George Braun Packing Co.

National Labor Relations Board - Board Decisions

Nov 24, 1970

186 N.L.R.B. 745 (N.L.R.B. 1970)

GEORGE BRAUN PACKING CO. 745
George Braun Packing Co. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local Union No. 171, AFL-CIO. Cases
23-CA-3467 and 23-CA-3497
November 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 21, 1970, Trial Examiner Thomas A. Ricci
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. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision and
supporting briefs; the Respondent filed an answering
brief to the exceptions of the General Counsel.
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 proceeding 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 and briefs, and
the entire record in this proceeding 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 Trial Examiner, and hereby orders
that the Respondent, George Braun Packing Co., San
Antonio, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on April 7 and 8, 1970, at San
Antonio, Texas, on complaint of the General Counsel
against George Braun Packing Co., herein called the
Respondent or the Company. The issues are whether the
Respondent violated Section 8(a)(1), (3), and (5) of the Act.
The ultimate complaint rests on two charges, one filed on
November 6 and one on December 15, 1969. Briefs were
filed by the General Counsel and the Respondent after the
close of the hearing.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
George Braun Packing Co., a Texas corporation, has its
principal office and plant in San Antonio, Texas, where it is
engaged in the operation of a slaughterhouse. During the
preceding 12 months, a representative period, the Respon-
dent from this location sold products valued in excess of
$50,000 to companies in the State of Texas themselves
engaged in the business of processing food products, each
annually making direct sales of its products in excess of
$50,000 to customers located outside the State of Texas. I
find that the Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America , Local Union No. 171, AFL-CIO, herein
called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
This is essentially a refusal-to-bargain case. Following a
Board-conducted election the Union was certified as
exclusive representative of the Company's employees on
August 5, 1968. After 10 or 12 fruitless collective-bargain-
ing sessions negotiations between the parties were discon-
tinued in May 1969. In September a number of employees
signed an antiunion petition aimed at decertification
proceedings, and it is alleged the move was instigated by the
Respondent on promise of wage increases if the Union were
removed from the picture, a form of coercion in violation of
Section 8(a)(1) of the Act. While the initial charge
supporting this allegation was being investigated by the
Board, the Respondent, concededly acting unilaterally, in
November granted a wage increase to all the employees.
The Union then demanded that the Company resume
bargaining with it, but the Company refused. This refusal is
said to constitute unlawful refusal to bargain and a
violation of Section 8(a)(5). The complaint also alleges that
the discharge, in December, of one Augustine Flores was
aimed at discouraging his union or concerted activities, and
therefore prohibited by Section 8(a)(3).
The Respondent denies that it had anything to do with
the certification petition. As to the refusal to bargain it
defends on the ground that it had reasonable basis for
doubting the Union's continuing majority status and that it
acted in good faith. Flores was released, according to the
186 NLRB No. 103
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, as part of a general economic reduction-in-
force and not in consequence of any improper motive.
B. The Decertification Petition
In the very beginning of August 1969, if not earlier, there
took place two meetings in the office of Dwaine Harral, the
manager of the plant and one of the owners. Because
nothing definitive resulted, the employee witnesses did not
recall exact dates, but there is a document (G. C. Exh. 7),
prepared by Harral himself at the time, and now received in
evidence, which establishes that the second meeting was on
August 4, or at most a day or two later. At any rate, the first
meeting definitely took place before August 4, because
Harral prepared the document in consequence of what was
said at the first. Everyone in the department was hourly
paid. The subject discussed at each meeting was the
possibility of changing to piecework rates, so much per cow
killed and processed, -the amount to be shared on some
basis by the participating workmen. The declared object of
the talks was to find a way to increase the employees'
earnings.
I find that the idea came from management, and not from
the employees. Between the two meetings the employees
met separately, as suggested by Harral himself, in a cantina
to consider what price per cow they might think proper, and
in consequence there were phrases from employee witnesses
tending to indicate it was they who were urging the
changeover to piecework. But considering all the testimony,
the contrary is true. Thus Augustine Flores said that at the
second meeting Harral said "he wanted for us to get more
money." David Flores said Chavez, foreman of the kill
room, told him about the first meeting: "Chavez told us to
go talk to Mr. Harral.. . . That Mr. Harral wanted to know
from us if we would like to work it out on a piece rate."
Abelardo Flores: "Well, Chavez had told us before you all
go home, go to the office, the boss wants to talk to you all in
his office."
Harral's story of how all this came about corroborates the
clear implication arising from the above testimony of the
employees. He said he had had more experience with
boning operations, conducted on a piecework basis in this
plant, and therefore thought it might be advisable to put the
system in effect in his kill room also. His testimony is as
follows:
Well, when we started, I hadn't been involved in a
killing plant before, and been mostly in the boning
business prior to getting the plant. It was my thinking
that these rates would work on the killing as they had
done for us in the boning rooms. And I had done some
work and I had indicated to some of the men that, and
also indicated that some of the, oh, meetings that we
had, that I thought it would be a good idea. And the
meeting that I recall, I am kind of vague on it because I
prefer to call it a discussion. We had some men come
into the plant, to my office. Augustine Flores, the best I
remember, was there. But I can't tell you who was there,
it was a group of kill floor people. Came in. And we
talked about the piece rate. And they were interested in
knowing what kind of figure I had in mind. And I told
them that I didn't have any figure in mind other than
just would it work. I was concerned whether they
thought they could make a piece rate system work."
On this subject Robert Elliott, the production superin-
tendent, started by saying he was never at any meetings
where piecework was discussed, he had never mentioned
the subject to any employees. Asked has he talked about it
with Foreman Chavez, he equivocated, and tried to belittle
the matter: "Might have mentioned in passing, or
conversation, but no direct discussion how we would do it,
or this is the way it should be done, or what." Pressed to be
more precise, he finally admitted he did discuss it with
Chavez. Foreman Chavez, in turn , denied having talked to
anybody about piece rates for his department, and even
denied there was ever any mention of it between him and
either Elliott or Harral.
Chavez lied and his purpose must have been to foster the
illusion it was the employees who first turned to the
Company for raises in earnings instead of management first
broaching the possibility to them. Although many of the
employee witnesses were imprecise as to details-due
largely to their unfamiliarity with the English
language-the major facts are clear. Their first suggestion
was $5 per cow piecework, but Harral told them at the first
meeting to discuss it among themselves, to try to arrange a
workable system, and see if they could agree on a more
modest amount. Harral himself studied the production
records and prepared a chart to show what past labor costs
had been. This is the exhibit dated August 4. The men did
talk it over among themselves. If there is one fact that
emerges clearly from all this record it is that in this kill
room and among these employees there is absolutely no
inhibition against open and loud talk. It would be beyond
reason to believe everybody-rank-and-file and
management-did not know in detail all that was going on.
At the second meeting Harral suggested a piecework rate of
$3.25 to $3.75 per cow, and showed the men his study chart
to support the position. The employees thought this too
little and the subject died.
But there were other things said during these meetings, as
the employees recalled, that are more significant so far as
the issues of this proceeding are concerned. According to
Abelardo Flores, while Harral was talking to them about
the possibility of a changeover to piecework, he also told
them: "Well, you all, the union, it depends on you all, if you
sign some kind of a paper, you know, we have sign it, costs,
you know, not union this company no more." Asked to
repeat what Harral had said: "Mr. Harral said he want to,
you know, us to work for piecework if we sign some kind of
a papers he has to retreat the Union." Allejandro
Hernandez remembered that Leonard, the company
president, was at one of the meetings, and "he said
something about probably, if we got that contract about
killing cows by piecework, probably we might make more
money or something like that. We don't supposed to put the
union there inside of something like that solike Mr.
Hernandez want us to do is what he say." Leonard did not
testify. Harral did not exactly deny reference to the Union
during these early meeting, but the tenor of his story as a
whole is that he never asked the men to sign anything of
any kind, nor especially to reject the Union. I credit Flores
and Hernandez, in part on the basis of the demeanor of the
GEORGE BRAUN PACKING CO. 747
witnesses, the employees were straightforward while Harral
was evasive at many points, and in part because the words
they attributed to the manager then are more consonant
with the activities of management in subsequent events.
The attempt at increased earnings via piecework rates
having failed, the employees started to ask for outright
raises. As Harral related, he told them he could do nothing
about raises because "the way I understood the law and
everything that the union had to, was their bargaining
agents and I couldn't discuss a raise with them
unless-there was one or two that had changed positions
that we had done something about-but as a raise for the
same job, my hands were tied. The union was the agency
they would have to talk to." Augustine Flores told it
differently. He said others sent him in to ask for the raise,
and that Harral's response was: "He said he could not give
a raise because he would be violating the law.... He said
if they would sign a paper, then he might be able to get a
raise. We would talk about a raise."
The next incident came shortly later , apparently some-
time in August, and presents again a direct conflict in
testimony. Augustine Flores testified Foreman Chavez told
him Harral wanted to see him , and that then, in the
manager's office, Harral "said he had the papers, the paper
for the employees to sign . . . he just told me that he had
the papers, to get the paper and take it to the employees to
see if they wanted to sign to get a raise." Flores added that
Elliott was also present then and told him what to put in
"the papers." Flores continued that as directed he went to
Elliott's office, copied "two papers," and was told by Elliott
he could take it "to the boys and see if they wanted to sign."
The witnesses's recollection of what was written on these
documents, as to one: "To L and H Packing Company,
Braun Division. We no longer want to be represented by
the, by the-I don't know what they said, I don't know
what that meant, Butchers of America, Local 171," and as
to the other: "To the Amalgamated, or something, Butchers
of America, Local 171. We no longer wanted to be
represented by the Local 171."
Flores went on that he then proceeded back to the kill
room where Chavez gave him permission to talk to all the
employees. "He [Chavez] told the boys, he says, `Boys,
Flores wants to talk to you about something.' " Flores then
told them they could get a raise if they signed these papers
but that he thought they should not because there was no
assurance there would be raises. No one signed. Chavez
then, still according to Flores, told him to go to the
tankroom, or the engineroom, to inquire if those employees
would sign . Flores ended by saying he refused and placed
the papers in Chavez' lockerroom at the foreman's
instructions, where he last saw them the day he was
discharged on December 5.
Augustine Flores' testimony is supported by that of two
other employees. David Flores recalled the incident, and
said Chavez told the men "Augustine had something to talk
to us about. Something on paper, something like that," and
that Augustine then explained it was "for us to get a more
rate or more benefits, we had those papers that he had"
Hernandez also testified that Chavez told the entire group
"that Augustine have something to say to us concerning
about something from the office or from Mr. Harral,
something like that ." Hernandez recalled Augustine telling
the men "Mr. Harral wanted us to sign that paper, we can
have the same , I mean what you say, profit or-I don't
know. . . . He said probably we have the same thing that
San Antonio Packing Company have like rags [sic],
vacation , overtime and everything."
Harral , Elliott , and Chavez all denied this entire incident;
according to them it was pure fabrication by the employee
witnesses.
Continuing with his testimony , Flores said he reported
the employees ' refusal to sign to Harral and asked why
didn' t the manager just grant raises, and that Harral
answered "He said he couldn' t because he would be
violating the law . He had to get something ." With this
Flores had a notary public prepare a written agreement
between employees and Company , detailing raises and
other increased benefits , and asked Harral to sign it. The
document is dated August 23. Now Flores told Harral "that
I had that contract if he wanted to sign it, well then he
could sign that and we can give him the signature if he
signed that contract for us. And then so we could get a
raise." Harral answered he would think about it . Back in
the kill room Chavez asked what had happened , and when
Flores reported Harral would give him an answer that
evening, Chavez, according to Flores, said : "Well, like I tell
you, if you don' t want union here, don't bring union in
here . The boss, '. . . that is Mr. Leonard . . . `told me he
can go as high as 5 cents over the wages of San Antonio
Packing Company." San Antonio Packing is a local
unionized plant competitor of the Respondent and Leonard
is the president of the Respondent. In the evening, when
Flores went back to Harral to learn what his decision was,
the manager said , always according to the witness : ". . . he
couldn 't sign it because he would be violating the law... .
He said if we could get the signature , then we could talk
about a raise."
On this incident , Harrel 's testimony is that Flores offered
to "get rid of the union " if he would sign the notary's
agreement , and that he answered he could not bargain with
the employees, "I had to do one or the other , and the union
was the duly elected bargaining agent." Chavez' position
stands on his general denial that he ever told anyone to sign
antiunion petitions to get raises.
There is no dispute as to the last incident in the plant. On
September 22 Gustave Klein wrote to the Board 's Regional
Office requesting a decertification election . In response he
received a prepared petition for employee signatures. It
read : "We the undersigned employees of the George Braun
Packing Co, San Antonio, Tex., hereby allege that the
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local 171 is no longer the
exclusive bargaining representative of employees of the
above company, and we authorize Gustave Klein and
Jacob Escobedo to represent us in petitioning the National
Labor Relations Board to decertify said union as our
representative."
Jacob Escobedo , assistant foreman of the kill room, then
asked Superintendent Elliott for permission to solicit
signatures to this petition and explained it was a "petition
we had , you know , if it was for us , you know , just in case we
wanted a union or not in there ." Elliott admitted giving his
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission . Did he know what it was about? "A: I recall
they boys there on the kill floor signing a petition or paper
or whatever to, something to do with their wanting
decertification of the union , or not having a union, or
something of this sort."
Escobedo then went to Chavez and said he had
permission . Chavez told him to go to the basement and then
sent every one of the kill room employees , all 38 of them, I
or 2 at a time , downstairs to be solicited . All this during
working time . In fact , in addition to the kill room , all the
rest of the plant employees-the overall total then about
120 persons-from all departments , were then sent down
by their respective foreman , a few at a time , to be solicited.
At the hearing Chavez testified Escobedo told him that day
the petition was concerned with "an election , but I don't
know what kind of an election it was going to be .. . . So I
don't know what it was that was discussion over there, what
they telling to each other, what kind of paper they write or
whatever."
Some employees signed for Escobedo , some did not.
With it Klein filed a decertification petition on October 22,
and the Respondent was advised . The Regional Director
scheduled a hearing on the petition but on November 7
postponed it indefinitely because the first of the charges
here involved had been filed . On November 14 the
Company granted all employees a substantial raise in pay.
C. Violations of Section 8(a)(1)
The foregoing evidence warrants the finding , which I
make , that the Respondent , acting primarily through the
kill room group , implanted the idea in the minds of its
employees that if they took affirmative steps to evidence
their rejection of the Union as bargaining agent the
Company would raise their wages. The intention to
accomplish this design appears as a coherent plan one step
at a time . Owner Harral testified that when Augustine
Flores came to his office during August on behalf of the kill
room men to ask outright for raises , he sent word back he
could not bargain with them because there was a certified
union in the picture . But this is precisely what he set out to
do when on or about the first of August he had the butchers
called to his office in order to discuss with them how to
increase their wages , and sent them out again to give serious
thought to whatever it was he was suggesting. If the
question of the Union as an impediment to granting wage
increases was in his mind in mid-August, it could not have
been less a concern a few weeks earlier . Still before reaching
the matter of the demeanor of the witnesses and the way
they told their stories-directly and clearly against
evasively and indirectly-Harral 's own words indicate he
was giving the employees to understand the question of
wage increase was tied to a choice that had to be made
between having a union and not having a union . This was
his clear implication when he placed the Union between
himself and the wage increase demands with the words "I
had to do one or the other." He made much of the fact there
had been no overt action , nor indeed any talk whatever
about the Union by the employees during that period. Yet
he would have it that Flores , out of a clear sky, offered to
"get rid" of the Union if the Company would sign the
notary's contract . No plausible explanation was offered,
and the entire record suggests no reason why Flores would
do this , absent some provocation from some quarter.
The next month Escobedo obtained a formal signature
sheet for rejection of the Union and the Company's
assistance to him is unreserved . Harral admittedly knows
what is going on, and gives his permission for the
solicitation by Escobedo during working hours . Escobedo,
assistant foreman , is the highest paid butcher in the kill
room . "I can be just the same as the other guy, like Chavez.
I can say anything I want , you know , to the guys working
over there . If they don 't want to so what I am going to tell
them , well, I got the responsibility to fire anybody there."
He fills in for the foreman when the latter leaves the floor
for any appreciable length of time , and ordinarily "He
might have one particular section to help push through a
little bit" (from Elliott 's testimony). Escobedo also
substitutes completely for Chavez in the foreman 's absence
from the plant , when "I stay over there , you know, telling
the people what do do, what not to do, what was right, what
was wrong . That was what I was supposed to tell them
guys."
Chavez sends Escobedo to the basement with his petition
and then in a stream asks each and every employee to go
downstairs to listen to him. At the hearing Chavez says he
knew it meant an election of some kind but he had no idea
what it was about . From him , in the circumstances , this was
pure lying . He had already falsified once when denying
there had ever been talk of piecework , only to have
Superintendent Elliott follow him to the stand and say he
had discussed piece rates with the foreman . With all this, I
also credit Augustine Flores ' testimony that after he left the
notary's contract with Harral and Chavez asked what the
manager 's reaction had been , the foreman told him , in clear
effect , that with the Union out of the picture the president
of the Respondent would give raises higher than those of
the competitor unionized company . Leonard , the president,
did not testify; there is no reason for not believing Chavez
was passing on what higher management had said to him.
Indeed , the statement , attributed to Leonard by his
supervisor , fits logically into the total picture of events.
Now, with the decertification petition filed , albeit with
knowledge there is going to be an election , the Respondent
gives everybody a raise. The Union is no longer an
impediment to the plant manager. But this is exactly what,
sometimes obliquely and sometimes directly , he has been
telling the employees-first there had to be positive
evidence of removal of the Union , and only then would the
raises follow . It is not necessary here to decide whether
Escobedo is a supervisor within the technical meaning of
the Act ; his at least quasisupervisory status , considering the
position of relative importance given him by the Company
in the kill room, coupled with the direct evidence of
cooperative effort between him on one hand and Harral
and Chavez on the other , points strongly to the conclusion
that he was acting as agent of management in soliciting the
employees to signify their rejection of the Union . In part on
the basis of the not too subtle suggestions of management
and in part on their assistance to Escobedo , I find the
ultimate formal decertification steps instituted by Klein
and Escobedo resulted from the Respondent 's activities. I
also credit Augustine Flores' further testimony , denied by
GEORGE BRAUN PACKING CO. 749
Chavez, that after hearing about the raises he asked the
foreman exactly how much they would be, would it be as
much as $2.30 for him, and that Chavez answered: "Yeah,
that's what you all going to get. . . . I told you you don't
need no union here. Don't quote me, but I'm going to tell
you, the boss told me he could go as much as 5 cents over
the wages at San Antonio Packing Company"
I find that by Manager Harral's statement to the
employees in his office that raises depended on their signing
a document repudiating the Union; by his suggestion to
Flores that he solicit signatures to an antiunion petition; by
his statement to Flores that the Company would discuss
raises with the employees only if they first obtained
antiunion signatures; by Foreman Chavez' instructions to
the employees to listen to Flores' invitation to sign an
antiunion petition; by his statement to Flores that the
president of the Company could pay wages in excess of
those paid by a competitor in return for antiunion
signatures; and by his directions to the kill room employees
to leave their work and listen to Escobedo's invitation to
sign a decertification petition, the Respondent violated
Section 8(a)(l) of the Act.
D. Refusal To Bargain; 8(a)(5) Violation
By October the Respondent was aware that Escobedo
and Klein had utilized their antiunion signature petition to
support a formal request for an election and that the
Regional Director was taking procedural steps to hold the
election. On November 14 it raised everybody's pay as
though a union had never existed in the plant. A week later
the Union demanded a bargaining conference and the
Respondent rejected the request out of hand. The
complaint alleges the Board must hold the Union still
represented a majority in November, and that the unilateral
act of radically changing conditions of employment
constituted rejection of the statutory duty to bargain with
an exclusive bargaining agent and therefore a violation of
Section 8(a)(5) of the Act. And of course the ultimate
refusal to bargain is said to have perfected the Respon-
dent's denial of collective-bargaining rights to its employ-
ees
The defense is many-faceted. It is argued that the
General Counsel has failed to prove an element essential to
any refusal-to-bargain case-the fact of majority status in
November, when the Company dealt directly with the
employees. In support of this position the question is asked:
How could there have existed an exclusive majority
representative at the same time that an employee petition
for an election was pending, and at the same time that the
Regional Director had himself recognized there existed a
question concerning representation by issuing a notice of
hearing on the decertification petition? Affirmatively, the
Respondent asserts that even assuming, on some theory or
other, that the Union still represented a majority at the
time, the Company had objective and reasonable basis for
doubting any such majority status, that it in fact did
entertain such an honest doubt, and that therefore in no
circumstances can its conduct be deemed unlawful. To
bolster this position the Respondent advances the further
justificatnn that competitive conditions in the market were
such that as a matter of economics it had no choice but to
increase all the wages , and could not fairly be obligated to
await the outcome of an election , or of the Board's
investigation of the merits of the charge filed against it.
I find that the Respondent violated Section 8(a)(5), as
alleged in the complaint , when it granted raises to the
employees on November 14, and again on December 15
when it advised the Union it had rejected its request for
negotiation meetings . The reasoning starts with a presump-
tion , honored again and again in the courts , that majority
status once established-as here on August 5 , 1968, by the
union certification-it continues to exist , virtually conclu-
sive during the first year and only rebuttable thereafter.
N L.R.B. v. Ray Brooks, 348 U .S. 96, 104 . Thus in the case
at bar the requisite fact of majority status rests on the
presumption , and continues to suffice pending evaluation
of countervailing evidence , if any , and the obligation to
come forth with such evidence rests as a burden upon the
employer . In its brief the Respondent separates the
interrelated pertinent facts and makes diverse arguments,
as though each could be viewed in isolation . If the record
showed only the filing of the decertification petition,
supported by any fair employee signature list requesting
removal of the Union as their bargaining agent , a different
issue would be presented and there might be a different
answer to the further question whether the presumption has
been rebutted.
In urging it would be unfair to expect the employer to
abide the event of an extended Board proceeding, and to
suffer economic disadvantage in the interval , the Respon-
dent conveniently ignores, for the moment , its own conduct
in provoking the very decertification petition . But "this is to
make situations that are different appear the same ," as the
Court said in Ray Brooks. And this is equally true of the
further argument that the filing of the original charge, on
November 6, promised such a further time passage in the
investigation of the allegations of misconduct, as to afford
greater license to the Company to ignore the Union,
majority or no majority . The fact of the matter is, and this is
the determinative element in this case , that it was the
representatives of management who, by their clear message
to the employees conditioning any raises upon their taking
steps to remove the Union from the picture , themselves
supplied the motivating force which prompted the petition,
and the charge in the first place.
The situation as it now appears fits precisely into the
Supreme Court's holding in N.L.R.B. v. Exchange Parts,
375 U.S. 405, where the employer conferred new benefits
upon the employees while a petition for an election was
pending. "The action of employees with respect to the
choice of their bargaining agents may be induced by favors
bestowed by the employer as well as by his threats of
domination.... We have no doubt that it [Section 8(a)(1)
of the statute] prohibits not only intrusive threats and
promises but also conduct immediately favorable to
employees which is undertaken with the express purpose of
impinging upon their freedom of choice for or against
unionization and is reasonably calculated to have that
effect." No need for speculation here as to the "danger
inherent" in "well-timed increases in benefits;" the
evidence is direct that Manager Harral told the employees
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there would be no raises without the necessary
"signatures."
All this applies with equal force to the Respondent's
related, but not really different argument that it had
reasonable and objective basis for an honest doubt as to the
Union's continuing majority status in November. There
had been a turnover in the employee complement, and the
total had increased greatly. And it may well be that had the
Respondent refrained from improper interference in the
matter of the employees' attitude towards bargaining
through a union, a fairly conducted election in the fall of
1969 might have resulted in rejection of the Union. Indeed,
had the Respondent entertained a sincere doubt on the
question it would have been a simple matter for itself to
have requested a Board election. The statute provides for
such steps by an employer. It chose instead to assure
rejection of any union by its own violations of Section
8(a)(1), thereby precluding any possibility of an untram-
melled expression of choice by the employees. Cf. N.L. R. B.
v. Gissel Packing Co., Inc., 395 U.S. 575.
This last fact, too, turnover and unit expansion, could, in
other circumstances, supply affirmative objective evidence
sufficient to rebut the presumption of continuing majority.
The fact remains, however, and it cannot be ignored, that it
was the Respondent's indirect, but nevertheless coercive
promises of benefit, that explain the ostensible question
concerning representation now advanced as support for the
claimed "honest doubt" by the Company. In the end, the
test must be found in the lead case enunciating the basic
principle of law applicable to this case . The employer may
not raise the question of majority status "in a context of
illegal antiunion activities."'
I find that by granting the November raises and by
rejecting the Union's bargaining request the Respondent
refused to bargain within the meaning of the Act and
thereby violated Section 8(a)(5).
E. Discharge of Augustine Flores
Flores, a very competent butcher, was hired on August 7,
1969, by Foreman Chavez and discharged the following
December 5, when a normal and seasonal decline in work
made necessary a general reduction-in-force. Within a 3-
week period, of the approximately 120 overall complement,
24 employees were released; of these 17 came from the kill
room. It is a contention of the General Counsel that Flores
was deliberately selected for dismissal because of his
"union" or concerted activities. The record evidence does
not prove unlawful discrimination in the discharge of this
man and I shall therefore recommend dismissal of the
complaint as to him.
Most of the men sent home from the kill room were
helpers, or less skilled butchers. One man, Manuel
Guzman, was as experienced as Flores, as well paid, and of
much longer seniority. The affirmative defense assertion
Celanese Corporation of America, 95 NLRB 664:
By its very nature, the issue of whether an employer has questioned
a union's majority in good faith cannot be resolved by resort to any
simple formula. It can only be answered in the light of totality of all
the circumstances involved in a particular case. But among such
circumstances, two factors would seem to be essential prerequisites to
any finding that the employer raised the majority issue in good faith in
cases in which a union has been certified. There must, first of all, have
that people had to be released for economic reasons, as
least some butchers among them , is not disputed , as indeed
on the record evidence it could not be. The notion that
Flores' doings during the 4 months he spent in the kill room
could be called "union activities" is virtually abandoned in
the General Counsel's brief. The fact of the matter is there
simply is no evidence worth mentioning that he had made
any effort to advance the interests of Butcher Local 171, or
of any labor organization.
Chavez had something to do with the choice of persons
who went home, for Superintendent Elliott admitted he
consulted the foreman in making the selection . It is this
touchstone, where Augustine Flores and Andres Chavez
brushed against one another in the Respondent's kill room,
that is said to reveal where the butcher chose to exercise the
statutory rights guaranteed him by Congress and the
foreman to deny him his lawful prerogatives. Appreciation
of the friction that developed between them requires an
understanding of the personalities and predilections of
both.
The two have long been friends and have worked as
butchers together over the years. Flores has a flair about
him, he likes mankind, wants to help his fellow man, and
loves to sing. "Everytime I go in there I go singing or
whistling, or something. Everybody hollers at me,
Flores-I'm pretty popular around there. I mean everybody
knows me." He did not think Chavez was behaving
properly toward the help, and time and again without end
told him so , advised the foreman in no uncertain terms how
to promote this man or that, how to give the younger men at
least opportunity to advance themselves, how to have some
feeling for a nephew or a godson.
Apache was a leg breaker, and one day Assistant
Foreman Escobedo told him to drop hides instead. Apache
mentioned this to Flores, who advised him: "No, you tell
him no, you are not getting paid for that." To Escobedo, he
said: "No, he is not going because he is not getting paid for
that." With this, Escobedo restored Apache to gutting, but
resented being told what to do. Now Apache became a little
unhappy, what with the assistant foreman displeased
toward him. More advice from Flores: ". . . you go over
and tell Chavez that Escobedo is amusing you because you
didn't want to do a job. . . . And this way Chavez will tell
Escobedo, you know, which is right.... in a case like this,
that's what you should do...." The upshot of all this was
that Chavez threatened to discharge Apache and "whoever
was putting him up to that." To Flores the next day before
work he said "don't interfere with peoples telling them what
to say and showing them how to work and all this. This
might cost you your job."
Flores' position was then, as always, that his sole purpose
was to improve the quality of the work in the interests of the
Company. "I don't believe it will cost me my job because
I'm not doing nothing that would be against the Company,
been some reasonable grounds for believing that the union had lost its
majority status since its certification . And, secondly, the majority issue
must not have been raised by the employer in a context of illegal
antiunion activities , or other conduct by the employer aimed at
causing disaffection from the union or indicating that in raising the
majority issue the employer was merely seeking to gain time in which
to undermine the Union.
GEORGE BRAUN PACKING CO.
you know, just telling the boys how to work. I think that
was very good because I show them how to work, you
know, tell them what was right."
With an air of bravado Flores enjoyed telling of other
such incidents. It seems there is work with a broom and
work "in the paunch," whatever this last means . One day
Chavez switched two boys back and forth between these
chores, and Flores thought "that was not right." One of the
boys was a nephew and one a godson, with the foreman and
his friend the butcher holding the correlative positions of
social responsibility, but again with the record not quite
clear as to which elder related to which youth. In any event,
Flores told his boy "You stay on the broom" and found
himself in dispute with Chavez. "Chavez started getting
mad. I went and said, `What is wrong, Chavez? Why are
you getting mad?' He said, `Oh, they want to tell me what to
do here, and they going to do here what I tell them to do.' I
said, `But that's not right. You know he is not getting paid
for that. Why don't you put my God-son in the paunch?
He's getting 10 cents an hour more than him. Leave him on
the broom. He's doing a good job on the broom anyway.'
Or, `if you bring him up, then pay my God-son what he is
getting any pay him the 10 cents He's been working here
longer than my God-son.' " This matter too closed with
Chavez insisting "He wanted to do it his way. He was
running the kill floor."
There were other relatives. "Oh, I always talked to him
about employees. . . . That boy was pretty good with a
knife. Coming up pretty good... He was really coming
on good. . . . Chavez, why don't you give him a chance.
The foreman was reluctant. "Well, he is your cousin's
son• in-law." "Yeah, but I don't like him." Back came
Flores: "You don't have to like him. Perhaps you have a
butcher in there...." This time Chavez yielded and tried
the boy on other work, only to have the son-in-law of the
cousin think little of the new assignment, work at it only
one shift, and then quit. Now Chavez had it over Flores,
and showed him the poor performance the boy had
delivered before leaving. Undaunted, Flores came back
with the charge that the foreman had not known how to
give the correct instructions. When Chavez protested "I
don't have to tell him," his fnend lectured him: "You have
to dedicate [sic ] a man."
Flores related quite a few such stones. One more will do
to round out the picture. Rodriguez, a helper, punched his
timecard before washing up, a cold violation of the rules;
Chavez caught him redhanded and told him to go home.
The boy was downcast when Flores saw him: "Tell him you
didn't do it." "I already told him but he didn't believe me "
"Well, tell him this is foolish.. . You go talk to Mr. Hank
[Elliott ] or somebody in the office. . . You know what? I
will go with you... . Let's you and I go." They boy did not
want to go in. "I said, `Aw come on in.' He said, `No, I will
wait for you here.' I said, 'OK.' " In the superintendent's
office Chavez insisted he was nght, and to Flores: "Listen,
Flores, you keep out of this." If this was "concert," as the
General Counsel calls it in his brief, it was surely discordant
concert.
Chavez always "hollered." "Why do you do this?", Flores
used to tell him, "You remember when we used to work
together that we didn't want the boss to holler at us." By
751
this time Chavez had changed status: "Oh, but these guys
don't know how to work. I am getting over $200 a week;
I've got to take care of my job." Flores was getting only
$2.18 an hour.
There was no spirit lacking in Chavez. As for Flores'
singing habits, I rather think Chavez found more fault with
his friend's musical taste than the timber of his voice. He
even spoke of it with an element of pride. "He is a very
good singer. . . . You want a serendade someday, he give
you one. . . . Him and Hernandez used to sing a lot on the
killing floor. Whenever a fellow got to singing, you know,
Augustine, all of the people watching to see what kind of a
song. That kill time too, you know, if you want to know one
thing . . . but once in a while I told them to sing one, pep
song, something that make them peppy; not like a funeral."
And achievement of supervisory status brought out a
pronounced sense of the executive function-an independ-
ent soul. "Well, when I hire a man, even if he is top butcher,
even if I put him to sweep, he'll be there sweeping. Oh, he
don't like to do it. That's different, you know. But if a man I
hired is top butcher, even if I put him to go to the restroom
and do some cleaning, he would go there and do it."
Countermanding the orders of such a foreman, fnend or
no friend, even if motivated toward advancing the interests
of the Company, was bound to offend the sensibilities of
Chavez. "Well, the way he asked sometimes, go talk to this
man and this other one, and I don't like the way he was
doing. So that's why. Sometimes I don't like nobody to give
me orders when I got the orders to tell them what to do. I
don't [want] nobody to interfere with my job."
"In a case like this," as Flores would say, profound
analysis of what Congress intended as concerted activities
is not warranted. A lot of people had to be let go that day,
he had not been there long, besides Guzman two other
butchers with greater seniority than he in the kill room were
also sent home, and they are tenuous questions at best,
whether Flores' desire to see justice according to his
individual light in the department was an attempt at
collective bargaining or pure mtermeddling, and whether
Chavez recommended economic hurt against his friend for
that reason. The burden of proof has not been carried.
Perhaps in his next job Augustine Flores will be recognized
as rough gold and be rewarded with promotion to foreman
himself.
THE REMEDY
Having found that the Respondent has engaged in an
unlawful refusal to bargain with the Union in good faith, I
shall recommend that it be ordered to do so on request and
to cease and desist from further such unfair labor practices.
In the light of the nature of the unfair labor practices found,
I shall also order that the Respondent cease and desist from
in any other manner interfering with the rights of its
employees to enjoy the statutory guarantee of self-organiza-
tion.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations 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 commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees, includ-
ing truckdrivers, at the Respondent's plant located at 675
Steves Avenue, San Antonio, Texas, excluding all office
employees, salesmen , guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union was on November 14, 1969, and at all
times thereafter has been the exclusive collective-bargain-
ing representative of the Respondent's employees in the
appropriate unit , within the meaning of Section 9(a) of the
Act.
5. By refusing to bargain with the above-named labor
organization in good faith on November 14, 1969, and
thereafter, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5).
6. By the foregoing conduct, by promising raises to the
employees on condition that they sign antiunion petitions,
by conditioning raises upon rejection of the Union, by
encouraging and instigating a decertification petition, and
by instructing, employees in the plant to listen to
solicitations to sign antiunion petitions, the Respondent has
coerced and is coercing its employees in violation of
Section 8(a)(1) of the Act.
7. The aforementioned unfair labor practices are unfair
labor practices within the meaning of Section 2(6) and (7)
of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that George Braun Packing Co., San Antonio, Texas, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with the
Union as the exclusive representative of all employees in
the bargaining unit.
(b) Promising raises to employees on conditions that they
sign antiunion petitions , conditioning raises upon rejection
of the Union, encouraging or instigating a decertification
petition, or instructing employees to listen to solicitations to
sign antiunion petitions.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request bargain collectively with the Union as
the exclusive bargaining representative of all employees in
the appropriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its place of business in San Antonio, Texas,
copies of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional Director
for Region 23, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision , what steps have been
taken to comply herewith.3
IT IS HEREBY RECOMMENDED that the complaint be
dismissed insofar as it alleges unlawful discrimination in
the discharge of Augustine Flores.
2 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board"
3 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 23, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
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 with
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local Union No. 171, AFL-CIO, as
the exclusive representative of the employees in the
bargaining unit described below.
WE WILL bargain collectively, upon request, with this
Union as the exclusive representative of our employees
in the bargaining unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached , embody such understanding in a signed
agreement . The bargaining unit:
All production and maintenance employees,
including truckdrivers, at our plant at 675 Steves
Avenue, San Antonio, Texas, excluding all office
GEORGE BRAUN PACKING CO.
employees, salesmen, guards, and supervisors as
defined in the Act.
WE WILL NOT promise raises to our employees on
condition that they sign antiunion petitions, condition
raises upon rejection of the Union, encourage or
instigate a decertification petition, or instruct our
employees to listen to solicitations to sign antiunion
petitions.
WE WILL NOT in any other manner interfere, restrain,
or coerce our employees in the exercise of their right to
self-organization, to form, join, or assist any labor
organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
GEORGE BRAUN PACKING
Co.
(Employer)
Dated By
753
(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 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, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas
77002 Telephone 713-226-4296.