Iowa Beef Packers, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1963

144 N.L.R.B. 615 (N.L.R.B. 1963)

IOWA BEEF PACKERS, INC . 615
same time Child was on the premises interfering with production, without per-
missions Further, Child was certainly not on the premises on November 9 as
a shop steward, policing a contract, nor was he there as an employee ready to work.
As he described himself to Brooks, he was just there to do what Gonzales wished
and he appeared to have little concern for his or the Upholsterers' duties under the
contract but appeared to be determined to let Gonzales' will be done.
In addition, I find that Child violated section XV of the contract, either as a
representative of the Upholsterers or as an employee who received its benefits, by
talking to employees during their worktime on November 9 and 12, in that he
was failing to "Cooperate to maintain high standards of . . job performance."
Similarly, it is obvious to me that Child, by talking to employees and a supervisor,
on November 9 and 12 as found herein, violated section XV of the contract by
failing to "Cooperate to keep at a minimum the time devoted by officers, stewards,
and members in handling grievances, soliciting union members, ... or engaging in
other Union activities on the Employer's property during working hours." There
is no substantial evidence that Child effectively could not have engaged in these
activities on nonworking time.
Further, I find that the manner of Child on November 9 and 12, especially when
dealing with Brooks, was arrogant, possibly occasioned by a misunderstanding of
what Gonzales expected of him. Further, finding that Brooks on November 9
legitimately and clearly directed Child to desist from engaging in Teamsters and
Furniture Workers' union activity on company time, I further find that Child de-
liberately and contumaciously ignored Brooks' directions, on November 12, perhaps
mistakenly believing that Gonzales rather than Brooks could direct his working
time activities even though the particular activities did not involve his duties as
shop steward.
In sum, I find General Counsel has not established by a preponderance of the
credible and substantial evidence that Respondent violated the Act as the com-
plaint alleges.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at material times, an employer within the mean-
ing of Section 2(2) of the Act and is engaged in commerce within the meaning of
the Act.
2. The Upholsterers, the Teamsters, and the Furniture Workers are, and have
been at all times material to this proceeding, labor organizations within the mean-
ing of Section 2(5) of the Act.
3. The record does not establish that Respondent has engaged in the unfair labor
practices, or any of them, alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
the entire record in this proceeding, it is recommended that the Board enter an
order dismissing the complaint.
=" It is needless to speculate whether request for permission would have been denied
Iowa Beef Packers, Inc. and Frank Laird
Iowa Beef Packers, Inc. and District No. 3, United Packinghouse
Food and Allied Workers , AFL-CIO. Cases Nos. 18-CA-1500
and 18-CA-1510. September 17, 1963
DECISION AND ORDER
On May 14, 1963, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
144 NLRB No. 64.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent 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 Inter-
mediate Report. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal as to them. Thereafter, the Charg-
ing Party and the General Counsel filed exceptions to the Inter-
mediate Report, and the Charging Party filed a 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 [Members Leedom, Fanning, and Brown].
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 entire
record, including the Intermediate Report, the exceptions, and brief,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations only to the extent consistent herewith.
In numerous instances, in connection with his consideration of the
allegations of the complaint that the Respondent violated Section
8 (a) (2) and (3) of the Act, the Trial Examiner relied, not on appli-
cable Board precedent, but instead on certain decisions of U.S. Courts
of Appeals which expressed views contrary to those of the Board, and
which the Board has not accepted. The Trial Examiner's reliance
on such court decisions constitutes fundamental error. As the Board
has stated 1 sand reiterated : 2
It has been the Board's consistent policy for itself to determine
whether to acquiesce in the contrary views of a circuit court of
appeals or whether, with due deference to the court's opinion, to
adhere to its previous holding until the Supreme Court of the
United States has ruled otherwise. But it is not for a Trial
Examiner to speculate as to what course the Board should follow
where a circuit court has expressed disagreement with its views.
On the contrary, it remains the Trial Examiner's duty to apply
established Board precedent which the Board or the Supreme
Court has not reversed. Only by such recognition of the legal
authority of Board precedent, will a uniform and, orderly ad-
ministration of a national act, such as the National Labor Rela-
tions Act, be achieved.
'Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company
of America), 119 NLRB 768, 773.
2 E g, Novak Logging Company, 119 NLRB 1573, 1575-1576. See also Local 1426,
International Longshoremen's Association, AFL-CIO (Heide and Company, Inc.), 128
NLRB 198, 205-206 ; Reliance Fuel Oil Corp., 129 NLRB 1166, 1177; North Country
Motors, Ltd., 133 NLRB 1479, 1485.
IOWA BEEF PACKERS, INC. 617
Accordingly, and with all due deference to the views of the courts of
appeals relied on by the Trial Examiner which are contrary to those
views expressed herein, we shall consider the issues in this proceeding
on the basis of applicable Board precedent.
In February 1962, Respondent purchased a packing plant located in
Fort Dodge, Iowa, which was formerly operated by the Fort Dodge
Packing Company. The United Packinghouse Workers, herein re-
ferred to as the International, through its affiliate, Local 607, was the
duly designated bargaining representative of the employees at that
plant when Fort Dodge Packing Company terminated operations in
November 1961. Before Respondent began production operations at
this newly acquired facility, the International, in early September
1962, made efforts to organize the employees hired at the new plant.
Contemporaneous with this organization drive, some of Respondent's
employees took steps to form the Hawkeye Industrial Labor Union,
herein referred to as the Independent. Through the months of
September and October, both unions competed for employee authori-
zation as bargaining agent.
With knowledge of the International's prior representative status
among the predecessor's employees, Respondent's president, R. D.
Anderson, and its supervisors, both before and during the Interna-
tional's organizing activities, campaigned to discourage and forestall
employee interest in the International. Respondent, on a number of
occasions, threatened employees with economic reprisals if they joined
or supported the International. Thus, employee Roger Grove, in a
discussion in late August 1962 concerning a relative of Grove's who
was active in the International, was told by Anderson that "the unions
ain't nothing but a bunch of blanks . .. . You remember that .. .
you had better watch your step." In early October 1962, employee
Fred Williams, having been seen with leaders of the International,
was told by Superintendent Thiede that "if we associated with them
kind of guys we would be out of a job." Employee Vernon Dornath,
who had provided a meeting place for the International, was told by
Anderson that "I am not going to fire you, but there's other ways of
getting the job done . . . . You'd just better start turning things
around and start going the other way with it." And again in October
1962, Superintendent Thiede, after questioning employee Joe Fitz-
gerald about soliciting cards for the International, asked Fitzgerald
if he didn't "realize that Andy would shut her down, lock that front
door" if the International Union got into the plant.
In addition, Respondent, during the International's organizing cam-
paign, called employee meetings at which Anderson warned the
workers that the plant would close down, with its operations trans-
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred to the Respondent 's plant at Denison, if the International
organized the Fort Dodge employees . Individual employees were
also interrogated concerning their attitude toward, and activities on
behalf of, the International . Furthermore , Anderson created the
impression that activities sponsored by the International were under
surveillance by stating to employees , "I know these things [time and
place of meeting] just as fast as you do."
In contrast to Respondent 's efforts to forestall any organization by
the International , and Anderson 's own testimony that he made no
secret of his opposition to that Union , the record does not contain a
scintilla of evidence indicating that Respondent in any way discour-
aged employee affiliation with the Independent.
Other facts, which were stipulated by the parties, show that on Octo-
ber 18, 1962 , Respondent received demands for recognition from the
International and the Independent . The Independent 's demand was
supported by signatures of more than 100 of the total complement of
160 or 163 workers, while the demand of the International was not
supported by signatures or authorization cards. The International,
however, then claimed that it represented a majority of Respondent's
employees . On October 23, the International filed a representation
petition with the Board, and the Respondent received notification
thereof on October 24 or 25. On October 26, 3 days after the petition
was filed, Respondent recognized the Independent as exclusive bar-
gaining agent for its Fort Dodge employees, and on December 17,
1962, Respondent and the Independent executed a labor contract.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by interrogating employees concerning their ac-
tivities on behalf of the International, by creating the impression of
surveillance of activities sponsored by the International , by threaten-
ing a closedown should the International win representation rights,
and by threatening individual employees with discharge and other
reprisals for affiliating with or supporting the International. With
such findings we agree.'
2. We cannot , however, agree with the Trial Examiner's finding
that the Respondent did not violate Section 8(a) (2) of the Act by its
recognition of, and subsequent dealings with, the Independent. The
complaint alleged that the Respondent rendered unlawful assistance
and support to the Independent , thereby violating Section 8(a) (2)
and (1 ) of the Act by recognizing and engaging in collective bargain-
ing with that Union with knowledge of the International 's demand
for recognition and the pending representation petition . The Trial
Examiner observed that the alleged violation of Section 8(a) (2) in-
volved application of the Board's Midwest Piping doctrine 4 Based
3 The Respondent filed no exceptions to the Trial Examiner's 8(a)(1 ) findings
4 Midwest Piping & Supply Co, Inc., 63 NLRB 1060.
IOWA BEEF PACKERS, INC. 619
on his finding that the General Counsel had failed to show that a real
question concerning representation existed at the time the Respondent
extended recognition to the Independent, the Trial Examiner con-
cluded that the Respondent had not recognized the Independent in
violation of the Midwest Piping doctrine. In so doing, the Trial
Examiner relied not only on the fact that the Respondent recognized
the Independent only after it had authenticated signatures showing
that said union represented a substantial majority of the employees
concerned, but also upon the asserted failure of the General Counsel
to prove "in an appropriate manner" that, at the time it filed its
petition, the International represented "a substantial number of em-
ployees," thereby establishing that said petition raised a real question
concerning representation.'
We cannot accept the Trial Examiner's implied holding that the
Independent, by numerical superiority in signed authorizations, pre-
cluded any determination that a real question concerning representa-
tion existed. A cardinal element of the Midwest Piping doctrine is
that an employer cannot arrogate unto himself authority to deter-
mine which of two or more contending unions is entitled to recogni-
tion as exclusive bargaining agent. In this connection, the Board,
on numerous occasions, has stated that :
... membership cards obtained during the heat of rival organiz-
ing campaigns ... do not necessarily reflect the ultimate choice
of a bargaining representative; indeed, the extent of dual mem-
bership among the employees during periods of intense organiz-
ing activity is an important unknown factor affecting a. deter-
mination of majority 6 status, which can best be resolved by a
secret ballot among the employees.
Thus, contrary to the reasoning of the Trial Examiner, the numerical
percentage of employees represented by one of the contending unions
does not foreclose the existence of a real dispute as to representation
so as to privilege a premature recognition 7
5 At the hearing, counsel for the General Counsel stated, on personal knowledge, for
the record that, at the time of its filing, the International's petition was supported by
50 authorization cards which, according to his personal investigation, constituted an ade-
quate and substantial showing of interest. The General Counsel refused to introduce these
cards in evidence, asserting that a petitioner's showing of interest is an administrative
matter for determination by the Board and is not a litigable issue in the present case.
There is no contention that any other question, such as the appropriateness of the unit,
was raised concerning the International's claim to representation
'Novak Logging Company, 119 NLRB 1573, 1575, footnote 7. It is noteworthy that
the record in the instant case shows that certain of Respondent's employees, though mem-
bers of the Independent, had engaged in activities supporting the International and have
indicated their primary allegiance to that union.
7 Duralite Co., Inc., 132 NLRB 425, 427, footnote 4; Shea Chemical Corporation, 121
NLRB 1027; Novak Logging Company, supra, footnote 6.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, in view of the facts hereinabove set forth, particularly
the extensive unlawful conduct engaged in by the Respondent, we
cannot find that the Respondent had any reasonable basis for believing
that the signatures secured by the Independent, on which the Respond-
ent's recognition of that Union was based, reflected the free and un-
trammeled choice of its employees.' As the Trial Examiner himself
found, the Respondent, by its persistent threats and warnings , inter-
fered with, coerced, and restrained employees from supporting the
International in violation of their rights guaranteed by the Act. It is
difficult, therefore, to agree with the Trial Examiner that the Re-
spondent maintained an attitude of strict neutrality throughout and
that there was an absence of mala fides in its recognition of the In-
dependent. In such circumstances, it being clear that the Respondent
was aware of the International's interest among the employees and
its activity to organize the employees, and that the Respondent sus-
pected that many of its employees were actively supporting the Inter-
national, it cannot be said that the Respondent was justified in taking
upon itself to resolve the claims of the rival unions, particularly where
the International supported its demand for recognition by filing a
petition. In the circumstances of this case, including the Respond-
ent's unlawful opposition to the International, we are of the opinion
that the conflicting demands of the rival unions presented a question
concerning representation which was for the Board's, rather than
the Respondent's, determination.' We accordingly find that by recog-
nizing and executing a collective-bargaining agreement with the In-
dependent, in the face of an existing question concerning representa-
tion, the Respondent granted unlawful assistance and support to the
Independent in violation of Section 8(a) (2) and (1) of the Act.
3. We agree with the Trial Examiner's conclusion that the Respond-
ent did not violate Section 8(a) (3) and (1) of the Act by failing to
provide employment to applicants Frank Laird, John Miner, James
Grove, Maurice Nickless, and Eugene Thelen. The General Counsel
alleged that these five individuals were discriminatorily denied em-
ployment in the new plant because they were officials of Local 607,
the representative of the employees at the Fort Dodge Packing Com-
9 See NL.R.B. v. Burke Oldsmobile , Inc, 288 F. 2d 14 (C.A. 2 ), where the court of
appeals , in enforcing the Board 's Order , found that an employer had violated Section
8(a) (2) and ( 1) of the Act by recognizing one of two rival unions , despite evidence of
the majority status of that union , where the employer had interfered with the free and
untrammeled conditions under which employees were entitled to choose their bargaining
agent
9A "question concerning representation" may exist whether or not a petition is actu-
ally pending before the Board . See Novak Logging Company , supra, footnote 4, and cases
cited therein. See also Brittany Dyeing and Printing Corp , 126 NLRB 785. In the
view we take of the case , we find it unnecessary to pass on the Trial Examiner 's opinion
that the International 's showing of interest was subject to litigation in this complaint
proceeding.
IOWA BEEF PACKERS, INC. 621
pany and an affiliate of the International, but the Trial Examiner
found there was no evidence indicating that the Respondent expressed
any particular animus against these individuals because of their cur-
rent or past union interest or activities. On the contrary, the evi-
dence, as credited by the Trial Examiner, showed that Laird had a
history of a chronic back condition, Miner was reputed to be a poor
worker, and Grove, Nickless, and Thelen had made formal application
for employment after all available jobs were filled, with Nickless hav-
ing a record as a convicted felon and Thelen having made a poor im-
pression at an employment interview. Furthermore, it is not disputed
that the Respondent received some 1,500 applications for the 160 jobs
that were or would be available upon completion of the Fort Dodge
plant, and the record fails to show that any of those selected for em-
ployment were less qualified than the five union officials. In the
circumstances we cannot say that the Respondent's reason for rejec-
tion of each of the five individuals in question was a mere pretext.
Accordingly, in our view, the General Counsel has failed to establish
by a preponderance of the evidence that Frank Laird, John Miner,
James Grove, Maurice Nickless, and Eugene Thelen were denied em-
ployment because of their past activities on behalf of the
International.lo
4. The Trial Examiner found that the Respondent violated Section
8(a) (4) by refusing to hire James Grove because he filed a charge
with the Board. However, because he was of the opinion that Grove
deliberately falsified a statement in the charge, he recommended that
the usual remedy be withheld.
We find, in agreement with the Trial Examiner, that the Respondent
violated Section 8 (a) (4) of the Act in its discriminatory refusal to
hire Grove because he filed a charge against the Respondent. How-
ever, we disagree with his recommendation that remedy for such viola-
tion be withheld.
In this connection, the record contains no support for the Trial
Examiner's finding that Grove deliberately falsified the allegation
made in his charge. Indeed, the evidence is to the contrary. Thus,
the undisputed evidence shows that the charge was prepared and filed
by Frank Laird, another alleged discriminatee, without participation
therein by Grove. Grove testified without contradiction that he did
not authorize Laird to include the untrue portion of the charge, and
the Respondent conceded that Grove immediately repudiated the of-
10 In adopting the Trial Examiner 's conclusion that Respondent did not violate Section
8(a) (3), we do not agree with his reasoning that the General Counsel, in making out a
violation based upon a discriminatory refusal to hire, must establish that vacancies existed
at the time of the alleged discrimination. See Shawnee Industries, The, 140 NLRB 1451,
overruling in that regard Climax Spinning Company, 101 NLRB 1193, 1204, on which
the Trial Examiner relied.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fending part of the charge when it was brought to his attention by
the Respondent's representatives. Grove, at the same time, informed
an agent of the General Counsel of the inaccurate portion of the origi-
nal charge, which was subsequently deleted by amendment to the
original charge.
Although the Board has withheld relief when an individual has
abused its procedures by deliberate and malicious conduct," such ac-
tion has been taken only where the circumstances require forfeiture
of remedy to effectuate the purposes of the Act.12 Here the state-
ment, which proved to be incorrect, was included in the original
charge as the result of a misunderstanding and no evidence of deliber-
ate and malicious conduct on Grove's part was presented. In the
circumstances, we find that a withholding of remedy in this case will
not effectuate the purposes of the Act.
ME PMIEDY
Having found, contrary to the Trial Examiner, that Respondent
has engaged in unfair labor practices in violation of Section 8(a) (2)
and (1) of the Act, we shall order Respondent to cease and desist there-
from and take affirmative action necessary to effectuate the policies
of the Act.
We have found that the Respondent recognized the Hawkeye In-
dustrial Labor Union and entered into an agreement with it on Decem-
ber 17, 1962, all during the pendency of a real question concerning
representation of the employees covered thereby. By such conduct,
the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of their right freely to select their own bargain-
ing representative, and has accorded unlawful assistance and support
to the Hawkeye Industrial Labor Union. In order to dissipate the
effect of Respondent's unfair labor practices, we shall order Respond-
ent to withdraw and withhold all recognition from Hawkeye Indus-
trial Labor Union, and to cease giving effect to the aforementioned
agreement, or to any renewal or extension thereof, until such time
as Hawkeye Industrial Labor Union shall have been certified by the
Board as the exclusive representative of the employees in question.
Nothing herein shall, however, be construed to require that the
Respondent vary or abandon any existing term or condition of
employment.
We have also found, in agreement with the Trial Examiner, that
the Respondent violated Section 8(a) (4) by refusing to hire James
Grove because he had filed charges with the Board. However, con-
trary to the Trial Examiner, we have found that the facts and cir-
11 See, for example, O'Donnell's Sea Grill, 55 NLRB 828.
12 See Clayton E. Smith et al., d/b/a Clayton-Willard Sales, 126 NLRB 1325,
IOWA BEEF PACKERS, INC. 623
cumstances of the case do not warrant a withholding of remedy. We
shall therefore order Respondent to offer James Grove immediate
employment in the same or substantially equivalent position to which
he would have been employed absent 'the discrimination against him
if such employment became available on or after the date of his em-
ployment application. In conformance with the Board's newly
adopted policy of not tolling backpay,13 we shall further order that
the Respondent make James Grove whole for any loss of earnings
suffered by him as a result of the discrimination against him by pay-
ment of a sum equal to that which he would have earned from the
date after the discrimination, when a job for which he was qualified
became available, until the date of such offer, less his net earnings
during the period. Such backpay shall be computed on a quarterly
basis as provided in F. W. Woolworth Co.,14 and interest at the rate of
6 percent per annum shall be added to all backpay provided for in
this proceeding to be computed in the manner set forth in Isis Plumb -
ing & Heating Co."
In view of the nature of Respondent's unfair labor practices, which
show complete opposition and disregard of the principle of employee
free choice in the selection of a bargaining representative and go to
the very heart of the Act, we shall issue a broad cease-and-desist order
in this case.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Iowa Beef Pack-
ers, Inc., Fort Dodge, Iowa, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interrogating employees in connection with their union activi-
ties in a manner constituting interference, restraint, or coercion
within the meaning of Section 8 (a) (1) of the Act ; threatening em-
ployees with discharge or other reprisals if they become or remain
members of a particular union or give any support thereto; threaten-
ing employees that it would close the plant down if they selected the
International Union herein to represent them, or creating the impres-
sion that it was engaging in surveillance of union activities of its
employees.
(b) Assisting or contributing support to the Hawkeye Industrial
Labor Union, or to any other labor organization, by recognizing such
13A.P.W. Products Co, Inc, 137 NLRB 25, enfd . 316 F. 2d 899 (C.A. 2).
14 90 NLRB 289.
11138 NLRB 716.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization as the exclusive representative of any of its em-
ployees for the purpose of collective bargaining at a time when there
exists a real question concerning representation.
(c) Giving effect to its contract of December 17, 1962, with the
Hawkeye Industrial Labor Union or to any renewal, extension, modi-
fication, or supplement thereof, unless and until said labor organiza-
tion has been duly certified by the National Labor Relations Board as
the exclusive representative of such employees.
(d) Refusing to hire any applicant for employment because he
has filed charges under the Act.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist District No. 3, United Packing-
house Food, and Allied Workers, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in any 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 it is found will
effectuate the policies of the Act:
(a) Offer James Grove immediate employment to the same or sub-
stantially equivalent position to which he would have been employed
had he not been discriminated against, without prejudice to any
seniority or other rights and privileges he might have acquired and
make him whole for any loss of pay he may have suffered as a result
of the discrimination against him, in the manner set forth in the
section of this Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
and the rights of employment under the terms of this Order.
(c) Withdraw and withhold all recognition from Hawkeye Indus-
trial Labor Union as the exclusive representative of its employees for
the purposes of collective bargaining unless and until the said labor
organization has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(d) Post at its plant in Fort Dodge, Iowa, copies of the attached
notice marked "Appendix." 16 Copies of this notice, to be furnished
by the Regional Director for the Eighteenth Region, shall, after being
ie In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
IOWA BEEF PACKERS, INC. 625
duly signed by a representative of the Respondent , be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places , including
all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered , defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleged that
the Respondent engaged in conduct other than that found to be in
violation of the Act herein, be, and it hereby is, dismissed.
MEMBER BROWN , dissenting in part :
Contrary to the majority, I find that the Respondent discrimina-
torily denied employment to Laird, Miner, Grove, Nickless, and
Thelen, who were the incumbent officers of the International's affiliate,
Local 607, which represented the employees at the old Fort Dodge
Packing Company . Respondent was aware of their status in Local
607 both on the basis of background investigations and through its
office manager , Ralph Hunsley, who had participated in collective-
bargaining negotiations between Local 607 and the Fort Dodge Pack-
ing Company . As we have found, Respondent in opposing its em-
ployees' right to designate the International as their bargaining agent,
committed numerous unfair labor practices, including the interroga-
tion of individual employees concerning activities sponsored by the
International , creating the impression that activities sponsored by
the International were under surveillance , threatening individual em-
ployees with discharge and other reprisals for affiliating with or sup-
porting the International , threatening to close down the plant if
organized by the International , and, as a final stroke, unlawfully
recognizing and executing a collective-bargaining agreement with the
favored Independent . Clearly, Respondent 's calculated effort to de-
feat the International embraced the denial of employment to the five
applicants whose demonstrated leadership and experience in union af-
fairs marked them as potentially the most effective protagonists of
that Union. Accordingly, and on the basis of the record as a whole,
unlike my colleagues , I find that the reasons assigned by Respondent
for not employing the incumbent officers were mere pretext , and that
Respondent denied employment to Laird, Miner, Grove, Nickless, and
Thelen because of their union background in violation of Section 8 (a)
( 3) and (1) of the Act.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees that we will close our
plant or discharge them if they vote for District No. 3, United
Packinghouse Food and Allied Workers, AFL-CIO, or any other
labor organization ; question our employees about their union
activities in a manner constituting interference , restraint , or coer-
cion; or create the impression that we are engaging in surveil-
lance of their union activities.
WE WILL NOT assist or contribute support to the Hawkeye In-
dustrial Labor Organization by recognizing , or contracting with,
such labor organization as the exclusive representative of our
employees for the purpose of collective bargaining at a time when
there exists a real question concerning representation.
WE WILL NOT give effect to our December 17 , 1962, agreement
with the Hawkeye Industrial Labor Union or to any renewal,
extension, modification , or supplement thereof unless and until
said labor organization has been duly certified by the National
Labor Relations Board as the exclusive representative of our
employees.
WE WILL NOT refuse employment to any applicant because he
or she has filed charges under the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their rights to self-
organization, to form labor organizations , to join or assist Dis-
trict No. 3, United Packinghouse Food and Allied Workers,
AFL-CIO, or any other labor organization , to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from engaging in any
or all such activities.
AVE WILL withdraw and withhold all recognition from Hawkeye
Industrial Labor Union as the collective-bargaining representa-
tive of our employees unless and until said labor organization has
been certified as such by the National Labor Relations Board.
WE WILL offer James Grove immediate employment to the same
or a substantially equivalent position to which he would have
been employed had he not been discriminated against, without
IOWA BEEF PACKERS, INC. 627
prejudice to any seniority or other rights and privileges he might
have acquired, and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization. We Will
not discriminate in regard to hire or tenure of employment against any
employee because of membership in, or activity on behalf of, any labor
organization.
IOWA BEEF PACKERS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional
Office, 316 Federal Building , 110 South Fourth Street , Minneapolis,
Minnesota , Telephone No. 339-0112, Extension 2601, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by Frank Laird and United Packinghouse, Food and Allied
Workers, District No. 3, AFL-CIO, herein called the International Union, the
General Counsel of the National Labor Relations Board, by the Regional Director
for the Eighteenth Region, issued a complaint dated December 17, 1962, against
Iowa Beef Packers, Inc., herein called both the Company and the Respondent, alleging
that Respondent had engaged in and was engaging in unfair labor practices within the
meaning of Section 8(a) (1), (2), (3), and (4) of the National Labor Relations Act,
as amended. Copies of the charges, complaint, and notice of hearing were served
on the parties.
Pursuant to notice, a hearing was held in Fort Dodge, Iowa, on January 22, 23,
24, and 25 before Trial Examiner Henry S. Sahm. All parties were represented
by counsel and were afforded full opportunity to participate in the hearing, and to
introduce relevant evidence bearing on the issues, to argue the issues orally upon
the record, and to file briefs and proposed findings of fact and conclusions of law.
All parties, except the Hawkeye Industrial Labor Union, hereinafter referred to as
the Independent Union, filed briefs on or before March 18, 1963, which have been
fully considered.'
I Respondent's motion to strike a portion of James Grove's testimony on which ruling
was reserved, is hereby denied.
727-083-64-vol. 144-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from observation of the demeanor of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein, an Iowa corporation en-
gaged in the meatpacking business. During the 12-month period ending December 1,
1962, Respondent bought cattle and supplies valued at more than $50,000 from
suppliers outside Iowa. During the same period Respondent sold meat valued at
more than $50,000 to customers outside Iowa. The Respondent admits, and it is
found, that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Packinghouse, Food and Allied Workers, District No. 3, AFL-CIO, called
the International Union herein, and Hawkeye Industrial Labor Union, called the
Independent Union herein, are labor organizations within the meaning of Section 2(5)
of the Act, admitting to membership employees of the Respondent.
IH. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and background
The testimony concerning some of the incidents involved in this proceeding, par-
ticularly the dates and chronological sequence which eventually led up to the issuance
of a complaint, are contradictory, ambiguous, and incomplete as to specific details so
that findings of fact and resolutions of credibility made herein result from an
attempt to reconcile the evidence in determining what occurred and when. In
attempting to supply coherence to those statements and acts which are ambiguous,
necessary recourse has been made to the context of other facts and circumstances
in an effort to determine what was meant and when various acts occurred.
All evidence on disputed points is not described so as not to burden unnecessarily
this report. However, all has been considered and where required, resolved. In
determining credibility in this proceeding, the following has been considered inter
aka: the demeanor and conduct of witnesses, their interest or lack thereof; their
ability to know, comprehend, and understand the matters about which they have
testified; whether they have been contradicted or otherwise impeached; the inter-
relationship of the testimony of witnesses and the written evidence presented; and the
consistency and inherent probability and plausibility of the testimony. Then too,
human qualities, such as motive, can only be shown circumstantially where the
possessor has not previously revealed them directly, but the circumstances may out-
weigh in credibility a direct statement testified to at the hearing so that uncontradicted
testimony need not necessarily be accepted as true .2
The Fort Dodge Packing Company sold its plant to the Respondent and went out
of business on November 18, 1961. Its employees were represented by Local 607
of the United Packinghouse, Food and Allied Workers, AFL-CIO, a local of the
Charging Union, which is herein referred to as the International. After Fort Dodge
Packing Company plant closed down its operations, Iowa Beef Packers, the Respond-
ent Company, began negotiations in November 1961 for the purchase of the Fort
Dodge Packing Company plant. Negotiations continued until February of 1962,
when the Fort Dodge Packing Company plant was purchased by the Respondent,
Iowa Beef Packers.
Respondent then began drawing plans to demolish and rebuild the Fort Dodge
plant. On or about April 1, 1962, actual construction of the new plant commenced.
Respondent did much of the construction work itself and the rest was subcontracted.
When the rebuilding of the old plant began in April, there were about 500 applicants
who had filed for jobs when construction commenced, of whom Respondent hired
approximately 90 with the understanding that those employees who worked on the
construction phase of the new plant would have preference in manning the jobs
to be filled when the new packinghouse went into production.
2 Wigmore on Evidence, § 25. Cf. N.L.R B. v. Howell Chevrolet Company, 204 F. 2d
79, 86 (CA 9) affd 346 U.S. 482, quoting Judge Learned Hand in Dyer v. McDougal,
201 F. 2d 265, 269 (C.A. 2).
IOWA BEEF PACKERS, INC. 629
The old Fort Dodge Packing Company plant employed 48 men in its production
unit including the 5 alleged discriminatees in the proceeding. Of these, 29 of the
48 applied for employment with the Respondent of whom 20 were hired, all of whom
were either members or former officers of the Fort Dodge Local union .3
Laird was the only one of the five alleged discriminatees who applied for work
with the Company before construction of the new plant began. Of the other four
alleged discriminatees, two applied for jobs shortly before the plant became opera-
tional on October 2, 1962, and the other two when the plant was about 3 months
short of completion. Of the approximately 90 men employed by Respondent in the
construction phase, 8 to 10 left before construction was completed and the remaining
80 men who worked throughout construction and had job preference were hired by
Respondent when the plant went into production on October 2, 1962
Besides the original 500 men who applied for jobs before construction began, more
than 1,000 additional applications were filed during construction for the 80 produc-
tion jobs which were still available after the 80 construction employees, who had
preference, were employed to work in the new plant. The total work force for Re-
spondent's packing plant when it went into production on October 2, 1962, was about
160 employees.
At approximately the same time that the plant went into production, Respondent's
employees took action to form the Hawkeye Industrial Labor Union, "the Independ-
ent," and the United Packinghouse, Food and Allied Workers, AFL-CIO, "the Inter-
national," also undertook a campaign to organize the production and maintenance
employees in Respondent's new packing plant. The formation of the Independent
Union began around September 28 and at approximately the same time the Inter-
national Union began its organizational campaign by distributing handbills at the
plant premises. On October 18, 1962, the Independent Union filed with Respondent
Company a petition containing the signatures of over 100 employees out of a total
work force of approximately 160 employees. Five days later, on October 23,4
the International Union filed with the Board a representation petition to which
were allegedly attached 47 union authorization cards. Nine additinoal cards were
alleged to have been filed with the Board of which five or six were signed subsequent
to October 23. Respondent was notified of the filing of the International's petition
by the Regional Office on October 24 or 25. On October 26, 3 days after the Inter-
national filed its representation petition, the Respondent recognized the Independent
Union. Recognizing the Independent after the International had filed its representa-
tion petition, alleges the complaint, was a violation of Section 8(a)(2) of the Act.
In the meantime, charges had been filed on September 21, October 5 and 9, and
December 13, and a complaint issued on December 17, 1962, alleging violations
of Section 8(a)(1), (2), (3). and (4) of the Act. The 8(a)(3) averments in the
complaint allege that Respondent discriminatorily refused to employ Frank Laird
on February 26, 1962, John Miner on June 26, Maurice Nickless on July 30,
Eugene Thelen on August 29, and James Grove on September 10.5 The General
Counsel contends that these five men were not hired because they were all former
officers of Local 607 of the charging International Union, which had represented
the employees of the old Fort Dodge Packing Company before it went out of
business.
Respondent contends that of the five alleged discriminatees, four had not applied for
jobs with the Company before construction commenced on the new plant and, there-
fore, they were not entitled to preference in filling the jobs available when the plant
became operational on October 2, 1962. Moreover, Respondent states that Laird
(who did apply before construction began) was not hired because he was physically
unable to do the work required in a packing plant; Nickless because he had been
3 Eighteen of the old Fort Dodge plant employees worked for Respondent during con-
struction of the new plant and were subsequently employed in the plant when it went
into production
4 A petition of the International, received by the Regional Office on October 19, was
defective in that the International's union representative failed to sign the petition. The
Board then ordered another petition to be filed which was done on October 23 and desig-
nated Case No 18-RC-5304.
5 The original charge dated September 21, signed by Laird, alleges he was refused em-
ployment on June 25, Grove on August 11, and Nickless on July 11, 19G2. The amended
charge of October 5 alleges refusals to hire Miner on July 18, Grove and Nickless on
July 30, and Thelen on September 29.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
convicted of a serious felony; Miner because he did not meet the high standards
established by the Respondent in view of the more than 1,500 applications that were
filed for the approximately 80 jobs available (after the 80 preference men were hired),
and Grove and Thelen did not apply for employment until shortly before the plant
was operational and at a time when the entire production force had already been
hired, so that there were no available jobs at the time of the alleged discriminatory
refusals to hire Grove and Thelen.
In addition, the complaint alleges that Respondent violated Section 8(a)(1) of
the Act by threatening it would close the plant and discharge employees if they
selected the International Union to represent them; creating the impression among
employees that their union activities were under surveillance, interrogating employees,
instructing them to sign "Employment Contracts" and offering to give favorable con-
sideration to applicants if they would attend meetings of the Independent Union and
attempt to persuade those in attendance that present employment conditions are
highly satisfactory. Respondent denies all these alleged violations.
B. The alleged violations of Section 8(a)(2)
The complaint raises no issue as to assistance or to domination of the Independent
Union, nor was any evidence introduced by the General Counsel at the hearing
to prove this. In fact, the evidence clearly shows the Independent was not illegally
assisted by the Respondent in any way and that Respondent maintained an attitude
of strict neutrality throughout. The only question at issue is whether the filing of
a representation petition by the International Union 3 days prior to the time the
Respondent Company recognized the Independent Union is a violation of Section
8(a) (2).s
There is no substantial disagreement with respect to the basic facts. The Re-
spondent Company's employees were not represented by a union at the time its
new Fort Dodge plant became operational on October 2, 1962. Shortly before this,
about September 28, 1962, some of Respondent's employees who had all been hired
in anticipation of the plant's imminent opening on October 2 conceived the idea of
an independent union. On or about October 5 a meeting was called which was at-
tended by approximately 60 employees. At this meeting, an organizational com-
mittee of five employees were selected to study and report to the employees on the
feasibility of organizing an independent union.
Following this meeting, the organizational committee employed an attorney, Mark
McCormick, who spoke to the employees at the second meeting. At this meeting,
which was attended by approximately 73 of Respondent's employees, Attorney
McCormick explained to those present the steps which it would be necessary to take
in order to form an independent union. After discussion by the members, a vote
was taken by secret ballot to determine whether the employees favored an in-
dependent union. The results were 55 in favor of an independent, 14 against, and
4 abstentions. Those in attendance then instructed their attorney to draft a con-
stitution and bylaws and all necessary documents required for the establishment of
an independent union.
The third meeting began with a discussion and later a separate vote was taken on
the constitution and bylaws which were approved in both cases by a vote of 44 for
adoption, 5 against, and 3 abstentions. A vote by secret ballot was then conducted
for the election of officers. The officers who were elected were instructed by the
membership to prepare a draft collective-bargaining agreement for consideration by
the membership.
The Independent Union's negotiating committee then drafted a proposed contract
which was submitted to the membership for their consideration at the next meeting.
Approximately 12 changes were suggested from the floor in the preliminary draft,
particularly with respect to various wage brackets. The proposed changes were
discussed, voted upon, adopted, and incorporated in the contract to be submitted
to the Company.
s The section referred to reads as follows:
SEC 8. (a) It shall be an unfair labor practice for an employer-
! i R R 4 E
k
(2) to dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support . . . .
IOWA BEEF PACKERS, INC. 631
Prior to this last meeting, the Independent Union on October 15, 1962, presented
to Respondent a petition containing over 100 signatures of the approximately 160
employees, requesting recognition as exclusive bargaining representative. On Octo-
ber 26, Respondent, upon receipt of a written opinion from its attorney that it could
do so legally, granted recognition to the Independent. On or about November 21,
the Company entered into negotiations with the Independent Union culminating in
the execution of a collective-bargaining agreement on or about December 17, 1962.
In the meantime, on October 23, 1962, the International Union filed with the
Regional Director a representation petition to which were allegedly attached 47 em-
ployees' signed union authorization cards. Shortly thereafter, it is alleged that the
International filed an additional nine signed union authorization cards with the Re-
gional Director, of which five or six cards of the nine were signed subsequent to
October 23.
Respondent acknowledges that when it accorded recognition to the Independent
Union on October 26, it had received a communication 1 or 2 days before on either
October 24 or 25 from the Regional Office stating the International had filed a
representation petition. Upon receipt of this notice from the Regional Office, Re-
spondent's attorney, by letter dated October 25, notified the Regional Director
that he had advised the Respondent Company in a written opinion that it could
legally accord recognition to the Independent Union By letter dated October 29
and received on October 30 from the Board's Regional Office, Respondent's at-
torney was advised that in recognizing the Independent Union Respondent violated
the Act.
On December 5, 12 days before the General Counsel issued his complaint, the
Respondent requested the Regional Director to conduct an election in order to as-
certain the wishes of the employees. The request was denied.
Discussion and Conclusions
The sole issue in this alleged violation of Section 8(a)(2) is the application of
the Board's Midwest Piping doctrine.7 This doctrine generally precludes recogni-
tion of one union in the face of a rival claim by another union. A reading of the
cases appears to show in applying the Midwest doctrine and in line with the adjura-
tion of the Act that not only must there be recognition of the workers' right of
self-organization but also acceptance of the Act's expressed policy that the wishes
of the employees must be accorded great weight in adhering to the statutory pur-
pose of giving free play to the employees' desire for self-determination. Any
determination adjudicating the claims of two competing unions must avoid a solu-
tion which would deprive the employees of the right to be represented by their
majority choice. And this is particularly so where, as in the case at bar, there is
no evidence of collusion between the employer and the recognized union.
It would appear that a realistic approach to the problem of where two rivals
claim to represent the employees of a plant which is presently unorganized is to
allow the employer to deal exclusively, at his option, with one or another of the
rivals, pending the disposition of the question of representation. It can be reason-
ably supposed that in such a situation an employer would be likely to lean in the
direction of recognizing that union which in his best judgment (absent any ques-
tion of male fides) is the choice of a majority of his employees.
Furthermore, in Midwest Piping situations, the question arises as to whether the
filing of a petition for certification presumptively establishes the existence of a
question concerning representation. In resolving this, it would seem that both
the filing of a petition for certification and the existence of a real question of repre-
sentation at the time of the employer's action are prerequisites to finding a viola-
tion under the Midwest Piping doctrine. However, in this proceeding. where the
Independent Union was designated by over 100 of the total complement of 163
employees (as of October 23), as against the International's claim that it repre-
sented 47 or at the most 56 employees ,8 and the Respondent recognized the In-
dependent, but only after checking the authenticity of the over 100 employees signa-
tures on the Independent's petition for recognition, it would appear that no unfair
labor practice should be found for the reasons hereinafter explicated
' 37t&wc t Piping & SuuppTy Co, lnc, 63 NLRP. 1060
8 Of the alleged 56 cards, approximately 5 or 6 were signed after October 23, the date
the International filed its representation petition
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In such a situation as here, it is evident that no real question concerning repre-
sentation existed despite the fact that the International's representation petition
was still pending because a study of the Board's decisions indicates that the Mid-
west Piping doctrine will not be applied where the reality of the existence of a
representation question is shown to be nonexistent. If at the time the employer
recognizes one of two rival unions, there existed no real question as to whether
the contracting union represented a majority of the employees, there is no violation .9
The Board in the Ensher case also noted that the Midwest Piping doctrine, "neces-
sary though it is to protect freedom of choice in certain situations, can easily
operate in derogation of the practice of continuous collective bargaining, and
should, therefore, be strictly construed and sparingly applied." 10 Moreover, a
question of representation is not raised by a petition for certification but by the
Regional Director's direction of election Otherwise, patently unsupported, as
well as frivolous, petitions could be filed thereby frustrating the orderly processes
of the Board. Furthermore, in this proceeding the Regional Director took no action
at all.
A mechanistic application of the Midwest Piping doctrine without taking into
consideration the facts of life of industrial relations may be tantamount, in some
situations, to exalting form over substance and thereby frustrating the desires of a
majority of the employees. It would seem that the Midwest Piping doctrine should
not apply in situations obviously calling for other action, particularly where it would
defeat the wishes of a majority of the employees to select that union which the
majority desires.
Then, too, the Board's requirement as to evidence of interest which a petitioning
union must submit only requires that the petitioning union submit proof that it
has been designated as bargaining agent by at least 30 percent of the affected em-
ployees. In this proceeding, however, out of a total of 163 employees (as of
October 23), over 100 designated the Independent as their choice, whereas the
International claims to represent somewhere between 47 and 56 of the employees."
And, most important, the Regional Director had taken no action on the Interna-
tional Union's petition.12 Under such a set of facts, where the Independent repre-
sents a great majority of the employees, there is no question of the existence or
nonexistence of a valid representation question and therefore the Regional Director
could have administratively determined that no question of representation existed
rather than taking the mechanistic approach of merely determining that where
recognition is accorded while a petition is pending, this in itself, ipso facto, con-
stitutes a per se violation. The Board, however, has held otherwise where a real
question of representation does not exist.13
In the Stewart Warner Corp. v. N L R.B., 194 F. 2d 207 (C.A. 4), which Re-
spondent cites, where the favored union had won a representation election but the
actual certification was being withheld by the Board only because of the pendency of
unfair labor practice charges, the court held there was no violation in view of the
fact that independent proof of designation by a majority of the employees had been
furnished to the employer by the union. The court said: "Under such circum-
stances, there can be no unfair labor practice in recognizing the representative of
the majority." On the contrary, held the court, "it was the duty of the Company to
deal with the representative when this majority status was established," as at no
time did any genuine dispute exist as to the representative status of the union which
was recognized by the company.14
In District 50, UMW v. N.L.R B. (Pittsburgh Valve Company), 234 F. 2d
565 (C.A. 4), the court held that the employer's duty to maintain strict neutrality
between competing unions does not require that it refuse to recognize a union
BEnsher, Alexander & Barsoom, Inc, 74 NLRB 1443
10 See also N L R B v Flotill Products, Inc, 180 F. 2d 441 (C A. 9) ; N L R B v.
Standard Steel Springs Company, 180 F. 2d 942 (C A 6).
11 Union dues checkoffs were authorized by 132 employees as of January 22, 1963
12 See Leubren Paper Corporation, 105 NLRB 567
13 Ensher, Alexander & Barsoom, 74 NLRB 1443. In St. Louis Independent Packing
Co v N L R B., 291 F 2d 700 (C A. 7), the court held that conclusive proof an actual
majority after a question of representation has arisen precludes the continued existence
of a real question of representation and permits the employer to recognize the majority
union
14 Anderson admitted he knew about the International's petition when he recognized the
Independent but he did so knowing that the Independent union represented a vast
majority of his employees.
IOWA BEEF PACKERS, INC. 633
whose majority status is clearly established. In N.L.R.B. v. Standard Steel Spring
Company, 180 F. 2d 942 (C.A. 6), the court held that where an employer who
recognized and bargained with a CIO union when representation proceedings in-
stituted by an AFL union were pending before the Board, did not violate the Act,
where the employer acted in good faith, and the CIO union was the unanimous
choice of the employees, and the representation proceeding had been pending for
several months.
Respondent and General Counsel in their briefs both refer to N.L R.B. v. In-
dianapolis Newspapers, Inc., 210 F. 2d 501 (C.A. 7), where it was held that an
employer, faced with conflicting claims of an independent union and a CIO union
during negotiations with the CIO union, more than 1 year after it was certified,
did not violate the Act by recognizing the Independent on the basis of petitions
signed by a majority of the employees.
In Cleaver-Brooks Mfg. Corporation V. N.L.R.B., 264 F. 2d 637 (C.A. 7), cert.
denied 361 U.S. 817, upon which Respondent places great reliance, the court held
that the employer did not violate the Act by granting premature recognition to an
independent union, it appearing that the employer postponed negotiaions until
pressed by the independent union whose membership, as represented by signatures
to its charter, showed a rival union to be no genuine contender.
In Salant & Salant, Inc., 87 NLRB 215, the Board held, as in Cleaver-Brooks,
supra, that an employer did not violate the Act by executing a contract with a union
which had demonstrated that it represented about 95 percent of the employees not-
withstanding notice by a rival union that it had an interest in the designation of the
employees' bargaining representative. To the same effect is Associated Machines,
Inc., 114 NLRB 390, where the employer was held not to have violated the Act
by recognizing the union on comparison of the signatures on the union's petition with
the employer's payroll, even though three other unions were attempting to organize
its employees, where the evidence showed that the other unions had not signed up
many employees. In City Cab, Inc., 128 NLRB 493, the Board held that an em-
ployer did not unlawfully assist a union by executing a new contract with that union
at a time when a rival union made unsupported claim to represent the employees
covered by the contract.
A case dispositive of the 8(a) (2) issue in this case is Leubren Paper Corporation,
105 NLRB 567, in which the Board dismissed a complaint alleging a violation of
Section 8(a)(2), where the Respondent had entered into a collective-bargaining
agreement with a union, which was not an incumbent union, after a representation
petition had been filed by a rival union and no action had been taken on the petition
by the Regional Director. The Board in dismissing the complaint held that there
was no question concerning representation at the time the contract was executed.15
The General Counsel contends, however, that under the Midwest doctrine, when
the Respondent Company recognized the Independent, a question concerning repre-
sentation is conclusively presumed to have existed solely by virtue of the pendency
of the International Union's petition which had been filed 3 days earlier. It is not
believed the General Counsel's premise is correct that when the Respondent recog-
nized the Independent, there occurred a per se violation of the Act merely by his
showing the International's petition for certification of representatives had not been
dismissed or otherwise disposed of by the Regional Director. To accept this argu-
ment is to give credence to a mechanistic theory without regard to the attendant
realities in this case.
Corroborative of this belief is the Board's finding in William Penn Broadcasting
Company 16 where it stated that it is not the purpose of the Act to cause postpone-
ment or interruption of collective bargaining "whenever a clearly unsupportable or
a specious rival claim is made upon an employer." In that case the Board held that
the Midwest doctrine does not apply unless the petition filed by the recognized union's
rival has a "character" and "timeliness" which creates a real question concerning
representation.
It would appear, therefore, that a prima facie case of violation of the Act under
the Midwest Piping principle is not made out merely by establishing that the Inter-
national Union's representation petition was on file with the Regional Office at the
time the Company recognized the Independent Union. It is incumbent upon the
General Counsel to establish also, by a preponderance of the evidence, that "the
petition has a character and timeliness which creates a real question concerning
is See also N L.R B. v Swift & Company, 294 F. 2d 285 (CA. 3).
s 93 NLRB 1104, 1105.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation." 17 Not only has the General Counsel failed to do this but there is
an additional failure of proof on his part in that he did not prove that the Inter-
national Union represents a "substantial number of employees." See Section
9(c)(1)(A) of the Act. It has been "the Board's administrative experience that
in the absence of special factors the conduct of an election serves no purpose under
the statute unless the petitioner has been designated by at least 30 percent of the
employees." 18
Although the determination of substantial interest is administrative 19 and may be
made ex parse by the Regional Director, it does not relieve the General Counsel
in this case, a complaint proceeding (as distinguished from a representation proceed-
ing), from showing in an appropriate manner that such administrative determination
had been made and that the Regional Director had found that the petitioning Inter-
national Union did represent "a substantial number of employees."
In lieu of this procedure, such proof could have been made at the hearing by the
introduction of those authorization cards allegedly signed on behalf of the Inter-
national. This the General Counsel failed to do. He contended when asked to pro-
duce the International Union's alleged authorization cards at the hearing that Board
policy does not require him to do so and all that is necessary, even in the absence
of a determination by the Regional Director that a question of representation exists,
is his mere assertion that the International Union did turn over to the Regional
Director a sufficient number of authorization cards, and that the Trial Examiner
must accept his oral representation and, therefore, he need not produce the cards.
Respondent, on the other hand, accuses the General Counsel of not having the
required number of signed authorization cards showing that the International Union
represents "a substantial number" of Respondent's employees. Respondent con-
tends also that in order to prevent the Independent from being recognized, the
International, when it learned the Independent had over 100 names on its petition,
hurriedly filed a representation petition with the Regional Office.
Counsel for the Charging Union, the International made a statement in the record
that he had requested the General Counsel to place in evidence the authorization
cards, showing that the International represented "a substantial number of the em-
ployees," but the General Counsel had refused to do so.
Under the circumstances revealed by this record, it was necessary for the General
Counsel to produce these authorization cards, especially where, as here, the Regional
Director took no action whatever on the representation petition which was filed
by the International Union This is particularly so where there is no evidence of
bad faith on the part of the Respondent and the Respondent denies that the requisite
number of its employees signed authorization cards for the International Union.
It is clear, due to the Regional Director's inaction, that the issue of whether the
International obtained the signatures of a "substantial" number of Respondent's
employees is litigable in a complaint proceeding, but the General Counsel stands in
a peculiar, paradoxical posture when he refuses to make available the very evidence
which would enable the Respondent to litigate this vital issue Under the circum-
stances presented here, the General Counsel cannot refuse to produce the authoriza-
tion cards in a complaint case, in the absence of some showing that security, public
policy, or confidence or some other reason for such immunity can be availed of by
him
Recently the Court of Appeals for the Fifth Circuit had this to say with respect
to the refusal by the General Counsel to produce certain evidence: 20
There is no suggestion in the record that the testimony sought to be elicited
from the Board attorney is privileged. The testimony does not involve matters
vital to national security, . . . or information which should be kept secret for
other reasons It is not necessarily related to any physical records The
Board's General Counsel made no explanation and the trial examiner was satis-
fied with the bare fact that the agency head charged with knowing what is right
and good for the public to know had made his decision. Fundamental fairness
requires that [Respondent] be allowed to introduce testimony that may impeach
the evidence offered against it. The N.L.R.B cannot hide behind a self-erected
wall evidence adverse to its interests as a litigant. 5 U.S.C.A. 622 does not
call for a result so inimical to our traditions of a fair trial.
14 Tilliam Penn Broadcasting Company, supra, at 1105
"National Labor Relations Board, Statements of Procedure, September 14 1959, Sec-
tion 10118(a)
"General Electric Company, 110 NLRB 1109
20 N L R B v. Capitol Fish Company, 294 F 2d 868, remanding 126 NLRB 9R0
IOWA BEEF PACKERS, INC. 635
This case presents an anomaly in our system of justice. The agency official
charged with responsibility for asserting the claim of privilege is also the prose-
cutor whose successful prosecution of this case could depend on exclusion of
the evidence for which the privilege is claimed. And, he is one part, the trial
court (examiner) a second part, and the reviewing court (the Board) a third
part of one agency-the agency bringing the action. Impartiality is the life of
justice. It is against all concepts of impartial justice for the trial examiner to
assume that the Board, through its regulations, or the General Counsel, by
virtue of his office, is the final arbiter to decide whether a Board attorney should
testify. Responsibility for deciding the question of privilege properly lies in
an impartial, independent judiciary-not in the party claiming the privilege and
not in a party litigant. [Citations omitted.]
The General Counsel's peremptory refusal, therefore, to produce the International's
authorization cards resulted in a failure of the proof required of him to make out a
violation. a necessary element of his case, and is, therefore, fatal to the allegation in
his complaint that Respondent violated Section 8(a) (2) of the Act when it recognized
the Independent Union. It is recommended, accordingly, that the allegation of the
complaint with respect to the violation of Section 8(a)(2) be dismissed.
C. The alleged violations of Section 8(a) (3)21
Frank Laird, an alleged discriminatee, who was formerly president and vice presi-
dent of the defunct Fort Dodge Packing Company's Local 607, of which the parent
union is the International herein, applied for a job with the Respondent Company
on February 13, 1962.22 When he did not hear from the Company, he inquired
about his job application from Anderson, president of Respondent, who told him
that the Company was not hiring at that time. Anderson, however, referred him
to one of the subcontractors engaged in the construction of the plant who hired him.
Sometime in June, after Laird had gone to work for the subcontractor, Laird again
asked Anderson for a job. Anderson told him to get in touch with him later.
Shortly thereafter, in processing Laird's job application, the Company obtained
a medical report dated December 18, 1958, from its insurance company with respect
to Laird's physical condition. This medical report states that while Laird was
employed by Fort Dodge Packing Company in December 1957, he suffered a back
injury, was hospitalized, and returned to work on January 6, 1958. This report fur-
ther states that on March 19, 1958, while lifting a 300-pound weight, Laird again
injured his back and was in bed for 5 days. The doctor who attended Laird wrote
a letter dated April 1, 1959, to the insurance company with which Fort Dodge
Packing Company carried its employees compensation insurance in which he rec-
ommended that Laird should not only be hospitalized for further treatment, but also
advised that Laird should not be permitted to return to work "because if he does
we are going to be faced with a chronic back problem that may require a spinal
fusion." Laird also admitted that when his doctor discharged him in May 1959, he
warned him not to do any heavy lifting and Laird testified that as of the present
time "I don't go around lifting any more than I have to."
Anderson testified that when Laird applied for a job he told him there was none
available at the time with the Company but since he made a favorable impression,
Anderson suggested to Laird that he talk to one of the subcontractors working on
the construction of the plant who hired him.
In view of the fact that Laird was under consideration, if and when there was a
job opening, and since it is company policy to check with references and also with
their employees on all applicants with respect to their qualifications and character,
Anderson learned in speaking with his employees that Laird had a chronic back con-
dition. The Respondent's insurance company was then contacted which advised
Anderson that the Company should not hire an applicant who has a medical history
of a back ailment. Knowing the work in a packing plant is strenuous and that if
21 The section above referred to reads as follows :
SEc. S (a) It shall be an unfair labor practice for an employer -
(3) by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization . . .
22 The original charge and amended charge filed by Laird on September 21 and October 5,
respectively, allege he was refused employment on June 25 The complaint, however,
alleges Laird was refused employment on February 26.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laird were hired it would increase his insurance rates, and having been advised by
their insurance company not to hire men with chronic ailments, Anderson decided not
to employ him 23
John Miner, who alleges he was refused employment by the Company because
he was formerly an official in the defunct local of the Fort Dodge Packing Company's
union, first applied for a job with Respondent in November 1961, a week after the
Fort Dodge Packing Company plant closed.24 With two other men, he drove to
Denison, Iowa, where Respondent operates a packing plant. The three men applied
for jobs to Anderson, president of the Company. Miner testified that Anderson
said to him: "What do you think of your God damned union now? It's closed
your plant."
The next time Miner applied for a job with Respondent was on June 26, 1962,
when he went out to the construction site of the Respondent's new plant and spoke
to Louis Thiede, who was then assistant to the president 25 Thiede stated there
were no jobs then available with Respondent, but through Thiede's intercession,
Miner was hired by one of the subcontractors working on the construction of the
new plant. He worked for approximately 2 weeks for the subcontractor who then
offered him a permanent job which he refused, whereupon he left the employ of the
subcontractor. After his rejection of the subcontractor's job offer, Miner filed a
written application with Thiede, Respondent's official, about a week before the new
plant went into operation. Thiede advised him that all the production jobs had
been filled in anticipation of the imminent opening of the plant.
Miner also testified that around this same period of time, he happened to see
Anderson in a restaurant and again asked him for a job. According to Miner's
testimony, Anderson said "It wasn't his fault that the Union closed Fort Dodge
Packing Company and that I had just as well seek employment elsewhere as the
rest of the union members."
This testimony of what Anderson is alleged to have told Miner when he first spoke
to Anderson about a job in November 1961, supra, and also at the restaurant, must
be evaluated in the light of the evidence in this record, and by an analysis of the
realities of the situation. Such evaluation leads to the conclusion that Anderson's
denial that he ever spoke to Miner in a restaurant or said at any time that he would
not hire Miner because of his union activities is credited. It strains one's credulity
to believe that the president of two packing plants, having the executive responsi-
bilities he had and evidently well versed in labor relations, due to his extensive
dealings with unions in the past,26 would be so incredibly naive as to senselessly
compromise his company by the admittedly damaging statement to Miner that he
would not hire him because of his union activities at the old Fort Dodge Packing
Company plant. Such testimony is inherently unbelievable. Corroborative of
Respondent's defense that Miner was not hired because he had a poor work record is
the fact that when the company officials inquired of those of their employees who
had worked with Miner at the Fort Dodge Packing Company plant, they learned
he was not competent and so decided not to hire him. There is also the cogent fact
that Trupe and Bean (who accompanied Miner to Respondent's Denison plant in
November when all three applied for jobs) were hired by Anderson, even though
Trupe was a member of the Union at the Fort Dodge Packing Company plant and
Bean was an officer of the same Union. Anderson, president of Respondent, testi-
fied Trupe and Bean also told him when Miner's application was under consideration
that Miner was not a competent worker. For these reasons, Anderson testified, he
decided not to hire Miner.
James Grove, who was formerly president of the Union at the Fort Dodge Pack-
ing Company plant, applied for a job with the Respondent around May 1, 1962.
The next time he saw Anderson about a job was when he went to the plant on
September 10,27 at which time he was accompanied by another alleged discriminatee,
Maurice Nickless. They were interviewed by Anderson, Respondent's president.
23 Laird's testimony that Anderson told him he would not hire him because of his
union background is not credited . See infra
24 Miner alleges in his charge filed on October 5, 1962, that Respondent refused to hire
him on July 118.
25 Thiede later became production manager of the new plant on October 2, 1962, when it
went into production.
20 The Charging Union herein formerly represented Respondent 's employees at its
Denison plant
2-, Grove's original charge, dated September 21, avers lie was refused employment on
June 25 , his amended charge places it as July 30 and the complaint states it was on
September 10.
IOWA BEEF PACKERS, INC. 637
Grove questioned Anderson as to why the Company had not hired him as it was his
understanding that former employees of the defunct Fort Dodge Packing Company
were entitled to preference in filling the jobs at the new plant. Anderson explained
to Grove that the only people who would be given preference for jobs in the new
plant when it became operational in 3 weeks were those employees who worked on
the construction of the plant . Grove then questioned Anderson as to what the
starting hourly wage rate would be which he told Anderson he had heard was going
to be $1 . 83. Anderson told Grove he had been misinformed , that the hourly wage
rate would be $2.18 . Anderson also explained to both Grove and Nickless the
insurance plan and other fringe benefits which the employees at the new plant would
have. They were then shown through the new plant. After they were escorted
through the plant, Anderson asked Thiede , plant manager, if there were any jobs
which Grove and Nickless could fill. Thiede replied that all the production jobs
were filled in view of the imminent opening of the plant, but he suggested to Grove
and Nickless that they fill out application forms and contact him later.
When Grove next came out to the plant in October and spoke to Anderson about
a job, Anderson told him that he could not understand why Grove had filed an
unfair labor practice charge against him on September 21, since the time he was
last out to the plant on September 10 to apply for a job, in view of the cordial meeting
they had had at that time. Anderson asked him how he could have possibly filed
a charge falsely alleging that he told Grove that he would never get a job at the plant.
Grove, according to his own testimony, denied to Anderson that he had ever stated
that in his charge. Grove then repeated to Kemp, a company official , his denial that
he had ever made such an accusation in the charge. The charge, which is dated
September 21, 1962, alleges: "I am James Grove, on August 11, 1962, I contacted
Andy Anderson for work, he told me I was wasting my time, you will never get a
job here " 28
Anderson accused Grove also of lying when he made the allegation in the charge
that he (Anderson) had told Grove he was wasting Anderson's time and that Ander-
son was too busy to talk to him. Grove then admitted to Anderson and Kemp that
this statement in the charge was not true. On cross-examination, Grove acknowl-
edged that he was not certain that the person he spoke to on this occasion was
Anderson when Grove asked for a job, but he insisted that whoever it was that he
spoke to did state that he was wasting his time but Grove did admit that the allegation
in the charge that Anderson told him he would never get a job with Respondent was
untrue
On direct and cross -examination , Grove testified that in a union -sponsored tele-
vision program which dealt with the Union 's efforts in attempting to organize the
employees at Respondent's plant 29 Anderson asked him to "go to the meeting if you
want to undo the things you have done." When Grove was asked on direct ex-
amination at the hearing what union Anderson was referring to, he replied he did
not know. When Grove was asked on cross-examination if it was not true that he
said on the television program that the union which Anderson referred to was the
Hawkeye Industrial Labor Union (the Independent), Grove denied it. However,
when the tape of this union-sponsored television program was replayed in the
hearing room, it proved Grove's testimony was untrue as the recording showed that he
said: "Well, I could have went to work [for Respondent] under certain conditions
and the conditions being such that I would attend the meeting of the Hawkeye
Industrial Labor Union and tell the men there that I thought they had a much better
deal for a contract than they would ever get from any international union." Grove's
version of the television program is not credited.
In addition to the untruths, contradictions, and inconsistencies of Grove's testi-
mony, the Trial Examiner was not favorably impressed with his demeanor while
testifying. And superimposed upon this is the undeniable and cogent fact that at
the time Grove alleged Anderson requested him to attend a Hawkeye Industrial
Labor Union meeting, the Independent herein, is the fact that the Independent had
not yet come into existence.
zs Although the plant did not go into production until October 2, Grove filed his charge
on September 21.
cro With respect to this television program, which was telecast in January 1963, by it Fort
Dodge station, Ruby, the International Union's organizer, stated on the program that all
the International Union wanted was an election to determine the wishes of the employees
but the Company would not agree to holding an election. On cross-examination, it was
elicited from Ruby that it was the Company who wanted the Board to conduct an elec-
tion and that it was the International Union that would not agree to an election See
Leabren Paper Corporation , 105 NLRB 567 at 568.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson , Respondent 's president , denied that Grove was refused employment
because of his union activities on behalf of Fort Dodge Packing Company Local
607 of which he was formerly an officer . Anderson testified that Grove did not make
written application for a job until September 10, approximately 3 weeks before the
plant went into production . It is uncontradicted that at that time, the entire work
force of 160 men had been hired in anticipation of the plant 's imminent opening;
approximately 80 of these were employees who had preference because of having
worked on the construction of the new plant and the remaining 80 had been selected
from the more than 1 ,500 applications then on file . Consequently , testified Ander-
son, there were no job openings at the time Grove applied for a job.
Maurice Nickless formerly worked at the old Fort Dodge Packing Company plant
where he was chief steward for the Union . He made written application for a job
with the Respondent Company on July 9, 1962. Later on, he went out to the plant
and spoke to Anderson . His testimony is as follows:
I told [Anderson ] I was looking for a job. And the first thing that he said
was, was I one of those union blanks, waiting around here for this plant to
be built, and thinking that the Union was going to put me wherever they wanted
me when it was completed ? . But, anyhow , he told me at that time that they
was not going to have any of these union blanks getting back in this plant And
he said that right now it probably would be alright , that they were a little
hungry, but that as they were going to make a little money the first thing you
know they would be voting the union in on us again.
Then Nickless incredibly testified that after this dressing down that Anderson gave
him, Anderson , nevertheless , referred him to a company official regarding a job.
When he was asked if he saw the person Anderson referred him to for a job, he
incoherently testified that he did not bother to see the person , "because the conversa-
tion ended so quickly that I didn't think it would do me any good."
Nickless accompanied Grove to the plant on September 10, at which time they
again spoke to Anderson about a job. Although both Grove and Nickless had
separately gone out to the plant shortly before this and had spoken to Anderson
about a job , Nickless testified that he and Grove again told Anderson who they were
and "that we were affiliated with the Union ." Nickless testified that he asked
Anderson "why [he] wasn ' t given a chance to work here" in view of the fact "that
[he] had done . . . all sorts of labor construction jobs." While on the witness
stand, Nickless excused his bad memory , testifying that if he had not written down
what Grove and Anderson said that day at the plant he would have been unable to
recall what transpired when he accompanied Grove to the plant . From that point
on, Nickless ' testimony is vague and incoherent , other than he recalled that Anderson
explained what wages and working conditions he proposed to give his employees when
the plant went into production in about a month . Anderson did not promise them
a job, Nickless testified , but told them he would keep them in mind and that they
should check back with Thiede, the plant's production manager. Nickless has not
heard from the Company since then.
Because of Nickless' difficulty in remembering the details regarding his applying
for a job, the General Counsel was compelled to resort to leading questions to
elicit what had occurred when Nickless and Grove applied for work in the early part
of September. In an unresponsive answer to a leading question by the General
Counsel as to whether Anderson indicated they might obtain employment with the
Company, Nickless testified that when Anderson showed them a paper outlining the
wages and working conditions the plant would operate under, "he [Nickless ] didn't
think too much of" the proposals "because I didn't get a chance to read it all."
Nickless also testified as follows:
Anderson came back ; and I am pretty sure that he made the statement upon enter-
ing the room , ... that if we wanted to do him a favor that we could if we would
go to these union meetings [of the Independent ] and tell these members at the
meetings that they didn't need an international union at this point; that they
were just as well off with what they had; that he was not promising us a job,
but he thought maybe that a place could be found or he gave us the impression
that a job might be found for us.
This alleged conversation with respect to Anderson asking them to favor the Inde-
pendent Union took place on September 10, at a time when the Independent Union
had been neither discussed , conceived , nor established . Therefore , Anderson could
not possibly have promised Grove and Nickless favorable consideration on Septem-
ber 10 if they would go to meetings of the Independent Union and persuade those
attending not to favor the International Union.
IOWA BEEF PACKERS, INC. 639
On cross-examination, when Nickless was asked the reason why he waited until
July to apply for a job with the Company, he testified that his unemployment
insurance did not expire until then. He also testified that when he later went out to
the plant with Grove to apply for a job he did so "knowing that I wouldn't get a
job anyhow." At another point in his testimony, Nickless admitted he had given
a written statement to the General Counsel in which he stated that when he went
out to the plant with Grove to apply for a job Anderson told Thiede, the production
manager, "that we were O.K." When he was pressed by Respondent's counsel as
to his bona fides in applying for a job, Nickless answered: "I think I might have been
working out there if it were not for the fact that my wife was working and getting
good money and I didn't have to." The allegation in the complaint that Respondent
refused to hire Nickless on July 30, 1962, within the meaning of Section 8(a)(3)
is not sustained by the evidence . Accordingly , it is recommended that the allega-
tion in the complaint , as explicated infra, be dismissed.
Eugene Thelen, the fifth alleged discriminatee, first sought a job with the Company
on June 12, 1962. The next time he went out to the plant was around Septem-
ber 1, at which time he filled out an application form. He spoke to Thiede, the
production manager, and asked him if they had a committee to screen the applica-
tion; whether Thiede was a member of the screening committee and who was
on the committee. On the same day, he saw Anderson, Respondent's president,
and asked him what his possibilities were of obtaining a job. Anderson turned
to Thiede and asked him what the job situation was and Thiede replied that there
were no vacancies at the time but they would keep Thelen in mind.
Two days after the plant went into production, Thelen again went out to the
plant and was interviewed by Anderson and Thiede. Anderson told Thelen his ap-
plication "was on top of the pile" and "they had been considering it." However,
stated Anderson, there was no job at the time but if and when there was and they
could use Thelen, they would contact him. He then asked Anderson, "How will
you let me know" to which Anderson replied that applicants are notified by "cards,"
whereupon Thelen said: "0 K. that's good enough for me."
Approximately 2 months after this interview, and after the plant had been in
operation for 2 months, Thelen asked Attorney Johnson, counsel for the Company,
to intercede with Anderson as he was desperately in need of a job As a result of
this conversation, Johnson arranged an interview for Thelen with Anderson on
December 14. He was interviewed by both Anderson and Thiede. Anderson
explained to Thelen that this interview had been arranged at the personal request of
Attorney Johnson; otherwise, stated Anderson, his prospects of a job were bleak
as there were then 500 to 600 applications remaining on file 30
Anderson, at the outset of the interview on December 14, assured Thelen that
his application for a job would not be prejudiced, even though he had filed an un-
fair labor practice charge against the Company on October 5, which alleged he was
refused employment by the Respondent on September 29 because he had been a
union officer while employed at the defunct Fort Dodge Packing Company plant.
With respect to the unfair labor practice charge filed by Thelen, he testified:
I donit know as I have [filed a charge] . . . I merely made a statement
pertaining to the efforts that I made to obtain employment ... and [Anderson]
said, "why did you do that" I said, "Well, I was kind of disappointed in a
way, then I seen my chance to give them recognition by filing a statement."
Anderson again assured Thelen this would not prejudice his application, pointing
out to Thelen that many of his employees had not only been members of the
Union at the Fort Dodge Packing Company plant but some of them had also been
officers, including Thiede, the Company's production manager, who was a former
president of that Union. Based on Thelen's own testimony, Anderson then asked
Thelen:
"If we hire you would you accept any job we offered you?" And I said,
"that depends." And he said, "Depends upon what" And I said, "Well,
if it would be within reason ." He said, "What do you mean?" And I said,
"I want to be assured that it wasn't something that no one could do; I was
kind of leery."
On Thelen's cross-examination , it was elicited that he assured his benefactor,
Attorney Johnson, in return for Johnson's interceding with Anderson on his behalf,
30 Written applications were considered in their order of priority based upon the date
of application Thelen's application was not filed until around September 1, whereas
others had made application as early as the previous February
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would accept any job offered because of the desperate straits of him and
his family. The cross-examination also brought out that instead of agreeing to
accept any job he was offered, it appeared as if Thelen was not only interviewing
Anderson but also telling Anderson how to run the packing plant.
Anderson testified that when he asked Thelen if he was agreeable to accepting
any job offered him, he replied not unless it was a job for which he was qualified.
Based upon the poor impression Thelen made in the interview, as well as his attitude,
Anderson testified, "I don't think I want this man."
Discussion and Conclusions
Section 8(a)(3) forbids an employer to discriminate against employees in order
to encourage or discourage membership in any labor organization. This section
outlaws discrimination for this purpose "in regard to [their] hire or tenure of em-
ployment or any term or condition of employment." However, the Act does not cir-
cumscribe an employer's right to hire, discipline, or discharge an employee for
reasons not forbidden by the Act, even though the employee may be an active
umon adherent or advocate. The employer can hire and fire at will, so long as his
action is not based on union membership or intent to interfere with the purposes of
the Act.31 And where a just ground for a refusal to hire appears, it is ordinarily
a mere matter of speculation to say that the refusal to hire was because of union
membership 32 Upon examination of all the facts, it must be determined whether
or not the employer's refusal to hire the employees was motivated by a desire to
discourage union membership or other employee activities protected by the statute.
And where the Board could as reasonably infer a collateral motive as an unlawful
one, the act of the management cannot be set aside by the Board as being improperly
motivated33 It is not within the competency of the trier of the facts to search
the record for subjective considerations upon which to base tenuous inferential
conclusions when the objective factors in the record are before him and point
to where the truth lies.
To sustain the General Counsel's contention that these five alleged discriminatees
were refused employment by Respondent because they all were former union
officials of the local at the defunct Fort Dodge Packing Company plant would require
validity to be accorded to inferences contrary to direct testimony.34 The direct testi-
mony, which is uncontradicted, shows that after 80 of the available 160 jobs were
filled by the preference men who had worked on the construction of the new plant,
there were only 80 jobs to be allocated to the more than 1,500 men who had ap-
plied for jobs. Moreover, instead of filing applications before construction com-
menced on April 1, 1962, in order to be given the opportunity to be accorded
preference in filling the jobs which would become available when the plant became
operational, all of the alleged discriminatees (except Laird, who applied in Febru-
ary) 35 did not apply in the case of Miner until June 26, Nickless until July 30,
Thelen, August 29, and Grove, September 10, 1962. With more than 1,500 ap-
plications on file for these 80 jobs (the other 80 having been filled by preference
men), Respondent was not only in the fortuitous position of being extremely selec-
tive in its hiring of employees but also attempted at all times to obtain the best
qualified personnel available.
The record reveals that in Laird's case, he was refused employment due to his
chronic back ailment, Nickless because of his conviction for a serious felony, and
in Respondent 's judgment Miner was not a competent employee. With respect to
Grove and Thelen what has been brought out supra speaks for itself .36 In view of
Grove's and Thelen's testimony, it might well be that the Respondent, based on the
circumstances in this case, could very well be entitled to avail itself of the principle
that an employer has the undeniable right to operate its plant efficiently and to take
such steps are are reasonably necessary to protect its business including the inalienable
31 N L R B. v. Electric City Dyeing Co., 178 F 2d 980,982 (C.A 3)
31 N L R.B v Jones & Laughlin Steel Corporation , 310 U S 1, 45
sa N L R .B v. Huber & Huber Motor Express , Inc., 223 F. 2d 748, 749 ( C A. 5).
141V L R B v Kaye, et at. d/b/a Arrow Press, 272 F. 2d 112 (C A. 7).
35 See footnote 22, supra
ss Charlene Long's testimony that she overheard Anderson in March say he would not
hire Grove and Nickless is not credited , as Grove did not apply for a job until May and
Nickless in July. Moreover , it was evident from her testimony and demeanor that she was
not kindly disposed toward Anderson because her husband who had applied for a job had
never heard from the Respondent.
IOWA BEEF PACKERS, INC. 641
right not to hire unqualified or incompetent employees 37 The trier of these may
not substitute his judgment for that of the employer as to selection of employees.
The Act proscribes the exercise of the right to hire only when it is employed as a
discriminatory device 38
... management is for management. Neither Board nor Court can second-
guess it or give it gentle guidance by over-the-shoulder supervision. Manage-
ment can discharge for good cause, for bad cause, or no cause at all. It has,
as the master of its business affairs, complete freedom with but one specific
definite qualification: It may not discharge when the real motivating purpose is
to do that which Section 8(a) (3) forbids . . . 39
It is found, therefore, upon the entire record, that the five alleged discriminatees
are not employed presently by Respondent for nondiscriminatory reasons and not
for the reason ascribed by the General Counsel, namely, because they were all former
union officials 40
The burden is on the General Counsel to establish affirmatively, by a preponderance
of the credible evidence, that the Respondent has violated the Act, not on the
Respondent to disprove it 41 Where, as here, the Respondent's explanation for these
five men not being in its employ is a reasonable one, the burden of going forward
with evidence shifts to the General Counsel to establish the falsity of the explanation
by substantial evidence and the truth of his own interpretation.42 Unless there is
a reasonable basis in the evidence for findings of discrimination, the Respondent
need not excuse or justify its action.43 It is not the burden of the Respondent to
show the absence of discrimination, but that of the General Counsel to establish its
presence.44 The burden to make out a case of discrimination by substantial evidence
rest continuously on, and does not shift from, the General Counsel to the
Respondent 45
Substantial evidence is such evidence as affords a substantial basis of fact from
which the fact in issue can be reasonably inferred.46 Substantial evidence must have
rational probative force; it must carry conviction; it must be more than a scintilla,
and must do more than create a suspicion of the existence of the fact to be estab-
lished.47 Moreover, the substantiality of evidence must take into account whatever
in the record fairly detracts from its weight. This is what is meant by consideration
being given to the "whole record." 48 And the test is not satisfied by evidence which
gives equal support to inconsistent inferences49
The evidence here is devoid of any credible discriminatory reason for Respondent's
failure to hire the five alleged discriminatees. Furthermore, the General Counsel
failed to show there were any job openings for which these men were qualified.
It is clear that a discriminatory refusal to hire within the meaning of Section 8(a) (3)
cannot be found unless it is shown job vacancies existed for these five men at the time
of the alleged discrimination.50 The evidence does not show this. It is concluded
ai Cf. Southern Steamship Company v. N.L.R B., 316 U.S. 31 ; N L.R B. v. Birmingham
Publishing Company, 262 F. 2d 2, 8-9 (C.A. 5).
as N.L R B. v. Audio Industries, Inc, 313 F. 2d 858 (C.A. 7)
39 N L.R B. v. T. A. McGahey, Sr., et at. d/ b/a Columbus Marble Works, 233 F. 2d 406,
412-413 ( C A. 5). See also N.L R B. v. Hudson Pulp & Paper Corporation, 273 F. 2d
660, 666 (C A. 5).
40 It appears that Miner, Grove , and Thelen might have misappropriated the funds re-
maining in the treasury of the local union at the Fort Dodge Packing Company plant when
it disbanded and that this also entered into Respondent's consideration of their employ-
ment applications.
41 Section 10(e) of the Act. See American Flint Glass Workers' Union V. NL.R.B.
(Bartlett Collins Company), 230 F. 2d 212 (C.A.D^C.), cert. denied 351 U.S. 988.
42 Martel Mills Corporation v. N.L.R.B., 114 F. 2d 624 (C.A. 4) ; N.L R.B. v. Entwistle
Mfg. Co., 120 F. 2d 532 (C.A. 4).
41 N L R B. v. Wagner Iron Works, 220 F. 2d 126, 127 (C.A. 7).
44 New Big Creek Mining Company, 105 NLRB 97, 101.
45 N L R B. v. Brady Aviation Corporation, 224 F. 2d 23, 25 (C A. 5).
4e N L.R B. v. Columbian Enameling & Stamping Co., Inc., 306 U.S. 292.
4' N.L R.B. v. Del E. Webb Construction Company, 196 F. 2d 702 (C.A. 8).
41 Universal Camera Corporation v. N.L.R.B., 340 U.S. 474.
49 Eastern Coal Corporation v. N.L.R.B., 176 F. 2d 131 (C.A. 4) ; see also N.L.R.B. v.
Stafford Operating Company, 206 F. 2d 19 (C.A. 8).
50 Climax Spinning Company, 101 NLRB 1193, 1204. See footnote 5
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and found , therefore , that the General Counsel has failed to sustain his burden of
proving by a preponderance of the evidence that Respondent refused for discrimina-
tory reasons to hire Frank Laird, John Miner, Maurice Nickless, Eugene Thelen, and
James Grove in violation of Section 8(a) (3) of the Act. Accordingly, it shall be
recommended that the complaint be dismissed as to these five alleged discriminatees.
D. The alleged violations of Section 8(a) (1)
The complaint alleges Respondent violated Section 8(a)(1) by threatening to
discharge employees and to close the plant, interrogating employees , instructing them
to sign "Employment Contracts ," and offering to give favorable consideration to job
applicants if they would attend union meetings in order to persuade those in attend-
ance that present employment conditions are highly satisfactory . 51 The Respondent
denies all these allegations.
Discussion and Conclusions
In determining which version is to be credited, reliance has been made to a great
extent on those witnesses who are presently employed by the Respondent Company.
As such, they depend on their jobs for their livelihood and they understand that
after testifying they must continue in the employment of the Respondent. This
practical consideration , coupled with the normal workings of human nature, has
led the trier of these facts to place considerable credence upon the following wit-
nesses' testimony: Roger Grove,52 Fred C. Williams, Vernon Dornath, Larry Reeves,
Dennis Wesley, and Joe Fitzgerald.
Roger Grove, who is presently employed by Respondent, testified that Anderson,
president of the Respondent Company, asked him while at work how he "felt" about
the International, the Charging Union. Grove testified that Anderson told him
the Union was no good and "You remember that and you had better watch your
step." Grove also testified to a meeting he attended at the plant during working
hours at which time Anderson told the assembled employees "that he would lock
the door if it came to where the International Union would get in And then he
said also that he would hire a whole new crew if he had to." Grove also testified,
which was corroborated by Fitzgerald, a fellow employee, that Anderson told the
employees at the same meeting that he knew all about the International Union's
plan to hold a meeting and that he knew not only the date when it was to be held
but also the place. According to Fitzgerald, Anderson said: "I know those things
just as fast as you do."
Roger Grove further testified that he attended an employees' meeting at the plant
on or about November 27. At that time, Thiede, production manager, warned
the employees that if the International Union were selected by them, Anderson
would transfer his business to Denison where he operated another plant and close
down the Fort Dodge plant. This was corroborated by Fred C. Williams, Vernon
Dornath, Larry Reeves, Dennis Wesley, and Joe Fitzgerald who are all presently
employed by the Company.
Williams, another employee, testified that he attended two union meetings which
were held on the same night. One meeting was held by the International Union and
the other by the Independent Union. Thiede called him into his office the morning
following these meetings, and warned him about being seen with adherents of the
International Union. Williams testified that Thiede cautioned him "if we associated
with them kind of guys that we would be out of a job."
Fitzgerald, who is presently employed by Respondent, testified that shortly after
the opening of the plant on October 2, Thiede, the production manager, called him
51 The pertinent provisions of the National Labor Relations Act, as amended (61 Stat
136, 29 U . S.C 151, et seq ), are as follows:
SEC 8 (a ) It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7;
SEC 7 Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized in section 8(a) (3).
62 Not to be mistaken with James Grove, an alleged discriminatee in this proceeding.
IOWA BEEF PACKERS, INC. 643
to his office and told him he had heard he was soliciting employees to sign Interna-
tional Union authorization cards. Thiede said, according to Fitzgerald, "Didn't
I realize that Anderson would shut her down, lock that front door?"
Vernon Dornath, who is presently employed by the Company, testified that he
was called to Anderson's office and questioned with respect to a meeting of the
International Union which Anderson said he had heard was to be held at Dornath's
home. According to Dornath, Anderson said. "I am not going to fire you, but
there's other ways of getting the job done.... You'd better start turning around and
start going the other way with it."
Based upon the credited testimony delineated above, of Roger Grove, Dornath,
Reeves, Williams, Wesley, and Fitzgerald, it is found that Respondent interfered
with, restrained, and coerced its employees by the following acts: Creating the im-
pression that its employees' union activities were under surveillance, interrogating
them, warning them it would close the plant, and threatening them with discharge.
It is recommended that the allegations of the complaint be dismissed with respect to
Respondent instructing its employees to sign "Employment Contracts" 53 and offer-
ing to give favorable consideration for employment to individuals if they would
attend union meetings and attempt to persuade those in attendance that present
employment conditions are highly satisfactory, as the General Counsel has not
established by a preponderance of the evidence that the Respondent committed
these alleged proscribed acts.
E. The alleged violation of Section 8(a) (4)
The complaint alleges that on or about September 28, 1962, Respondent, by its
president, Anderson, violated Section 8(a)(4) 54 when he refused to hire James
Grove because he filed a charge The evidence shows that when the General
Counsel's representative, Charles J. Frisch, spoke on the telephone to Anderson
the latter said: "I was going to hire [Grove] but now he filed this charge, which is
full of lies, and a liar is as bad as a thief, and I won't have a thief working for
me." At another point in his testimony, Anderson stated that nevertheless Grove
was still under consideration for employment, "if I get this guy [Grove] figured out
maybe I can do something for him." Grove, however, on his own admission, testi-
fied that he had lied when he alleged in his charge that Anderson told him he
would never hire him.55
In vindication of the policy of encouraging candor among persons who seek Board
aid in "redressing their grievances" under the A ct,56 the Board has ordered with-
holding of the remedy, in part, as in Wilson & Ca., 11 LRRM 2545, or in full, as
in Remington Rand, 13 LRRM 2565, depending upon the gravity of the offense.
See also T. A. O'Donnell, d/b/a O'Donnell's Sea Grill, 55 NLRB 828, where all
remedy was withheld when an employee deliberately falsified on the witness stand 57
Since Grove's conduct in deliberately falsifying the allegation he made in his
charge is such that he had abused the Board's processes in doing so, it will be recom-
mended that no order issue requiring Respondent to hire Grove even though Ander-
son's conversation with Frisch, supra, was a violation of Section 8(a) (4), but it
will be recommended that Respondent cease and desist from refusing to hire ap-
plicants for employment who file charges against it.
CONCLUSIONS OF LAW
1. The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among
the several States , and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
2. United Packinghouse , Food and Allied Workers , District No 3, AFL-CIO,
called the International herein , and Hawkeye Industrial Labor Union, called the
"The evidence clearly shows that whether employees wished to sign these "employment
contracts" was purely voluntary on their part.
M Section 8(a) (4) : "It shall be an unfair labor practice for an employer to discharge
or otherwise discriminate against an employee because he has filed charges or given testi-
mony under this Act."
55 See supra
ee Republic Steel Corp. v. N L R.B , 311 13 S. 7, 11.
54 Clayton E Smith et al , d/b/a Clayton-Willard Sales, 126 NLRB 1325 at 1343
727-083-64-vol, 144-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent herein, are labor organizations within the meaning of Section 2(5)
of the Act, admitting to membership employees of the Respondent.
3. By interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, as detailed above, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By refusing to hire applicants who filed charges against it, Respondent has
violated Section 8(a) (4) of the Act.
5, The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Hy Greenspun and Harry Braymes , t/a Liberty Food Distribu-
tors and Warehouse Employees Union , Local 730, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case No. 5-CA-2301. September 18, 1963
DECISION AND ORDER
On July 11, 1963, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in the present case was issued on December 31, 1962, upon charges
filed by Warehouse Employees Union, Local 730, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America, herein called the
144 NLRB No. 68.