Packers Hide Association, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1963

145 N.L.R.B. 16 (N.L.R.B. 1963)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at the offices and meeting halls of the Respondent in Fall River,
Massachusetts, copies of the attached notice marked "Appendix." e Copies of said
notice, to be furnished by the Regional Director for the First Region, shall, after being
duly signed by an official representative of the Respondent, be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to its members are customar-
ily posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail signed copies of the said notice to the Regional Director for the First
Region for posting by the Charging Company, said company willing, at all locations
where notices to its employees are customarily posted.
(c) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps the Respondent has
taken to comply herewith.?
6 If this Recommended Order should be adopted by the Board, the words "As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner" in the notice In
the further event that the Board's Order be enforced by a United States Court of Appeals,
the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be
inserted immediately following "As Ordered by "
7If this Recommended Order should be adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
As Recommended By a Trial Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT block or interfere with the ingress and egress of employees at
the premises of F.R. Knitting Mills, Inc., located at Fall River, Massachusetts.
WE WILL NOT in any like or related manner restrain or coerce employees at
these premises in the exercise of the rights guaranteed them by Section 7 of the
Act.
INTERNATIONAL LADIES' GARMENT WORKERS UNION , AFL-CIO,
Labor Organization.
Dated------------------- By------------ -------------------------------
(Representative ) ( Title)
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, 24 School
Street, Boston, Massachusetts , Telephone No. 523-8100 , if they have any question
concerning this notice or compliance with its provisions.
Packers Hide Association , Inc. and United Packinghouse, Food
& Allied Workers , AFL-CIO. Cases Nos. 17-CA-2130 and
17-CA-2149. November 18, 1963
DECISION AND ORDER
On August 1, 1963, Trial Examiner Harold X. Summers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
145 NLRB No. 7.
PACKERS HIDE ASSOCIATION, INC. 17
mediate Report. Thereafter, Respondent filed exceptions to the In-
termediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
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
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner?
i We hereby correct the Trial Examiner's Inadvertent references, at two points in his
Intermediate Report, to events occurring in February 1962, when it is apparent that
February 1963 was meant.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph.
Upon the entire record in these cases, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, the National Labor Relations Board
hereby orders that Respondent, Packers Hide Association, Inc, its officers, agents,
successors, and assigns, shall:
INTERMEDIATE REPORT
This case was heard upon the complaint I of the General Counsel of the National
Labor Relations Board, herein called the Board, alleging that the Packers Hide As-
sociation, Inc., herein called the Respondent, had engaged in and was engaging in
unfair labor practices within the meaning of Section 8(a) (1) and (5) of the National
Labor Relations Act, herein called the Act. Respondent's answer to the complaint
admitted some of the allegations of the complaint and denied others; in effect, it
denied the commission of any unfair labor practices. Pursuant to notice, a hearing
was held before Trial Examiner Harold X. Summers at Omaha, Nebraska, on June 12
and 13, 1963. All parties were afforded full opportunity to examine and cross-
examine witnesses, to argue orally, and to submit briefs. Briefs filed by the General
Counsel and by Respondent have been fully considered.
Upon the entire record in the case, including my evaluation of the witnesses based
upon the evidence and my observation of their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent is a Nebraska corporation with its principal place of business and
plant at Omaha, Nebraska, where it is engaged in processing hides. In the course
and conduct of its business operations, it annually ships more than $50,000 worth
of products from its plant to points outside the State of Nebraska.
I find that Respondent is an employer within the meaning of the Act.
II. THE UNION
The Union is a labor organization within the meaning of the Act.
1 The complaint was Issued April 19, 1963 The charges initiating the proceeding were
filed on March 7 and April 3, 1963, respectively, and an order of consolidation was issued
on April 19.
734-070-64-vol 145-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in curing cattle hides for conversion into leather. Although
it is wholly owned by six independent meatpackers, it competes with other hide
dealers for purchases of hides from these packers, and it is free to make purchases,
and it does make purchases, from other packers when its bid prices are competitive.
In its operations, Respondent, by truck, picks up hides from the packers. The
hides, upon being unloaded, are front-trimmed-i.e., the lips and ears are removed;
they are put through a "fleshing" machine for the removal of fat and manure; after
further trimmmg, they are dipped in a brine solution; they are wrung out, weighed,
and graded for quality; and they are bundled for delivery to tanners. Title to a hide
does not pass from packer to Respondent until it is graded.
Business operations began about 2 years ago. Early in 1962, the Union engaged
in an organizing campaign among Respondent's employees and the Union lost a
Board-conducted election held on February 15, 1962.2 The Union filed a charge of
violations of Section 8(a) (1) of the Act on March 16, 1962,3 a complaint was issued,
and a Trial Examiner, in an Intermediate Report dated June 26, 1962, found viola-
tions of Section 8(a)(1); the case was closed upon Respondent's compliance with
the Trial Examiner's recommendations.
B. Chronology of events 4
1. On a date between January 19 and February 5, 1963,5 employee Dennis Young
went to the office for change to be used in the candy vending machine at the plant.
There, General Manager Ralph Bates 6 commented to Young on a list of wage rates
which he was working on; he remarked on how high were the wages being paid to
Respondent's employees.?
2. In mid-February there was telephonic communication between the Union and
employees. Pursuant to this conversation, a meeting was arranged to be held on
February 19.
3. On February 19, at the union hall, 14 employees of the Company met with
Emerson Dappen, Sr., field representative of the Union. Unionization of the plant
was discussed. At that time, all 14 employees signed union cards and several of them,
were given cards for distribution among other employees; also, those present were
given union buttons.
4. On February 20 a number of the men who had signed cards wore union buttons
while they were working. In addition, during the next few days, the signatures of an
additional 12 employees were procured on authorization cards and some of these
donned union buttons.
5. On the evening of February 20, about 9 p.m., Bates met with his three foremen
and with one Taite,8 a labor relations adviser. Bates told the foremen that, in view
of the difficulties which they had run into-referring to the prior Board case noted
supra-they must now be extremely careful not to have a repetition. In effect, he
told them not to discuss the Union with the employees and not to take sides. It was
also decided that a "neutrality notice" would be posted.
6. On February 21, the following notice was posted in two places at the plant:
NOTICE
EVERY EMPLOYEE IS FREE TO DO AS HE WISHES WITH REGARDS•
TO THE UNION. NO ONE SHOULD BE FORCED AGAINST HIS WILL
TO JOIN OR NOT TO JOIN THE UNION.
RALPH L. BATES, MANAGER.
2 Case No. 17-RC-3748.
s Case No. 17.CA-1928.
My findings of what occurred-or did not occur-as recited in this section will not be
repeated elsewhere In this report. References to items in this section will take the form
of the abbreviation "chron." followed by the item number or numbers being alluded to.
e Unless otherwise indicated, all dates referred to in this section are within the year 1963.
e I find Bates to have been a supervisor and agent of Respondent at all relevant times.
I Thus, I credit Bates as against testimony by Young 'that Bates said, "Do you think if
the Union were in, these guys would be making this kind of money?" Bates--and Respond-
ent's bookkeeper and secretary, Jean Prazan-denied that there was any mention of a
union. At that time, the Union was not actively in the picture.
8 In the charges herein, spelled "Tate."
PACKERS HIDE ASSOCIATION, INC. 19
Subsequently, one copy of the notice was taken down to be given to a Board
agent investigating this case. The second copy was posted continuously until
June 12, the first day of this hearing.
7. On or about February 21 or 22, employee Douglas Domke went to the office at
5:30 p.m. in order to ascertain his reporting hour for the next day. There, he spoke
to Bates for 30 minutes to 11/2 hours .9 Bates asked, "What are you guys trying to do
here? I have treated you nice and everything and you come in here wearing union
buttons. Don't you make enough money?" 10 Domke said that he made a "fair
amount" but he thought conditions would be better with a union.
Bates then spoke of the low state of the Company's business 11 He said that he
could have the packers deliver their hides to the plant, thus eliminating the need
for at least one of the two truckdrivers. (Domke was a truckdriver at the time.)12
He then spoke of the possibility of installing a conveyor belt to pull the hides out
of the tank, a move which would eliminate the need for several men; and of the
possibility of acquiring a larger scale and the use of a fork truck to cut down the
number needed for a loading crew. He also spoke of the acquisition of another
fleshing machine,13 with the potential result that two men would work on each of
two machines instead of four on one; as he put it, there would be no layoffs, but
the men would make less money per hour.
He made these statements in connection with the possible advent of the Union.
His dissertation on possible production changes, described above, contained the
statement, "If you guys insist on this union, I'll fight you every way I can." 14
8. In the same conversation, allusion was made to wages being withheld from
one Jim Ross. Ross had been employed by Respondent but had recently left, owing
Domke some money. Bates told Domke that if he would "go along on this union
deal," he (Bates) would see that Domke was repaid the money owed him out of
Ross' last check, still being held by Respondent.15
9. Shortly after the union buttons were worn, Young 16 went to the office for
change to buy candy. Bates told him, "You're a day worker, and this isn't the
break period." 17
10. On February 25, Respondent, through counsel, filed a petition with the
Regional Office of the Board,18 asserting (by an "x" in the appropriate box) that
one or more individuals or labor organizations had presented a claim for recogni-
tion as bargaining representatives of employees of Respondent.
8 There was immaterial conflict as to the length of the conversation.
10 Thus, I credit Domke. Bates testified that Domke initiated the conversation by ask-
ing for more money. (Prazan, who was present, "did not recollect" if the Union was
mentioned ) It is clear, and I find, that at one point in the conversation Domke did ask
how long it would take to get a raise, but I find that the conversation was commenced as
above stated.
11 Business had fallen since January. Production had fallen from 1,500 hides per month
to 1,000. It is not clear whether the latter figure was the production as of the date of
the hearing rather than as of February, but it was the consensus of the testimony, and I
find, that business was poor during all relevant times.
>r Domke's testimony was to the effect that Bates said he could sell the trucks. Accord-
ing to Bates' credited testimony, the trucks belonged to the packers-there would be no
need to sell them.
18 Here, we have another irrelevant discrepancy. Bates testified that he told Domke
that he had already ordered a fleshing machine. In point of fact, by the date of this
hearing, one had been ordered
14 The findings, in this item generally accord with the credited testimony of Domke, who
impressed me as being open and candid. Bates, conceding that he spoke of the low state
of Respondent's business and possible changes to effect economies, denied mentioning the
Union or union activities. Prazan, who was present, corroborated Bates, except that she
"did not recollect" whether the Union was mentioned I find that it was.
16 This finding is based on Domke's credited testimony, undenied by Bates (except for
his general denial that union activities were mentioned by him). Prazan, called by
Respondent, verified that Respondent was holding the last check of Ross and that Ross
owed money to some of the employees, but she did not remember if Bates made the state-
ment attributed to him. (She was busy on other matters; it is reasonable to conclude,
and I find, that she did not hear the entire conversation
18 Also involved in chron. 6
17 Thus, I credit Bates' as against Young's testimony that the Union was mentioned in
connection with the reprimand.
18 Case No 17-RM-225 This petition has been since dismissed by the Regional Director,
which dismissal was upheld on appeal to the Board.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. On February 26, according to the testimony of Union Representative Dappen,
he made a telephone call to Bates, in which he claimed that a majority of Respond-
ent's employees had designated the Union as their bargaining representative and
in which he requested recognition of the Union as the employees' bargaining agent.
Bates' answer-Dappen's testimony continues-was that "there would be no ques-
tion about a consent election [but] he could not do any more than that."
Bates denied that there was any such telephone call.
Crediting Bates' testimony, I find that there was no such telephone call.19
12, Meanwhile, on February 25, the Union had prepared a letter addressed to
Respondent in which it claimed designation as bargaining representative by a
majority of Respondent's employees and requested recognition as bargaining agent
for Respondent's production, maintenance, and truckdriver employees. The letter
was mailed on February 26 and was received by Respondent on the following day.
No reply was ever sent by Respondent.
13. On March 1 the Union filed a petition with the Regional Office of the Board,20
asserting (by an "X" in the appropriate box) that the Union had been designated
as bargaining agent by a substantial number of the affected employees.
14. Within a week after the union buttons made their appearance, while employee
Robert Huggins was at work pulling hides from the brine tank, Foreman Erwin
Neimann 21 approached him. He asked what the button that Huggins was wearing
represented. When Huggins said it was a union button, Neimann asked whether
Huggins was "pushing" the Union. Huggins, understanding that Neimann was
asking whether he was a ringleader, said no, it was probably someone who had
been there longer than he had. Then Neimann asked whether he was for the
Union. Huggins said that he was "not necessarily for the Union" just because he
was wearing a button 22 Then Neimann told Huggins of having visited a plant
where they used a conveyor chain to pull hides from the tank, an innovation which
would eliminate two hide pullers. Continuing, he said that the Company was over-
staffed by seven or eight men and was keeping them only on the possibility that
"things would open up." He pointed out that production was low and that the
packers, who furnished hides, were in a slack period 23
15. Sometime in February, after the buttons were being worn, Neimann asked
employee Leon Tyler what he thought about the Union and whether Tyler was "for
or against it." Tyler said that he had not made up his mind. Neimann then said that
Bates was keeping men that he did not need even though the work was down. As
he left, he said that "everyone would have to make up their own mind." 24
16. Late in February, Neimann asked employee William Croulek (who had signed
a union card but was not wearing the union button) what he thought of the Union.
Croulek said that he did not care for it.25
19 Dappen , on cross-examination , testified that the person to whom he spoke said he
was Bates. (He had spoken to Bates on the telephone once before ) Prazan, who nor-
mally answered the telephone at the plant, testified that someone who said he was Dappen
called on February 26 and asked for Bates, but that Bates, who was out, did not speak to
him ; to her knowledge, there was no telephone conversation between Dappen and Bates
throughout February and March. I note that, in the petition filed by the Union with the
Regional Office of the Board on March 1 (see chron. 13), the sole prior contact with
Respondent noted therein was a request for recognition made on February 25 to which
there was "no reply " (See chron. 12 )
20 Case No. 17-RC-4091 This petition was subsequently withdrawn by the Union.
211 find Neimann to have been a supervisor and agent of Respondent at all relevant
times.
22 Neimann denied asking whether Huggins was "pushing" the Union and he denied
discussing any union activities . My credibility resolution , as detailed above, is explained
at the conclusion of this finding.
20 The above findings accord with Huggins' testimony. Neimann, conceding that he
spoke to Huggins about the conveyor belt and the possibility of eliminating seven or eight
jobs, testified that the occasion for the conversation was Huggins' complaint about the
difficulty of pulling hides from the brine tank. Thus, the two versions differ only with
respect to the opening of the conversation. Because Huggins impressed me as a truthful
witness and because his version of the opening of the conversation constituted a more
logical explanation of the rest of the conversation, I accept his version of the entire
conversation.
24 This is the credited testimony of Tyler Neimann did not recall the conversation.
26 This is Croulek's testimony , undenied by Neimann . Under cross -examination , Croulek-
who struck me as being a less than enthusiastic witness for the General Counsel-volun-
teered that Neimann's query was put "nonchalantly "
PACKERS HIDE ASSOCIATION, INC. 21
17. After the men started wearing their union buttons, employee Curtis Holmes,
a fleshing machine operator (who had signed a union card but wore no button),
was telling a fellow employee that he did not think they would get any more business
from Cudahy , a packer who, he had heard , was building his own hide cellar. Bates
overheard this remark and denied its truth . Then-and the conversation consumed
an hour-he spoke of the Union . He said that if the men wanted the Union they
could have it, but there would be no more picnics and bonuses. "When you get your
union, be ready for your picket line. Whatever you ask is going to be denied and
whenever you come to the office for anything , do not come to me in the office about
anything about the Union , because I am going to be your enemy from then on."
He said that he could sell the fleshing machine that day and he could sell the building
"and pay on income tax , or something like that." He talked of letting a hide dealer
(i.e., a competing buyer ) have the bides if the Union came in. He then said that
Floyd Marsh (one of the active union adherents ; see chron . 19) was angry because
he received no overtime ; and that Marsh was back working on the tank-but that
he would not be there long 26
18. On a date uncertain-but from a week to a month and a half after the conversa-
tion just alluded to-Bates asked Curtis Holmes if he would "talk to the guys about
not having a union." Holmes said that he would. He did speak to them and reported
back to Bates that the matter was "too far gone." Bates told him, "Try again." 27
19. Late in February, employee Floyd Marsh had been "bumped" from his job as
maintenance man by a fellow employee. In turn, he exercised his seniority to be-
come a hide puller.
Marsh attended the union meeting of February 19, at which time he signed an
authorization card. Also, he thereafter wore a union button and he procured 3 of
the remaining 12 signed union authorizations.
On March 6 , when Marsh went to the office for first aid , Neimann told him,
"If you hadn 't brought up the Union , you'd get your maintenance job back." 26
Marsh said he would not take the maintenance job back even if it were offered him 29
20. At 9 a.m., on March 7, employee Kenneth Johnson and Bates had a conversa-
tion, the details of which are in sharp dispute.
According to Johnson, Bates opened the conversation by talking about Floyd
Marsh ; he said he ought to fire Marsh. Continuing, he said he ought to fire Johnson
too-that Johnson's job was unnecessary ( he had the lowest seniority ; he did mainly
cleanup work, drove trucks, and replaced machine operators); the night shift had been
doing his work before and could do it again. Further continuing , he said he knew
who was for the Union-not only could he see the buttons but the antiunion men
had told him He said he had treated the men well , and he could not understand
why they were "plotting " He asked if Johnson were for the Union ; Johnson said
that he had not made up his mind-he had not gone to a meeting since he worked
on the night shift. Then Bates said , "Stick with me and I'll take care of you." Bates
then said (Johnson 's testimony continued ) that he knew that Floyd Marsh was one
of the leaders and that be ought to get rid of Marsh but that he would let it ride.
However, he could not understand it; he had given Floyd and his brother jobs when
they came from Michigan . He then said that the Union would hinder the men-
there would be less money , no piecework , and changes in the operation He said he
did not need the trucks ; if the Union came in he would have the customers deliver
the hides , if he stayed in business at all. Then he said he would get a new fleshing
machine and work two men on each machine instead of four, on an hourly basis.
He also said he could get rid of the four front trimmers by having the packers
trim the lips and ears from the hides He also said he could get a conveyor and
that he could get rid of the second trim table and grade table and weigher . He said
20 This finding is in accordance with Holmes ' testimony . Bates testified that the conver-
sation concerned Cudahy only ; also, that he did not say there would be a picket line nor
that he would be an "enemy ." Holmes' testimony had the ring of truth.
27 According to Bates , Holmes told Bates he was opposed to the Union , upon which
Bates told Holmes to express that attitude "toward the men" not to him He conceded
that Holmes did come back to him and report that his brother-in-law was still for the
Union-that he was too stupid to be otherwise
28 I credit Neimann's explanation that the occasion for the remark was Marsh's com-
plaint about the difficulty of pulling hides from the tank , but, in this context, I do not
accept his characterization of the remark as "kidding "
29 Although he regarded the maintenance job as a better job than his present one, he
would not go back to the maintenance job, allegedly because "he did not trust Bates,"
who had removed him It should be noted that there has been no unfair labor practice
allegation concerning Marsh's removal from or failure to be reinstated to the maintenance
job.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he could close the plant. Finally, he said that the union dues were too high and
that "they go to the government."
According to Bates, there was a conversation between him and Johnson at or about
the time indicated. He opened the conversation by talking about Floyd Marsh's
absence that day. He was aware that Floyd Marsh was not absent due to sickness
and he wanted to let Johnson know he knew this. Johnson asked him about the
possibility of working more hours, to which Bates said that if things did not pick up
there would be layoffs instead of more work hours. He commented that the cost
of hides was too high. He told of the new fleshing machine which had been ordered
and discussed packers Swift and Armour. He denies saying "Stick with me" and
denies asserting any knowledge of union activities; also, he denies mention of the
Union in connection with production. He told Johnson that others beat Respondent's
price and that if this kept up there would be layoffs. He conceded that he said that
if the Union came in the Company would have to deduct dues.
Johnson, in the witness stand, was an "angry young man." His tone of voice
clearly showed his disdain for and dislike of Bates One could not help but sense
that his feelings tempered his testimony. Moreover, my credulity is taxed by being
asked to believe that Bates shared all these confidences with the man most recently
hired. Perhaps-for they parallel remarks here found to have been made by Bates
to other employees-some of what Johnson testified Bates told him was actually told
him, but I am unable to separate this from the rest I credit Bates' version.
21. One morning late in February, Floyd Marsh was eating a sandwich near his
work place. Bates came along and pointed out that the break periods were 9.30 and
at 12, whereupon Marsh threw his sandwich in the garbage can.
Three weeks later, when Marsh went to the office for his paycheck a day earlier
than usual, Bates asked him if he could not get along with the men, Marsh said he
could and asked why the question was being asked Bates said that the men were
complaining because Marsh was taking breaks. Marsh said that he was just following
Bates' orders Bates, irritated, said, "Don't get cocky." Then Marsh asked who
had complained-Tim Mason? 30 Again Bates said, "Don't get cocky . and
don't bother coming back." As Marsh left, Bates called after him that payday was
Friday and not Thursday 31
Marsh-despite being told not to return-did report for work next day and he has
worked ever since.
22. About a month after the union cards were signed, Bates said to Frank Jerobek,
a truckdriver, "What are you boys trying to do? You're not working too hard."
He noted that one truckdriver (instead of the current two) had previously picked
up all the hides and "We can pick them up with one driver again." His only reference
to a union: "I don't care if the Union does come in " 32
23. Subsequently, Jerobek was driving with Bates to pick up a new truck. In the
course of the drive, Bates said, "If you fellows are going to want the Union, go
right ahead and get it in, but you will be sorry." 33
24. On a date unspecified, but during the relevant period, Diamond asked Carrol
Hohimer, then a hide grader, if he thought the Union would come in.34
C. Independent interference, restraint, and coercion
All allegations and evidence with respect to interference, restraint, or coercion
are fully discussed under section D, infra.
D. The refusal to bargain
1. The bargaining unit
The complaint and the answer as amended at the hearing establish, and I find,
that the unit appropriate for collective-bargaining purposes herein consists of Re-
8O Tim Mason was a worker on the next succeeding process. Since pieceworkers-both
Marsh and Mason were pieceworkers-could go home when finished, any delay by Marsh
would delay Mason
ffi On this conversation, I credit Marsh Neither Bates (nor Nelmann nor Prazan, who
were present) testified as to this conversation.
11 Based on credited testimony of Jerobek, undenied by Bates.
33 This is based on the testimony of Jerobek, who appeared reluctant to testify for the
General Counsel. Bates-who could not recollect how the conversation started-said that
he told Jerobek he did not care if the boys wanted a union-this was a free country; he
denied saying that they would be sorry.
s' This ds based upon the undenled, credited testimony of Hohimer.
PACKERS HIDE ASSOCIATION, INC. 23
spondent 's production and maintenance employees , including truckdrivers but ex-
cluding office clerical and professional employees , watchmen and guards , and super-
visors as defined by the Act.
2. The Union's majority
According to contentions made by Respondent, the number of persons in the unit
above found appropriate, on February 26, 1963, was 40.
There is no disagreement between Respondent and the General Counsel with
respect to specific job classifications falling within the unit description; moreover,
they agree that regular part-time employees 35 should not, as such, be excluded. They
disagree, however, on the status of three individuals who regularly, either on a full-
or part-time basis, perform work within the unit description. The General Counsel
would exclude, and Respondent would exclude, two persons who, in addition to work-
ing full-time for Respondent, were, on February 26, members of the Armed Forces
of the United States; 38 and one person 37 who, in addition to working on a regular
part-time basis for Respondent, was employed full time as a fireman by the city of
Omaha.
The theory of the General Counsel with respect to these three persons is that,
despite their surface status as employees of Respondent, the United States or the city
of Omaha (whichever is appropriate) had first call, in an emergency, upon their
services 38 I am not persuaded by this argument. Having passed the test of perform-
ing in-unit work on a full-time or regular part-time basis, I do not believe that the
interest in future working conditions of Respondent which these three held in common
with others within the unit should be ignored merely because, at some future time
on an emergency and perhaps temporary basis, they might conceivably be called
away.
In agreement with Respondent, therefore, I find that the appropriate bargaining
unit, on February 26, 1963, consisted of 40 persons.
As of February 26, 26 of the 40 persons in the unit had signed cards accepting
membership in and authorizing bargaining representation by the Union.
Respondent, stipulating to the authenticity of these authorizations, questions the
validity of a number of them.
Testimony of at least seven employee-witnesses 39 indicated that they believed
that their signatures on the cards would lead to an election. On the other hand,
there was no contention, or testimony, that persons soliciting the signatures made
any representations that there would be an election.40 It is well settled that, under
such circumstances, "the testimony of a signer as to his subjective state of mind at
the time of signing cannot operate to overcome the effect of his action in having
signed the application card." 41
I find that, as of February 26, 1963, the Union had been and was designated by
26 of the 40 employees in the appropriate bargaining unit.
3. Demand and refusal
As found above, the Union made a formal request for recognition as exclusive
bargaining agent of an appropriate bargaining unit of Respondent's employees by
86 There were two.
30 Some question arose at the hearing as to whether one of the two-Jan Mayer-was
still in the armed services on February 26. (He has since been discharged.) I find, on
this record, that he was in the armed services on that date.
" Charles Shmeidla or Shimerele
Is Counsel for the General Counsel does not base his position upon their regular employ-
ment, such as it is, elsewhere. For example, he stipulated that another individual, regu-
larly employed on a full-time basis by a meatpacker, was properly included in the unit.
80 Young, Huggins, Tyler, Croulek, Barnum, Sharp, and Tarnopolski.
40 On the contrary, the only employee-witness testifying with respect to this-
Tarnopolski-said he was given no explanation when handed the card.
u E H. Sargent and Co., a corporation, 99 NLRB 1318, 1323; also see Pinkerton Fold-
ing Box Company, 121 NLRB 1308; Gorbea, Perez & Morell, S. en C., 133 NLRB 362;
N.L.R.B. v. Geigy Company, Inc., 211 F. 2d 553 (CA. 9) ; and cf. Morris & Associates,
Inc, 138 NLRB 1160; Englewood Lumber Company, 130 NLRB 394, 395 ("In these
circumstances, considering only what the employees were told and not what may or may
not have been their subjective reaction to what they were told . . . ... ) ; Fred Snow, et al,
d/b/a Snow & Sons, 134 NLRB 709, 710; and N.L R B. v. Stow Manufacturing Co, 217
F. 2d 900, 902 (C.A. 2). Contra, N.L.R B. v. Abrasive Salvage Company, Inc, 285 F. 2d
552 (C.A. 7), in this respect denying enforcement of 127 NLRB 381.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter received by Respondent on February 27, 1962, and there has been no reply
to this request (chron. 12). At all relevant times, Respondent has not granted
the requested recognition.
At no time-other than as implied in its arguments that signers of cards thought
they would have an election , discussed supra-has Respondent indicated that it had
a doubt as to the Union 's majority status on and since February 27.42 However, for
purposes of the discussion in section 4, infra, I shall assume that such doubt is being
asserted.
4. Concluding findings
The General Counsel , relying on his allegation that a demand for recognition was
made on the telephone on February 26, 1962 , 43 concentrated at this hearing on
showing the employment and majority designation situation as of that date. Since
I have found that the demand was made on the following day, I must determine
whether the situation changed in 24 hours. I find that it did not . There was no
contention here, and there is no evidence , that there were any relevant changes
during this period; the presumption of continuity remains unrebutted . Affirmatively,
documentary evidence herein establishes , and I find, that there were no changes
among the employees in the appropriate bargaining unit between February 26 and
27, 1963.
On February 27, 1963, the Union represented 26, a majority , of the 40 employees
in the appropriate bargaining unit. On that day , the Union requested recognition
as bargaining agent of the employees in the unit, a request which was, and since
has been , rejected by Respondent.
It is well settled that an employer confronted with a Union's demand for recogni-
tion has no absolute right to an election under Board supervision to determine whether
or not a majority of his employees have designated the Union as their bargaining
representative . 44 On the other hand, if he has a good -faith doubt that the Union has
been so designated , he may resist the demand and insist upon a Board election.45
The existence or nonexistence of good faith in the employer 's doubt must be deter-
mined by allusion to all the circumstances.
In the instant case, the first knowledge by Respondent of the Union 's current
organizing campaign, as far as this record reveals , was derived from the fact that,
on February 20, 1963, a number of its employees began wearing union buttons.
Mindful of a similar situation a year earlier during which certain conduct of Re-
spondent 's agents was found to have violated the Act, management , acting with
labor relations counsel , took some immediate steps; as I have found , a course of
conduct establishing the neutrality of Respondent was decided upon. Appropriate
instructions were relayed to supervision , and a notice expressing this course of conduct
was posted.
As I have found , during a period consisting of approximately the next 45 days,
Respondent's general manager and one of its foremen 46 engaged in a series of con-
versations with employees . General Manager Bates set the tone in separate conver-
sations with three employees : "If you guys insist on this union , I'll fight you every
way I can." 47 "When you get your union , be ready for the picket line. Whatever
you ask is going to be denied and whenever you come to the office for anything,
don't come to me in the office about anything about the Union , because I am going
to be your enemy from then on." 48 "If you fellows are going to want the Union,
go right ahead and get it in, but you will be sorry." 49
Both Bates and Foreman Neimann interrogated employees with respect to union
matters and union leanings. Bates asked one man what the employees had in mind,
42 When Respondent filed its "employer ' s petition" with the Board on February 25 (see
chron 10 ), no claim for recognition had been received The petition was filed , according
to Bates' testimony , "Because I knew we had a majority of the people that did not want
a union, so I filed a petition right away for the election "
43 An allegation which I have found to be unsupported by the evidence. See chron. 11.
44Joy Silk Mills, Inc, 85 NLRB 1263 , enfd 185 F . 2d 732 (CAD.C ), cert denied
341 U.S. 914.
45 N L R B. v. Chicago Apparatus Company, 116 F. 2d 753 (^C. A. 7), cited at Joy Silk
Mills , Inc v. NLRB , 185 F 2d 732 , 741 (CADC).
4e There were two other foremen, but there is no allegation or evidence of similar con-
duct by either of them.
47 See chron. 7.
41 See chron. 17
11 See chron. 23.
PACKERS HIDE ASSOCIATION, INC. 25
wearing union buttons; 50 another, what the men were trying to do; 51 and a third,
if he thought the Union would come in 52 Neimann asked a button-wearing em-
ployee what the button meant, whether the employee was "pushing" the Union, and,
receiving a negative answer, whether he favored it; 53 similarly, he asked two other
employees how they felt about the Union.54
Bates, in a conversation during which he had spoken of possible production
changes-see infra-and in which he had made the remark, supra, about putting up a
fight if the men insisted on the Union, told employee Domke he would see that a debt
owed him by an ex-employee would be repaid out of money withheld by Respondent
if Domke would "go along on this union deal." 55 In another conversation, he asked
employee Holmes to talk to other employees "about not having a union"; and later,
when Holmes reported to him that the matter was "too far gone," he told Holmes to
"try again." 56
Bates and Neimann made it clear that there would be reprisals if the Union
became the employees' bargaining agent. The former told an employee that, if such
an eventuality should come to pass, picnics and bonuses would be eliminated, a rival
hide buyer would be permitted to buy the hides, and even the plant building could
be sold 57 Both he and Neimann informed employees that Respondent was over-
staffed and that its operation could be made more efficient by the installation of
certain new equipment or processes which would cut the work force by 7 or 8-out
of 40-employees.58 Significantly, the conversations, in at least four cases, were
specifically geared to the jobs being performed by the employees involved in the
conversations- Bates told two truckdrivers that a truckdriver could be eliminated; 59
Neimann told a hide puller that the installation of a conveyor chain could eliminate
a hide puller; 60 and Bates told a fleshing machine operator that he could sell the flesh-
ing machine.61
Respondent contends that business was slack, that it was overstaffed for current
needs, and, impliedly, that the new equipment and processes mentioned could, in
fact, make for a more efficient operation; 62 and that it was in this context, un-
connected with the Union, that any conversations which took place were held.
I am not persuaded by this contention. As I have found, the subject of the Union
was specifically injected into each of the above-noted conversations by Bates or
Neimann. In full context, and considering the timing of the conversations, 63 I find
that Bates and Neimann said what they said for the purpose of defeating the Union's
organizational attempt.
Viewing the record as a whole, and on the basis of what I am convinced is a fair
preponderance of the evidence, I conclude that Respondent, by interrogating em-
ployees respecting union matters, by promising benefits for the abandonment of the
Union, by soliciting antiunion support by an employee, and by threatening the with-
drawal of certain job privileges, loss of employment, and cessation of operations
should the Union's organizing effort be successful, not only interfered with, re-
strained, and coerced employees in the exercise of their self-organizational rights,
50 Chron 7
51 Chron 22,
52 Chron. 24.
13 Chron. 14.
64 Chron. 15 and 16.
^ See chron. 8
ae Chron. 18.
"See chron 17
sa Chron 7, 14, 15, 17, and 22.
51 Chron 7 and 22.
80 Chron 14
61 Chron. 17.
62 As noted earlier, a new fleshing machine had been ordered .
83 Neimann, in testifying about his conversation with Huggins (see chron. 14), said he
had raised the same subject-the possibility of installing a conveyor to eliminate em-
ployees-on one occasion a year or more earlier. It should be noted that the Union made
an organizing attempt early in 1962.
Also, although I do not consider myself bound thereby, I note that the Trial Examiner
in Case No. 17-CA-1928 found that Bates, during the Union's prior organizing campaign,
told an employee that hours could be cut, machinery shut down, and men laid off ; and
that, although such assertions were allegedly based upon economic considerations (the
Trial Examiner continued), they constituted interference with restraint, and coercion of
employees self-organizational rights. No exceptions were filed to these findings
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but sought to dissipate the Union's status as majority representative and thereby to
avoid bargaining collectively.64
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that Respondent refused to bargain collectively with the Union,
the bargaining agent of an appropriate bargaining unit of its employees, I shall recom-
mend that Respondent, upon request, extend recognition to the Union as exclusive
bargaining agent of such employees and bargaining collectively with the Union con-
cerning their rates of pay, wages, hours of employment, and other conditions of
employment.
As the conduct here found to have been committed by Respondent is of a character
striking at the roots of employee rights safeguarded by the Act, it will also be recom-
mended that Respondent cease and desist from infringing in any manner upon the
rights guaranteed by Section 7 of the Act.
Upon the foregoing factual findings and conclusions, and upon the entire record
in the case, I come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent's production and maintenance employees, including truckdrivers,
but excluding office clerical and professional employees, watchmen and guards, and
supervisors as defined by the Act, constitute, and at all times material to this pro-
ceeding constituted, a unit appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union, on and since February 27, 1963, has been and is the exclusive
representative of all employees in the aforesaid appropriate bargaining unit within
the meaning of Section 9(a) of the Act.
5. On and since February 27, 1963, by refusing to bargain collectively with the
Union as the exclusive representative of the employees in the aforesaid bargaining
unit, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. By the foregoing conduct, by interrogating employees respecting union matters,
by promising benefits for the abandonment of the Union, by soliciting the antiunion
support of an employee, and by threatenng the termination of certain job privileges,
loss of employment, or cessation of operations should the Union's organizing effort
be successful, Respondent has interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed them in Section 7 of the Act, in violation of
Section 8(a)(1) thereof.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, Packers Hide
Association, Inc., its officers, agents, successors, and assigns, shall:
"Joy Silk Mills, Inc., supra.
In arriving at the above conclusions, I do not rely on Bates' alleged conversations with
Young (see chron. 1 and 9), with Marsh (see chron. 19 and 21), or with Johnson (see
chron 20)
In view of the extent of unfair labor practices found, I must reject Respondent's alterna-
tive argument that coercive acts, if any, were isolated in character.
PACKERS HIDE ASSOCIATION, INC. 27
1. Cease and desist from:
(a) Refusing to bargain collectively with United Packinghouse, Food & Allied
Workers, AFL-CIO, as the exclusive bargaining representative of all its employees
in a bargaining unit consisting of all production and maintenance employees, in-
cluding truckdrivers, but excluding office clerical and professional employees, watch-
men and guards, and supervisors as defined by the Act.
(b) Interrogating employees respecting union matters, promising benefits for the
abandonment of a union, and soliciting the antiunion support of employees.
(c) Threatening the termination of certain job privileges, loss of employment,
or cessation of operations if employees shall select a union as their bargaining agent.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist any labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any and all such
activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with the above Union as the exclusive
bargaining representative of all its employees in the above-described unit.
(b) Post at its plant at Omaha, Nebraska, copies of the attached notice marked
"Appendix." 65 Copies of such notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by an authorized representa-
tive of Respondent, be posted immediately upon receipt thereof, and be maintained
by it for a period of 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 insure that such notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Seventeenth Region , in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps the
Respondent has taken to comply herewith.66
65 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall bsubstituted for the words "The Recommended Order of a Trial Examiner"
In the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals, Enforcing an Order" for the words "A Decision and
Order "
ea If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Seventeenth Region, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we notify our employees that:
WE WILL, upon request, bargain collectively with the United Packinghouse,
Food & Allied Workers, AFL-CIO, as the exclusive representative of all our
production and maintenance employees, including truckdrivers, but excluding
office clerical and professional employees, watchmen and guards, and super-
visors, with respect to rates of pay, wages, hours of employment, and other
conditions of employment; and WE WILL, if an understanding is reached,
embody any understanding in a signed agreement.
WE WILL NOT ask employees about union matters, promise benefits for the
abandonment of a union, or solicit the antiunion support of employees.
WE WILL NOT threaten employees with the termination of picnics or bonuses,
loss of employment, or cessation of operations should they select a union as
their bargaining agent.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to organize, to form, join, or assist a labor organiza-
tion, to bargain collectively through a bargaining agent chosen by themselves,
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to engage in other concerted activities for the purpose of collective bargaining
or other mutual air or protection, or to refrain from any such activities.
PACKERS HIDE ASSOCIATION, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
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, 1200
Rialto Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No. Balti-
more 1-7000, Extension 2732, if they have any question concerning this notice or
compliance with its provisions.
Southern Materials Company, Incorporated , of Norfolk and
United Industrial Workers of North America of the Seafarers
International Union of North America, Atlantic , Gulf, Lakes,
and Inland Waters District , AFL-CIO and Inland Boatmen's
Union of the Seafarers International Union of North America,
Atlantic, Gulf, Lakes, and Inland Waters District , AFL-CIO
and Teamsters Local 822, affiliated with International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America . Cases Nos. 5-CA-2196 and 5-RC-3852. November
18, 1963
DECISION AND ORDER
On June 10, 1963, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent 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 Intermediate Report.
He also found that the Respondent had not engaged in other unfair
labor practices and recommended that the complaint be dismissed as
to them. Thereafter, the General Counsel, the Charging Party, and
the Respondent filed exceptions to the Intermediate Report and sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner except as modified below?
1 In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's
findings in which he dismissed certain alleged violations of Section 8(a) (1) of the Act.
2 The Trial Examiner declined to recommend the reinstatement of employee Jack B.
Harris, and limited the award of backpay to him for the period from June 9, 1962, the
145 NLRB No. 2.