Loggins Meat Co., Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1973

206 N.L.R.B. 303 (N.L.R.B. 1973)

LOGGINS MEAT CO., INC. 303
Loggins Meat Co ., Inc.' and Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-
CIO, Local Union No. 540 . Case 16-CA-4908
October 9, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 9, 1973, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions and supporting briefs,
and the Charging Party filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and,
conclusions to the extent consistent herewith.
The Administrative Law Judge found 8(a)(1) and
(3) violations in the 3-day suspension of Johnnie San-
ders on July 28, 1972, and her discharge on August 18,
1972. We do not agree that the General Counsel has
established by a preponderance of the evidence that
the Respondent either suspended or discharged San-
ders because of her union activity.
The only evidence of union activity on the part of
Sanders shown to have been known to the Employer
is that on the day of the election, some 5 months
before her suspension , Sanders wore a "Vote Yes"
button .2 However, many of the other employees wore
such buttons and no reprisals were taken against
them. In finding that Sanders' suspension was discri-
minatorily motivated, the Administrative Law Judge
relies on Sanders ' testimony that after she had re-
turned to work she was told by Plant Manager Parker
that she had "harassed" three employees and named
Linda Land as one of them. Elsewhere in her testimo-
ny Sanders identifies Land as one of the employees
"who, had slowed down on attending union meet-
ings." Sanders made no inquiry of Parker as to the
nature of the alleged harassment. Neither did she seek
any explanation from Land. There is no evidence that
Sanders had solicited Land in connection with the
Union, or that she had engaged in contacting support-
1 The name of Respondent appears as amended at the hearing-
2 Sanders testified that she handed out six or seven cards between January
and her termination The dissent refers to Sanders' solicitation of other
employees to sign cards for the Union, and the Administrative Law Judge
has found that this was the reason for Respondent's treatment of Sanders.
But no evidence is recited to show Respondent's awareness of this activity.
ers of the Union that seemingly had lost or were losing
interest . TheAdministrative Law Judge draws the in-
ference that when Parker spoke of harassment he had
reference to solicitation in behalf of the Union.' He
then proceeded to draw the further inference, based
on the skeletal testimony that Land had slowed down
in her attendance of union meetings, that Sanders was
suspended by the Employer in the mistaken belief that
she had been soliciting Land to renew her support of
the Union. We view this as no more than speculation.
Equally tenuous is the Administrative Law Judge's
apparent theory as to Sanders' subsequent discharge.
Sanders testified that at the time of her discharge she
was told by Plant Superintendent Clarkson that "you
have been heard to say you were going to slow down
in your work and you did." Sanders made no reply to
that accusation at the time. She, merely departed with-
out saying anything further. However, at the trial in
this proceeding she denied that she had engaged in
any work slowdown. Based on Sanders' denial at the
hearing, the Administrative Law Judge concluded
that the Respondent was mistaken when it believed
that Sanders had slowed down in her work. Because
some employees had previously discussed, a work
slowdown at a union meeting, the Administrative Law
Judge perceived some connection between that union
activity and Sanders' alleged work slowdown.
However, according to the Administrative Law
Judge, the employees had rejected the idea of a slow-
down and there is no evidence that Respondent was
even aware of the discussion of that topic at a union
meeting. Nevertheless, he felt that Respondent's mis-
taken belief regarding Sanders arose in a "context" of
employees' union activities and concluded that the
Burnup & Sims, Inc.,4 principle was applicable to this
situation. We disagree.
In Burnup & Sims, Inc., the Supreme Court stated:
In sum, § 8(a)(1) is violated if it is shown that the
discharged employee was at the time engaged in
a protected activity, that the employer knew it
was such, and that the basis of the discharge was
an alleged act of misconduct in the course of that
activity, and that the employee was not, in fact,
guilty of that misconduct.
It is clear in the instant case that Sanders was not
3 We believe the word harassment is capable of other interpretations than -
union solicitations. Thus, although not mentioned in the Administrative Law
Judge 's Decision, the record shows from Sanders' own testimony that, a few
days before her suspension , it was brought to the Employer 's attention that
she and another employee, Wanda Bennett, had engaged in an altercation
arising out of Bennett's taking offense from remarks of Sanders with respect
to another employee riding home with Mexicans and that "WAmte girls should
leave Mexicans alone."
4379 U.S. 21, 23 (1964)
206 NLRB No. 31
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in a protected 'activity concurrently with
Respondent's mistaken belief of misconduct. The
connection between Sanders' earlier union activities
and Respondent's subsequent belief that she had
slowed down in her work is missing. Under Burnup &
Sims there must coexist a protected activity and an
employer's mistaken belief that the discharged em-
ployee had engaged in misconduct "in the course of
that activity."
Moreover, unlike, the Administrative Law Judge,
we are not persuaded that the discharge of an employ-
ee at the start of the workday and without prior warn-
ing necessarily "compels" a finding that there was a
discriminatory motivation for the discharge. Nor do
we find adequate warrant for such a conclusion in our
colleague's dissent.
On the basis of the record before us, we find that
the General Counsel has not established that either
Sanders' suspension or discharge was violative of Sec-
tion 8(a)(1) and (3). Accordingly, as the Administra-
tive Law Judge found no violations of Section 8(a)(1)
and (5), we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Lbor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
MEMBER FANNING , dissenting:
I do not agree with the majority's refusal to find, as
the Administrative Law Judge did, that the suspen-
sion and later discharge of employee Johnnie Sanders
were violations of Section 8(a)(3) and (1). I would,
moreover, reverse the Administrative Law Judge's
conclusion that Respondent did not violate Section
8(a)(5) of the Act.
In my opinion the General Counsel has established
a prima facie case that Johnnie Sanders' suspension
and discharge were discriminatorily motivated be-
cause of her membership in the activities on behalf of
the Union. The Administrative Law Judge found that
Sanders wore a "Vote Yes" badge on election day,
March 10, 1972. This was brought to the'attention of
coowner Ronnie Loggins when he asked Sanders' de-
partment leadman how many girls were wearing
"Vote Yes" badges.' Sanders and another girl were
the only two in that department who were wearing
such badges, and Sanders was standing "right beside"
Loggins at the time. The Administrative Law Judge
also found that Sanders passed out cards throughout
5 By inadvertence the Administrative Law Judge found that Plant Superin-
tendent Charles Clarkson, rather than Ronny Loggins, was involved in this
incident
the campaign. In addition the record shows that even
after the election she (Sanders) gave' some cards to
new employees, and she attended all union meetings.
Sanders received wage increases of 10 cents an hour
in January and July. In his Remedy section the Ad=
ministrative Law, Judge found that Sanders was later
reinstated.
The varying reasons given to Sanders for both the
suspension and the discharge by Respondent tend to
indicate that the reason for its action was union ani-
mus. Originally Sanders was told that the reason for
her July 28 suspension was "some confusion that was
going around." Upon her return to work on August
3 a different reason, her alleged harassment of three
employees, was given to her for the suspension. When
Sanders was discharged on August 18 the purported
reason,given her was "all this confusion that has been
going on." Sanders denied knowledge of this, and
Respondent told her that she had engaged in a slow-
down. At the hearing it offered no evidence of a slow-
down.
The shifting reasons for the suspension and the dis-
charge, the lack of any warning that she might be
discharged, and the Respondent's failure to offer any
evidence that Sanders participated in a slowdown per-
suade me that the Administrative Law Judge rightly
concluded-apart from reliance on N.L.R.B. v. Burn-
up & Sims, 379 U.S. 21 (1964), on the 8(a)(1) aspects
of the Respondent's treatment of Sanders-that she
was suspended and discharged in violation of Section
8(a)(3) and (1).6
The complaint alleged an 8(a)(5) based on negotiat-
ing in bad faith and withdrawing the authority of
6 The General Counsel has excepted to the failure of the Administrative
Law Judge to credit the testimony of Sanders and of Ann Hunter concerning
remarks made to them by coowner Randy Parker, which remarks are alleged
as 8(a)( 1), as well as 8(a)(5), violations . Sanders was called in by Parker on
August 3, after her suspension of July 28, and, as she testified, told that "he
had a bunch of complaints from the Labor Board, but they were not going
to amount to anything and for her to tell Fred Tilson there was not ever going
to be a Union there " Ann Hunter, a former employee, testified that she
called Parker on August 9 and told him she was quitting as she was tired of
the whole mess . Parker asked her whether she was referring to the Union and
went on to say ". that the Union is not going to get in here It is not going
to run my business " Parker denied both statements and the Administrative
Law Judge credited him partly because he saw no reason why Parker would
make such statements "months after an election which the Union had won "
This overlooks the fact that Respondent had recently received a decision by
another Administrative Law Judge in Loggins, Robert D, Ronny M. Loggins
and Randy Parker d/b/a Loggins Meat Co, 199 NLRB No. 38. That decision
issued on June 20, 1972, and the Respondent filed exceptions to the Board
in that case on July 25, just 3 days before Sanders' suspension , and less than
a month before Respondent abruptly withdrew its contract proposal to the
Union. It involved the early part of the same organizing campaign in which
Sanders was active, found illegal threats and interrogation by Randy Parker,
and directed the reinstatement of a union adherent who had been discharged.
The Administrative Law Judge referred to the Loggins decision but was not
persuaded that it supported a finding of bad faith by the Respondent in this
case Apparently he failed to connect the timing of the receipt of that deci-
sion, and the Respondent 's filing exceptions with respect to it, with the
Sanders and Hunter testimony in early August. Thus his credibility finding
with respect to that testimony is subject to serious question
LOGGINS MEAT CO., INC. 305
Attorney Joe Parker to negotiate. The parties engaged
in seven contract negotiating sessions beginning May
1. A Federal mediator attended the last two sessions.
On August 23, the last session, Joe Parker presented
a full contract proposal to Union Representative Til-
son, as the mediator had requested at the session be-
fore. Tilson did not accept the offer but said he would
present it to the employees that evening for a vote.
The employees approved Respondent's proposed
contract that evening. Early the next morning, August
24, Parker called Tilson and told him that senior part-
ner Loggins, Respondent's controlling owner, disap-
proved of two provisions in the contract and therefore
Respondent's agreement must be withdrawn as to
those provisions. Tilson replied that the contract had
already been accepted and that Parker had repre-
sented that he had full authority to make the proposal.
The charge followed on August 29.
Parker had reaffirmed his authority to negotiate at
the August 23 meeting, and he made no mention of
any necessity for final approval by Loggins. At the
hearing Parker admitted that he had acted at all seven
negotiating sessions as if he had complete authority.
His testimony includes the comment: "Now if the
matter had been accepted prior thereto [the withdraw-
al], we might be in a different ball game." Randy
Parker testified that he had discussed the full contract
with Mr. Loggins and it was his understanding at the
last session that "if the Union signed the contract at
the meeting, they had a contract " Finally it should be
noted that Randy Parker is a coowner and that he
participated in all but one of the earlier negotiating
sessions. Taken together these facts establish to my
satisfaction that the contract which the employees
accepted was fully authorized. The abrupt withdrawal
of two significant provisions on the morning of Au-
gust 24, before the Union could communicate the fact
that the employees had already approved the con-
tract, is, in my opinion, totally inconsistent with good-
faith bargaining. I would therefore find a violation of
Section 8(a)(5) and issue an order requiring the Re-
spondent to sign the contract.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This case
involves a complaint alleging that Respondent, Loggins
Meat Co., Inc.,' violated Section 8(a)(1) and (3) of the Act
by first suspending and later discharging an employee be-
cause of her union activities, and Section 8(a)(1) and (5) of
the Act by withdrawing offers made in negotiations, with-
drawing the authority of its negotiator to bargain with the
i The name of Respondent appears as amended at the hearing.
above-captioned Union, and by refusing to sign a written
agreement embodying rates of pay, wages, hours of employ-
ment, and other conditions of employment agreed upon
between Respondent and the Union. The complaint issued
on October 20, 1972,2 pursuant to a charge filed by the
Union on August 29. Hearing was held in Tyler, Texas, on
November 28.
Upon the entire record,' including my observation of the
witnesses, and after consideration of the briefs filed by Gen-
eral Counsel and Respondent, I make the following:
I FINDINGS OF FACT
A. The Suspension and Discharge
of Johnnie Sanders
1. The facts
Respondent is engaged in the business of processing and
distributing meat from a facility at Tyler, Texas, where it
employs approximately 30 employees.'
About the first week of January, the Amalgamated Meat-
cutters and Butcher Workmen of North America, AFL-
CIO, began an organizational campaign among employees
of Respondent which culminated in the holding of an elec-
tion on March 10. A majority of the employees voted for
union representation and the Union was certified on March
20.
Johnnie Sanders, who was employed packing, wrapping,
and boxing meat, had been employed by Respondent since
October 22, 1971. She testified that she signed a union card
at the beginning of the union campaign and throughout the
union campaign passed out union cards. On the day of the
election for a period of about 3 hours, a number of the
employees wore union badges with a legend "vote yes."
Sanders was one of the employees to wear such a badge and
she testified that while she had it on Plant Superintendent
Charles Clarkston came up to -the leadman in her depart-
ment and asked how many girls were wearing the union
badges. Sanders and another employee were wearing them
and the leadman so informed Clarkston. At the time of this
conversation, Sanders was standing right next to Clarkston.
On July 28, Clarkston suspended Sanders for 3 days tell-
ing her that the reason for the suspension was some confu-
sion that was going around. Sanders told him she knew
nothing about any confusion and he rejoined that she did.
Sanders returned to work 3 days later and during the morn-
ing coffee break she was summoned to the office of Randy
Parker, plant manager and co-owner of Respondent. San-
ders testified that Parker did most of the talking and that
he said something about her suspension. She told him she
would like to know what the suspension was all about, and
Parker told her she knew what it was all about. When she
denied that she did he told her that three of his best employ-
ees had complained that she had harassed them. When she
2 Unless otherwise indicated, all dates are in 1972
3 Respondent's unopposed motion to correct record is hereby granted and
the motion is received into evidence as ALJ Exh 1
4 Commerce is not in issue. The complaint alleges, the answer admits and
I find, that Respondent annually meets the Board's direct outflow and inflow
standards for the assertion of jurisdiction.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him who, he named employee Linda Land. Sanders
said she did not beleive it, because she and Land were
friends. Parker told her that the complaint was true and that
he preferred to believe Land to her. According to Sanders,
the conversation ended with Parker stating that he had a
bunch of complaints from the Labor Board, but they were
not going to amount to anything, and for her to tell Fred
Tilson, who is the business representative of the Union, that
there never would be a union there.
On August 18, before punching in for work, Sanders was
approached by Clarkston and told that her services at Log-
gins were no longer desired. She asked him why and he told
her "Well, you know all this confusion that has been going
around." Sanders told him that she was not guilty of any of
that and he told her that she had been heard to say that she
was going to slow her work down and she did. Sanders did
not reply to this accusation, but simply left without saying
anything else. At the hearing she denied that she had en-
gaged in any work slow down.
2. Analysis and conclusions
The complaint alleges that Respondent laid off Johnnie
Sanders on July 28 and discharged her on August 18 be-
cause of her membership in and activities on behalf of the
Union. Respondent denied in its answer that it had sus-
pended or discharged Sanders because of her union activi-
ties, but Respondent offered no evidence to explain the
reason for the 3-day suspension and the discharge. Thus, the
only evidence respecting the allegation of discrimination is
the uncontradicted testimony of Sanders as described
above, and the question presented is whether such evidence
is sufficient to establish a prima facie case that the suspen-
sion and discharge were violative of Section 8(a)(1) and (3)
of the Act.
In its brief, Respondent asserts that the burden of proving
that the suspension and discharge were unlawful rested on
General Counsel and that the employer does not have the
burden of proving that the discharge was for a proper rea-
son. I agree. It is well established that an employer may
discharge an employee for a good reason, a bad reason, or
for no reason , and'the only limitation on that right is that
he may not discharge or discipline an employee because of
his union or protected activities. N.L.R.B. v. McGahey,
T. A., Sr.; T. A. McGahey, Jr.; Mrs. Altie McGahey Jones
and Mrs. Wilda Frances McGahey Harrison, d/b/a Columbus
Marble Works, 233 F.2d 406 (C.A. 5, 1956). In this case, we
do not know from Respondent for what reason or reasons
it first suspended, then later discharged, Sanders. Neverthe-
less, the burden of proving that the reason was one prohib-
ited by the Act remained with General Counsel.
In arguing that this burden was not met, Respondent
adverts to the fact that Sanders' wearing of a "Vote Yes"
button is a factor entitled to little weight inasmuch as the
evidence indicates that most of the other female employees
wore similar buttons and no reprisals were taken against
them. As to Sanders' signing of a card, there is no showing
that Respondent knew she had done so, just as there is no
showing that Respondent knew of Sanders' soliciting other
employees to sign cards. Moreover, Respondent asserts that
there is no scintilla of evidence to show that from the date
of the election in March until her discharge in August San-
ders participated in any union activity whatsoever: On the
other hand, Respondent notes that there were other employ-,
ees whose union activities were more extensive than Sanders
(in that they served on the negotiating committee) and no
reprisals were taken against them.
Although there is some merit in Respondent's assertions,
they are outweighed by Sanders' uncontradicted testimony
about the reasons given her for her suspension and dis-
charge. Thus, when suspended, Sanders was told by Super-
visor Clarkston that it was because of "some confusion that
was going on." Sanders did not know what Clarkston meant
and denied being the cause of any. If this were all we knew
of the reason for the suspension I do not believe a finding
of an unlawful suspension could be made. But when San-
ders returned to work after the suspension, she testified that
co-owner Randy Parker told her that the reason she had
been suspended was that three employees had complained
she had harassed them, naming one, Linda Land. Land had
been one of the employees who had supported the Union
and had worn a "Vote Yes" button who later lost interest
in the Union and ceased attending union meetings. Accord-
ing to Randy Parker's statement to Sanders, Land had told
him Sanders was harassing her. He did not specify in what
respects Sanders was doing so, but there is no indication of
any reason for Sanders to have harassed Land, who she
described as a friend of hers, and it is a reasonable inference
that the alleged harassment related to Sanders solicitation
of Land to renew her support of the Union. Sanders did not
testify that she solicited Land. She did deny, that she har-
assed her. Whether or not Sanders did solicit Land is imma-
terial to decision. It is clear that Respondent believed that
she had and that she had done so in an unprotected manner,
and Respondent suspended her for that reason. Assuming,
arguendo, that Respondent had a good-faith belief that San-
ders had been guilty of misconduct in the solicitation of
employees, her suspension was nevertheless violative of Sec-
tion 8(a)(1) when the evidence shows that Sanders was not
in fact guilty of misconduct. N.L.R.B. v. Burnup & Sims,
Inc., 379 U.S. 21 (1964).
As is readily seen, the application of this principle renders
meaningless the arguments of Respondent against a finding
of a violation. Burnup & Sims, however, only supports a
finding that the suspension of Sanders violated -Section
8(a)(1) of the Act. The complaint alleges a violation of
Section 8(a)(3) as well, and for such a finding there must be
a showing of a discriminatory motive. In my judgment, such
a motive may be reasonably inferred by the very manner in
which Respondent handled the suspension. Sanders was not
told why she was suspended in the first place, and when she
was told the reason after the fact and denied engaging in the
misconduct charged against her, Respondent merely
brushed aside her denial. These circumstances persuade me
that the motivating factor for Sanders' suspension was San-
ders' activities in soliciting employees to join or support the
Union and the suspension was violative of Section 8(a)(3)
of the Act. Respondent's contention that it had no knowl-
edge of such activities is belied by Randy Parker's remarks
to Sanders on the occasion of her return to work. Moreover,
given the size of Respondent's plant, it may reasonably
be inferred that Respondent knew of Sanders' sympathies
LOGGINS MEAT CO., INC. 307
for, and support of, the Union.
Although the details are different, the same consider-
ations apply in finding that Sanders' discharge was violative
of Section 8(a)(1) and (3) of the Act. In this instance, ac-
cording to Sanders' uncontradicted testimony, supervisor
Clarkston gave as one of the reasons for the discharge that
Sanders had engaged in a slow down. Sanders testified that
employees had discussed the idea of a work slowdown at a
union meeting, but the idea was rejected. Sanders testified
she did not engage in a work slowdown, and there is no
evidence she did. Thus, it was in the context of the employ-
ees' union activities that Respondent formed the belief that
Sanders engaged in unprotected activity. As the alleged
misconduct was associated with. the protected activities of
the employees, and as Respondent discharged Sanders be-
cause of its belief that she had engaged in misconduct in the
course of such activities, and as Sanders had not engaged
in the alleged misconduct, her discharge was violative of
Section 8(a)(1) of the Act. As with Sanders' suspension, the
circumstances of the discharge compel a finding that Re-
spondent was discriminatorily motivated in discharging her.
Again, there was no warning. Again, the action was taken
abruptly at the beginning of a work day, and Sanders' denial
of misconduct was just brushed aside. These circumstances,
coupled with the earlier unlawful suspension, support a
finding that the discharge was discriminatorily motivated
and violative of Section 8(a)(3) of the Act.
B. The Alleged Refusal To Bargain
1. The facts
As noted above, an election was held on March 10 and
the Union was certified on March 20. Thereafter, the parties
held seven meetings: May 1 and 17, June 21 and 22, July
7 and 26, and August 23. Respondent's negotiators were
Randy Parker and Attorney Joseph Parker (who is not relat-
ed to Randy Parker). Attorney Parker was the principal
negotiator on behalf of Respondent.
The sixth meeting on July 26 was held in the presence of
a Federal mediator and it concluded with the under-
standing that Respondent would prepare a counterproposal
for the next meeting.
When the parties met on August 23, Respondent present-
ed a complete written contract proposal. After studying the
proposal, the Union, through Fred Tilson, its principal ne-
gotiator, proposed the addition of a checkoff provision and
improvement in medical insurance benefits. Respondent re-
fused to modify its proposal and Tilson advised its negotia-
tors that he would call a meeting of the employees for that
night and submit the matter to them with a recommenda-
tion against acceptance. According to Tilson, he added that
if the employees voted to accept Respondent's proposal,
then they had a contract.
A meeting was held that night and the employees voted
to accept Respondent's proposal.
The following morning, Tilson received a telephone call
from Attorney Parker who advised him, before Tilson com-
municated to him the results of the employee meeting, that
the contract proposal was being withdrawn with regard to
two provisions: the provision for daily overtime after 8
hours, and the annual wage reopener (the contract proposal
was for a 3-year term). Tilson advised Parker that the em-
ployees had voted to accept the contract, that he had been
told by Parker that Parker had full authority to make the
proposal, and that the contract was therefore agreed to.
Attorney Parker later confirmed by letter his withdrawal
of the contract proposal in the two particulars described
above and advised Tilson he had contacted his client to
determine if there was a possible area of compromise. He
requested that Tilson contact him if he had any suggestions.
The parties have had no negotiation meetings since Au-
gust 23, and the charge in the instant case was thereafter
filed on August 29.
2. Analysis and conclusions
The complaint alleges that Respondent negotiated in bad
faith by telling employees there would never be a union at
its plant, by withdrawing its offer in regard to wages after
the offer had been accepted by the Union, by withdrawing
the otensible authority of its negotiator, and by refusing to
sign a written agreement embodying the terms and condi-
tions of employment orally agreed to by the parties. The
refusal to sign a written agreement appears to be the princi-
pal issue.
It is settled law that where an employer or a union have
orally agreed to the terms and conditions of a collective-
bargaining agreement either may be required, upon request,
to sign a written agreement embodying the terms and condi-
tions orally agreed to. H. J. Heinz Company v. N.L.R.B.,
311 U.S. 514 (1941). Of course, before there can be a finding
of a refusal to sign, it must be established that the parties
have entered into an oral agreement. In this case, the record
indicates that an oral agreement was never entered into. In
F. W. Means Company v. N.L.R.B., 377 F.2d 683, 686 (C.A.
7, 1967), the court pointed out that while the "technical rules
of contracts" do not necessarily control all decisions in
labor-management cases, "the normal rules of offer and
acceptance" are generally determinative of the existence of
a bargaining agreement. In this case, there was no accep-
tance of Respondent's August 23 offer.
It is undisputed that the Union did not accept
Respondent's contract proposal at the August 23 meeting.
Union Representative Tilson told Respondent's negotiators
that he would have a meeting of the employees that same
evening and that he would present them with Respondent's
proposal with a recommendation against its acceptance.5
Contrary to Tilson's recommendation, the employees voted
to accept Respondent's proposal. Despite this, a binding
agreement did not come into effect because an acceptance
is not effective until communicated to the offeror,' and
5 According to Tilson, he told Respondent's negotiators that he would not
recommend acceptance of the proposal, but added that if the employees did
accept it the Union would sign the contract Attorney Parker denied that this
added remark was made I credit Parker whose demeanor impressed me and
whose answers to all questions put to him appeared to me to be given
candidly and without purpose of evasion I was not similarly impressed by
Tilson. However, whether or not Tilson made the added remark is immaterial
to decision. It was implicit in the situation that the employees might vote for
acceptance of the contract
6 Williston on Contracts, 3d ed., vol. 1, § 70.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the acceptance was communicated the offer was
withdrawn. As stated in Shreveport Garment Manuracturers,
133 NLRB 117, 121,
Strictly as a matter of fundamental contract law, and
without regard to possible bad-faith motives, the Re-
spondent effectively could have forestalled a contract
at any time before acceptance of its outstanding offer
by withdrawing or changing its terms .3
3 Williston on Contracts , 3d. ed., vol. 1, sec. 55
Sunderland's Incorporated 194 NLRB 118, cited by Gen-
eral Counsel, is in accord with Shreveport. There, the Union
negotiator's acceptance was deemed ineffective because the
parties had agreed that ratification was a precondition to
arrival at a final binding agreement, and before ratification
occurred, the offer was withdrawn. In the instant case, the
offer was rejected by the Union's negotiator and the mem-
bership overruled him and voted to accept the offer, but
before acceptance was communicated the offer was with-
drawn.
As the offer was withdrawn prior to notification of accep-
tance, I conclude that no binding agreement was reached
which Respondent can be required to sign.
The foregoing represents the application of fundamental
principles of contract law and, as pointed out in Shreveport,
supra, prescinds from any question of bad faith motives in
the withdrawal of the August 23 offer. The question is not
one to be avoided, however, because one of the allegations
of the complaint is that the withdrawal of the offer was
motivated by bad faith. A related allegation is the allegation
that Respondent withdrew the authority of its negotiator in
violation of Section 8(a)(5). Respondent denies that any of
its actions were motivated by bad faith. Both parties cite
cases in support of their positions, but where issues of good'
or bad faith are presented the conclusion is normally depen-
dent on the particular facts of the case. That is the situation
here.
At the threshold, there is an issue concerning the ground
rules of the bargaining. The record indicates that the Union
expressly reserved in its initial contract proposal the right
` . . . to add to, to delete from or alter this proposal at any
time." Respondent contends that at the initial negotiation
meeting it reserved a like right, including an understanding
with the Union that all agreements reached were tentative
and subject to the approval of Robert Loggms who at that
time was the employer's senior partner. Both Randy Parker
and Attorney Joseph Parker testified to such an under-
standing. Union Representative Tilson's testimony on the
point appears to me to be equivocal and to amount to a
denial of any such understanding. I see no need to analyze
his testimony in detail. I am persuaded that it was under-
stood by the parties that any agreements reached during the
course of bargaining were tentative agreements subject to
approval by Robert Loggins, and I credit Randy Parker
and Attorney Parker's testimony in this regard. Conclusion
on this does not, however, resolve the issue of Respondent's
good or bad faith in withdrawing its contract offer on Au-
gust 24.
It is common practice for the parties to agree that agree-
ments reached during the course of bargaining shall be ten-
tative and subject to change, and just as a union may
condition acceptance of a final contract proposal on ratifi-
cation by its members, an ,employer may condition agree-
ment on a contract proposal on approval by the negotiator's
principal. But we are not treating here of tentative agree-
ments made during the course of bargaining. We are treat-
ing of a contract proposal prepared and submitted by
Respondent's principal negotiator, and we are treating-of a
proposal for a complete contract, not merely selected arti-
cles tentatively agreed upon in the course of bargaining. In
this circumstance, the ground rules cannot be said to have
applied to the situation created by Attorney Parker's August
23 proposal and had the Union made a timely acceptance,
Respondent would be bound to honor the agreement
reached and to sign a written agreement. And it would
appear that Attorney Parker understood this when he re-
marked while testifying "Now, if the matter had been ac-
cepted prior thereto [that is, withdrawal of the offer] we
might be in a different ball game." Randy Parker likewise
testified that if the Union had signed the contract at the
meeting, they had a contract. Moreover, when Attorney
Parker presented the proposed contract, he was asked by
Tilson if he had the authority to negotiate and he replied
that he did. He-said nothing about the necessity of obtaining
approval of the proposal by Robert Loggins.
But while Respondent could have been held to its agent's
offer had it been accepted, it does not follow that it could
not withdraw the offer before acceptance and after consul-
tation between the agent and his principal. Such a with-
drawal could have been made whether or not the parties had
agreed on ground rules providing for approval of their ac-
tions by their principals, and the only question would be the
good faith of the party withdrawing the offer. As to this
question, the first thing to be kept in mind is that the offer
was not withdrawn, in total, but only with regard to daily
overtime and the wage reopener provision. As to the wage
reopener provision, it had never been discussed in negotia-
tions. Initially, the Union had proposed a 1-year contract.
During the negotiations, Respondent had suggested a 3-
year contract and the Union had replied that it was open to
the suggestion if the contract provided "enough" in the form
of wage increases . What the Union deemed "enough" was
never discussed, and when Attorney Parker was faced with
the preparation of a complete contract proposal for the
August 23 meeting, without consulting his principal, he pro-
posed a 3-year contract (to suit his client) with an annual
wage reopener (to suit the Union.) In my judgment, the very
making of the proposal evidences a desire on the part of
Attorney Parker to submit a proposal on which agreement
,could be reached. Parker testified that it was only after he
had made the proposal that his client indicated disapproval
of the provision, and the proposal was withdrawn. Of
course, Attorney Parker's conduct may vouch for his good
faith and his principal may still have acted in bad faith. In
my judgment, the evidence is insufficient to hold that Re-
spondent acted in bad faith when senior partner Loggins
refused to endorse Attorney Parker's proposal. The wage'
reopener provision was one he had not had a prior opportu-
nity to consider and his reason for rejecting it (he did not
LOGGINS- MEAT CO., INC. 309
want to engage in negotiations every year) was not a frivo-
lous one. Bad faith can hardly be inferred from the
principal's rejection of one contract proposal which he had
not previously considered.
The same situation does not apply to Respondent's with-
drawal of agreement on the daily overtime provision. Agree-
ment on this issue had been reached at the third negotiating
session and, although the record does not expressly indicate
that Robert Loggins had approved the provision, approval
is implicit from the failure of the negotiators to withdraw the
provision before August 24. No matter how you look at it,
Respondent's withdrawal of agreement on that provision on
August 24 represents a last minute change of position. This
type of conduct is a well established indicium of bad faith.
In Harry R. Pickett and Eva M. Pickett d/b/a F & J Wire
Products Co.,174 NLRB 340 (1969), a case cited by General
Counsel, the withdrawal of agreement at the last minute was
described as "negotiation in reverse" and such conduct,
coupled with the failure of the principal to devote sufficient
time and attention to his bargaining obligation, was found
to be disruptive and in derogation of the collective-bargain-
ing process.
A similar last minute withdrawal is present here, and a
similar failure to pay sufficient attention to the obligations
of collective bargaining is revealed in the explanation for
the last minute withdrawal. According to Attorney Parker,
he failed to prepare a contract proposal in sufficient time
before the August 23 meeting to permit him to consult with
Robert Loggins before he submitted the proposal to the
Union. His failure to prepare a proposed contract sooner
was attributed to the pressure of other business, plus
Parker's misunderstanding of what he was to submit at the
August 23 meeting. He testified credibly that he understood
that he was to prepare a proposal only on open matters on
which no company proposal had been made and he only
learned 2 days before the meeting that he was expected to
submit a complete contract. For this reason, he did not have
the opportunity to discuss the contract proposal with his
client before the August 23 meeting.
While Attorney Parker may have been less diligent than
he should have been in not preparing a complete proposal
in sufficient time to review it with his principal before sub-
mitting it to the Union, there is no contention that he had
been lacking in diligence prior to this incident, nor is it
contended that Respondent had engaged in dilatory tactics.
Parker's lack of diligence in this one instance must be evalu-
ated against his entire course of conduct, and, in my judg-
ment, his entire course of conduct does not reveal a purpose
to delay and frustrate bargaining.
I find that his explanation for the `last minute" withdraw-
al of two items from Respondent's offer is not inconsistent
with good-faith bargaining. In contrast, in F & J, supra, the
principal's entire course of conduct demonstrated bad faith.
His last minute withdrawal from previously accepted provi-
sions was accompanied by the insertion of more onerous
provisions. There is none of that here. To the contrary, the
record indicates that the August 23 meeting at which the
complete contract offer was made was only the seventh
meeting. Neither the General Counsel nor Respondent ad-
verts to the terms and conditions of the proposed contract,
but evidently it was not a situation, "fraught with conces-
sions forced upon the Union by the Company's unfair labor
practices." N.L.R.B. v. Industrial Wire Products Corporation,
455 F.2d 673, 679 (C.A. 9, 1972).
If General Counsel's witnesses are believed, however,
there is indirect, but strong, proof that Respondent acted in
bad faith. Thus, as described earlier, when Johnnie Sanders
returned to work on August 3, after her 3-day suspension,
Randy Parker allegedly told her that he had a number of
complaints from the Labor Board, but they wouldn't
amount to anything and that Sanders could tell Tilson that
there would never be a Union there. Former employee Ann
Hunter testified that on August 9 she notified Randy Parker
by telephone that she was quitting because she was tired of
the "whole mess" at the plant. He asked her if she had
reference to the Union and added, "That Union is not going
to get in here. It is not going to run my business."
Parker denied making the statements attributed to him by
both Hunter and Sanders. I credit Parker who appeared to
me to be a truthful witness. Apart from that, I cannot see
any reason for him to have made the remarks attributed to
him on the occasions described, months after an election
which the Union had won.
Finally, in assessing Respondent's good faith, consider-
ation. has to be given to Respondent's conduct vis-a-vis
Sanders, as described above, and to the findings of the
Board in Loggins, Robert D., Ronny M. Loggins and Randy
Parker d/b/a Loggins Meat Co., 199 NLRB 291, wherein
Respondent was found to have engaged in unlawful interro-
gation in violation of Section 8(a)(1) of the Act and to have
discharged an employee in violation of Section 8(a)(1) and
(3) of the Act. I have considered these matters and am not
persuaded, in light of the circumstances which I have de-
scribed above, that they support a finding that Respondent
acted in bad faith in this case.
For all the foregoing reasons, I shall recommend dismiss-
al of the allegations of the complaint that Respondent vio-
lated Section 8(a)(5) of the Act.
II THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section I, above,
occur in connection with its operations described therein,
have a close, intimate, and a substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
III THE REMEDY
Having found the Respondent as engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
affectuate the policy of the Act.
The record indicates that after her discharge on August
18, Johnnie Sanders was reinstated to her former, or a sub-
stantially equivalent, position, and there is no contention
that she was deprived of seniority or any other rights and
privileges. Accordingly, an order of reinstatement would be
inappropriate. However, she has not been made whole for
any loss of earnings she may have suffered by reason of her
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful suspension and discharge , and I shall recommend
that she be made whole for any loss of earnings by reason
of such suspension and discharge , by payment to her the
sum of money equal to that which she normally would have
earned as wages for the 3 days of her suspension and from
the date of her discharge to the date when she was reinstat-
ed, less net earnings to which shall be added interest at the
rate of 6 percent per annum in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
The discharge of employees because of their union activi-
ties is an unfair labor practice which goes to the very heart
of employee rights safeguarded by the Act. I shall therefore
recommend that Respondent be placed on a Board order to
cease and desist from in any manner infringing upon the
rights of the employees guaranteed in Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4).
CONCLUSIONS OF LAW
1. Loggins Meat Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local Union No. 540, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Johnnie Sanders because of her activi-
ties on behalf of Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local Union No.
540, Respondent has engaged in, and is engaging, in unfair
labor practices within the meaning of Sections 8(a)(1) and
(3) and 2(6) and (7) of the Act.
4. General Counsel has failed to establish by a prepon-
derance of the evidence that Respondent violated Section
8(a)(1) and (5) of the Act as alleged in paragraph 12 of the
complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
2. Take the following affirmative action designed to af-
fectuate the policies of the Act:
(a) Make Johnnie Sanders whole for any loss of earnings
suffered by reason of her suspension and discharge in the
manner set forth in the section hereof entitled "Remedy."
(b) Preserve and, upon request , make available to the
National Labor Relations Board and its agents for examina-
tion in copying, all payroll records , social security records,
timecards , personnel records and reports, and all other re-
cords relevant and necessary for a determination of the
amount of backpay due within the terms of this recom-
mended Order.
(c) Post at its Tyler, Texas, plant, copies of the attached
notice marked "Appendix." 8 Copies of said notice, on
forms provided by the Regional Director for Region 16,
after being duly signed by Respondent's authorized repre-
sentative , shall be posted immediately upon receipt thereof
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered , defaced , or covered by any other material.
(d) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from receipt of this Decision as to what
steps have been taken to comply herewith.
The allegations of the complaint found not to have been
sustained by a preponderance of the evidence are hereby
dismissed.
7 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
8 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
ORDER?
Respondent, Loggins Meat Co., Inc., its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in, or.activities on behalf
of, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local Union No. 540, or any
other labor organization of its employees, by suspending or
discharging employees because of their activities on behalf
thereof, or otherwise discriminating in regard to the hire or
tenure of employment or any terms or conditions or em-
ployment of its employees.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-orga-
nization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
any or all such activities.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the law and ordered us to
post this notice.
WE WILL NOT suspend or discharge employees because
of their activities on behalf of Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-
CIO, Local Union No. 540, or any other labor organi-
zation.
Since the Board found that we violated the law when we
suspended and later discharged Johnnie Sanders, who has
LOGGINS MEAT CO., INC.
been reinstated, WE WILL make her whole for any loss of pay
she may have suffered by reason of the suspension and
discharge.
WE WILL NOT in any manner interfere with , restrain,
or coerce any employees in the exercise of their rights
to self-organization , to form, join , or assist any labor
organization, to bargain collectively through a repre-
sentative of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain
from any or all such activities.
You are free to become and remain members of Amalga-
mated Meat Cutters and Butcher Workers of North Ameri-
ca, AFL-CIO, Local Union No. 540, or any other labor
organization.
Dated By
311
LOGGINS MEAT CO., INC.
(Employer)
(Representative (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Office Building, Rm. 8-
A-24, 819 Taylor Street, Fort Worth , Texas 76102, Tele-
phone 817-334-2921.