Bashore Meat Products, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1975

218 N.L.R.B. 528 (N.L.R.B. 1975)

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bashore Meat Products , Inc. and Amalgamated Food
and Allied Workers, District Union Local No. 626,
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO. Case 8-CA-
8751
June 17, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on November 13, 1974, and
amended on December 7 and 24, 1974, by Amalga-
mated Food and Allied Workers, District Union
Local No. 626, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO,
herein called the Union, and duly served on Bashore
Meat Products,' Inc., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 8, issued
a complaint and an amended complaint on Decem-
ber 27, 1974, and on February 4, 1975, respectively,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5), (3), and (1) and Section 2(6) `and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of
hearing before an Administrative Law Judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges, in substance, that Respondent
violated Section 8(a)(5), (3), and (1) of the Act by:
interrogating employees regarding their union mem-
bership, sympathies, and activities; instructing em-
ployees to repudiate or withdraw their union authori-
zation cards; threatening to discharge employees
who supported the Union; promising an employee
benefits conditioned upon his withdrawal from the
Union; and discriminatorily and unilaterally discon-
tinuing a portion of its operations and discharging
seven employees because of their union sympathies
and activities.
On January 9, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. On January 22,
1975, Respondent filed a stipulation withdrawing its
answer to the complaint and agreed that counsel for
the General Counsel might, if so advised, move for
summary judgment based upon the complaint and
Respondent's failure to answer the complaint. The
Regional Director, with Respondent's concurrence,
r Attached to the Motion for Summary Judgment , the allegations of
which stand uncontroverted by the failure to respond to the Notice To
Show Cause, are copies of the stipulation withdrawing the answer of
218 NLRB No. 68
treated said stipulation of Respondent as a request to
withdraw its answer and on January, 29, 1975, the
Regional Director issued an order granting the
withdrawal of the answer.
On February 6, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 14,
1975, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any
allegation in the complaint not specifically denied
or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint served on the Respondent stated
that unless an answer was filed within 10 days from
the service thereof, "all of the allegations of the
Complaint shall be deemed to be admitted to be true
and may be so found by the Board." Although
Respondent filed a timely answer, it subsequently
filed a stipulation to withdraw the answer and the
withdrawal was granted by the Regional Director in
his order of January 29, 1975.1 The withdrawal of an
answer necessarily has the same effect as a respon-
dent's failure to file an answer .2
Since Respondent has withdrawn its answer, the
allegations of the complaint are deemed to be
Respondent and the order granting withdrawal of the answer.
2 Newark Pipeline Company, 202 NLRB 234 (1973); Nickey Chevrolet
Sales, Inc., 199 NLRB 411 (1972).
BASHORE MEAT PRODUCTS, INC. 529
admitted to be true and are so found to be true in
accordance with the Board's Rules and Regulations.
We shall, accordingly, grant the General Counsel's
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation with its office
and place of business at 61 North Detroit, Toledo,
Ohio, is engaged in the sale and delivery of wholesale
meat products. Annually, Respondent purchases
goods valued in excess of $50,000 directly from
points located in States of the United States other
than the State of Ohio.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
IY. THE LABOR ORGANIZATION INVOLVED
Amalgamated Food and Allied Workers, District
Union Local No. 626, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8(a)(5) Violations
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All truck drivers and mechanics employed by
Respondent at its Toledo, Ohio, facility excluding
all office clerical employees, professional employ-
ees and guards and supervisors as defined in the
Act.
2. The Union's representative status
The Union has been the collective-bargaining
representative, of the employees in said unit since on
or about October 29, 1974, when it was so designated
by a majority of such employees. On November 4,
1974, Respondent, subsequent to a card check
confirming the Union's representation of a majority
of its employees, executed a recognition agreement in
which it recognized the Union as exclusive represent-
ative of all employees in the unit described above for
the purpose of collective bargaining and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
3. The refusal to bargain
On or about November 8, 1974, Respondent,
unilaterally and without notice to the Union,
changed the terms and conditions of employment of
employees in the unit described above by effecting a
partial closing of its operations.
Accordingly, we find that by the unilateral conduct
described above the Respondent has, since Novem-
ber 8, 1974, and at all times thereafter', refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
B. The 8(a)(3) Violations
On or about November 8, 1974, Respondent
partially closed its operation and termipated the
employment of employees Jerome Addis, Doug
Danyko, Larry Livingston, William C. Metzger,
James Noegal, Anthony Schwirzinski, and Robert
Schwirzinski and at all times since has failed and
refused to reinstate them for the reason that they
had, or Respondent believed they had, joined or
assisted the Union or engaged in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection. Accordingly, we find
that, by the aforesaid conduct, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
C. The Independent 8(a)(1) Violations
Commencing on or about November 4, 1974, and
continuing through various dates thereafter, Respon-
dent, through its officers and supervisors, interrogat-
ed employees concerning their union membership,
activities, or sympathies; instructed employees to
withdraw or repudiate their union authorization
cards; threatened employees with reprisals, including
termination of employment, if they did not withdraw
or repudiate their union authorization cards; and
made promises of economic benefits, including a
promise to rehire an employee conditioned upon his
withdrawal or repudiation of his union authorization
card. We find, accordingly, that by the aforesaid
conduct the Respondent interfered with, restrained,
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act and that, by such
conduct, Respondent thereby engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5), (3), and (1) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent unilaterally,
and without notice and consultation with the Union,
closed a portion of its operations, we shall order that
the Respondent cease and desist from such unilateral
action and, upon request, bargain with the Union
with respect to any decision to close its operations
and the effects thereof.
Having found that Respondent discriminatorily
and unilaterally partially closed its operations and
thus terminated the employment of employees
Jerome Addis, Doug Danyko, Larry Livingston,
William C. Metzger, James Noegal, Anthony Schwir-
zinski, and Robert Schwirzinski and at all times since
has failed and refused to reinstate them or offer them
reinstatement to their former or substantially equiva-
lent positions, we shall provide the following alterna-
tive remedies: 3
1. We shall order that Respondent resume its
discontinued operations and offer the terminated
employees immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and to
make them whole for any loss of earnings they may
have suffered by reason of the discrimination against
them. Backpay shall be based on the earnings which
they normally would have received from the date of
their discharge to the date of Respondent's offer of
reinstatement, less any net interim earnings, and
shall be computed on a quarterly basis in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
2. Alternatively, in the event that Respondent
does not resume its discontinued operations, we shall
order that it make whole the aforesaid discriminato-
rily terminated employees for any loss of pay
suffered by reason of the discrimination against them
by paying to each of them a sum of money equal to
the amount each would normally have earned as
wages from the date of his termination until such
time as each secures, or did secure, substantially
equivalent employment with other employers,4 com-
puted in accordance with the Board's usual formula
set forth in F. W. Woolworth Company, supra, and Isis
Plumbing & Heating Co., supra.
In addition to requiring Respondent to post copies
of the notice, we shall order it to mail copies of the
notice to its employees at their last known address
and to the Union.
Since the unfair labor practices committed by
Respondent were of a character which go to the very
heart of the Act, we shall also order Respondent to
cease and desist from infringing in any manner upon
the rights of employees guaranteed by Section 7 of
,the Act.
We also expressly reserve the right to modify the
backpay and reinstatement provisions of this Deci-
sion and Order, if made necessary by a change of
conditions in the future, and to make such supple-
ments thereto as may hereafter become necessary in
order to define or clarify their application to a
specific set of circumstances not now apparent.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Bashore Meat Products, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Food and Allied Workers,
District Union Local No. 626, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All truck drivers and mechanics employed by
Respondent at its Toledo, Ohio, facility excluding all
office clerical employees, professional employees and
guards and supervisors as defined in the Act
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
3 See Eclectic, Inc., 209 NLRB 270 (1974). 4 Bonnie Lass Knitting Mills, Inc., 126 NLRB 1396 (1960).
BASHORE MEAT PRODUCTS, INC. 531
4. Since October 29, 1974, the above-named labor
organization has been and now is the exclusive
representative of all employees in the aforesaid
appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing to bargain collectively concerning
the partial closing of its operations on or about
November 8, 1974, and at all times thereafter, with
the above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the acts described in section III, above,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5),
(3), and (1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Bashore Meat Products, Inc., Toledo, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively by unilaterally
discontinuing its operations or any portion thereof,
or otherwise unilaterally changing the wages, hours,
and other terms and conditions of employment
without prior bargaining with the Amalgamated
Food and Allied Workers, District Union Local No.
626„ Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, or any other
union selected as the exclusive bargaining represent-
ative of the employees in the following appropriate
unit:
All truck drivers and mechanics employed by
Respondent at its Toledo , Ohio, facility excluding
all office clerical employees , professional employ-
ees and guards and supervisors as defined in the
Act.
(b) Interrogating employees concerning their union
membership, activities, or sympathies.
(c) Instructing employees to withdraw or repudiate
their union authorization cards.
(d) Threatening employees with reprisals , including
termination of employment , if they do not withdraw
or repudiate their union authorization cards.
(e) Making promises of economic benefits, includ-
ing a promise to - rehire an employee , conditioned
upon withdrawal or repudiation of a union member-
ship card.
(f) Discouraging its employees ' membership in, or
activities on behalf of, the Amalgamated Food and
Allied Workers , District Union Local No. 626,
Amalgamated Meat Cutters and Butcher Workmen
of North America , AFL-CIO, or any other labor
organization, by discriminatorily laying off, discharg-
ing, or terminating its employees, by discontinuing
its operations , or any portion thereof, or by otherwise
discriminating in regard to the hire or tenure of any
of its -employees because they joined or assisted the
above-named Union , or any other labor organiza-
tion, or engaged in other concerted activity for the
purpose of collective bargaining or other mutual aid
or protection.
(g) In any other manner interfering with , restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board fmds will effectuate the policies of the Act:
(a) Upon request , bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to any decision to close operations, or any
portion thereof, and the effect thereof on unit
employees with respect to rates of pay , wages, hours,
and other terms and conditions of employment, and,
if an understanding is reached , embody such under-
standing in a signed agreement.
(b) Either, (1) reopen its partially closed operations
and offer to employees Jerome Addis, Doug Danyko,
Larry Livingston , William C. Metzger, James Noe-
gal, Anthony Schwirzinski, and Robert Schwirzinski,
who were terminated as a result of the partial
discontinuance of its operations on or about Novem-
ber 8, 1974, immediate and full reinstatement to their
former jobs or, if such jobs no longer exist to
substantially equivalent positions , without prejudice
to their seniority or other rights and privileges, or
alternatively, (2) if the discontinued operations are
not resumed, make the terminated employees whole
for any loss of pay suffered by reason of the
discrimination against them in the manner set forth
in the section above entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records , socialsecurity payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its office and place of business at 61
North Street, Toledo, Ohio, copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided, by the Regional Director for
Region 8, after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Respondent shall
mail copies of the notice to employees at their last
known addresses and to the Union. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the Board reserves to
itself the right to modify the backpay and reinstate-
ment provisions of this Decision and Order, if made
necessary by a change of conditions in the future,
and to make such supplements thereto as may
hereafter become necessary in order to define or
clarify their application to a specific set of circum-
stances not now apparent.
5 In the event that this 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 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
WE WILL NOT refuse to bargain collectively by
unilaterally discontinuing our operations or any
portion thereof, or otherwise unilaterally chang-
ing the wages, hours, and other terms and
conditions of employment without prior bargain-
ing with the Amalgamated Food and Allied
Workers, District Union Local No. 626, Amalga-
mated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, or any other union
selected as the exclusive bargaining representative
of the employees in the following appropriate
unit:
I All truck drivers and mechanics em-
ployed by Respondent at its Toledo, Ohio,
facility excluding all clerical employees,
professional employees and office guards
and supervisors as defined in the Act.
WE WILL NOT interrogate employees concern-
ing their union membership, activities, or sympa-
thies.
WE WILL NOT instruct employees to withdraw
or repudiate their union authorization cards.
WE WILL NOT threaten employees with repris-
als, including termination of employment, if they
do not withdraw or repudiate their union authori-
zation cards.
WE WILL NOT make promises of economic
benefits, including a promise to rehire an employ-
ee, conditioned upon withdrawal or repudiation
of a union membership card.
WE WILL NOT discourage our employees'
membership in, or activities on behalf of, the
Union or any other labor organization, by
discriminatorily laying off, discharging, or termi-
nating our employees, by discontinuing our
operations or any portion thereof, or by otherwise
discriminating in regard to the hire or tenure of
any of our employees because they joined or
assisted the above-named Union, or any other
labor organization, or engaged in other concerted
activity for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
WE WILL, upon request, bargain with the
above-named labor organization as the exclusive
representative of all employees in the appropriate
unit with respect to any decision to close
operations or any portion thereof and the effects
thereof on unit employees and with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
WE WILL either reopen our partially closed
operations and offer to employees Jerome Addis,
Doug Danyko, Larry Livingston, William C.
Metzger, James Noegal, Anthony Schwirzinski,
and Robert Schwirzinski who were terminated as
a result of the partial discontinuance of our
operations on or about November 8, 1974,
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, or, alternatively, if the discontinued
operations are not resumed, make the terminated
employees whole for any loss of pay suffered by
reason of the discrimination against them in the
manner set forth in the Remedy:
BASHORE MEAT PRODUCTS, INC. 533
All our employees are free to become, remain, or 8(a)(3) of the Act, as modified by the Labor-
refrain from becoming or remaining members of the Management Reporting and Disclosure Act of 1959.
above-named Union, or any other labor organiza-
tion, except to the extent that this right may be BASHORE MEAT
affected by an agreement in conformity with Section PRODUCTS, INC.