Hy Plains Dressed Beef, Inc.

National Labor Relations Board - Board Decisions

May 1, 1964

146 N.L.R.B. 1253 (N.L.R.B. 1964)

HY PLAINS DRESSED BEEF , INC. 1253
General Counsel argues in his brief that Moniot's statement , "was clearly intended
to evoke a reply from Ridenour as to whether he was aware " that a union meeting
had been held the night before . The Respondents defend on the ground that there
is no proof that Moniot 's remark , if made, was designed to elicit information, that
it was isolated and did not take place in a coercive setting, and that in any event
Moniot 's conduct is not attributable to Respondent Partnership.
For the purpose of deciding this issue , it will be assumed without deciding that the
incident occurred substantially as related by Ridenour , that Moniot 's statement was
intended to elicit information regarding what interest Ridenour might have had in
the Union , and that each Respondent is responsible for Moniot 's conduct. In the
absence of any threats of retaliation or promises of benefit , and in a context lacking
union animus, it is difficult to look upon Moniot's remark as coercive . But that
issue need not be decided . This is the only incident ( other . than the alleged surveil-
lance ) shown to have happened in a plant of approximately 200 employees, and it
involved only one supervisor and one employee. Under such circumstances I deem
it to be an isolated instance , insufficient standing alone to justify a finding that the
Respondents violated the Act , or to warrant the issuance of a remedial order.'2
Upon the basis of the above findings of fact , and upon the entire record in this
case , I make the following:
CONCLUSIONS OF LAW
1. Laboratory Equipment Corporation and Carl E . Schultz , Joseph A . Sauer and
George J. Krasl , a co-partnership d/b/a Leco Plating Company, are , and at all
material times have been , employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. District Lodge 39 of the. International Association of Machinists , AFL-CIO,
is, and at all material times has been , a labor organization within the meaning of
Section 2(5) of the Act.
3. The General Counsel has failed to establish that either of the Respondents
has engaged in or is engaging in unfair labor practices within the meaning of Section
8 (a) (1) or (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in this case , it is recommended that the Board grant the Respondents'
joint motion to dismiss the complaint in its entirety.
32 Union Carbide Corp . v. N.L.R. B., 310 F. 2d 844, at 845 (C.A. 6).
Hy Plains Dressed Beef , Inc. and Amalgamated - Meat Cutters
& Butcher Workmen of North America, Local No . 340, AFL-
CIO. Cases Nos. 17-CA-2170 and 17-RC-4034. May 1, 196.11
DECISION AND ORDER
On December 6,1063, Trial Examiner Benjamin B. Lipton 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 De-
cision. The Trial Examiner further found that certain of the afore-
said unfair labor practices engaged in by the Respondent interfered
with the results of the Board election in the above representation pro-
ceeding and recommended that the election be set aside and a new elec-
tion held at an appropriate time. He also found that the Respondent
had not engaged in certain other unfair labor practices and recom-
146 NLRB No. 134.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the excep-
tions, and brief, and finds merit in the exceptions of the Respondent.
Accordingly, the Board adopts the findings of the Trial Examiner only
insofar as consistent with this Decision and Order.
The Trial Examiner found initially, contrary to the contentions of
the Respondent, that Koenke, Rapp, and Beck at all relevant times
were supervisors within the meaning of the Act and therefore that
the Respondent was responsible for certain statements they made to
employes. However, as found by the Trial Examiner, Rapp, Beck,
and Koenke were included in the bargaining unit by stipulation of the
parties and they voted in the election without challenge. The Board
has held that an employer is not responsible for the antiunion con-
duct of a supervisor in circumstances such gas these, in the absence of
evidence that the employer encouraged, authorized, or ratified the
supervisor's activities or acted in such a manner as to lead employees
reasonably to believe that the supervisor was acting for and on behalf
of management? Since the General Counsel has made no such show-
ing in this case, we find that the preelection conduct of Rapp, Koenke,
and Beck is not chargeable to the Respondent. We shall therefore
dismiss those allegations of the complaint relating to the preelection
conduct of Rapp, Beck, and Koenke.
The following conduct, for which the Respondent is concededly
responsible, is also in issue as allegedly violative of Section 8(a) (1)
of the Act.
1. On January 15, 1963, about 20 days before the election, Respond-
ent's attorney, Rock, spoke to employees for about 2 hours, giving his
views about the election and answering questions from employees.
Former employee Randle, a witness for the General Counsel, testified
that all he could remember of this talk was that in response to a ques-
tion about "wages and stuff," Rock replied. "the plant would probably
be set off in groups of skilled and unskilled labor and there would
1 We have examined the record and find no merit in the contention of the Respondent
that the Trial Examiner at the hearing was guilty of bias and prejudice.
2 Montgomery Ward & Company, Incorporated, 118 NLRB 645, enfd. 242 F. 2d 497
(C.A. 2).
HY PLAINS DRESSED BEEF, INC. 1255
be no raises, even if the Union went in there would be no raises and it
would be possible the unskilled laborers would be drawing less than
they are now." The Trial Examiner found that this statement violated
Section 8 (a) (1) of the Act.
In response to questioning on cross-examination, Randle gave a
fuller account of Attorney Rock's talk. Randle admitted that Rock
had said there were good unions and bad unions, that if the men were
going to join a union this was one of the finest unions, that some unions
had done well by their people and others not so well, but this union had
done well, that the union representatives were fine gentlemen, that it
was entirely up to the employees whether they wanted to join a union,
that there were benefits to joining a union and some detriments and
the employees should be aware of these before joining. Randle fur-
ther admitted that Rock had suggested that the employees seek out
a union man, talk to him and find out what were the good things and
the bad things and not to make up their minds until they had in-
vestigated. Randle also testified that Rock told the employees that
whether they obtained increased benefits would depend entirely upon
negotiation. After the speech was over, Randle admitted telling some
of the employees, "The lawyer had been fair." In a question and
answer period subsequent to the speech, Randle suggested the possi-
bility of a meeting to work out a deal. Rock replied, according to Ran-
dle, ". . . we could make absolutely no promises and we could da
absolutely nothing, and whether you joined the Union or didn't join
the Union was entirely your matter and we could not talk to you
concerning any benefits at all and would not. . ." Randle also
acknowledged that Rock had made the statement, "you have absolutely
no reason to believe that your situation will improve if you vote this
Union out." Asked about his testimony on direct examination which
implied that Rock had said there was a possibility or probability
that wages would be lowered, Randle replied :
No, somebody asked you and you said possibly it would be like
other plants, that the men would be set off in groups of skilled
or unskilled and it would be possible a common laborer would
draw less money than he did now.
Randle's testimony on cross-examination as to the content of Rock's
talk was corroborated by General Counsel's witnesses, Martinez and
Holt. Martinez admitted that Rock had told the employees that he
"had in hand here several contracts, all with the same union, each of
which had different working conditions and different wages and these
were all the result of negotiation . . . that there is nothing automatic
about electing a union and then automatically getting what they say
they are going to get you, it is a matter of -negotiation."
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Holt affirmed, as found by the Trial Examiner, that Rock
had stated that whether the Union did or did not come in, "it would
not affect our wages either way," he also admitted that during the
speech, Rock had stated "it would be impossible for me or the union
people or for anyone to say what your wages would be because. this
would be a matter of negotiations." I
We do not agree with the Trial Examiner's finding that Rock's
speech, considered in. its entirety, was intended to impress,,.employees
with the futility and danger of having the Union represent them, that
it constituted an anticipatory refusal to bargain, or that it was cal-
culated to have a coercive effect upon emlloyees. On the contrary,
we find that it was in the permissible area of fair comment and did
not violate Section 8 (a) (1) of the Act.
2. On February 1, 1963, Respondent mailed to employees a letter
set out in relevant part in the Trial Examiner's Decision. The Trial
Examiner found that the letter, like Rock's speech, sought to convey
to employees the danger and futility of voting for the Union and
that by sending the letter Respondent violated Section 8(a) (1) of
the Act._ We disagree. As we read the letter, it was obviously an
attempt to counter employee hopes of prospective wage gains with a
reasoned statement of the company's financial difficulties, and an ex-
planation of the tie-in of employee welfare with Respondent's busi-
ness conditions. We believe that this was legitimate argument. We
do not construe this letter, standing alone or in context, as a threat
to employees or as an anticipatory refusal to bargain, as found by the
Trail Examiner 4
3. On January 15, the evening of Rock's speech, employee Randle
and President Davis were in the taproom of a local motel at Randle's
invitation. During the conversation, Davis said, according to the
Trial Examiner, that under a contract with the Union the employees
would be divided into two groups, skilled and unskilled, and that it
was possible that the latter would be making less than their current
wages. The Trial Examiner further found that this statement
violated Section 8 (a) (1). Randle admitted that he had asked Davis
if the latter knew anything about other union contracts and how they
a In footnote 23 of his Decision , the Trial Examiner states that in its exceptions to the
Regional Director 's report on objections , Respondent admitted that Rock stated , inter aria,
"So just having a union or not will not affect your wages one way or the other."
The full quotation from which the Trial Examiner has extracted this alleged admission
is as follows :
That there was nothing automatic about a wage increase if the union won the
election . That the Company must base its wage decision on competition in the area,
availability of trained personnel , many financial factors and other things, and they
cannot pay a given wage just because the union representative demands it. You
would do the same thing if you owned the company . So just having a union or not
will not affect your wages one way or the other.
' Decorated Products, Inc., 140 NLRB 1383.
HY PLAINS DRESSED BEEF, INC. 1257
worked, and that Davis had answered to the best of his ability, giving
the above answer. In his own testimony, Davis said that Randle has
asked whether at his previous place of employment, there had been dif-
ferent scales of wages for different jobs and that he had answered af-
firmatively. It is obvious that this alleged coercive statement was
elicited by Randle's repeated questioning, was an honest answer, and
was like a similar statement made earlier in the day by Attorney
Rock, which we have found was not coercive. In the light of all the
circumstances , we reject the Trial Examiner's finding that the above-
mentioned remark of Davis constituted interference, restraint, or coer-
cion in violation of Section 8 (a) (1).
4. In agreement with the Trial Examiner, we find that the Respond-
ent violated Section 8(a) (1) of the Act by Davis' interrogation of
Martinez, about 3 weeks before the election, and by the threats made
to McCoy by Davis and Koenke 5 sometime during March or April,
:after the election.
The Trial Examiner held that by reason of Attorney Rock's speech,
the letter of February 1, the implied threats by Davis that unskilled
labor would have their pay reduced under a union contract, and Davis'
interrogation of Martinez, all of which conduct occurred prior to the
election, the Respondent interfered with the election held on Febru-
ary 5, 1963. The Trial Examiner accordingly recommended that the
election be set aside. We have already found that Attorney Rock's
speech and Respondent's letter of February 1 constituted fair ap-
praisals of what might happen if .the Union came into the plant and
therefore did not violate Section 8(a) (1), and have also found that
:Davis' statement, that it was possible that unskilled labor would have
its pay reduced, did not constitute unlawful interference, restraint, or
coercion in violation of Section 8(a) (1). We also find that in the
circumstances here the above conduct did not impair the employees'
freedom of choice of representative, so as to warrant setting aside the
election. In the circumstances, we find that the isolated instance of un-
lawful interrogation by Davis of Martinez before the election did not
interfere with the employees' exercise of a free.choice in the election.
Accordingly, we shall not adopt the recommendations of the Trial
Examiner and we shall certify the results of the election.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Hy Plains
3 The Respondent concedes that when Koenke, subsequent to the election , was assigned
additional responsibilities , he then became a supervisor for whose conduct the Respondent
was responsible . Montgomery Ward, footnote 2, supra , is therefore inapplicable to
Koenke's postelection conduct.
1258 DECISIONS..OF NATIONAL LABOR RELATIONS BOARD
Dressed Beef, Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Reconunendations,.
with the following modifications :
1. Section 1(a) of the Order shall be modified to read as follows:
Interrogating employees in a manner constituting interference,
restraint, or coercion; or threatening employees with curtailment
of privileges or loss of benefits if they select a union to represent.
them. .
2. The notice appended to the Trial Examiner's Decision shall be
modified to read as follows :
WE WILL NOT interrogate employees in a manner constituting:
interference, restraint, or coercion; threaten employees with cur-
tailment of privileges or loss of benefits if they select a union; or ire
any like or related manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed in Section 7
of the Act.
[The Board certified that a majority of the valid ballots cast in the
election of February 5, 1963, in Case No. 17-RC-4034, were not cast
for Amalgamated Meat Cutters & Butcher Workmen of North Amer-
ica, Local 340, AFL-CIO, and that the said Union is not the exclusive-
representative of the employees at the Dodge City, Kansas, plant of
Hy Plains Dressed Beef, Inc., in the unit found appropriate.]
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In Case No . 17-CA-2170, an amended charge was filed and served on May 2T.
1963,1 by the Charging Party, herein called the Union , and a complaint by the Gen-
eral Counsel was issued on June 26 against Respondent alleging violations of Sec-
tion 8 ( a)(1) of the National Labor Relations Act. Case No. 17-RC-4034 involves
disputed issues of fact raised in certain objections filed by the Union to Respondent's
conduct affecting the results of an election held on February 5. The complaint and'
representation cases, in which substantially similar issues are raised, were duly
consolidated pursuant to orders of the Board and the Regional Director . 2 Hearing
1 The original charge was filed and served on April 24. All dates herein are in the year
1963, unless otherwise specified.
2 Relating to the representation case, the following formal facts are noted : On Janu-
ary 10, the Union filed a petition for an election ; on January 25, the parties entered into'
a Stipulation for Certification Upon Consent Election ; on February 5. the election was
held and the Union lost by a vote of 18 to 14. all eligible voters having cast ballots ; on.
February 8, the Union filed timely objections to the election ; on February 28, after in-
vestigation , the Regional Director issued his report on objections , recommending to the
Board that objections Nos. 2 and 4 be found without merit. That objections Nos. I and 3
be sustained , and that the election be set aside and a new election conducted ; on March 29,
Respondent filed exceptions to the Regional Director 's recommendations on objections
Nos. 1 and 3 and requested , inter alia, that a hearing be conducted in the matter; on
April 11, the Board specifically overruled objections Nos. 2 and 4, in the absence of ex-
ceptions to the Regional Director ' s recommended dismissal thereof , and directed that a
hearing be held as to objections Nos. 1 and 3 ; and on June 28, the Board, and on July 3,
the Regional Director , issued orders to provide for the consolidated hearing herein.
HY PLAINS DRESSED BEEF , INC. 1259
-was accordingly held before Trial Examiner Benjamin B . Lipton in Dodge City,
Kansas, on August 5 and 6 . All parties participated in the hearing, and at the
-close thereof were afforded opportunity to argue orally on the record. Respond-
ent's motion to dismiss the complaint are disposed of in accordance with the findings
-below. Briefs received from the Respondent and the General Counsel have been duly
-considered.
Upon the entire record in the cases , and from my observation of the witnesses,
:including their demeanor on the stand , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged in the operation of a beef slaughtering and dressing plant
:at Dodge City, Kansas . It annually ships to points outside the State of Kansas
--products and materials valued in excess of $50 ,000. Respondent admits , and I find,
: that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE CONDUCT AFFECTING THE
ELECTION RESULTS
A. The issues
The complaint alleges various acts of interference , restraint , and coercion commit-
ted by Respondent 's president, Sam V. Davis , Respondent 's attorney , Richard Rock,
and three alleged supervisors , Kenneth Koenke , Clifford Rapp , and Gary Beck,
including a speech delivered by Rock to the assembled employees and a letter from
Davis to the employees-both preceding the pending election . The Union's ob-
jections to the election , numbered 1 and 3,3 as here in question , also involve the
Rock speech , the same Davis letter , and certain other incidents alleged in the com-
plaint . In his report , the Regional Director described evidence uncovered in his in-
vestigation which was not explicitly alleged in these objections . Respondent now
:appears to protest consideration herein for purposes of the representation case of
matters outside the literal scope of the Union 's stated objections .4 This position
.has no merit , as the jurisdiction of the Regional Director in making postelection in-
vestigations is not limited to the specific issues raised by the parties .5 However, as the
allegations in objections Nos. 2 and 4 have been specifically overruled by the Board,
they are precluded from consideration respecting the election case , although the issue
, of surveillance in objection No. 2 is raised in the unfair labor practice complaint.
B. Supervisors
The dispute concerns the status of Koenke , Rapp , and Beck . Significantly, none
of these individuals was called to testify on any matter at the hearing . On Septem-
ber 5 , 1962 , production was commenced at the new business and plant of Respond-
ent in Dodge City; some months prior thereto , President Davis and other personnel
were occupied with construction of the physical facilities. In May, June, and July,
1962 , Rapp , Koenke , and-Beck were hired at weekly salaries of $115, $125 , and $75,
respectively ; 6 and unlike the production employees , they were not required to punch
:a timeclock . The several employees who testified were started at $ 1.50 per hour, and
later received raises from 10 to 25 cents.
3 Objection No. 1 states that-"Shortly before the election , management and super-
visory personnel told employees that they were going to receive certain benefits when the
.election was over if the union were voted down ." Objection No. 2 states that-"Em-
ployer pre-election speeches made employees believe they would receive benefits if the
union did not win the election and suffer reprisals in wages and other benefits if the
.union won the election."
' Respondent , in its exceptions to the report on objections , did not challenge the right
,of the Regional Director to investigate and pass upon any of the subject matter contained
in his report.
3 E.g., Carter-Lee Lumber Company, 119 NLRB 1374 , 1376; International Shoe Com-
pany, 123 NLRB 682, 684.
6 At the time of the hearing , they were receiving $ 125, $135 , and $100, respectively.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Largely uncontradicted and credible testimony establishes the following: 't Upon
being hired,. before and after the plant opening, employees were introduced by
Davis to Koenke and Rapp and told that they were foremen or "bosses"-with
Koenke in charge of the kill floor (having about 13 employees), and Rapp in charge
of the cooler (with about 6 employees). Both gave instructions to employees in the
performance of their work and assigned them to different tasks .8 Koenke and Rapp
were occupied, although not all of the time, in various manual functions requiring
their attention. Davis testified that they were "leadmen," 9 with no power to hire,
fire, or discipline employees, but he admitted that they had authority to "ask"' em-
ployees to do particular jobs and the employees were expected to comply.la On
April 1, Respondent employed Jim Dobbins as an admitted supervisor of the kill
floor. As put by Davis, "we decided we weren't getting the functions from our
leadmen we should and we hired a foreman to supervise the kill floor and took.
Mr. Koenke . .. due to him showing an outstanding ability to help us during these
initial periods and had become more familiar with the plant than any other fore-
man we could hire, Land] we made a general foreman out of him." However,
it is undisputed that for about 5 weeks prior to April 1, Holt was a full time "lead-
man" of the kill floor, taking orders from Davis and Koenke-the latter then being.
employed elsewhere in the plant. Before and after this 5-week period, Holt had
regular employee functions.
Davis' testimony that , until April 1 , he was the sole person having and exercising:
supervisory authority over the approximately 32 employees is not credited. He de-
scribed the kill floor, cooler, offal and rendering departments on two floors of the
main plant, and the hide house 3 to 4 miles away. In the 75 to 80 percent of the time-
be stated that he spent in the plant , including 15-minute visits twice daily to the
hide house, Davis purportedly supplied the entire immediate supervision over the
work of all the employees. Apart from the apparent impracticality of this proposi-
tion , it shows an abnormally high ratio of employees to supervision."
Beck was hired as a "management trainee," and until the time of the bearing, was-
assigned to the cooler, inter alia, to assist in tagging beef . Davis testified that Beck,
"being an outstanding college graduate from Kansas State," where he was on the-
"meat judging team," had "quite a lot of potential ," and was being trained to take
over management functions . Beck directed men in the absence of Rapp from the
cooler on an average of I or more days a week , and has regularly requested em-
ployees to assist him in certain operations . Earl Barr, who worked in the cooler,
gave testimony , uncontroverted , of an incident subsequent to the election of
February 5 but before March 8. An employee in the cooler identified as "Ted"-
told Barr that he bad just been fired by Beck . That same day , after the "squabble,"
Koenke came in and told the employees that Beck's authority had been taken away
as of then . The reasonable assumption from this is that theretofore Beck had the
right to discharge employees, subject to the approval of higher authority.
Koenke is concededly a supervisor as of April 1. Prior to such date, during the
times material , the evidence is clear that both Koenke and Rapp responsibly directed-'
employees, and on this criterion at the very least 12 were supervisors under the Act's..
definition.13 The described evidence as to Beck, including the fact that he was being-
groomed to occupy a management role-the specific purpose for which he was
hired 14--is sufficient to establish his status as that of supervisor within the meaning-
of the Act.
7 By employees Tom Randle , Henry Martinez , Thomas G. Perez, Earl Barr , and Cecil It.
Halt. Only Davis' testimony , In limited part , was offered to contradict these employees.
9 There was a "considerable turnover" of the complement of some 32 employees, esti-
mated at 300 percent in less than a year.
The title "lendmnn " of Itself is of no consequence ; It is the authority the individual-
has and what he does which determine the Issue.
1c Davis Is not credited In his testimony that Koenke , Rapp, and Beck were Initially
hired for jobs as "construction laborers."
11 See, e.g., Florida Sugar Corporation . 142 NLRB 400 ; Little Rock Hardboard Com-
pany, 140 NLRB 204 ; Applied Research Inc., 138 NLRB 870.
12 1 do not, in any event , believe that the authority of the individuals in question was-
as restricted as Davis testified.
' See, e.g., Remington Rand Corporation , 141 NLRB 1052 ; General Holds and Plastics!
Corporation , 122 NLRB 182 ; Southern Wire and Iron Inc., 118 NLRB 820.
14 E.g., The Yale cE Town Manufacturing Company , 135 NLRB 926,, 928 ; WTOP, Inc.,
115 NLRB 758, 759.
HY PLAINS DRESSED BEEF , INC. 1261
As to the complaint case, the agreement would not operate to estop the General
Counsel's contention, and the finding made herein, that these individuals were indeed
supervisors and agents of Respondent in the conduct alleged.rs
For purposes of the consent election which was held, Respondent and the Union
had agreed that Koenke, Rapp, and Beck were eligible to vote. As the agreement
effected a result in conflict with statutory policy,16 it was not binding upon the parties
in the representation case; nor could the matter be considered res judicata in the
absence of a hearing or litigation of the issue.17 Although the General Counsel's
attorney specifically stated that he does not allege these individuals are supervisors
in the representation case, I cannot be controlled by such position nor by the parties'
agreement, as (a) the issue was fully litigated in connection with the complaint case,
(b) the election aspects of this hearing are nonadversary; and (c) the statute re-
quires exclusion of supervisors from employee bargaining units.1s
C. Interference, restraint, and coercion
The following is undisputed. About 3 weeks before the election of February 5,
Davis encountered Martinez on a stairway and asked him who had started the
Union. Martinez replied he did not know, and Davis then stated he "thought he
knew who it was." About January 29, Beck inquired of Perez, a kill floor employee,
as to what he thought of the Union, and himself said he thought the skinners had
started it. About February 2, Beck spoke to employee Collier, Herby Barr and Earl
Barr in the cooler. He said that a union would benefit only the skinners and knife-
men, and showed them a copy of a contract of the Union in which the lowest wage
was $1.121/2 an hour. On February 4, Beck asked Perez how he would vote and
was told-"for the company." On Sunday, February 3, Koenke, Rapp, and Beck
went to a meeting of employees with representatives of the Union at the Silver Spur
Motel. Several days before the meeting, Beck had asked Holt when and where
the union meeting was to be held, and he was told. In March and April, David J.
McCoy, who was hired after the election, approached Davis and Koenke on separate
occasions in an effort to gather information concerning the Union in order, as he
said, to make up his mind on the subject. In the course of these discussions, Davis
asked McCoy how he felt about the Union, and indicated that, if the Union came in,
the men would have to "put out 100 percent." Koenke also told him that,' with the
Union. the men would have to "put out more," work harder, and that Respondent
would not tolerate the present practice of stretching employee breaks beyond the
10 minutes allowed.
About January 16, as credibly testified, Randle and Davis were together at a tap-
room in the Silver Spur Motel and, among other things, discussed the subject of the
Union. Davis indicated to him that under a contract with the Union the employees
would be divided into two groups, skilled and unskilled, and that it was possible that
the latter would be making less than their current wage. Davis asked about the
"gripes" of the employees, and Randle said the men wanted Respondent to post a
daily "kill schedule." That week, Respondent began posting such a schedule over
the employees' timeclock. The schedule consists of a number, such as 85, which is
merely an approximation made by Respondent at the beginning of the workday
of how many cattle are expected to be slaughtered that day. Under all the facts,
I can perceive no validity in the General Counsel 's contention that the posting of the
kill schedule constituted, not a benefit, but "a change of working conditions" which
tended to interfere with the forthcoming election.ls The record clearly shows that,
prior to such posting , the same information was readily available each morning to all
13 employees on the kill floor. The "Knocker," at the head of the production line, had
Is Liberty Coach Company , Inc., 12R NLRT1 10. -
1eF..g., The Mountain States Telephone and Telegraph Company . 130 NLRB 388.
31 1,iberty Coach Co., ibid.; United Insnranre Company. 122 NT .RB 911.
18 Cf. Cruts Along Boots , Inc., 12R NLRB 1019. which Is distinguishnble because (a) the
Board in a prior decision based upon a hearing record had Included the disputed in-
dividunls In the unit . in view of the parties ' stipulation ; ( b) that stipulation was not
sought to be repudiated until the very day of the election , without a contention that
there was newly discovered evidence not available at the original hearing: ( c) there
was no litigated evidence that these persons were in fact supervisors , and the Board did
not knowingly include supervisors in the unit ; and (d) the Board 's later decision that
the parties were bound by their stipulation was based on procedural grounds and did not
necessarily mean that the individuals in question were appropriately In the unit.
79Cf. American Freightways Co., Inc ., 124 NLRB 140.
1262 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
a "kill sheet," the scaler had kill tickets with the same data, and the information was
also accessible in the office a few steps from the timeclock. The other employees need
only have inquired for this information of the knocker or scaler, and it was shown
that they regularly did in fact. Knowledge by the employees of the kill schedule in
no way affected their earnings 20 or their hours of work. It is alleged that, with
such knowledge, the employees are able to estimate for themselves how long they
would have to work that day. In the circumstances, I do not find that the kill schedule
reaches the stature of a working condition or that the additional posting by Davis
after his talk with Randle involved a cognizable change, beneficial or otherwise.
In all the circumstances, I do not find that Koenke, Rapp, and Beck engaged in un-
lawful surveillance by their presence at the employees' meeting with the Union on
February 3. The Union had stipulated their eligibility to vote, which was known
to the employees. Holt did not deny that he might have invited Beck. There was
apparently some doubt then as to their supervisory status, and absent evidence that
Respondent sought and entered into the eligibility agreement as a fraud or deception,
or that in going to the meeting these individuals were expressly under instruction
from or acting as agent for Respondent, or that they misused the information they
obtained at the meeting, the Union must be held as having assumed the risk of their
presence at such a meeting.21
Concerning the remainder of the described evidence,22 I find Respondent violated
Section 8(a) (1), as alleged-in the interrogations of employees by Davis and Beck;
their statements that they knew who started the Union; the threats of Davis and
Koenke that employees would have to work harder and would lose current privileges;
and the implications by Davis and Beck that unskilled employees would have their
wages reduced.
In Beck's conversation with Holt shortly before the election, Beck mentioned that
he had seen an insurance policy on a desk in Respondent's offices. He did not say
what kind of policy it was. Since Beck indicated that he had observed what ap-
peared to be a policy lying on a desk, his further statement that the company had
been looking over insurance polices and that the company could not say anything
about them were obviously assumptions on his part. The testimony on this subject,
in my opinion, is entirely too vague to sustain the General Counsel's allegation that
a violation was involved.
On January 15, Respondent's Attorney Rock addressed the assembled employees
on the topic of the Union and the pending election and answered their questions-
all of which consumed about 2 hours. Among other things, Rock discussed and dis-
played purported contracts in his possession involving the Union at plants of other
companies. Holt firmly testified that Rock stated, inter alia, that "whether or not
the union went in or not, that our wages wouldn't be affected." Randle testified that
Rock said there would be no raises "even if the union went in," and that "the plant
would probably be set off in groups of skilled and unskilled labor . . . and it would
be possible the unskilled laborers would be drawing less than they are now." Cross-
examined by Respondent, Randle stated that the Union had made no promises.
And there is no other evidence in the record concerning the Union's campaign state-
ments, if any, made to employees. Attorney Rock briefly took the witness stand
and, in connection with his speech to the employees, simply denied that he said
"there would be no raises given even if the union came in." 23 Holt's version was
not effectively denied by Rock, and is in any event credited, as is Randle's testimony
concerning union wages for the unskilled group.
On February 1, Respondent mailed to the employees a preelection letter consisting
of two pages. The following excerpts from the letter are set forth so far as reason-
ably related to the issue raised by the General Counsel:
Unions have to make promises in order to secure dues paying members. This
is their business. It is how they make their living and in order to retain their
jobs and receive their salaries they must secure dues paying members (by
20 All kill floor employees were paid on "gang time," i.e., all received the same number
of hours for processing the cattle of a particular day.
21 See Howard Aero, Inc., 119 NLRB 1531.
At the hearing, the General Counsel conceded that there was Insufficient evidence and
consented to strike the allegation in the complaint (par. VI(c)) that Respondent promised
to grant benefits if the Union lost the impending election-by Davis in late January, and
by Beck on February 1 and 2.
23 In its exceptions to the Regional Director 's report on objections , Respondent admits
(at p. 2 ) that Rock stated, inter alia , "So just having a union or not will not affect your
wages one way or another."
. HY PLAINS DRESSED BEEF , INC. 1263
making promises).. A skillful, trained, union organizer has promised you that
they can force this company to do certain things for you. The question is,
how are they going-to accomplish these promises? Let's look at the facts.
This is a brand new meat packing compy just starting in an unproven area
for meat packers. We are suffering all the' problems that any new small busi-
ness has while competing with all the big major. meat. packers who are well
established over the years, in proven areas, such as Kansas City, Chicago,
Omaha, Sioux City, etc. Some of our.problems we have begun to solve, but
most remain unsolved, some due to our inability to correct them financially,
but largely due to the fact that we are engaged in a complex business that has
just been born. It takes time to solve problems when you, are a, new born!
The Union has absolutely nothing to do with whether you have a steady job
and a good wage. The security of your job and your income depends on how
good and efficient a job we do processing cattle . and whether we can man-
age sufficient margins to pay our obligations and make a profit on our investment.
The Union can not improve our product, help us sell it, or provide us with a
profit, and this is not what they are interested in-they are interested in collect-
ing union dues, initiation fees, and assessments.
Your security and welfare depends upon the success of this company, not the
success of the Union. •
THE BENEFITS AND WAGES YOU NOW RECEIVE AND THOSE
YOU RECEIVE IN THE FUTURE NECESSARILY MUST BE BASED
ON OUR BUSINESS CONDITIONS. WHETHER WE DO OR DO NOT
HAVE A UNION WILL NOT AFFECT YOUR BENEFITS AND WAGES
ONE WAY OR THE OTHER. THIS FACT YOU MUST UNDERSTAND
AND BELIEVE.
We suggest that you ask the union how they intend to force this Company
to agree with the various promises they have made to the employees in their
attempt to win this election; and whether there is some sort of guarantee they
can make so that if you would vote for their union and the promises are not
put into effect then you would not have to pay Union dues. The Union has a
right to make any sort of demand that enters their mind; the Company has
the right to refuse their demands. The simple fact is, the union agent has no
power to enforce his demands. He must rely on the proposition that if the
Company does not agree with him, you and the other employees will walk out
and refuse to work . . . . [All emphases in the original.]
The Board has repeatedly indicated that preelection communications to the em-
ployees, similar to those made by Respondent, must be considered in total context,
not only in the content of the letters and speeches, but in all the pertinent surround-
ing events of the election campaign, as revealed 24 Unlike other situations, Respond-
ent here was not legitimately answering prior propaganda of the Union.25 Indeed,
there is no evidence of promises made by the Union to which Respondent referred
in this letter. The speech by Attorney Rock conveyed essentially the same message
as the letter-that the employees could expect no gain in wages or benefits in hav-
ing a collective-bargaining representative or from the operation of the collective-
bargaining process. Moreover, Rock suggested that unskilled employees would
possibly receive less than their current wages-the same campaign point carried to
the employees by Davis and Beck. Plainly, the speech and the letter sought to
impress the employees with the futility and danger of having the Union represent
them. Respondent's conduct, I find, constituted an anticipatory refusal to bargain
and:was also calculated to have a coercive effect upon the employees, thereby violat-
ing Section 8(a)( I) of the Act2e
-D. The objections to the election
Within the framework of the issues properly before me in the representation case,
I find that, by reason of Attorney Rock's speech, the letter of February 1, the implied
'^See; e .g., Carl T. Mason Co., Inc., 142 NLRB 480; The Lord Baltimore Press, 142
NLRB 328; Decorated Products, Inc., 140 NLRB 1383; Arch Beverage Corporation,
140, NLRB 1385.
'a Cf. Decorated Products, Inc., and Arch Beverage Corporation, ibid.
Pe Dal-Tex Optical Company, Inc., 137 NLRB 1782; The Prone Company, 137 NLRB
1506; Marsh Supermarkets, Inc., 140 NLRB 899.
744-670-65-vol. 146---81
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threats of Davis and Rock that unskilled labor would have their pay reduced under
a union contract, and Davis' interrogation of Martinez prior to the election, Re-
spondent created an atmosphere which tended to, and undoubtedly did, interfere
with the employees' free choice of a bargaining representative.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection 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.
V. THE REMEDY
Having found that Respondent violated Section 8 (a) (1) of the Act, I will recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. It has also been found that Respondent inter-
fered with the election conducted on February 5. I will therefore recommend that
the election be set aside and another be conducted at such time as may be ap-
propriate, excluding from eligibility to vote and from the bargaining unit Koenke,
Rapp, and Beck, found herein to be supervisors.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the cases, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. By certain of the aforesaid unfair labor practices and conduct committed prior
to the Board election, Respondent has interfered with and illegally affected the re-
sults of the election held on February 5, 1963.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the cases , I recommend that Respondent, Hy Plains Dressed
Beef, Inc., Dodge City, Kansas, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees in a manner constituting interference , restraint, or
coercion ; making statements to employees which create an impression that their
union activities are under surveillance ; or threatening employees with curtailment
of privileges or loss of benefits if they select a union to represent them.
(b) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its Dodge City , Kansas, plant, copies of the attached notice as an
"Appendix." 27
Copies of said notice to be furnished by the Regional Director for the Seven-
teenth Region shall, after being duly signed by the Respondent , be posted immediately
upon receipt thereof in conspicuous places and be maintained for a period of 60
consecutive days. Reasonable steps shall be taken to insure that said notices are
not altered , defaced , or covered by any other material.
r+ Ilf this Recommended Order be adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree
of the United States Court of Appeals, Enforcing an Order" for the words "A Decision
and Order."
HURWITZ ELECTRICAL COMPANY, ETC. 1265
(b) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the receipt of the Trial Examiner's Decision and Recommended Order,
what steps Respondent has taken to comply herewith.28
It is also recommended that the election conducted in the unit of Respondent's.
employees on February 5, 1963, be set aside and a new election directed at an ap-
propriate time.
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
28 If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Seventeenth Region, In writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, you are notified that:
WE WILL NOT interrogate employees in a manner constituting interference,
restraint, or coercion; make statements to employees which create an impression
that their union activities are under surveillance; threaten employees with cur-
tailment of privileges or loss of benefits if they select a union; or in any like or
related manner interfere with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
Hy PLAINS DRESSED BEEF, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore
1-7000, Extension 731, if they have any question concerning this notice or compliance
with its provisions.
Hurwitz Electrical Company, Hillen Electrical Company and
Local Union No . 24, International Brotherhood of Electrical
Workers, AFL-CIO , Petitioner. Case No. 5-IBC-1348. May 1,
1964
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
Pursuant to a stipulation for certification upon consent election
approved October 8, 1963, a secret ballot election was conducted by the
Regional Director for the Fifth Region on October 18, 1963, among the
employees in the appropriate unit. At the conclusion of theballoting,
the parties were furnished with a tally of ballots which showed that of
approximately 31 eligible voters, 30 ballots were cast, of which 16 were
for the Petitioner and 14 were against the Petitioner. Thereafter,
the Employer filed timely objections to conduct affecting the results of
the election.
The Regional Director conducted an investigation and, on January
29, 1964, issued his report on objections, in which he recommended
146 NLRB No. 149.