Van's Packing Plant

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 692 (N.L.R.B. 1974)

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Van's Packing Plant and Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO, Local No. 368. Case 19-CA-6400
June 18, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 5, 1974, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge.'
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that the
Respondent cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
As a result of the Respondent's unlawful failure to
bargain about the effects of its closing of its
wholesale slaughtering operation, the displaced
employees have been denied an opportunity to
bargain through their collective-bargaining repre-
sentative at a time when the Respondent was still in
need of their services, and a measure of balanced
bargaining power existed. Meaningful bargaining
cannot be assured until some measure of economic
strength is restored to the Union. A bargaining order,
therefore, cannot serve as an adequate remedy for
unfair labor practices committed.
Accordingly, we deem it necessary, in order to
effectuate the purposes of the Act, to require the
Respondent to bargain with the Union concerning
the effects of the closing of its wholesale slaughtering
operation on its employees, and shall accompany our
order with a limited backpay requirement2 designed
both to make whole the employees for losses suffered
i We find the remedy, Order, and notice to employees in Interstate Tool
Co., Inc, 177 NLRB 686, to be applicable to this case in view of
Respondent 's failure to bargain with the Union over the effects of its closing
of its wholesale slaughtering operation . Accordingly, we have modified the
remedy, Order and notice to employees contained in the Administrative
Law Judge 's Decision in this case to conform with the Board's decision in
Interstate Tool Co, Inc.
2 We have indicated that backpay orders are an appropriate means of
211 NLRB No. 81
as a result of the violation and to recreate in some
practicable manner a situation in which the parties'
bargaining position is not entirely devoid of econom-
ic consequences for the Respondent. We shall do so
in this case by requiring the Respondent to pay
backpay to its employees in a manner similar to that
required in Transmarine Navigation Corporation, and
its subsidiary, International Terminals, Inc., 170
NLRB 389. Thus the Respondent shall pay employ-
ees backpay at the rate of their normal wages when
last in Respondent's employ from 5 days after the
date of this Decision and Order until the occurrence
of the earliest of the following conditions: (1) the
date the Respondent bargains to agreement with the
Union on those subjects pertaining to the effects of
the plant shutdown on its employees; (2) a bona fide
impasse in bargaining; (3) the failure of the Union to
request bargaining within 5 days of this Decision, or
commence negotiations within 5 days of the Respon-
dent's notice of its desire to bargain with the Union;
or (4) the subsequent failure of the Union to bargain
in good faith; but in no event shall the sum paid to
any of these employees exceed the amount he would
have earned as wages from March 23, 1973, the date
on which the Respondent terminated its wholesale
slaughtering operations, to the time he secured
equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain,
whichever occurs sooner; provided, however, that in
no event shall this sum be less than these employees
would have earned for a 2-week period at the rate of
their normal wages when last in the Respondent's
employ.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Van's Packing Plant, Boise , Idaho, its agents,
successors, and assigns, shall:
1. Cease and desist from refusing to bargain with
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Local No. 368, with
respect to the effects on employees of its termination
of operations.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Pay the terminated employees their normal
wages for the period set forth in this Decision.
remedying 8(a)(5) violations of the type involved herein even where such
violations are unaccompanied by a discriminatory shutdown of operations.
Cf. Royal Plating and Polishing Co., Inc., 148 NLRB 545, 548, and cases
cited therein.
3 Transmarine Navigation Corporation, supra For the reasons he
expressed in Transmarme, Member Jenkins does not adopt the guarantee of
at least 2 weeks' backpay.
VAN'S PACKING PLANT
(b) Upon request, bargain collectively with Amal-
gamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local No. 368, with
respect to the effects on its employees of its
termination of operations, and reduce to writing any
agreement reached as a result of such bargaining.
(c) 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
other records necessary or useful in checking
compliance with this Order.
(d) Mail an exact copy of the attached notice
marked "Appendix" to Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO,;
Local No. 368, and to all the employees who were
employed at its former place of business on March
23, 1973. Copies of said notice on forms provided by
the Regional Director for Region 19, after being duly
signed by Respondent's authorized representative,
shall be mailed immediately upon request thereof, as
hereinabove directed.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To 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, as
amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively
with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local
No. 368, with respect to the effects of closing our
wholesale slaughtering operation at Boise, Idaho,
upon the employees who were employed there,
and reduce to writing any agreement reached as a
result of such bargaining.
WE WILL pay the employees who were em-
ployed at the Boise plant their normal wages for a
period required by a Decision and Order of the
National Labor Relations Board.
VAN'S PACKING PLANT
(Employer)
Dated By
(Representative) (Title)
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 bed
altered, defaced, or covered by any other material.
693
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 10th Floor, Republic Building, 1511
Third Avenue, Seattle , Washington 98101, Tele-
phone 206-442-4532.
DECISION
STATEMENT OF THE CASE
IRVING RooosrN, Administrative Law Judge: The
complaint , issued on September 17, 1973 , alleges that
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and ( 1) and Section 2(6) and
(7) of the Act. Specifically, the complaint alleges that
Respondent (1) on about March 23, 1973, discontinued its
wholesale operation , resulting in the layoff or termination
of a number of its employees, without prior notice to the
Union , the exclusive bargaining agent of its employees in
an appropriate unit, and without offering the Union an
opportunity to bargain concerning said discontinuance and
its effect upon the unit employees, and on about April 11,
17, and May 1, 1973, refused to recognize the Union as the
exclusive bargaining agent of said employees or to apply
the existing collective -bargaining agreement to its retail
employees; and (2) on about March 26, 1973, through its
owner and agent, Wayne DeChambeau, notified employ-
ees that he would thereafter operate "non-union," and
would not apply the subsisting collective-bargaining
agreement to said employees."
Respondent's answer admits the procedural and jurisdic-
tional allegations of the complaint ; acknowledges the
execution of a collective-bargaining agreement, as a
member of a multiemployer association , effective between
January 11, 1971, and January 11, 1974; admits that the
Union was the duly recognized exclusive bargaining agent
of all production and maintenance employees in the meat-
packing plant operated by Respondent, between 1952 and
March 23, 1973, but denies that the Union has been the
exclusive representative of employees in the retail meat
market operated by Respondent under the name of Van's
Country Meats since March 23, 1973, and generally denies
the substantive allegations of the complaint.
Pursuant to due notice, a formal hearing was held before
me on November 27, 1973 , at Boise, Idaho. The General
Counsel was represented at the hearing by counsel;
Respondent, by a labor relations consultant, and the
Charging Party, by the business agent of the Union. All
parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce oral
and documentary evidence relevant and material to the'
I Designations herein as follows: The General Counsel, unless otherwise
noted or required by the context, his representative at the hearing; Van's
Packing Plant , Respondent, the Company, or the Employer; Amalgamated
(Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local
No. 368, the Charging Party or the Union; the National Labor Relations
Act, as amended (61 Stat. 136, 73 Stat. 519,29 U.S.C. Sec. 151, et seq.) the
Act; the National Labor Relations Board , the Board . The charge was filed
and served on May 4, 1973. Unless otherwise indicated ; all events occurred
in 1973.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues , to argue orally, and to file briefs and proposed
findings of fact and conclusions of law. At the close of the
hearing, the parties discussed the issues informally on the
record, and, pursuant to an extension of time duly granted,
filed briefs on or before December 28, 1973. No proposed
findings of fact or conclusions of law have been filed by
any of the parties.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent 's answer admits, and
it is hereby found that, at all times material herein, Van's
Packing Plant , a sole proprietorship, owned and operated
by Wayne DeChambeau, at Boise, Idaho, has been
engaged in the sale at retail of meat and meat products.
During the 12 months preceding issuance of the complaint,
a representative period of its annual operations , Respon-
dent's gross income from said business exceeded $500,000.
The complaint further alleges , Respondent 's answer
admits, and it is hereby found that, at all times material
herein , Respondent has been an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local No. 368, the Union
herein , is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
For some 20 years prior to November 1, 1972, Respon-
dent was primarily engaged in the slaughtering and
dressing of cattle and packing of meat for wholesale
distribution to customers . Since 1952 , Respondent, as a
member of Southern Idaho Meat Packers Association,
Inc., of Boise, Idaho , an employer association consisting of
various meat packing companies located in Boise , Idaho,
and vicinity, has been a party to successive collective-
bargaining agreements , the most recent of which covers the
term January 11, 1971, to January 11, 1974, automatically
renewable annually thereafter in the absence of specified
notice .2 Under this agreement, the Union is recognized as
the exclusive bargaining agent of all production and
maintenance employees , as set forth in Exhibit A,"
attached to the agreement , setting forth the job classifica-
2 The agreement was signed by the Association, referred to therein as the
Employer, the Idaho Employer's Council, and five employer -members,
including Respondent , designated in the agreement as the Companies, and
the Union
3 The employees involved were Erma Canfield, James Earl, Jim Furer,
tions and applicable wage scales in a dozen separate
categories.
Prior to November 1, 1972, Respondent employed 15
unit employees, all covered by the union-security, volun-
tary dues, and initiation fees checkoff provisions of the
contract , and the Union's pension fund and health and
welfare benefits under a group insurance program of the
Southern Idaho Meat Packers Association , Inc.3 These
employees (excepting Canfield , also known as Stark,
Loucks, and Thomas , who were terminated in the interim),
continued in Respondent's employ, receiving the same
wage rates, pension , health , and welfare benefits, and
subject to the voluntary checkoff, from November 1, 1972,
to March 23, 1973.
Until November 1, 1972, Respondent continued in the
business of slaughtering and dressing cattle and packing
and selling, principally at wholesale, though to a lesser
extent, at retail , meat and meat products to customers
located in the Southern Idaho area . During this period,
Respondent's retail sales , primarily to the "drop -in" trade,
constituted about 8 or 10 percent of its total sales . Between
November 1 and March 23, 1973, while Respondent
continued its slaughtering and packing plant operations,
this phase of its business progressively declined , as its retail
activities expanded to 20 or 30 percent of total sales.
B. The Change in Operations
On March 23, 1973, Respondent discontinued its
slaughtering and packing plant operation altogether, and
has since engaged in the wholesale and retail sale of meat
and meat products, of which between 90 and 95 percent of
the total consisted of retail sales . There is no allegation or
contention that the change in operations was motivated by
a purpose to avoid Respondent 's obligations under the
collective-bargaining agreement or by any reason other
than economic exigencies . Admittedly , however , Respon-
dent did not notify the Union in advance of his
contemplated change in operations or afford the Union an
opportunity to bargain concerning such change or its effect
on the unit employees.
With the discontinuance of the packing plant operation
on March 23, Respondent terminated six unit employees,4
leaving McBride and Shrum , both driver-salesmen (who
were subsequently terminated on March 31), and Ruby
Talaraskie, who had been hired sometime in January.
Woods and Lemmon, who apparently were also termi-
nated on March 23, were rehired on March 24, and
resumed working on March 26. After Woods was rehired,
he was primarily occupied working behind the display
counters, though he also sliced carcasses and boned,
ground, and packaged meat, as he had done prior to
March 23. Lemmon's duties, both before and after March
23, were primarily in the packaging of meat products,
although on occasion she also performed boning , grinding,
and scraping during the same periods.5 In this change in
Arlee Lemmon, V. R Loucks, Marilyn Markham, LeRoy McBride, William
McKay, Robert Porter, Elbert Shrum, Keith Snelson, John Richardson,
Charles E. Thomas, Ray Wold, and Eddie Woods.
4 Earl, Markham, McKay, Porter, Richardson, and Snelson.
5 It was stipulated that , prior to November 1, 1972, and thereafter, until
VAN'S PACKING PLANT
operation, slaughtering was wholly discontinued and other
"typical packing plant" activities, including the prepara-
tion of certain meat products, were discontinued. Essen-
tially, the business was converted to a retail meat market
operation with Respondent purchasing boneless beef from
outside sources. Custom slaughtering and cutting and
wrapping of meat from Respondent's own slaughtering
operations were eliminated prior to November 1, 1972, and
thereafter, until March 23, 1973.
When Respondent began to expand his retail business, in
November 1972, he installed three meat display cases in
the area formerly used for the preparation and sale of meat
at wholesale. Customers purchasing meat at retail were
required to pay a sales tax, and the proceeds of such sales
were kept in a cash drawer. Business on Saturdays prior to
November consisted almost entirely of retail sales to walk-
in customers.
Since discontinuing the packing plant operation on
March 23, Respondent has operated his business as a retail
meat market, under the firm name of Van's Country
Meats, at the same location, with the same fixtures and
equipment previously used while he was operating as Van's
Packing Plant. It is unnecessary to consider whether the
enterprise known as Van's Country Meats became the
successor to Van's Packing Plant or its alter ego. DeCham-
beau was the sole proprietor of both enterprises, occupying
the same premises, at the same location, as a purveyor of
meats and meat products, utilizing the same equipment
(augmented by the display cases), but employing a greatly
reduced crew of unit employees. The significant change in
the character of the operation was the elimination of
slaughtering and a reduction in wholesale business. The
"kill floor" and other areas of the plant, previously devoted
to the slaughtering and dressing of cattle, and the
preparation and processing of meats remain unused. Three
of the four telephone lines previously used for Van's
Packing Plant were disconnected, Respondent retaining
the same telephone number for the remaining line. Of five
delivery vans and a pickup truck operated prior to March
23, Respondent continued to operate two vans for several
weeks for the delivery of products to the greater Boise area.
The vans were then sold, and Respondent was left with
only the pickup truck. A sign bearing the name "Van's
Packing Plant," affixed to the exterior of the plant building
before the changeover, remained at the same place
thereafter. With the changeover in late March, Respondent
erected an additional sign over the entrance to the market,
bearing the name "Van's Country Meats." A similar sign
has been maintained on a wagon stationed on the
approach from the highway to Respondent's place of
business.
Between November 1 and March 23, Respondent
continued to maintain a single payroll for all employees,
irrespective of whether they were employed in the
slaughtering or wholesale or retail operation. All employees
were paid by check drawn on the account of Van's Packing
Plant. After March 23, employees remaining on the payroll
March 23, 1973, Woods received a wage rate of $4.12 an hour. On March
23, his rate was reduced to $4.02. During the corresponding period,
Lemmon received $3.52 an hour, which was reduced on March 23 to $2.50.
6 The so-called wholesale contract , the collective-bargaining agreement
695
were paid by checks drawn on the account of Van's
Country Meats.
DeChambeau has at all times remained the sole
proprietor of the business enterprise, whether under the
name of Van's Packing Plant or Van's Country Meats. As
such, he has supervised the entire operation, formulating
and implementing labor relations policies.
In October and again in November 1972, before
Respondent expanded the retail operation, Business Agent
Leroy Niemeyer had occasion to visit the plant. He
observed some remodeling of the plant premises. In
November, he observed the retail meat display cases in
place. Admittedly, however, DeChambeau did not notify
Niemeyer of any contemplated change in operations or
offer to bargain with the Union concerning the change and
its effect upon the unit employees. When Respondent
rehired Woods and Lemmon on March 26, he unilaterally
had reduced their wage rates.
In January 1973, DeChambeau had hired Ruby Talara-
skie, a new employee, at $3 an hour, to wait on retail
customers behind the display cases. Soon afterward,
Niemeyer went to the plant to "sign [her] up" as a union
member, and left cards for her to complete, which he was
to pick up later. Shrum, who was behind the meat counter,
asked Niemeyer what her job classification should be.
Niemeyer said that she should be assigned the "packaging"
rate. DeChambeau also asked Niemeyer the same question,
and Niemeyer gave him the same answer he had given
Shrum. DeChambeau stated that Talaraskie was being
paid at the trainee rate , and wanted to know why she could
not be paid at the retail wrapper rates Niemeyer rejected
this proposal but after some discussion agreed to take the
matter up with Secretary-Treasurer Sam Nettinga and let
DeChambeau know the Union's decision.
About a week later, DeChambeau called Niemeyer, at
the Union's office in Nampa, to find out what decision had
been reached regarding Talaraskie's job classification.
Niemeyer told DeChambeau that, after discussing the
matter with Nettinga, it had been decided that "because of
the intermingling of [the packing house and retail opera-
tions] . . . it should be left as it was," and there the matter
rested.
On March 23, Niemeyer received a telephone call from
John Richardson, informing him that he and three other
"kill floor" employees had been laid off. This was the first
knowledge Niemeyer had received concerning Respon-
dent's action. Later the same day, Niemeyer went to the
plant and spoke to DeChambeau. Niemeyer told DeCham-
beau that he had just learned that "kill floor" employees
had been laid off, and asked him what was going on.
DeChambeau expressed surprise that Niemeyer had
learned of it so soon since the layoffs had only taken place
a half hour ago. Niemeyer told him of the phone call he
had received. DeChambeau then said that he` just couldn't
make [a go of ] the business and ... was discontinuing the
operation," except for the retail meat market, adding that
he might continue to make some sausage for the retail
involved here, contains no job classification of retail meat wrapper. This job
classification is, however, contained in the area Retail Meatcutters'
Agreement with the Union, to which Respondent is not a party.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trade. According to DeChambeau, Niemeyer merely said
that "he felt sorry for [him]," and made no issue of
Respondent's obligation to negotiate with the Union
concerning the change in operation.
Since March 26, when Woods and Arlee Lemmon were
rehired, DeChambeau, his son, Woods, and David Lem-
mon, Arlee's husband, have performed the work of cutting
up carcasses. Thereafter, on occasions when boning meat,
previously done by Earl and Shrum, was required, the
work was performed primarily by Woods. The week
following March 26, Respondent also utilized the services
of three or four inmates of the state penitentiary at
different times under a work-release program. (Respondent
denied that he "hired" these inmates, asserting that he kept
no personnel records on them. There was no showing as to
any arrangement for compensation for these men.)
According to DeChambeau, these inmates did "some
boning and grinding" but no meat wrapping, and did not
wait on walk-in customers.
In about the latter part of May, Respondent hired Tony
Zavolo for a period of about 6 weeks, primarily to do
grinding and some cleanup work.
On March 30, a Friday, Niemeyer received a telephone
call from Snelson, who had gone to the plant looking for
work, and had observed new employees working there.
Niemeyer visited the plant soon afterward, where he
discovered six or seven "new faces ," all but one of whom
were working in the area in which boning and cutting was
done. The remaining employee, whose identity Niemeyer
later learned, and who had been employed at another
packing plant, was working in the retail market. Niemeyer
asked DeChambeau why these persons were being em-
ployed while former employees on layoff were out of work.
DeChambeau said that he had fallen behind in his custom
locker beef cutting, and had brought these persons in to
"get caught up." After some discussion, DeChambeau told
Niemeyer that these employees did not work Saturday, and
that he would not have them return on Monday. On
Monday, April 2, Niemeyer returned to the plant to
ascertain whether the "new" employees were at work that
day. According to him, he observed the same persons still
working. Niemeyer told DeChambeau that since these
employees were still at work, he had no alternative but to
file a grievance . Niemeyer also took this occasion to tell
DeChambeau that he had never received Talaraskie's
union card. DeChambeau said that he would see to it that
she joined the Union and that Niemeyer received her card.
Niemeyer filed a grievance next day and, on April 11,
met with Elbert Shaw at the Idaho Employers' Council's
office to discuss the grievance. Shaw maintained that the
packing plant operation had been discontinued prior to the
date of the grievance, that the contract did not apply, and
declined to discuss the grievance. Niemeyer contended that
the retail market had been made part of the overall plant
operation, that the Company had never raised any issue
over the Union's representation of the retail employees,
and that on two occasions Niemeyer and DeChambeau
had discussed the rate of pay and classification applicable
to Talaraskie. Shaw told Niemeyer that that was not his
r Art. XVII, sec. 5 , provides , in relevant part:
If the Union and the employer representatives cannot reach an
understanding, and said that he would like to discuss the
matter with DeChambeau and Hazzard. According to
Niemeyer, he did not recall mentioning to DeChambeau
that he would provide him with a copy of the Retail Meat
Cutters' Agreement, although DeChambeau had ques-
tioned him regarding the meat cutter rate. Told the amount
of the rate, DeChambeau said that Shrum was already
receiving more than that rate.
On April 17, while Niemeyer was in the Council office to
see the insurance administrator, Shaw asked him to talk to
him and Hazzard. Niemeyer agreed . At this conference,
both sides adhered to their previous positions. A final
meeting was held on May 1, attended by International
Representative Dan Ackley, Secretary-Treasurer Nettinga,
and Niemeyer, on behalf of the Union, and Shaw,
Hazzard, and DeChambeau, representing the Employer.
The parties reiterated their respective positions, the union
representatives asserting that the employees were "on dues
check-off as per contract." In response to Shaw's query,
"Under what contract," Niemeyer responded, "Under the
Packinghouse Agreement, of course, because the retail
operation had been made a part of the overall operation."
According to Niemeyer, the management representatives
acknowledged that they had notified the employees that
the employer intended to operate "non-union," and that
they would not receive the benefit of the pension fund.
Niemeyer also testified that the union representatives were
told that the Union did not represent the employees
because the packing plant operation had been discontin-
ued, that the Union did not represent the retail employees,
and that if it wished to do so it should attempt to organize
them first. The Employer representatives also told Niemey-
er that if the Employer resumed the packinghouse
operation, he would recognize the Union.
Despite the Employer representatives' refusal to consider
the grievance on the asserted grounds, the Union did not
pursue the grievance to arbitration, because the Employer
refused to recognize that the contract was applicable to the
new enterprise.? Instead, it filed the unfair labor practice
charge on which this proceeding is based.
By letters, dated September 27, 1973, Shaw, of the Idaho
Employers' Council, on behalf of Respondent, notified
members of the Southern Idaho Meat Packers' Associa-
tion, Inc., as well as the Union, of Respondent's withdraw-
al from the Association and from future negotiations
concerning possible renewal of the contract expiring
January 11, 1974.
On October 15, Hazzard, of the Council, on behalf of
Respondent, reiterated the position that, due to the change
in operation from a meat packing plant to a retail meat
market, the Employer considered the contract inapplicable,
and notified the Union of Respondent's intention to
terminate the contract upon its expiration. The letter
advised, however, that Respondent was willing to recognize
and bargain with the Union if it were certified, as
representative of the retail meat market employees in a
Board-conducted election.
On November 7, the Union formally notified Respon-
dent of its intention to reopen the contract, and requested
adjustment within five (5) days, upon request of either party, the
grievance shall be submitted to a Board of Arbitration .. .
VAN'S PACKING PLANT
negotiations . The Council, on behalf of Respondent,
replied on November 12, referring to its earlier letters of
September 27 and October 15, and, denying that the Union
was exclusive representative of the retail meat market
employees , DeChambeau's sole business operation since
March 23, 1973, rejected the Union's request.
Contentions of the Parties; Conclusions
The record establishes that at the time of the change in
Respondent's operation there was in effect a valid,
subsisting collective-bargaining agreement between the
parties, covering the operation at Respondent's plant.
Whatever change occurred on March 23, the General
Counsel maintains, constituted an accretion or merger so
that the existing contract remained applicable to the
modified operation.
Respondent, on the other hand, contends that the change
in operation from what was essentially a meat packing
plant to a retail meat market constituted such a complete
change of operation as to render the existing contract,
covering a unit of employees engaged in the meat packing
operation, inapplicable, and that Respondent was thereby
relieved of any duty to recognize and bargain with the
Union as exclusive representative of the retail meat market
employees.
There is no dispute that Respondent, as a sole proprietor,
conducted his business enterprise, both before and after
March 23, at the same location, utilizing the same facilities
and equipment. On about November 1, 1972, he expanded
his retail business, installing three meat display cases in a
portion of the area previously used for the preparation of
meat at wholesale, while continuing the packing plant
operation. Until March 23, the business continued in this
manner, with sales predominantly wholesale but to a
relatively minor extent at retail. On March 23, with
wholesale business steadily declining, Respondent discon-
tinued the slaughtering and packing plant operation
altogether, and thereafter continued the venture as a retail
meat market under the trade name of Van's Country
Meats, to distinguish it from the packing plant operation
conducted as Van's Packing Plant. Respondent has not
since engaged in the slaughtering and dressing of cattle.
The "kill floor" and other areas of the premises, previously
used to prepare and process meats between November 1,
1972, and March 23, remain unused.
While operating the packing plant, Respondent em-
ployed between 12 and 15 employees during the period
from November 1 to March 23. On November 1, with the
decline of wholesale business and the expansion of retail
sales , Shrum, a driver-salesman until then, was assigned to
work inside the plant, preparing meat for sale at wholesale,
and working at the retail counter when necessary. On
March 23, when Respondent discontinued its slaughtering
operation, he terminated 6 of the 12 employees working on
" Sausage, including bulk sausage, links, wieners, frankfurters, and so-
called luncheon meats.
9 As there is no evidence concerning any arrangement under which these
persons were utilized, no determination is made as to whether they could
properly be regarded as unit employees.
697
that date. McBride and Shrum were subsequently termi-
nated on March 30 and April 6, respectively.
The parties have stipulated that the 12 employees who
continued in Respondent's employ between November 1
and March 23, received the wage rates, and pension and
insurance benefits, and were subject to the dues checkoff
provisions provided under the collective-bargaining agree-
ment.
In contending that the retail meat market operation
merely constituted an accretion or merger, the General
Counsel relies on the following factors: (1) Except for the
termination of slaughtering and dressing of cattle, and
increased retail sales, the operation has remained basically
the same; (2) the retail meat market has been conducted at
the same location and in the same plant; (3) until March
23, the date of the changeover, Respondent operated his
business with the same employees, under the same terms
and conditions of the collective-bargaining agreement; (4)
Respondent maintained a single payroll and bookkeeping
system for all employees, who were at all times under the
supervision of DeChambeau, the sole owner of both
enterprises, who determined labor relations policies; (5)
Respondent has continued to display a sign over the
entrance to his premises bearing the name "Van's Packing
Plant," although during late in March, he added a sign
reading "Van's Country Meats," and displayed a similar
sign on the highway leading to Respondent's place of
business.
The General Counsel relies, too, on evidence that even
before November 1, when Respondent increased his retail
sales, he had made retail sales to walk-in customers of a
variety of meat products,8 on which retail sales taxes were
imposed, both before and after November 1972, and that
his Saturday business consisted exclusively of sales to retail
customers.
Regarding the General Counsel's accretion or merger
theory, it should be pointed out that the changeover to an
essentially retail operation resulted in a contraction, rather
than an expansion, of the bargaining unit. Thus, the
number of employees in the unit was reduced from 12 or
15 on March 23 to, at first, half that number, and
ultimately 2 employees, in addition to Respondent, his
wife, and son, with the temporary, part-time use of the
prison inmates, previously mentioned .9
The collective-bargaining agreement, upon which the
General Counsel and the Union rely, containing some 12
broad general job classifications (in addition to trainees),
with 14 subclassifications covering the "kill floor," clearly
demonstrates that the contract was designed to apply
exclusively to slaughtering and meat packing plant employ-
ees. By contrast, the Retail Meat Cutters' Agreement, a
separate agreement, to which Respondent is not a party,
contains only two basic job classifications, meatcutters and
meatwrappers (in addition to apprentices), neither of which
are contained in the packing plant contract.
The case here is analogous to G. T. & E.,10 in which,
10 G.T. & E. Data Services Corporation, 194 NLRB 719. Although that
case also involved the successorship issue, the Board found that "many of
the substantive provisions of the agreement were tailored to employees who
form the complement of a large, publicly regulated, telephone enterprise,
and could not, as a practical matter, be made applicable, as written to
(Continued)
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under comparable circumstances, the Board concluded
that it would be inappropriate to require the application of
the contract to the new operation."
In view of the substantial change in Respondent's
operations from a slaughtering and packing plant to a
predominantly retail meat market operation; the change
and reduction in size of the employing unit; and the job
classifications under the collective-bargaining agreement,
which rendered it inappropriate to the changed operation,
it is found that Respondent was not required to bargain
with the Union as exclusive representative of the retail
meat market employees after March 23, unless and until a
majority of those employees designated the Union as their
bargaining agent . It is, therefore, found that Respondent
has not refused to bargain with the Union as exclusive
representative of his employees in an appropriate unit by
refusing to apply the contract to the retail market
employees. There is no allegation , contention, or proof that
Respondent 's changeover was motivated by a desire to
avoid his obligations under the contract, nor has there been
any showing that Respondent's action was taken for any
reason other than economic necessity.
C. The Refusal To Bargain Concerning the
Change"ver
The allegation that Respondent unilaterally and without
prior notice to the Union or opportunity to bargain
concerning the decision to discontinue the slaughtering
and packing plant operations, as well as the effect of the
decision upon the unit employees, stands on a different
footing.
1. The appropriate unit
The complaint alleges that the following is an appropri-
ate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the employer at its Boise, Idaho, location,
excluding office clerical employees, guards, and super-
visors as defined in the Act.
This is substantially the unit described in the collective-
bargaining agreement, to which a list of job classifications
and wage schedules of the covered employees was
attached . Respondent's answer does not specifically deny
the appropriateness of the unit but alleges that Respondent
has employed no production and maintenance employees
since March 23, 1973. This does not meet the issue. It is
clear that Respondent acknowledged the appropriateness
of the unit as of January 11, 1971, when it executed the
collective-bargaining agreement recognizing the Union.
This agreement continued, and was in full force and effect,
on March 23, 1973. The description of the unit is
and could not, as a practical matter, be made applicable, as written to
Respondent's operation."
11 In N.L.R.B. v Alamo-White Truck Service, 273 F.2d 238 (C.A. 5,
1959), a successorship case , the court denied enforcement of a Board Order,
requiring the successor employer to bargain, noting that the successor, a
subsidiary of a nationwide manufacturer of trucks , had been converted into
a small independent service operation of a local character . Relying on the
consonant with conventional units in this industry , and it is
hereby found that the above-described unit constituted an
appropriate unit as of March 23.
2. Majority representation
The complaint alleges that, at least since 1952, and
continuing to date, the Union has been the duly recognized
exclusive representative of all Respondent's employees in
the above-described unit within the meaning of Section
9(a) of the Act.
Respondent's answer admits the status of the Union as
exclusive representative of Respondent's packing plant
employees from 1952 until March 23 but denies that the
Union is majority representative of the retail meat market
employees of Van's Country Meats, Respondent's sole
operation since that date.
It is found that the Union was, on March 23, 1973, the
exclusive representative of Respondent's packing plant
employees for purposes of collective bargaining and, by
virtue of Section 9(a) of the Act, was on that date the
exclusive representative of all the employees in the
appropriate unit above-described.
3. The refusal to bargain
It is undisputed that Respondent did not notify the
Union in advance, prior to expanding its retail sales on
November 1, 1972, or of its decision to discontinue the
slaughtering and packing plant operation on March 23.
Since the limited change in operations on November 1 did
not entail any material change in the nature of the business
or affect the jobs or wage rates of the unit employees,
Respondent was not required to notify the Union in
advance or afford it an opportunity to bargain regarding
such changes.
The discontinuance of the slaughtering and packing
plant operation on March 23, however, involved not only a
change in the nature of Respondent' s business but also the
actual termination of unit employees whose jobs were
affected by the change. The obligation to bargain regard-
ing the discontinuance of a portion of an employer's
operations, as in the case of partial plant closure,
subcontracting, removal, or relocation, as well as the effect
of such change upon unit employees, is well established.12
Nor is an employer relieved of this obligation merely
because a union, after acquiring independent knowledge of
a contemplated change in operation, neglects to make a
demand for bargaining concerning the change and its
effect upon unit employees. Thus, although Business
Representative Niemeyer may have observed some remod-
eling of the plant, and later saw new display cases in the
retail meat market, he was not required to speculate as to
the significance of these changes . Nor, in the absence of
notice of the contemplated discontinuance of the slaugh-
tering operation, was he under a duty to demand that
change in the nature of the business and of the employer-employee
relationship in a large corporation in contrast to the close personal
relationship in a small local business , employing about half the number of
the predecessor's employees , the court declined to enforce the Board's
Order requiring the successor to bargain.
12 See , e.g., Ozark Trailers, Incorporated 161 NLRB 561, where the
rationale has been explicated, and cases cited.
VAN'S PACKING PLANT 699
Respondent bargain with the Union regarding the change
or the effect of such change upon the unit employees. The
fact that the collettiveAbargaining agreement contains no
requirement that the Employer notify the Union in
advance-of-any--deersien-regarding -closure or termination
of a portion of its operations does not relieve Respondent
of his statutory duty to bargain concerning the contemplat-
ed change.
It is, therefore , found that, by failing and refusing to
bargain collectively with the Union, as the exclusive
representative of the unit employees , concerning the
discontinuance of the slaughtering and packing plant
operation and the effect of such action upon the unit
employees, and by taking such action unilaterally, without
prior notice to the Union and an opportunity to bargain
regarding such decision, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5), and,
derivatively, Section 8(a)(1) of the Act.
The complaint alleges that, on or about April 11, April
17, and May 1, 1973, the Union demanded that Respon-
dent recognize it as exclusive representative of the
employees working in the retail operation and acknowl-
edge that they were covered by the collective-bargaining
agreement, but that Respondent in each instance refused.
Reference is to the three meetings between Respondent's
representatives and the union representatives, discussed
earlier . The General Counsel appears to contend that, since
these allegations have been admitted in Respondent's
answer, a finding of refusal to bargain on those dates is
warranted . Niemeyer's testimony , on this aspect of the
case, confirms that he demanded recognition on behalf of
the retail meat market employees . Respondent 's admission
of these allegations is not unequivocal. Respondent's
answer further alleged that he offered to recognize the
Union if it were certified as exclusive representative of the
employees of Van's Country Meats, following a Board-
conducted election , and that he filed an RM petition to
this end (Case 19-RM-1065) on May 4, 1973.
This is entirely consistent with Respondent 's position
that he did not deem the packing plant contract applicable
to the retail meat market employees. Since Respondent's
contention in this respect has been sustained for reasons
previously stated, it is found that Respondent did not
unlawfully refuse to bargain with the Union as exclusive
representative of the retail market employees on or about
April 11, April 17, and May 1, 1973.
D. Interference, Restraint, and Coercion
The complaint further alleges that on or about March 26,
DeChambeau told several employees that he would
thereafter operate "non-union and would not apply the
collective-bargaining agreement to them." This allegation
relates to an unrefuted statement by DeChambeau to
Woods and Lemmon when they were rehired on March 26.
Respondent's answer, while admitting this allegation,
further asserts that the "information was conveyed to the
employees of Van's Country Meats, a retail meat market."
Ordinarily, such a statement, made by an employer to
employees covered by a subsisting collective-bargaining
agreement , would be in derogation of the exclusive
bargaining agent , and could arguably constitute conduct
violative of both Section 8(a)(l) and (5) of the Act. The
special circumstances of this case, however, including the
absence of union animus or a purpose to avoid his
obligations under the collective-bargaining agreement,
indicate that in making those perhaps ill-chosen remarks
DeChambeau was merely expressing his position that the
contract was inapplicable to the employees of Van's
Country Meats. Respondent's offer, through his represent-
atives, to recognize the Union as exclusive bargaining
agent of the retail market employees if the Union were
designated in a Board-conducted election, and Respon-
dent's filing of a representation petition for this purpose
indicate the absence of any unlawful conduct.
It is, therefore, found that, by DeChambeau's remarks to
Woods and Lemmon on March 26, 1973, Respondent did
not engage in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
There remains to be considered the issue of possible
deferral to arbitration. Under the collective-bargaining
agreement, "Any complaint, disagreement or difference of
opinion between the employer and the Union and the
employees covered by this agreement, which concerns the
interpretations [sic ] or application of the terms and
provisions of this contract shall be considered a grievance,"
to be resolved under the grievance and arbitration
procedure. The contract was in full force and effect on
March 23, 1973, the date of the change in Respondent's
operation.
In the General Counsel's view, the basic issue is one of
accretion, and under guidelines issued on May 10, 1973,
such issue is not amenable to deferral. Moreover, the
General Counsel argues, since Respondent maintains that
the contract is not applicable to Respondent's retail meat
market employees, he cannot have recourse to the
grievance and arbitration provisions of a contract which he
is, in effect, disavowing. Respondent contends that, by
failing to pursue the grievance and arbitration procedure,
the Union has acquiesced in Respondent's position that the
contract is inapplicable to the retail market employees.
Nevertheless, while denying that the contract is applicable
to this group of employees, Respondent asserts in his brief
that, in the event the Board should reach an opposite
conclusion, he is "not taking the position that [the]
grievance is not arbitrable and is willing to give serious
consideration to deferral to arbitration." The General
Counsel denies that the Union failed to pursue the
applicable procedure, pointing to the evidence that on
three separate occasions Niemeyer demanded that Respon-
dent adhere to the grievance procedure but that he refused,
through his representatives, on each occasion to do so.
The issues involved in this proceeding are, at the very
least, arguably encompassed by the grievance and arbitra-
tion procedure. Respondent's insistence that the contract
was not applicable to the retail operation did not excuse
the Union from pursuing the successive steps in the
grievance procedure, culminating in a demand for arbitra-
tion. The issue which the Union sought to resolve, i.e., the
applicability of the contract to the retail employees,
involved a dispute over the interpretation, application and
alleged violation of the contract, cognizable under the
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedures . In fact, the very issue of arbitrability of the
dispute is a question determinable by the arbitrator.
Respondent has not unequivocally expressed his willing-
ness to arbitrate the dispute. Instead, he has indicated that,
in the event of an adverse finding in this proceeding, he
might be willing to consider arbitration , a none too subtle
attempt to have "two bites at the apple." Moreover, such
an approach defeats the whole concept of the deferral
policy. Be that as it may, since the Board has held that,
under Collyer, 13 disputes over a contractual obligation to
include , in an existing bargaining unit , new facilities or
operations acquired by the employer (accretion issues) are
not appropriate for deferral to arbitration ,14 it will not be
recommended that the Board defer in this case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , set forth in section III,
above , occurring in connection with the operations of
Respondent , 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.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX5) and
(1) of the Act, it will be recommended that he cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has failed and
refused to bargain with the Union as exclusive representa-
tive of his employees in an appropriate unit , by failing to
notify the Union in advance of the contemplated change in
operations and affording the Union an opportunity to
negotiate regarding such change and its effect upon the
unit employees.
Since it has been found that the change in operations was
prompted solely by economic exigencies rather than by
union animus or by a purpose to avoid the obligations
imposed by the collective-bargaining agreement , it will not
be recommended that Respondent be required to resume
the slaughtering and packing plant operation. Although
Respondent appears to have no present intention of
resuming that operation in the forseeable future, he has
asserted his willingness to adhere to the collective-bargain-
ing agreement , if and when such operation is resumed. It
will, therefore , be recommended that Respondent place the
employees who were discharged between March 23 and
April 6, 1973, and who have not since been reinstated, on a
preferential hiring list and thereafter offer them jobs as
such jobs become available before hiring others for such
work, and, if such positions no longer exist , to substantially
equivalent positions ,15 without prejudice to their seniority
or other rights and privileges. It will also be recommended
that Respondent make each of said employees whole 16 for
any loss of earnings and vacation pay, if any, which such
employee may have suffered as a result of such discharge,
from March 23, 1973, the date of Respondent's failure and
refusal to bargain with the Union regarding the change in
operations and the effect of such actions upon the unit
employees , to the date on which Respondent commences
bargaining with the Union in good faith regarding such
change, less net earnings during such period , with backpay
computed on a quarterly basis , and interest at 6 percent per
annum , as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. It will be further recommended that Respondent make
the contributions on behalf of the discharged employees to
the health and welfare , pension and trust funds, required
by the collective-bargaining agreement , for the backpay
period defined above . Respondent 's assertion that he has
paid each of the discharged employees all wages and fringe
benefits provided for in the collective -bargaining agree-
ment to the date of terminations does not satisfy his
obligations under the recommended remedy.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Wayne DeChambeau, an individual and sole propri-
etor, doing business as Van's Packing Plant, of Boise,
Idaho, Respondent herein, is, and at all times material
herein has been, an employer engaged in commerce and in
an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Local No. 368, the Union
herein , is, and at all times material herein has been , a labor
organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the employer at its Boise , Idaho, location,
excluding office clerical employees , guards , and supervi-
sors 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. At all times since January 11, 1971, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, Local 368, the Union herein, has been the
exclusive representative of all the employees in the
aforesaid unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally , and without prior notice to the
Union as exclusive representative of the employees in the
aforesaid unit, and opportunity to bargain concerning the
change in operations of his business , on or about March
23, 1973, and the effects thereof on the unit employees,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
,J Collyer Insulated Wire, 192 NLRB 837 ' See Southeastern Envelope Co., Inc eta!, 206 NLRB No. 115
14 Combustion Engineering, Inc, 195 NLRB 909. Cf Champlin Petroleum 1s See N L. R B. v. Southeastern Michigan Gas Co., 485 F .2d 1239 (C.A. 6,
Company, 201 NLRB 83. 1973).