P & B Packers, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1971

192 N.L.R.B. 121 (N.L.R.B. 1971)

P & B PACKERS, INC. 121
P & B Packers, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO, Local 340. Case 17-CA-4534
July 19, 1971
DECISION AND ORDER
BY MEMBERS FANNINGS, JENKINS, AND
KENNEDY
advocate, in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended.
The Company did not call any defense witnesses.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the General Counsel's closing arguments, and the Compa-
ny's brief, I make the following:
FINDINGS OF FACT
1. JURISDICTION'
On May 25, 1971 Trial Examiner Marion C. Ladwig
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
'take certain , affirmative action, as set forth in, the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial, Examiner's
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings,, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the TrialExaminer and hereby orders that
the Respondent, P & B Packers, Inc., Hays, Kansas,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was tried
at Hays, Kansas, on. March 30,1971 .1 The charge was filed
by the Union on January 8, and the complaint was issued
on March 4. The primary issues are whether the Company,
the Respondent,2 (a), coercively interrogated employees,
withdrew benefits in reprisal for union activities, and
otherwise interfered with its employees' union activities,
and (b) discriminatorily discharged the leading union
1 All dates are from December 1970 until March 1971 unless otherwise
stated.
The Company, a Kansas corporation , is engaged in the
slaughter, processing, and wholesaling of hogs and cattle
and in the retail sale of meats and ,groceries at its plant in
Hays, . Kansas, where it annually purchases goods or
services valued in excess of $50,000 directly from suppliers
located outside the State , and annually sells goods and
products and performs services valued in excess of
$500,000. The Company admits and I find that it is engaged
in commerce within the meaning of Section 2(6) and(7) of
the Act, and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
U. ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Interference -
1. Interrogation
Early in December, employee Fred Tholen, with the
assistance of two other employees , began orgainzing the
Company's 25 meat plant and market employees. Tholen
talked to employees about the Union at coffeebreaks and at
lunch, passed out authorization cards, and invited employ-
ees to attend a union meeting on December 10. In that
meeting, in front of other employees, Tholen turned over 11
signed union cards (8 of which he had personally solicited
at the plant) to the Union's International representative.
Thereafter, he continued the organizational efforts.
On December 19, Company President Cecil "Pete"
Brackney called meatcutter Lawrence Hoffman into the
office . As credibly testified by Hoffman, Brackney "asked
me what I knew about the Union." Although Hoffman had
attended the December 10 meeting, he responded, "What
union?" Brackney asked, "Have you ever been approached
by a union man?" Hoffman answered, "Well, not that I
know of." Brackney continued, "Don't he to me, Larry."
Hoffman responded, "Why should I he to you? When is
this all supposed to have taken place?" Brackney said he
did not know, and Hoffman said, "Well, you know just
about as much as I do."
A "few days before" December 23, Officer Manager
Schumacher (who the Company admitted in its answer is a
company agent d/or supervisor) asked truckdriver David
Befort, "Have you heard anything about the Union?"
Befort denied it, although he knew about the December 10
meeting . As disct,„ed later, employee organizer Tholen was
discharged on December 23.
On January 5, President Brackney called meatcutter
2 The name of the Respondent was corrected at the trial.
192 NLRB No. 32
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.Marvin Kreutzer into the office , showed him a letter from
the Union , and (as Kreutzer credibly testified ) commented,
"I got my summons from the Union ." Brackney asked
Kreuter what he knew about the letter , , and. Kreutzer
answered that he did , not know, much about it. Brackney
asked whether they had ,had a union meeting, and where the
meeting was held. Kreutzer answered yes, there hadbeen a
union meeting , but "I don't give no names or places."
Thereafter Brackney stated somebody had called and had a
list of names . Kreutzer protested, "That's kind of
blackmail." Brackney then- denied buying the list.
(Although Kreutzer conceded on cross-examination that
"In a way, yes;" Brackney did give him the impression that
Brackney resented the telephone call, the Company does
not offer any noncoercive reason for Brackney , in the first
place,- having mentioned the list of names after Kreutzer
refused to give details about the union meeting.)
- Later that week, on January 8, Kreutzer was again in the
office and President Brackney asked "what I thought of the
Union."' Kreutzer answered , "I am just 50-50 , half and half,
but if the majority of the workers go with , it, I am going to
go along with it all the way ." Later in the conversation,
Kreutzer asked what guarantee Brackney would give the
employees "if we did not go union , ,Jrom getting fired."
Brackney ' answered, "I can't guarantee you anything."
(This was the second week after Union Organizer Tholen
had been discharged .) Another employee, Gilbert Rohr,
then came into the office and Brackney told Rohr and
Kreutzer, "Why don't you go out and see what the boys
want." Brackney suggested that they have a meeting with
the employees, find out what the employees wanted from
the Union , what demands they had , and come back and let
him know.
Particularly in view of Union Organizer Tholen's
summary, discharge (which would tend to arouse a fear that
the Company was seeking information for a discriminatory
purpose), and in view of the employees ' denials and
hesitancy- to reveal facts about the union activities, I find
that the foregoing undisputed interrogation 'by President
Brackney and Office Manager Schumacher was coercive
and violated Section '8(a)(1) of the Act . I further find, under
the circumstances , that Brackney s' inducement of employ-
ees Rohr and Kreutzer ' on January 8 to meet With the other
employees and report back their demands was an implied
promise of benefits if the employees would abandon their
support of the' Union , and therefore also violated Section
8(a)(1) of the Act.
. , Reprisals
On January 10, upon the invitation of one of the
employees, Office Manager Schumacher attended 'a union
meeting. Meatcutter Alfred Koerner w in attendance.
The next morning, January 11, Koerner followed the usual
procedure of going to , the retail outlet to get cream and
sugar for the breakroom . After Koerne; returned and was
opening ' the sugar cubes , President lleackney asked, "Did
you pay for that sugar?" Koerner answered no, and
Brackney stated , "That's Violation No. i." Prior to this, as
stipulated by the parties, "employees did not pay for coffee,
cream, and sugar to be used for coffee breaks , but after
January l 1th, they have been required to pay for, the coffee,
sugar, and cream."
Two days later, on January 13, the Company posted a
sign near the telephone in the workroom where most of the
employees worked , and one near the telephone in the retail
market, reading "This telephone for P & B business calls
only, others, by Pete's permission only." .The evidence
shows that "Pete" (President Brackney) is at the plant only
1 or 2 hours a, day. As stipulated by the parties , for about 5
years before this, the Company - "did not place any
restrictions on the employees making personal, outgoing
calls, using the company telephones." The Company did not
introduce evidence of any necessity for withdrawing this
additional employee benefit 3 days after the union " meeting
attended by Office Manager Schumacher. ' ' 1'
After considering all the circumstances , I find that
President ^ Brackney's statement to Koerner-,' "That's
Violation No. 1," on the morning after.the January 10
union meeting, interfered with „the, employees'. union
activities ,,, and that the, withdrawal of the benefits,-on
January 11 and 13 was in reprisal forthe,, union activities. I
therefore find that this conduct by, the Company, violated
Section 8(a)(1) of the Act, as alleged.
B. Discharge of Fred Tholen`
1. Company knowledge of union activity
Tholen was hired as . a truckdriver on December_1,_ 1969.
After several months,'he was assigned to work on ,the kill
floor, ' then as a bull boner , and Pater the shipping
department. He was working m- the processing department
at the time of his discharge on December 23.
As previously indicated, ` Tholen became the leading
union advocate at the plant, and at the December 10 union
meeting, in open view of other employees present , turned
over 11 authorization cards to the union representative.
Before introducing evidence ' on company knowledge of
the union activity, the General Counsel called President
Brackney as an adverse witness and asked him when he first
learned "that a union organization campaign was going on
at your plant." Brackney impressed me as being less than
candid. He first answered, "The first real notice I had was
,when I had a registered letter from the Meat Cutters
Union" early in January. Thereafter he testified,thathe had
heard rumors . ,When asked what , rumors, he, testified,
"Well, just-I had received a'telephone call from aifri'end of
mine that had told me." He testified that this was in the
"latter part of December,", and positively testified that this
was the first he knew that there was some union activity
going on in the plant. Still later, he testified that this was not
his first information or rumor about the Union, and
testified that on Christmas Day, his 'son told him that
somebody had called their home and'reported it. (Up to
this point, Brackney had'not admitted knowing anything
about the Union's organizing drive°on December 23, the
date of Tholen's discharge.)- Finally, when asked again
about his first information or rumor , he answered, "Well, I
would have to say it was in the middle of December I heard a
rumor to that effect." (Emphasis supplied.) `
As found above, a few days before December 23 , Office
Manager 'Schumacher asked truckdriver Befort if he had
P & B PACKERS, INC. 123
heard anything about the Union, and on December 19,
President Brackney himself had called meatcutter Hoffman
into the office' and interrogated him about it. Although
there, is no direct evidence that the Company was aware of
Tholen's open- union activities, the following, overheard
conversation between Brackney and Schumacher and
Tholen's' summary discharge indicate that the Company
had'been notified.
Truckdriver Befort's credited testimony is undisputed
that either on the evening of December 22 or "the morning
that Tholen was fired," Befort was in the office when
President Brackney came in'and said something, he did not
know what, "pertaining{ to the Union." Office Manager
Schumacher asked Brackney, "Who did you hear this
from?" Brackney responded, "A friend of yours and mine."
2. The discharge
it, was in this context that on December 23, during the
christtas rush of the plant, President Brackney summarily
discharged Union Organizer Tholen. (i'holen and the other
processing department employees had worked late the
evening before, and the .heavy workload was to, continue
until New Year.)
About 7:30 that morning, before Tholen could clock in,
President Brackney had him come to the office. As Tholen
credibly'testified,,_Brackney "said that he was-laying me
off, that he was cutting expenses and there was going to be
a lot more expenses cut .the first of the year. He told me I
could wait in-the office for my check." (Thus, Tholen's final
paycheck had ' not been prepared. This would seem to
indicate, that. no decision, to discharge him had, been made
at the time- Office Manager -Schumacher asked Brackney,
"Nyho did you hear this-from?") Tholen went back upstairs
and began telling other employees at the timeclock what
had happned."Brackney came up and sand, `Tholen, I told
you to wait in the office for your check."'Tholen was paid
for the, full .day. (Brackney was not recalled as a defense
witness . Therefore, Tholen's version of what was said on
December 23 is undisputed.),
Although submitting a lengthy brief, the Company offers
no explanation why the Company, if it were not
discriminatorily motivated, would suddenly discharge this
union organizer before work one morning, and pay him for
the day, while telling him that it was "cutting expenses."
Of course, if the real reason for Tholen's summary
discharge was a desire on the part of the Company to cut
expenses, the discharge would be lawful.-"Management can
discharge for good cause, or bad cause, or no cause at all
... [unles 's J the real motivating purpose is to do what
Section 8(aj(3) forbids." N.L.R.B. v. McGahey, 233 F.2d
406, 413 (C.A. 5). However, after considering all the
circumstances, I find that this purported reason was a mere
pretext. The work was there to be done on December 23,
and the Company's sudden decision to discharge Tholen
resulted in its paying double for Tholen's work that day.
I also find to be mere pretexts the purported reasons
given by President Brackney at the trial, when he was called
as an adverse witness. He first testified that he terminated
Tholen 'because "I had warned Mr. Tholen quite a few
times about fooling around in the place of business and not
helping the boys do their work." Brackney said nothing at,
the time of the discharge about this, and I find it to be an
afterthought. At no time in December had Brackney
criticized Tholen in any way about his work, or given him
any indication that his work or conduct was not then
satisfactory. Relying on the testimony of employees Tholen
and Koerner, and discounting the apparently exaggerated
testimony of Brackney, I find that Brackney belatedly
made this contention in an effort to conceal the true motive
for his sudden decision to discharge Tholen.
President Brackney also testified, "I had two other boys
that was left over that I didn't have no employment for." If
this were true, the Company undoubtedly would have
notified Tholen ahead of time, in order not to pay double
for work done on December 23, or have waited until after
the Christmas rush was over. Furthermore, ,the Company
hired a new truckdriver in early January without offering
the job to Tholen, who was originally hired as.a truckdriver.
After considering all the evidence and :circumstances,
including the Company's shifting positions, the timing and
suddenness of the discharge decision, the overheard
conversation between President Brackney and the office
manager, near the time of discharge, the interrogation
concerning union activity, and Brackney's - apparent
reluctance as a witness to reveal his knowledge of the
organizing efforts, as well as the Company's later effort to
undercut the Union, I find that the reasons given for the
discharge were pretextual and that the real reason was
Tholen's activity as the Union's leading advocate in the
plant. I therefore find that the. Company discriminatorily
discharged Tholen, in violation of Section 8(a)(3) and (1) of
the Act. -
CONCLUSIONS OF, LAW
1. By discharging Fred Tholen on December 23, and
failing to reinstate him, because of his support of the
Union, the Company engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
2. By coercively interrogating employees, and by
reprimanding an employee and withdrawing employee
benefits because of the employees' union activities, the
Company violated Section 8(a)(1) of the Act.
3. By soliciting employees to report on employee
demands and thereby implying a promise of benefits, if
employees would abandon their union support, the
Company also violated Section 8(a)(1) of the Act.
REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be, ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of'the-employees' Section 7 rights, and
to take certain affirmative action.
The Respondent having discriminatorily discharged Fred
Tholen, I find it necessary that it be ordered to offer him
full reinstatement, with backpay computed on a quarterly
basis, plus interest at 6 percent per annum, as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
'Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date reinstatement is offered.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: 3
ORDER
Respondent, P & B Packers, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting Amalgamated Meat Cutters and
Butcher Workmen of North American AFL-CIO, Local
340, or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Reprimanding any employee or withdrawing any
employee benefits because of union activities.
(d) Promising employees benefits if they abandon their
union support.
(e) In any like or , related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act: -
(a) Offer Fred Tholen immediate and full reinstatement
to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for his lost earnings in the manner set forth in the section of
the Trial Examiner's Decision entitled "Remedy." -,
(b) Restore the employees' benefits of free coffee, sugar,
and cream for their coffeebreaks, and the reasonable use of
company telephones for personal calls at the plant.
(c) Notify immediately the above-named individual, 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 Universal 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,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its plant in Hays, Kansas, copies of the
attached notice marked "Appendix." 4 Copies of the notice,
on forms provided by the Regional Director for Region 17,
after being duly signed by an authorized representative of
the' Respondent, shall be posted by the Respondent
immediately upon receipt thereof,, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employe'es,are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) 'Notify the Regional Director, in writing, within, 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3 In the event no exceptions are, filed as provided by Sec. 102.46 of the
Rules and_ Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Sec. 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.
4 In the event that the Board's' Order is enforced by a Judgment of,the
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"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial,, that we violated- Federal law by discharging an
employee for supporting a union, by withdrawing, benefits,
and by otherwise interfering with our employees''right° to
join and support a union:
WE WILL offer full reinstatement to Mr. Fred Tholen,
with backpay plus 6-percent interest.
WE WILL NOT discharge or discriminate' against any
of you for supporting Amalgamated Meat-Cutters' and
Butcher Workmen of North America AFL-CIO,-Local
340, or any other union.
WE WILL restore your, benefits for free coffee, sugar,
'and cream for your-coffeebreaks,'and your reasonable
use of company telephones for personal cans. -
WE WILL NOT reprimand any of you or withdraw 'any
of your benefits because of your union activities.
WE WILL NOT promise you benefits,for dropping your
union-support.
WE ' WILL NOT coercively question you about union
support or union activities.
WE WILL NOT unlawfully interfere withyour'union
activities.
P- & B PACKERS, INC.
(Employer)
Dated , By -
(Representative) (Title)
We will notify immediately the above -named individual 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 Universal Military'; training
and Service Act.
This is an official notice and 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, 610
Federal Building, 601 East 12th Street , Kansas City,
Missouri 64,106, Telephone 816-374-5181.