
ployees had absented themselves for similar reasons but these
employees were neither discharged nor threatened with dis-
charge. Turner did not explain such disparity of treatment.
The conclusion is inescapable that Davis and Quick were not
fired for violating a company policy regarding absence for
illness because Respondent had no such policy. Under these
circumstances Respondent 's explanation for the discharges
was pretextual. The reasonable inference to be drawn from
the facts is that Respondent fired these employees because
Turner believed they were engaged in a union inspired slow-
down which he assumed was in progress in the plant. I there-
fore find that the discharge of Quick and Davis was violative
of Section 8(a)(3) and (1) of the Act.
Turner's threat to close the plant if the Union pressed him
to reinstate Quick and Davis constitutes illegal interference
with the Union's right and duty as the collective-bargaining
representative of the employees to process the discriminatees'
just grievance concerning their discharge. Protection against
discriminatory discharge goes to the very heart of the Act.
Thus Respondent violated Section 8(a)(1) by threatening to
close the plant if the Union pressed it to reinstate these em-
ployees. I so find.
The Company reinstated Davis in September and 2 weeks
later promoted him to the position of foreman. The General
Counsel argues that Davis, acting in the capacity of a super-
visor, attempted, on or about December 9, to undermine and
bypass the Union by suggesting to Snider and Campbell that
he thought he would be able to get the employees an increase
in pay if the men would repudiate the Union and drop the
unfair labor complaint against the Company. He told these
employees that the Union was unable to secure wage in-
creases for them. Further, Davis wanted the complaint
against Respondent dropped because he said he did not want
to appear as a witness against the Company, and ostensibly,
because he could not afford to lose a day's pay. Davis earned
approximately $20-$22 per day. He admitted that if the
Board won his case he would stand to gain several months'
backpay. On the face of it Davis' reason for not wanting to
appear as a witness against his new found benefactor (Re-
spondent) is incredible. In addition, it was not disputed that
Snider and Campbell went to Turner's office where Snider
made two long-distance phone calls to Kimbrough in Kansas
City, asking the Union to withdraw its charges, and to the
Board attorney, Funk, in St. Louis requesting that the Board
cease its prosecution of the case. Both calls were made with
the knowledge and permission of Turner on his phone, from
his office, and at his expense. In the context of the above-
undenied facts it would be naive to conclude that Davis sug-
gested,the above=described actions of Snider without the ac-
tive connivancegofiriuzr4 The 16g 1a * ease to be drawn
from these' incidents is that= Respondenttinterfered-:with, re-
strained,' and coerced its employees by these',evenits and I find
that Respondent thereby violated Section 8 ja)(1) of the Act.
The General Counsel -also contends-that when Davis told
Snider and Quick that-the Union was incapable of getting
raises for the men but he-thought he could get-them more
money without the Union, such activity by a company super-
visor bypassed the employees' certified agent and thus consti-
tutes an implied unilateral promise of a wage increase in
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(5). The evidence to support this
theory, which is encompassed in the amendment to the com-
plaint, is tenuous and without more does not appear to be
sufficient to support the refusal-to-bargain allegation. How-
ever, attention is called to the admission, out of the lips of
Turner, that he would meet and meet with the Union but
would not sign a contract unless ordered to do so by the
Board and the circuit court. This admission is sufficient to
find Respondent did in fact violate its duty to bargain in good
faith with the Charging Union. Under the circumstances
stated, supra, I find that Respondent violated Section 8(a)(5)
and (1) of the Act.
Attention is called to the convincing evidence of antiunion
animus manifested by Respondent's past record of extensive
unfair labor practices'
The major thrust of the position of Respondent seems to
be that it is ignorant of the law. Trial Examiner Samuel M.
Singer's observations, set forth in his decision in Case No.
17-CA-4258, involving the same Union and Clinton Packing
Co., Inc., and addressed to the violations therein found, are
apposite to the case at bar:
The short answer to this is that ignorance of the law is
no defense to a refusal to bargain. Cf. Old King Cole, Inc.
v. N.L.R.B., 260 F.2d 530, 532 (C.A. 6). Nor can the
Board "relieve a small employer (like Respondent) of a
duty that may be exacted from a large one." (N.L.R.B.
v. Clegg. 304 F.2d 168, 177 (C.A. 8)). Section 7 guaran-
tees to all employees "the right.... "to bargain collec-
tively through representatives of their own choosing.
... " These statutory rights cannot be denied Respond-
ent's employees because its plant manager (Turner)
misunderstood or was unaware of his legal obligations.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Meatcutters and Butcher Workmen of
North America, Local Union No. 576, is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all material times, the Union has been and is the
exclusive representative of all employees in the following ap-
propriate bargaining unit, ' within the meaning of Section 9(a)
of the Act:
All production and maintenance employees employed
by Clinton Packing Company, Clinton, Missouri, at its
plant in Clinton, Missouri, EXCLUDING office clerical
employees, truckdrivers, guards and supervisors as
defined in the Act.
4. Respondent, in violation of Section 8(a)(1) and (5) of the
Act, failed and refused to bargain collectively with the Union
by:
(a) Discharging employees Davis and Quick without prior
notice to or consultation with the Union;
(b) Threatening to close the plant if the Union pressured
it to reinstate these employees;
(c) Admitting, through its Vice President Turner, that it
would "meet and meet" but would not reach agreement on
a contract with the Union unless and until ordered to do so
by the Board and the Eighth Circuit Court of Appeals;
See the detailed statement concerning these matters which appears,
supra under "Background" in the instant decision
' See the Regional Director's Certification of Representative, Case 17-
RC-6198, issued on December 16, 1969
(d) Attempting, through Foreman Davis, to undermine the
Union by having its employees deal directly with it concern-
ing wage increases.
5. By discriminatorily discharging James Davis and Paul-
Quick, Respondent violated Section 8(a)(3) and (1) of the
Act.
6. Respondent further violated Section 8(a)(1) by permit-
ting employee Snider to make long-distrance phone calls on
its phone and at its expense to the Board and union attorney
urging that the Board cease its prosecution of the instant case.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The evidence fails to establish that Respondent has vi-
olated Section 8(a)(1) of the Act by making an implied unilat-
eral promise of a wage increase.
REMEDY
Having found that Respondent has violated Section
8(a)(3), (1), and (5) of the Act, my recommended Order will
direct that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the poli-
cies of the Act. I have found that the Respondent discharged
Davis and Quick on July 13 as part of an unlawful effort to
discourage continued membership and activities on behalf of
the Union.
To remedy the Respondent's unlawful act in discharging
Davis (Davis was reemployed as a foreman in September
1970) and Quick, my recommended Order will provide that
Quick be reinstated to his former job without prejudice to his
seniority and other rights and privileges; Davis and Quick
shall be made whole for any loss resulting from Respondent's
discrimination against them, by payment to them of the sum
of money which they would have earned but for their dis-
criminatory discharge, less interim earnings. Quick, who was
discharged on July 13, is entitled to immediate reinstatement
with backpay for the entire period of discrimination against
him. Davis is entitled to backpay from the date of his dis-
charge, July 13, until he was reinstated in September. Back-
pay shall be computed on a quarterly basis and shall include
interest at the rate of 6 percent per annum as provided in F
W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
The violations of Section 8(a)(5) and (1) shall be remedied
by a broad cease-and-desist order and the posting of appropri-
ate notices. I shall also order that the bargaining period be
extended for 1 year from the date of Respondent's compli-
ance with the instant decision.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
The Respondent, Clinton Packing Co., Incorporated, of
Clinton, Missouri, its officers, agents, successors, and assigns,
shall be required to:
1. Cease and desist from:
(a) Discouraging membership and activities in behalf of
Amalgamated Meatcutters & Butcher Workmen of North
America, Local Union No. 576, or any other labor organiza-
tion, by discriminatorily discharging employees or by dis-
6 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
CLINTON PACKING CO., INC.
criminating in any other manner with respect to their hire
and tenure of employment or any other term or condition of
employment.
(b) Discharging employees without first notifying, consult-
ing, and bargaining with the above-named Union as the ex-
clusive representative of its employees in the following appro-
priate bargaining unit:
All production and maintenance employees employed
by Respondent at its plant in Clinton, Missouri, EX-
CLUDING office clerical employees, truckdrivers,
guards and supervisors as defined in the Act.
(c) Threatening to close the plant if the Union pressured
it to reinstate discriminatorily discharged employees.
(d) Attempting to undermine the Union by having its em-
ployees deal directly with it with respect to any changes in
terms or conditions of employment including wages or any
other benefits.
(e) Permitting employees to make long-distance phone
calls on its phone, and at its expense, to the Board urging the
Board to cease its prosecution of unfair labor practice cases
which may be filed against the Company.
(f) In any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organiza-
tion, or to form, join, or assist the Union, or any other labor
organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from engaging in any or all such activi-
ties.
2. Take the following affirmative action which will be
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization, with respect to any changes in
terms or conditions of employment. The bargaining period
shall be extended for 1 year from the date of Respondent's
compliance with the instant Decision.
(b) Offer Paul Quick immediate and full reinstatement to
his former job, or if this job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights or privileges previously enjoyed and make Quick
885
and Davis whole for any loss of pay suffered by them by
reason of their discharge in the manner set forth in the section
of this Decision entitled "Remedy."
(c) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of his right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(e) Post at its plant in Clinton, Missouri, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 17,
after being duly signed by the Respondent's representative,
shall be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 17, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read- "Notify
the Regional Director for Region 17, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "