Sioux Falls Stock Yards Co.

National Labor Relations Board - Board Decisions

Jan 3, 1974

208 N.L.R.B. 64 (N.L.R.B. 1974)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sioux Falls Stock Yards Company and Local 304,
Amalgamated Meat Cutters & Butcher Workmen
of North America , AFL-CIO. Case 18-CA-3499
January 3, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 31, 1973, Administrative Law Judge Phil
Saunders issued the attached Decision in this
proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions, the Union filed
cross-exceptions, and all three parties filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions 2 of the Administrative
Law Judge, except as inconsistent with the Order
below.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Sioux Falls Stock Yards Company, Sioux Falls,
South Dakota , its officers , agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay , wages, hours, and other
terms and conditions of employment with Local 304,
Amalgamated Meat Cutters & Butcher Workmen of
North America , AFL-CIO, as the exclusive repre-
sentative of its employees in the following appropri-
ate unit:
All hourly paid operational employees at the
Sioux Falls , South Dakota, plant, including
regular part -time employees, but excluding office
1 Chairman Miller concurs with his colleagues that Respondent violated
Sec 8(a)(5) and (1) of the Act when it unilaterally instituted a general wage
increase and other conditions of employment after completion of the
bargaining session on February 2, 1973. In doing so, however, he finds it
unnecessary to reech or pass, as they do, on the issue of whether
Respondent, in taking such unilateral action, was furthering an overall
pattern of bad-faith bargaining . Rather, the Chairman would premise the
bargaining violation solely on the ground that no impasse in bargaining had
been reached as of that date on the wage issue , and thus, under Baord
precedent , the effecting of a unilateral increase is an independent violation
of Sec 8(a)(5). The credited evidence establishes that there was some
movement from prior fixed position on the part of the parties at the
February 2 negotiating situation , and, at that time the Respondent
expressed a willingness further to increase its economic offer if the Union
clerical and all other employees, watchmen,
guards, and supervisors as defined in the Act.
(b) Discouraging membership in Local 304, Amal-
gamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or any other labor organization,
by refusing to reinstate or otherwise discriminating
against employees with regard to their hire, tenure, or
any other terms or conditions of employment.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with the above -named labor organization as the
exclusive representative of all its employees in the
aforesaid appropriate unit, with respect to rates of
pay, wages , hours, and other terms and conditions of
employment , and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Offer to each of the employees named in the
Appendix attached hereto immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position , without
prejudice to his seniority or other rights and
privileges , dismissing , if necessary, replacement
employees hired after the start of the strike.
(c) Make whole all such named employees for any
loss of earnings they may have suffered from the date
of their unconditional offer to return to work to the
date the Respondent unconditionally offers or
offered them reinstatement , as set forth in The
Remedy section of the Administrative Law Judge's
Decision.
(d) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards , personnel records and reports, and all
other records necessary to analyze and determine the
amounts of backpay due under the terms of this
Order.
(e) Post at its plant copies of the attached notice
marked "Appendix ."4 Copies of said notice, on
forms provided by the Regional Director for Region
would modify certain of its proposals . In light of those facts , and inasmuch
as the Respondent did substantially improve upon its economic package in
subsequent bargaining , the Chairman concludes , and finds , that there was
no impasse in bargaining at the time Respondent made its unilateral
changes , and, therefore, violated Sec . 8(a)(5) and ( 1) of the Act
2 We adopt the conclusions of law of the Administrative Law Judge in
the section of his Decision so entitled with the deletion of the clause in
paragraph 4 thereof, "and such other employees as may hereafter become
members of the Union,"
3 Because the recommended Order is not entirely appropriate to remedy
the unfair labor practices found , we do not adopt it
4 In the event that this 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 read "Posted Pursuant to a
208 NLRB No. 4
SIOUX FALLS STOCK YARDS CO.
18, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon
receipt thereof, and be maintained by it 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 insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
304, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, or any
other labor organization, by refusing to reinstate
or otherwise discriminating against employees
with regard to their hire, tenure, or any other
terms or conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist labor organizations, including
the Union herein, to bargain collectively through
a bargaining agent chosen by our employees, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any such activities.
WE WILL bargain collectively, upon request,
with Local 304, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO,
as the exclusive representative of all the employ-
ees in the bargaining unit described in the Board's
Order with respect to rates of pay, wages, hours,
and all other terms and conditions of employ-
ment, and, if an agreement is reached, embody it
in a signed contract.
WE WILL offer immediate and full reinstate-
ment to their former or substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, to all our employees
who participated in the strike, as named below,
and WE WILL make them whole for any loss of
pay they may have suffered, in accordance with
the provisions in the Board's Order.
Ahrendt, Robert
Anderson, Arnold M.
Baker, Jerry
Barnes , Carroll
Bernard, Charles
Berry, Earl
Bloomhall, Donald
Buss, Gleen
Carsrud, Adrian
Coulter, Tracy
DeWitte, Rene
Eitreim, Lloyd
Floren, Roland
Gallagher, James
Groos, Leo
Gunvaldson, Eugene
Gustafson, Norman
Harriman, Earl
Hanson, David
Hotzler, ]Kenneth
Kimball, Wallace
Kreber, Paul
Lease, Vinson
Lee, Ronald
Loewan, John
Loftus, Richard
Meyer, Gerald
Pritchard, Dale
Reinke, Thomas
Robinson, Arthur
Rolfson, Orvid
Rose, Willard
Roshiem, Harold
Stevens, Valmar
Styke, Arthur
Tronson, Arnold
Tverberg, Darrell
Wagner, Case
Wallenberg, Wayne
SIOUX FALLS STOCK
YARDS COMPANY
(Employer)
65
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, 316 Federal Building, 110 South
Fourth Street, Minneapolis, Minnesota 55401, Tele-
phone 612-725-2611.
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Administrative Judge : Based on a
charge filed on March 22, 1972, and an amended charge
filed on May 31, 1972,1 by Local 304, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, herein the Union, a complaint against Sioux
Falls Stock Yards Company, herein the Company or
Respondent , was issued on December 15 alleging viola-
tions of Section 8(a)(1),(3), and (5) of the National Labor
Relations Act, as amended . Respondent filed an answer to
the complaint denying it had engaged in the alleged unfair
I All dates are 1972 unless specifically stated otherwise.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices. A hearing in this proceeding was held
before me, and all the parties filed bnefs.2
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company is a South Dakota corporation engaged at
Sioux Falls in the business of receiving , feeding, and
keeping livestock , which livestock is received from various
points in the States of South Dakota , Minnesota , Iowa, and
from other States . Annually Respondent receives revenues
in excess of $500 ,000 for the furnishing of the above
described services . Annually Respondent purchases in
excess of $50,000 worth of feeds and other goods and
materials from points outside the State of South Dakota
and which are shipped to Respondent 's facilities at Sioux
Falls, South Dakota, for use in Respondent 's business.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about February 3 the
Respondent unilaterally made changes affecting the
employees in a unit of operational employees by increasing
wages, freezing into the wage structure a cost of living
allowance from the expired contract, and by increasing the
maximum duration of weekly sickness and accident
benefits from 13 to 15 weeks. The complaint states that the
unit employees of Respondent went on strike on Novem-
ber 22, 1971, and alleges that the above unilateral acts of
Respondent were implemented when an impasse in
collective-bargaining negotiations with the Union did not
exist and which prolonged and aggravated the strike, and
thereby converted the strike to an unfair labor practice
strike. The complaint further alleges that on March 21 the
employees made an unconditional offer to return to work
and that the Respondent failed to reinstate the employees
to their former positions of employment. At the hearing it
was stipulated that I1 of the striking employees were
offered employment, 2 in April and 9 in January 1973.
Respondent answered the complaint contending that an
impasse existed at the time it made the unilateral changes
noted above.
The Respondent is one of several stockyard companies
owned by United Stock Yards Corporation and itself is a
wholly owned subsidiary of Canal Randolph Corporation.
The Union, as successor to Local 418, is and has been the
exclusive bargaining representative of a unit of employees
of the Company, and the Respondent and the Union were
parties to a collective-bargaining contract effective No-
vember 1, 1968, to October 31, 1971. The terms of this
1968-71 contract were negotiated jointly in St. Paul,
Minnesota, between several stockyards, including the
Sioux Falls and the Sioux City companies, and the Unions
representing their respective employees. Ray Rodeen, vice
president of Canal Randolph Corporation, was the chief
spokesman for the stockyards companies in these negotia-
tions, and Henry Giannini, international representative,
was spokesman for the Amalgamated Meat Cutters Local
Unions.
In July 1971, Francis McDonald, president of Local 304,
notified Respondent of the Union's desire to terminate the
above-mentioned contract, and Respondent, by its presi-
dent, Kieffer Lehman, replied on July 22, 1971, that the
Company was available to meet with the Union.
On October 28, 1971, the Union and Respondent
executed a contract extension agreement which, by its
terms, would keep the contract in force until either party
gave the other 48 hours, notice to terminate the extension
agreement. The Union, on November 19, 1971, served
Respondent with notice of its intention to terminate the
extension agreement and at midnight, November 21, 1971,
the Union struck Respondent's Sioux Falls stockyards, and
all 40 employees in the bargaining unit, named in the
Appendix attached hereto, honored the strike.3 Thereafter
the parties met for the purpose of collective bargaining on
December 1, 6, 7, 20, and 22, 1971; and on January 27,
February 2, 9,16, and 28, March 8 and 10, and April 4 and 5,
1972. Respondent implemented the changes mentioned
above on February 3, and also at this time commenced
hiring replacement employees.
The first in the series of negotiating meetings com-
menced on December 1, 1971, as aforestated. Representing
the Union at this meeting were Union President Francis
McDonald and Assistant Business Agent Rene DeWitte.
Representing the Company were Company President and
General Manager Kieffer Lehman, Company Attorney
John Burke and Assistant Superintendent Walt Nelson.
McDonald presented the Company with two lists of
contract demands. One list entitled, "Master Agreement
Contract Demands for Stock Yard Workers Compiled by
the Committee with a Representative From Each of the
Stockyards Units on August 19, 1971." This document
contained some 26 items. The second list given to the
Company was entitled, "Local 304 Contract Demands for
the Sioux Falls Stockyards Company Employees for 1971,"
and it contained some 37 demands.4 The parties spent
considerable time at this first meeting comparing the two
lists in order to determine what demands the Union was
actually making, and later the Company had to compile
the demands into one list.
The negotiating meeting on December 6, 1971, was
initiated by the Union, and at this meeting the Company
presented the list of combined demands it had compiled
from the two union lists .5 Union Business Agent Francis
Krier was acting spokesman for the Union in the absence
2 The transcript in this proceeding is hereby corrected in accordance considered an employee; therefore this case concerns the other 39
with the motions filed by the General Counsel employees
3 Shortly thereafter one of these employees, Darrell Evink, resigned from 4 Resp. Exhs. 11 and 12
the Union and notified the Employer that he no longer wished to be s G C. Exh. 4
SIOUX FALLS STOCK YARDS CO. 67
of Francis McDonald. The Union then went over their
demands, and following this discussion the Company
replied. Among the 37 demands, the Union was asking for
a master agreement , a 3-year contract with wage increases
of 70 cents, 50 cents, and 50 cents, an increase in the cost
of living allowance, a review of the pension plan, an
increase in insurance benefits, increase in sick leave,
premium pay increase, and a change in vacations and
holidays. For the most part all demands were discussed
and including such items as time and a half for Saturday
work, time and a half for Sunday work, and tools for
carpenters. At this meeting there were no settlements
reached of any kind.
At the meeting on December 7, 1971, the Company
made the following proposals: a 3-year contract effective
on signing , carpenter tools would be provided, improve-
ment in hospitalization plan by providing an average cost
of a semiprivate room towards the cost of a private room,
employment of part-time people, proposed some language
relative to layoff time as pertaining to vacation time, and
asked that a doctor's certificate be required for proof of
illness for sick leave purposes. The Company made no
wage proposals at this meeting . Frances Krier testified that
Company Spokesman Kieffer Lehman mentioned several
items he did not want in the new contract-a cost of living
clause , and the right to hire part-time or extra men but who
would not be covered by the contract .6
The next meeting was held on December 11, 1971, and at
this negotiating session the Company made its first
economic proposal of an 8-cent increase the first year, 7
cents the second year, and 6 cents the third year. The
Company again offered to furnish necessary carpenter
tools and to provide the semipnvate room rate towards the
cost of a private room in the hospital and surgical plan,
offered into the base wage rate provided that all future
reference to cost of living be eliminated from the new
contract, and again offered a provision for extra or part-
time men . Spokesman for the Umon testified that they
considered several of the items proposed by the Company
as "take away items" which would have reduced existing
employee benefits and including the proposal for contract
language permitting the use of extra men to do bargaining
unit work at low wage rates and not covered by the
contract, and the proposal to eliminate all layoff time from
vacation eligibility.? The Union made no counterpropos-
als, and Francis McDonald said that the Respondent's
proposals did not "whet their appetite." It appears that
Lehman did not discuss any of the other items in the
Union's original proposal.
At the next meeting on December 20, 1971, the Union
dropped its request for a master agreement for all the
stockyards (item I on the combined list),8 reduced its wage
demands to 35 cents the first year, 30 cents the second year
and 30 cents the third year on a 3-year contract effective
November 1, 1971, sought a pension improvement by
doubling the present contribution to the pension plan from
10 cents and hour to 20 cents an hour-raising the benefit
level from $3.33 per month per year of service to $6.66 per
month per year of service, and also sought an increase in
the night differential pay. After a caucus the Company
increased its wage offer to 10 cents the first year, 9 cents
the second year, and 8 cents the third year on a 3-year
contract effective upon signing, and agreed to the Union's
request to establish a safety committee of two company
representatives and two union representatives to meet
quarterly. The Company then reiterated its position
relative to part-time people and relative to cost of living by
removing the cost of living clause and freezing the present
10-cent-per-hour cost of living increase into the hourly
rate. Lehman further advised the Union that the Company
wanted a provision for removing the word "layoff" from
the contract's vacation provisions so the layoff hours
would not count towards vacation time, the Company still
wanted the right to require a doctor's certificate as proof
for sick leaves, reiterated its position on carpenter tools,
and the Company again indicated it would improve the
hospitalization program by making the average room rate
applicable towards the cost of a private room with a new
carrier. Lehman testified that the Union refused to discuss
the Company's request for extra or part-time men and that
he then admonished the Union for not negotiating
seriously. Lehman said the Union did bring up pensions,
but only to the extent of saying that pensions were
important to them, and that the Company could possibly
improve benefits without increasing cost. Union witnesses
testified that at the close of this meeting the Union reduced
its request for an additional pension contribution to a 10-
cent increase.
At the meeting on December 22, 1971, the Union told
Lehman that they had been in touch with a union
representative in Chicago, and that this individual (Hook)
had some information relative to funding backpay liability
should the Company improve its pension plan, and that
Hook wanted to meet with the Respondent and other
stockyard companies to discuss this matter. Lehman
replied he was not interested in other stockyards, but that
the Union should have Hook write him a letter if he had
any information to give. According to Lehman he never
heard from Hook about this matter. Lehman said that at
the conclusion of this meeting he told the Union that it had
been a waste of time, that the Union was not being serious,
and that he did not care to meet again until the Umon was
ready to move into "meaningful negotiations."
The next meeting was arranged through the Federal
Mediation Service and was held on January 27. The
mediator asked the parties to state their positions and
Francis Krier, speaking for the Union, outlined II key
issues of prime importance to them: a 3-year contract
effective November 1, 1971, a wage increase of 35, 30, and
30 cents, improvement in pension program from $3.33 per
year to $6.66 per year, an additional holiday, an increase in
night differential of 2 cents an hour, an improvement in
hospitalization, working conditions as outlined in their
demands 20 and 27, premium time for hours worked on
a The expired contract contained a cost of living clause, but there were "ridiculed by the Union" and received little if any considerations.
no provisions permitting the use of part-time or extra men. 8 When the Union dropped this demand the Company asked whether the
r The Company's proposal as of this date is also reflected in an enclosure Union was ending the strike , to which McDonald replied the Union was on
to a letter Lehman sent to all the striking employees on December 14, 1971. strike for an equitable agreement
G.C Exh 5 In this letter to all sinkers , Lehman stated that his offer was
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturday, double time for time worked on Sunday, and to
freeze in the benefits of the present contract with
improvements in the cost of living. The Union further
asked that the length and the amount of sick leave be
increased by the Company. Lehman then summarized the
Company's position and indicated that the Union had not
changed its position since the meeting on December 20,
1971. Lehman further testified that on this occasion he also
told the Union that the Respondent's supervisors were
working 80 to 100 hours a week, but he did not expect the
supervisors could continue working such long hours, and
that the Company would either have to get their employees
back or hire permanent replacements. After the parties
separated and went back in, the Company then replied to
the 11 issues outlined by the Union at the outset of this
meeting. On duration of agreement, the Company reiterat-
ed its proposal that the agreement be effective on signing,
and not on November 1, 1971, as proposed by the Union.
On rates of pay, the Company stayed on 10-, 9-, and 8-cent
increases for each year of a 3-year contract. Regarding
pensions, the Company told the Union that they were not
interested in doubling their cost on pensions, but would be
willing to consider an improvement on pensions costs.
Lehman said that the Company was paying 10 cents an
hour on pensions and advised that they would be willing to
consider an increase of 5 cents per hour. The Company
told the Union they were not willing to increase their costs
on vacations and holiday pay and were not willing to
change their proposal relative to hospitalization, but the
Company continued to propose to give the semiprivate
room rate towards the cost of a private room. With regard
to premium pay on Saturday and Sunday which the Union
wanted-the Company told the Union there would be no
premium pay on either of these days due to the nature of
the Company's business, that they were a service organiza-
tion and they were not willing to pay premium pay on
weekends because the bulk of their business was on
Saturday and Sunday. With regard to the Union's original
proposal of items 20 and 27, the Respondent said that
these two items were "management rights" and the
Company would not make any changes whatsoever. On
cost of living the Company again indicated they were
willing to freeze past increases in cost of living under the
expired contract into the hourly rate, but that Respondent
wanted to take out all the language in the contract relating
to the cost of living increases. With regard to the duration
9 In the expired contract the provisions for sickness and accident leave
was a 13-week duration effective the first day in the case of an accident and
on the 8th day in case of sickness, at a payment of $80 per week
10 Prior to the negotiating meeting of February 2, union representatives
learned that a contract settlement had been reached in late January 1971, at
the Stockyards Company in Sioux City, Iowa, between Sioux City
Stockyards Co. and Amalgamated Meat Cutters Local P-176, the main
terms of which included- a wage increase of 12 cents for the first year, 13
cents the second year, and 13 cents the third year of a 3-year contract,
freezing into the late a 10-cent cost of living increase granted under the
previous contract , payment of an additional 5-cent-per-hour contribution
into the pension plan, 2 weeks increased sick leave benefits from $80 per
week for 13 weeks to $80 per week for 15 weeks, and a minor improvement
in funeral leave provisions . The settlement did not include any right of
management to use part- time or extra men to perform unit work The basic
terms of the Sioux City settlement were conveyed to the Sioux Falls
employees at a union meeting of January 30. The Charging Party points out
that in view of the corporate relationship between the yards in Sioux City
of weekly sickness or accident benefits-the Company said
they were not willing to make any change in the sick leave
program .9 The Company also advised the Union that part-
time or extra people were extremely important to them and
to this date the Union was not willing to discuss this item.
Lehman also told the Union that the Company was not
willing to change the night premium pay.
The next meeting was held on February 2 and was
arranged by the Federal mediator.10 At the outset of this
meeting Lehman said that his supervisors were working 80
to 100 hours a week, and that he had to return his
operations to normal by getting the strikers back or by
hiring replacements.'[ In their opening remarks Krier
restated the Union's position relative to the II items it had
insisted upon at the meeting of January 27 and said that if
an agreement could be reached in these areas, the
remainder of the union demands would be dropped. After
separations and meeting with the Federal mediator, the
parties reconvened and the Company replied to the
Union's 11 key items. Lehman testified he told the Union
that he was not willing to accept a 3-year contract effective
November 1, 1971, thru October 31, 1974, but wanted a
contract effective on the date of signing; that the Company
was not willing to move on their money offer of 10-9-8; t2
again stated the Company was willing to freeze into the
wage structure the present cost of living allowance under
the expired contract at 10 cents an hour, but wanted to
remove the language from the old contract relative to a
cost of living increase ; with regard to the hospitalization,
he indicated the Company was willing to continue the
proposal made at prior meetings by allowing the average
cost of a semiprivate room rate towards the cost of a
private room rate and would have a new carrier; as to
pensions, Lehman said he reiterated that the Company was
willing to consider a pension increase of 5 cents per hour to
raise the contribution of the Company to 15 cents per
hour; he told the Union they were not willing to make any
change in the holiday and that the Company was not
willing to make any change in vacations. Lehman stated
that he did tell the Union he was willing to improve the
hospitalization or sick leave program by adding 2 addition-
al weeks with a maximum amount at the rate in the expired
contract, going from 13 weeks at $80 per week to 15 weeks
at $80 per week; the Company said they were not willing to
consider premium time for Saturday or double time for
Sunday as such, and testified he also told the Union that
and Sioux Falls, the previous bargaining history , and the fact that the
employees at Sioux Falls in the past received at least as favorable economic
conditions as the employees of Sioux City, the Sioux Falls employees and
the union negotiating committee reasonably expected the Respondent to
offer at least what was offered at Sioux City
i i Other than Lehman's testimony there is no other evidence whatsoever
bearing on the working status ' of the supervisors Up to this time the
Respondent had hired no replacements , but employees of the various
commission firms at the stockyards helped out with the work of the strikers
from the beginning of the strike , November 22, 1971 , to the middle or end of
February 1972, in accordance with arrangements and work schedules set up
for that purpose, and for which the Respondent paid approximately $60,000
in yardage fees to the commission firms
12 The Union produced credited testimony through several of its
witnesses to the effect that when Lehman mentioned he was continuing his
previous offer on wages, 10, 9, and 8 , he also said that the Company "was
movable" and had "more to offer." but depending on what the Union did in
other areas
SIOUX FALLS STOCK YARDS CO.
under no circumstances was the Company willing to give
any of their management rights as the Union was
requesting under their items 20 and 27; and that the
Company was not willing to give any increase in night
differential. There is a conflict of testimony as to whether
or not the Company modified its proposal at the meeting
concerning part-time employees by offering to restrict the
number of part-time employees to 15. Lehman remem-
bered McDonald saying that it was extremely important
that they have premium time or that they have improve-
ment as far as holidays were concerned, and that the
Union would not be willing to sign any contract which did
not have any improvements in holidays, and in vacations.
He further testified that McDonald was insisting on
concessions in management rights, as aforestated, and as to
this matter he replied that "hell would freeze over" before
the Company would give any on management rights. After
another caucus Krier responded for the Union and
testified he told the representatives for the Company that
the Union was continuing its present position on wages "at
this time" (35, 30, and 30 cents on a 3-year contract)
since they were confused by the company wage offer and
wanted Lehman to be specific because the Company had
said they were movable on this matter, and testified that a
company representative then told them the Respondent
was offering 10, 9, and 8 cents on wages because it did
not know where the Union stood in other areas. Krier also
told the Company that although the Union wanted a 10-
cent-per-hour additional contribution to the pension fund,
the Union would accept 5 cents in 1972 and 5 cents in
1973. Krier further stated that the Union desired to
continue the cost of living language in the contract, but
they would be willing to establish some limits, and
additionally he stated that the Union was dropping its
demand for 3-week vacation after 8 years of service.
Lehman said that by his observations the Union did not
appear at all flexible or interested in making any
agreement, and especially on the item he considered
extremely important-part-time help-and when specifi-
cally asked as to his state of mind relative to the possibility
of an agreement, Lehman testified, "I felt that any attempt
to get an agreement that day was fruitless and that we were
at a complete standoff as far as the issues before us at that
time were concerned." Lehman testified that during the
latter part of this meeting on February 2, he advised the
13 The Union contends, and there is credited evidence to this effect, that
Lehman left the meeting before they could respond However, under the
circumstances here the Union cannot be held to have waived its rights or to
have acquiesced in Respondent's conduct. In this area, as in all others
involving the rights of employees and an alleged waiver by their bargaining
agent, a waiver must be knowingly and consciously entered into and be
clearly intended
14 In a letter dated February 3, addressed to DeWitte at the union offices
and received there on February 4, Lehman confirmed the unilateral
increases made effective February 3, with the exception that he did not
include in the latter the institution of the additional 5-cent-per-hour
pension contribution of which he had supposedly informed DeWitte
15 On February 3, Lehman also sent a letter to the striking employees
lowest in seniority notifying them that they had been replaced, that they
were no longer employees of the Company, and that their hospitalization
and life insurance would only continue until the prepayment period and
would then be terminated. On February 10, Lehman sent another letter to
the strikers-this letter was dated February 9 and addressed to the
negotiating committee. This letter, according to Lehman, was to inform the
69
Union that the Company was considering the implementa-
tion of parts of the Company's proposal, and that the
Union made no response.13
On the morning of February 3, Lehman had a conversa-
tion with striking employee and Assistant Business Agent
Rene DeWitte while DeWitte was picketing at the
stockyards, and told him that the Company was planning
to hire strike replacements, that they were going to put into
effect the 10-cent-an-hour increase in wages, that the
Company planned to freeze into the permanent wage
structure the 10-cent cost of living amounts which had
accrued under the previous contract, and that the Compa-
ny was also going to improve the sick leave program by
adding 2 weeks of sick leave to the program, making it 15
weeks.14 On February 3, the Company also began hiring
replacements and hired 13 replacements that day, and in
the course of the next several days the Company hired
many additional replacements at the lowest classification
of apprentice yardman, and at the rate paid this particular
classification in the expired contract-plus 10-cent-an-
hour increase-plus 10-cent cost of living allowance.
Lehman said that the first replacement employee hired
replaced the most junior employee.15 On February 3,
DeWitte communicated the Lehman conversation with
other strikers relating what Lehman had said and also
relating what had transpired at negotiations on the
previous day. The Union produced testimony through
DeWitte and other strikers to the effect that what the
Company was doing at this point in time was not right or
legal, and several stated this was all the more reason to
keep on striking. DeWitte also communicated the Lehman
conversation to Business Agent Krier, and Krier then had
phone conversations with other strikers that evening in
which he explained the situation as he saw it-stating that
the Company was committing unfair labor practices.16
On February 4, other strikers came in or contacted
DeWitte at the union office to ascertain what was taking
place, and, in essence , DeWitte then explained to them the
circumstance and situation as he saw it. Gerald Meyer
testified that on February 4 strikers "were upset about the
thing that there was more to offer and he had hired those
scabs at 10 cents an hour more than we are getting," and
that Meyer told his fellow strikers "as long as this thing
continues as it is, I'll picket till hell freezes over."
On Sunday, February 6, a union meeting of the striking
employees of their rights and to clear up any "misunderstanding" created
by the letter of February 3 In this letter dated February 9, Lehman stated,
inter alia, "In the event of an unqualified offer by any or all of the strikers to
return to work, they will be returned to their jobs if they have not been
replaced." The Charging Party points out that by this time the Company
had already hired 38 replacements, and argues that this letter of February 9
could not possibly clear up any previous "misunderstandings."
16 Striker Gerald Meyer testified that he related to other strikers on the
picket line his conversation with DeWitte and stated that it seemed to him
the Company was trying to "break the Union " Striker Paul Kreber testified
that on February 3, when he found out from DeWitte that the Company
instituted increases and hired replacements , he was "real mad. I give the
best years of my life to the Company and then they treat us like dirt."
Striker Wallenburg testified when he found out that Lehman had put
certain offers into effect without going through the Union , it made him
"damn mad." That evening DeWitte also had a conversation with Carroll
Barnes and told him that it was unfair bargaining for the Company to
institute offers without agreement of the Union when on the previous day
Lehman stated there was more to offer
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees was held. It appears that the meeting was
attended by practically all of the strikers, and Francis
McDonald conducted the meeting and made a full report
of what had transpired between the parties, as he saw it.
The Union produced testimony through several of their
witnesses to the effect that the strikers were visibly upset,
frustrated, and angry with the actions of the Company.
There was no talk of ending the strike and going back to
work, and striker Wallenburg said he would "walk the
picket line until his feet wore off to his knees and give them
an -option for another five years." Several testified that
there was a noticeable difference in the picketing and
conduct of the strikers after the meeting of February 6
compared to before the meeting.
At the next bargaining meeting on February 9, represent-
ing the Union in addition to the regular committee was
Attorney Robert Sugarman. Representing the Company at
this meeting were Lehman and Lamb. Federal Mediator
Zuiker also was present. Following a discussion of the
issues, Attorney Sugarman requested that the Company
supply certain information relative to the Company's strike
replacements, and Sugarman then began questioning
Lehman concerning his part-time help proposal. The
Union also inquired if the Company had any offer on
wages, and Lehman replied that the Company had already
indicated 10 cents, 9 cents, and 8 cents on a 3-year
contract, but said the Company was movable if they could
see a package and "some movement" on the part of the
Union. Francis McDonald then asked Lehman what he
could do about pensions, stating that the Union was very
concerned about pensions because of the age of the group.
Lehman replied that this was an economic item and if the
Union would rather have pensions than money or
wages-this was "O.K." with him, and that he had "not
made a final offer." Lehman's testimony on cross-examina-
tion in these respects were as follows:
Q. Was there discussion at the meeting on Februar-
y 9th between the union and yourself that the union
said that pensions were very important?
A. Yes; the union indicated this to me.
Q. And you said, did you not, that you have more
money to spend and you would like the union to tell
you where they wanted you to spend the money?
A. This is on the meeting of the 9th?
Q. Yes, sir.
A. Yes, I did.
Q. And then you said to the Union finally, "Do
you want me to prepare a final offer?"
A. Yes, I did say that, and Francis said that might
be a good idea, but nothing further was said on that.
Q. But you did not prepare a final offer at that
meeting?
A. Not at that particular meeting, no.
Lehman admitted that on February 9 he was flexible on
economic items and stated, "Yes, after we began to see a
willingness on the= part of the Union to discuss our
17 During these later meetings the Company was also presenting its
pension proposals , and at times mdicatmg some modifications . The Union
again told the Company that on a matter as important as pensions it wanted
proposal relative to part-time employees, we felt that we
had some flexibility... .
At the negotiating session on February 16, the parties
continued to discuss the part-time employee issue and after
hearing McDonald's objections the Company offered to
limit its part-time employees to 25 hours per week. At this
meeting the Company also offered 150 hours to layoff time-
to count toward vacation eligibility, and increased its wage
offer to 12 cents, 13 cents, and 13 cents.
At the meeting of February 28, the Company presented
the Union with the new insurance program it received from
the New York Life Insurance Company. The Union then
reiterated several of its prior demands, but agreed to a 3-
year contract effective on the date of signing-before the
Union wanted specific dates-lowered its wage demands
to 20, 15, and 10 cents, respectively, and the Union also
reduced the scope of its overtime proposals. Lehman then
mentioned the numerous items that the Company was still
refusing and on which there was no agreement. The
Company made no movement on its wage offer of 12, 13,
and 13.
The meetings of March 8 and 10 were devoted mostly to
a discussion on the subject of health insurance, and as a
result of these two meetings, some correspondence and
telephone conversations, and some clarifications at the
subsequent meetings on April 4 and 5, this matter was
fairly well resolved. Also, at the meetings of March 8 and
March 10, and in a letter dated March 13, the Company
further modified its proposal regarding part-time employ-
ees. By letter of March 16, the Company modified its wage
proposal to 15 cents, 13 cents, and 10 cents, respectively, on
a 3-year contract provided the Union would accept the
Company's new position on pensions.17
On March 21, the Union, on behalf of all the strikers,
made an unconditional offer to return to work. The
Company replied that they still considered their employees
as economic strikers, and would be taken back as
vacancies opened up.
The Respondent contends that an impasse in bargaining
existed on all economic issues on or before February 2, and
in its brief presents the following argument: "An impasse
existed because the Union had taken an initially hard
bargaining position, demanding large increases in econom-
ic issues which would clearly entail great cost to the
Company. The Union then, over the course of the next
eight bargaining sessions, made insubstantial concessions
prior to and up to the'time of impasse. The Union faced an
equally determined Company that would allow its cost to
go only so far. After the Company's proposal of January
27, it made little change in its position." The Respondent
further states that the "Union's concessions over the two
month period of negotiations were insubstantial because
they were extremely costly when they were presented, and
they were extremely costly on February 2, 1972. It is
readily apparent that the Company considered the Union's
proposal astronomical. On February 2, 1972, there was still
a wide gulf between the Company's position and the
Union's position. The Union's position on February 2,
to negotiate all the aspects and all the details if the Company insisted on a
new plan, and asked the Company for information and support data
concerning its pension proposal
SIOUX FALLS STOCK YARDS CO.
1972, also appears excessive in view, of the Sioux City
settlement which the Union so highly praises."
The Company also views its position in light of the
background leading up to the negotiations, and points to
the fact that preparations for negotiations started in the
international headquarters in early 1971, but it was not
until December 1, 1971, when the local first let the
Company know about its 36 or 37 demands. The
Respondent further notes that up to the first meeting the
Union made no response to repeated Company requests
for negotiations except for giving a last minute direction to
"see Mr. Giannini" of the International, and that the
Union commenced its strike on November 21, 1971, before
any negotiations had been attempted. The Respondent
argues that the Company effectuated its wages increases on
February 3, as aforestated, to aid in hiring replacements
and because of the fact that the John Morrell packing
plant, which is adjacent to the Company, was paying a
higher starting rate than the Respondent, and that the
wage rates for union labor in Sioux Falls was also higher
than what the Company was paying at the time of its
decision to hire replacements. The Respondent further
submits that events following February 3 have no rele-
vance to the issue whether there was an impasse in
bargaining on February 2, and the fact that the Company
continued to meet with the Union on February 9 and
thereafter merely reveals that the Company recognized it
had a continuing obligation to bargain.
The general criteria for determining impasse is set forth
in American Federation of Television and Radio Artists,
AFL-CIO, 163 NLRB 475, 478 enfd. 395 F.2d 622
(C.A.D.C., 1968), where the Board held:
An employer violates his duty to bargain if, when
negotiations are sought or are in progress he unilateral-
ly institutes changes in existing terms and conditions of
employment. On the other hand, after bargaining to an
impasse, that is, after good-faith negotiations have
exhausted the prospects of concluding an agreement,
an employer does not violate the Act by making
unilateral changes that are reasonably comprehended
within his pre-impasse proposals.
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of negotiations, the
importance of the issue or issues as to which there is
disagreement, the contemporaneous understanding of
the parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an
impasse in bargaining exists. [Footnotes omitted.]
In Mechanical Contractors Association of Newburgh, 202
NLRB 1, 3, the Board, inter alia, stated:" The term impasse
implies that collective bargaining has failed to produce
agreement. It cannot be said that a failure to agree at what
we view as the primary stage of a bilevel bargaining
procedure amounts to impasse. Until the collective-bar-
gaining process has been exhausted, no impasse can occur."
This record shows that the first two meetings in
is Prior to February 3 there had been but eight negotiating meetings
between the parties, and only the meeting of February 2 lasted as long as 4
71
December 1971 were merely exploratory sessions and were
concerned primarily with consolidating and explaining the
two lists and separating the numerous overlapping de-
mands of the Union.
In the next two meetings the Company made their initial
proposals covering five or six items, as aforestated. At this
time the Union was seeking a wage increase of 70 cents the
first year, and 50 cents for the second and third year,
sought to increase night premiums 15 cents an hour, sought
to increase the Company's contributions into the pension
plan, was asking for an extra holiday and additional
vacations, and wanted double time pay for Sunday work
and time-and-a-half pay for Saturday work.
On December 20, both parties modified their respective
positions. The Company increased its wage proposal from
8, 7, and 6 cents to 10, 9, and 8 cents, agreed to the
Union's request for a safety committee, and then reiterated
its other proposals made at the previous meeting. At this
fifth meeting the Union reduced its wage proposal to
35, 30, and 30 cents on a 3-year contract, reduced its
demands for a pension contribution increase from 15 cents
an hour to 10 cents an hour, and reduced its demand for
an increase in night differential from 25 cents to 14 cents.
The short meeting on December 22, 1971, called by the
Union, concerned the possibility of getting additional
information on pension plans.
At the meeting called on the request of the Federal
Mediator and Conciliation Service on January 27, the
Company reiterated its proposals of December 11, 1971,
and then Lehman mentioned several items or areas in
which the Company was not willing to grant any change.
However, at this meeting the Union made a significant
move in the negotiation by reducing its original 36 or 37
demands to I 1 key demands. At this session the Company
advised the Union of its future intention to hire replace-
ments in order to reduce the workload on its supervisory
staff, and it appears that the Company tendered a proposal
to increase its pension cost 5 cents an hour.
The Federal mediator scheduled another meeting for
February 2. At the outset the Union again listed its 11 key
issues, and indicated that if solutions were found in these
areas the remainder of its demands would be dropped.
In essence, the Company then repeated its prior proposals,
but for the first time offered an additional 2 weeks, sick
leave. The Union countered by reducing its pension
demand from a request for an additional 10 cents per hour
effective November 1, 1971, to 5 cents in 1972 and 5 cents
in 1973; reduced its cost of living demand by stating it
would be willing to establish limits in the clause in the new
contract (its previous demand had been open-ended); and
dropped its vacation demand for 3 weeks of vacation after
8 years of service.
From this record it appears to me that by February 3 no
positions of the parties had become so fixed at this point as
to render further negotiations futile. The actual negotia-
tions between the parties had been relatively short, and in
total aspects the avenues of negotiations had not been
exhausted by any means.is As pointed out, the Company
had not made a final offer and from the settlement in
hours. The first five meetings each lasted less than 2 hours, and the meeting
on December 22 lasted about 15 minutes.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sioux City, as aforestated, the Union reasonably expected
an improved offer. In the final analysis, the positions of
both parties changed materially during the meeting
immediately preceding the unilateral changes, and at
meetings subsequent to the unilateral actions by the
Company.
In order to find an impasse and to sustain the arguments
and contentions by the Company, I would have to
conclude that in the short and rather quick span of six
meetings (from December 7, 1971, through February 2) the
avenues to an agreement had been completely deadlocked,
and as a result there were no prospects at all for reaching
an agreement. I am not prepared to make such a finding in
view of the fact that during this period both parties had
made some concessions in their initial wage proposals, had
agreed on the establishment of a safety committee, and had
agreed, or virtually so, on the furnishing of carpenter tools.
Furthermore, the Union had dropped its demand for a
master contract, had consolidated its many and numerous
demands to 11 key items, and had reduced or limited some
provisions in its pension, vacation, and cost of living
demands. The concessions offered by the Union up to
February 3 were sufficient in number and significant
enough in scope to indicate that further face-to-face
bargaining on these subjects and other proposals might
well be fruitful. It is true that the Union was continually
insisting on improved pensions, premium pay, and vaca-
tions or an extra holiday as extremely important items to
them, and were also demanding wage increases in
considerable excess of those the Company was offering,
but, nonetheless, the Union's adamant insistence on these
demands did not relieve the Company of the duty to
negotiate further on these subjects and others, as the Union
had made some significant concessions, as previously
noted herein.19
In view of the discussions on February 2, it would have
been extremely difficult for the Union to have modified its
own wage offer or to have accepted the Respondent's offer.
There is credited testimony by Francis Krier that at this
session Lehman told them, "We are going to continue our
previous offer. However, we are moveable and we want to
tie this to our cost depending on what you also [heed] in
other areas." This testimony was corroborated by Carroll
Barnes, Rene DeWitte, and Francis McDonald, and with
the subsequent admission by Lehman at the next meeting
that he had not made a "final offer," I have no hesitancy in
accepting the above testimony by the witnesses for the
Union.20
As pointed out, it is also significant that the parties
continued to meet for 2 months subsequent to February 2,
and in so doing make substantial progress toward a
contract. Lehman admitted that at the meeting on
19 See R James Span, d/b/a John L. Gibson, 189 NLRB 219, and Quality
Motels of Colorado, Inc, 189 NLRB 332
20 DeWitte further testified, "Mr Lehman at that meeting [February 2]
kept telling us that he had more to offer and to me how can you accept
something if he tells you he has more there" Gerald Meyer, who had
participated in earlier negotiations , testified that upon hearing about
Respondent implementing its proposal he said , "When there is more to offer
there is no way to settle" it is also noted that while the Respondent
Assistant Superintendent Les Lamb could not remember or recall Lehman
saying that the Company was movable in the area of wages on February 2,
he would not deny that it was said
February 9 the Company was flexible on wage issues, and
that he had not made a "final offer." On February 16, the
Company increased its wage offer to 12, 13, and 13 cents.
At the session on February 28, the Union agreed to a
contract effective on date of signing and lowered its wage
demands to 20, 15, and 10 cents. By subsequent corre-
spondence and telephone calls between attorney for the
parties, an agreement on wages was very near. Further, as
pointed out by the General Counsel, the parties' meetings
of March 8 and 10, supplemented by letters and the same
telephone calls, and a wrap-up on April 4 and 5, virtually
resolved the matter of health, medical and surgical
coverage, as Lehman himself admitted.
The bad faith of the Respondent can also be demonstrat-
ed by conduct other than what occurred at the bargaining
table.21 Respondent's letter of February 3 addressed to 13
employees, advising them they were no longer employees,
as aforementioned herein, was clearly an attempt to coerce
employees into returning to work. The Company also
made other unilateral changes in employees benefits and
working conditions and did not communicate such to the
Union. Thus, when some of the striking employees were
recalled to work in January 1973, they were informed that
there were no longer any coffee breaks and their lunch
periods had been changed. The Company also ceased
making pension contributions for strikers who returned to
work (except for the first two) or for the replacement
employees. Respondent's lack of good faith is further
indicated in the reason offered by Respondent for
implementing its economic proposals for replacements. As
pointed out, in February the Sioux Falls labor market was
anything but tight, the unemployment rate was something
over 4 percent and comparable jobs were being offered at
$1.65-$2 per hour. It becomes clear that the reason for
granting wage increases to the replacements was to
demonstrate to the striking employees that it did not pay to
remain associated with the Union.22
Another reason given by the Company for their refusal
to make any additional wage offer on February 2 was
because the Union had not acceded to the Company's
proposal regarding part-time employees. At this point in
the negotiations, as noted by the Charging Party, part-time
employee proposal by the Company was a request for a
new contract clause permitting the Company to employ
part-time employees to perform bargaining unit work at
low wage rates, and which employees would not be covered
by any contract provision, but would function outside of
any collective-bargaining agreement . Such a proposal was
predictably unacceptable to the Union. I agreed that rigid
adherence to it by the Company in this context is further
evidence of bad-faith bargaining, and this is another key
factor and circumstance which militates against the
21 It is, of course, well established by the Board and the courts that
failure to bargain in good faith rules out the possibility of there being an
impasse
22 Donald Norby, manager of the Sioux Falls office of the South Dakota
employment service, presented credited testimony and documentary
evidence showing that in January 1972 and in February 1972, "especially
February," were months of high unemployment in the Sioux Falls
area-unemployment in January was 36 percent and unemployment in
February was 44 percent in the Sioux Falls area Norby testified that
normally unemployment in Sioux Falls is the highest in December , January,
and February
SIOUX FALLS STOCK YARDS CO
Respondent's defense of impasse. In these respects the
argument by the ChargingParty is as follows, "Such tactics
under these circumstances show the Employer's determina-
tion to emasculate the Union. Thus, if the Union
capitulated to the Company on February 2 by accepting
the Employer's contract offer and swallowing the part-time
employee proposal in the face of the fact that there was
more to be had in economic terms, it would have been
disparaged and rendered impotent in the eyes of the
employees. If it did not accept, however, the employees
would be replaced and the Employer would have rid itself
of the union adherents. Plainly, the Employer's motive was
to undercut the Union. Quite revealing is the fact that not
until February 16, when 46 replacements had been hired
for 40 strikers, did the Employer improve upon its
February 2 economic offer; and not until March 8 did it
ease up on its part-time employee proposal. On February 2,
the Employer had no intention of coming to agreement
unless it emasculated the Union by forcing it to accept
impossible conditions or until it rid itself of Union
adherents by hiring replacements and calling them perma-
nent. It geared its tactics to achieve such result. The
conclusion is inescapable that it was engaging in bad faith
bargaining."
I conclude and find that the parties did not reach an
impasse in negotiations on February 2, 1972, that the
Company did not bargain in good faith, and that by
unilaterally instituting the changes in existing wage rates,
cost of living allowances, and in sickness benefits, the
Respondent violated its duty to bargain under Section
8(a)(5) of the Act.
A strike which begins as an economic strike is converted
to an unfair labor practice strike by an employer's unfair
labor practices which tend to prolong and aggravate the
strike. The unilateral changes and especially the increased
wage rates to replacements before any impasse was
reached are, of course, unfair labor practices and, needless
to say, such conduct substantially broadened the differ-
ences between the parties, and was definitely a most
significant and substantial factor in aggravating and
prolonging the strike, and as pointed out, this record is
abundant and replete with substantial, credible, and
undisputed evidence to this effect.
In view of the fact that because of the Company's action
the economic strike was converted to an unfair labor
practice strike on February 3, and all of the strikers were
entitled to reinstatement when the unconditional offer to
return was made on March 21, the Company's refusal
to reinstate them constituted additional unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
73
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom, and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent has refused to bargain
collectively in good faith with the Union as the exclusive
representative of its employees in an appropriate unit, I
will recommend that, upon request, the Respondent
bargain collectively with the Union concerning rates of
pay, wages, hours, and other terms and conditions of
employment, and if an understanding is reached embody
such in a signed agreement.
In view of the nature and extent of Respondent's unfair
labor practices, I deem it necessary, in order to effectuate
the policies of the Act, to recommend a cease-and-desist
order couched in broad terms to prohibit any violations of
employee rights under the Act.
I have also found that the strike was converted into an
unfair labor practice strike, and I will therefore recom-
mend that the Respondent offer the unfair labor practices
strikers, named in the Appendix, immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, discharging, if necessary, any replace-
ments in order to provide work for such strikers. I also
recommend that the Respondent make whole for any loss
of pay that they may have suffered by reason of the
Respondent's discrimination against them by paying to
each of these employees a sum of money equal to the
amount that he normally would have earned as wages from
March 21 to the date of the Respondent's valid offer of
reinstatement, less his net earnings during said period. The
amount of backpay due shall be computed according to the
Board's policy set forth in F. W. Woolworth Company, 90
NLRB 289. Payroll and other records in possession of the
Respondent are to be made available to the Board, or its
agent, to assist in such computation and in determining the
right to reinstatement. Interest on backpay shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By denying reinstatement to strikers upon their
unconditional application, the Respondent has engaged in
and is engaging in unfair labor practices, within the
meaning of Section 8(a)(3) and (1) of the Act.
4. All hourly paid operational employees in the Sioux
Falls Stock Yards Company's Sioux Falls, South Dakota,
plant, and such other employees as may hereafter become
members of the Union, excluding office clerical employees,
all other employees, watchmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
5. At all times material herein the Union has been and
continues to be the exclusive representative of all the
employees within said appropriate unit for the purpose of
collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment,
within the meaning of Section (b) of the Act.
6. By refusing to bargain collectively with the Union as
the exclusive representative of its employees in an
appropriate unit , the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and ( 1) of the Act.
7. On February 3, 1972 , the strike was converted to an
unfair labor practice strike by the Respondent's unfair
labor practices.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
[Recommended Order omitted from publication.]