The Rath Packing Co.

National Labor Relations Board - Board Decisions

Jun 18, 1965

153 N.L.R.B. 125 (N.L.R.B. 1965)

THE RATH PACKING COMPANY 125
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528 Peach-
tree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-
3311, Extension 5357, if they have any questions concerning this notice or compliance
with its provisions.
The Rath Packing Company and District Local Union No. 431,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO and Local 46, United Packinghouse, Food,
and Allied Workers, AFL-CIO, Party to the Contract. Case
No. 38-CA-19 (formerly Case No. 18-CA-1908). June 18, 1966
DECISION AND ORDER
On January 18, 1965, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the 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 Trial Examiner's Deci-
sion. Thereafter, Local 46, United Packinghouse, Food, and Allied
Workers, AFL-CIO, hereinafter called UPWA, filed exceptions to
the Trial Examiner's Decision and a brief in support thereof.
UPWA's brief asserted, inter alia, that on January 12, 1965, after
the close of the hearings herein, an agreement was entered into between
the Charging Party, the Respondent, and UPWA; that this tripartite
agreement superseded the bilateral agreement of July 3, 1964, upon
which the complaint and the Trial Examiner's findings were based,
and which purportedly had never been implemented or enforced; and,
that the later agreement resolved the dispute in the instant case and
the complaint should therefore be dismissed. The National Labor
Relations Board, on May 3, 1965, issued an Order To Show Cause
returnable on or before May 13, 1965, why the Board should not
receive into evidence the tripartite agreement of January 12, 1965, a
copy of which was appended to UPWA's brief, and why, if so received,
that agreement would not then warrant dismissal of the complaint in
its entirety on the ground that it would not effectuate the policies of
the National Labor Relations Act, as amended, to issue a decision in
these circumstances. No response having been filed by any of the
parties, the Board orders that the tripartite agreement of January 12,
1965, be, and it hereby is, received into evidence and made a part of
the record herein.
153 NLRB No. 8.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Trial
Examiner's Decision, the exceptions and brief, the parties' failure to
respond to the Order To Show Cause, and the entire record in this
case, including the January 12, 1965, agreement, and finds that no
useful purpose would be served by issuing a decision on the merits of
the complaint. Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER ZAGORIA took no part in the consideration of the above
Decision and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 18, 1964 , Case No. 38-CA-19, formerly Case No.
18-CA-1908,1 by District Local Union No. 431, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, hereinafter called the Amalgamated
or Charging Party, the General Counsel of the National Labor Relations Board, here-
inafter called the General Counsel 2 and the Board respectively , by the Regional
Director for Region 18 (Minneapolis , Minnesota ), issued its complaint dated Octo-
ber 2, 1964, against The Rath Packing Company, hereinafter called the Respondent.
The complaint alleged that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Sections 8(a) (1), (2), (3),
and (5 ) and 2 (6) and ( 7) of the Labor Management Relations Act of 1947, as
amended , hereinafter called the Act . Copies of the charge , complaint, and notice of
hearing thereon were duly served upon the Charging Party, Respondent, and Local
46, United Packinghouse , Food , and Allied Workers , AFL-CIO, hereinafter referred
to as UPWA.
By order dated October 15 , 1964 , of Trial Examiner Kapell , the motion filed by
UPWA to intervene herein was allowed.
Respondent and UPWA duly filed answers admitting all factual allegations of the
complaint except one , but denying the commission of any unfair labor practices.
Pursuant to notice , a hearing thereon was held at Waterloo , Iowa, on November 9,
1964 , before Trial Examiner Thomas S. Wilson . All parties appeared at the hearing,
were represented by counsel , and afforded full opportunity to be heard , to produce,
examine and cross-examine witnesses , and to introduce evidence material and perti-
nent to the issues,3 and were advised of their right to argue orally upon the record
and to file briefs and proposed findings and conclusions or both . Oral argument
at the end of the hearing was waived . Briefs were received from General Counsel,
Respondent , UPWA, and the Charging Union on December 9, 1964.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Rath Packing Company is , and has been at all times material herein, an
Iowa corporation with its principal place of business at Waterloo , Iowa, where it is
engaged in the business of processing meat for wholesale and retail distribution.
3 By order of General Counsel dated December 9, 1964, this case was transferred to
Region 38 ( Peoria, Illinois ) and so numbered.
2 This term specifically includes the attorney appearing for the General Counsel at the
hearing.
3 At the commencement of the hearing, counsel for Amalgamated moved for a "judg-
ment on the pleadings " which he explained to be a restriction on the introduction of
evidence to the single Issue denied by the pleadings . The Trial Examiner ruled that, under
the pleadings , only one factual allegation had been denied and, therefore , restricted the
taking of testimony to that single issue.
THE RATH PACKING COMPANY 127
Respondent also operates and maintains a plant at Columbus Junction, Iowa, where
it is engaged in the slaughtering and processing of hogs and wholesale and retail
distribution. During the past 12-month period ending August 31, 1964, in the
course and conduct of its business operations, Respondent made sales valued in excess
of $1 million to points outside the State of Iowa.
The complaint alleged, the answer admitted, and I find that Respondent is now,
and has been at all times material herein, engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
District Local Union No . 431, Amalagamted Meat Cutters and Butchers Workmen
of North America , AFL-CIO, and Local 46, United Packinghouse Food, and
Allied Workers , AFL-CIO, are labor organizations admitting to membership employ-
ees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The facts
Involved in the present proceeding are two plants of The Rath Packing Company.
One is located at Waterloo, Iowa, and the other at Columbus Junction, Iowa, approx-
imately 120 miles away. The production and maintenance employees of the older
and larger Waterloo plant are now and have been for a long time represented by
UPWA under an existing contract. The production and maintenance employees at
the newer and smaller Columbus Junction plant were represented by the Amalga-
mated as a result of a 1961 Board election.
The collective-baigaining agreement between Rath and Acalgamated covering the
Columbus Junction plant expired on August 31, 1964, and the parties are in the
process of negotiating a renewal of that agreement as of the time of the hearing
herein. Section 11 of that agreement, the management prerogative clause, read as
follows: "The management of the plant and the direction of the working force,
including the right to establish reasonable rules and regulations and production
schedules, to hire, promote to outside bargaining unit, or discharge for just cause
shall be vested exclusively in the Company, provided such action by the Company is
in accordance with the terms and conditions of this agreement and is not used for
the purpose of discrimination against any member or members of the Union."
For a number of years last past Respondent has been slowly but surely curtailing
its operations at Waterloo, whereas it has been just as slowly but lust as surely expand-
ing its operations at Columbus Junction since it began operations there around 1960.
During 1963 Respondent announced its intentions to further expand operations at
Columbus Junction.
The natural result of the above is that there are now over 1,000 Waterloo plant
employees who have been in layoff status for varying periods of time and who under
the contract in existence with UPWA at Waterloo, still enjoy reemployment rights
at Waterloo. On the other hand, Respondent's already announced plans indicate
further job openings and job opportunities at Columbus Junction.
With things in this posture Respondent and UPWA, at Waterloo, entered into
an agreement, hereinafter called the supplemental agreement, on July 3, 1964, with-
out notice to or participation therein by Amalgamated. This supplemental agree-
ment reads as follows:
Whereas The Rath Packing Company (hereinafter called the Company) and
the United Packinghouse, Food and Allied Workers, AFL-CIO (hereinafter
called the Union) are parties to a collective bargaining agreement governing
the terms and conditions of employment at the Company's Waterloo plant; and
Whereas the Company has been engaged in hog kill operations at its Columbus
Junction plant, and is considering expanding its operations at the said Columbus
`Junction plant, and
Whereas the parties have negotiated concerning the effect which an expansion
of the Company's Columbus Junction plant may have upon the employment
security of the employees at the Waterloo plant. and have agreed to supplement
their collective bargaining as herein set forth.
Now, therefore, it is hereby agreed as follows:
1. Nothing in this Supplemental Agreement shall in any way affect any
rights of employees presently employed at the Columbus Junction plant.
2. Opportunity to Waterloo Employees to Transfer to Columbus Junction.
a) The Company agrees that all jobs which shall hereafter become available
at the Columbus Junction plant, after the regular employees currently employed
at the Columbus Junction plant have exercised their seniority rights, will be
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered by posting to employees at the Waterloo plant who wish to transfer
to the Columbus Junction plant. Such transfers shall be offered solely on'the
basis of plant service at Waterloo, applying the male and female seniority lists
separately for those classifications which are now filled separately from those
lists.
b) At least ten days before the posting of the first group of jobs available
pursuant to this agreement, the Company shall mail to all Waterloo employees
who are then in a layoff status a letter advising them of the prospective date of
such posting and advising such laid off employees that those who would be
interested in a possible transfer to Columbus Junction may come to the plant
to place their names on a registry of laid-off employees desiring such transfer
All employees laid off at any time thereafter shall at time of layoff be advised
of their right to enter their names in said registry. Jobs available under this
agreement shall be posted for at least three days or for such longer period as
the posting state. At the end of the posting period the job shall be given to
the bidding employees whose seniority entitles him or her to the job in
accordance with (a) above, except that if there are any laid off employees who
have entered their names on the registry, and whose service would give them
rights to the job ahead of such bidding employees, the job shall first be offered to
such senior employees on the registry, in order of plant service
c) Upon such transfer, the terms and conditions of employment of such
employees shall be governed in all respects by the collective bargaining agree-
ment at the Columbus Junction plant. For purposes of all benefits at the
Columbus Junction plant, such transferred employees shall retain full credit
for their service at the Waterloo plant In determining seniority for purposes
of layoff, recall, promotion, or any other matters in which employees receive
priority or preference over other employees by reason of seniority, such trans-
ferred employees shall rank below the employees currently employed at Colum-
bus Junction, but between and among all such transferred employees such
seniority rights shall be based on length of plant service at the Waterloo plant
d) If at any time after such a transfer, a transferred employee shall be laid
off from his job at Columbus Junction for a period in excess of two weeks, such
employee shall have the right to exercise his Waterloo plant service to claim
the job to which his seniority entitles him at the Waterloo plant, and any
employees displaced by such claim shall have successive rights of displacement
until the most junior employee is reached. Such transferred employees shall
retain his recall rights at Columbus Junction and if reached shall have the
right to return to Columbus Junction or to remain at his Waterloo job. When a
transferred employee shall have been continuously employed at Columbus
Junction , with no layoff in excess of two weeks, for a period of eighteen months,
such employee shall have no further right to claim any job at the Waterloo
plant under this section.
3. The Company agrees that no more than one shift of operations will be
conducted at the Columbus Junction plant (other than in curing and smoking)
at any time when the Waterloo plant is not operating two shifts at full capacity
4. This Supplemental Agreement shall remain in effect from the date of
execution until the date of termination of the collective bargaining agreement
at Waterloo which shall be concluded between the parties for the contract
period following expiration of the current contract term.
On July 6, 1964, Respondent submitted a copy of this supplemental agreement to
the representative of the Amalgamated. After conferring with its attorneys, Amal-
gamated protested the above agreement by letter dated July 29, which read as follows
We have been advised that your Company has conferred with the United
Packinghouse, Food and Allied Workers, AFL-CIO, concerning the hiring of
employees at the Columbus Junction, Iowa, plant, wherein the undersigned is
the duly designated collective bargaining representative and party to the existing
collective bargaining agreement.
We wish to advise you that we strenuously oppose and object to your dealing
with any union in respect of the hiring of employees at this plant where we are
the collective bargaining representative. We vigorously oppose and object to
the consummation of any agreements with any other union concerning this
plant and hereby advise you that no such agreement should be entered into, and
if any such agreement has already been consummated , it can have no force or
effect in respect to our Union or the operation of our collective bargaining
agreement and relationship.
THE RATH PACKING COMPANY 129
It is now clear that the expansion program at your Columbus Junction plant
may effect hiring practices, terms, conditions and tenure of employment of
employees represented by our organization. Accordingly, we hereby request
that you meet with us to discuss such expansion program, its effect upon the
employees in the unit and the current collective bargaining agreement, and condi-
tions of any potential decisions of the Company in this area. We believe that
a meeting as soon as possible is essential. Please advise us of the date, time
and place you are prepared to meet.
Subsequently, a meeting between Respondent and Amalgamated was held in
Chicago at which time Amalgamated again protested the supplemental agreement
but Respondent, in the person of David Dolnick, a labor relations consultant for
Respondent, stated that he could see nothing wrong with the supplemental agree-
ment, that Amalgamated was making a "mountain out of a mole hill" and, upon
request, refused even to talk about rescinding the supplemental agreement or negotiat-
ing in regard to hiring practices at Columbus Junction with Amalgamated.
B. Conclusions
Fortunately the parties are not in disagreement about the facts All of the facts
except the request for Amalgamated and the refusal of Respondent to consider
rescission of the supplemental contract and negotiate on hiring practices with Amal-
gamated at Columbus Junction were admitted in the pleadings. There was no
contradiction regarding these latter facts as testified to by an official of Amalgamated.
At the outset it should be pointed out that there is no evidence in this record that
there is any animus on the part of Respondent here for or against any union-other
than that which may normally and naturally flow from the terms of the supplemental
agreement at issue here.
It may also be pointed out that each of the parties here has a very legitimate and
worthy interest to be served by the agreement entered into and in dispute here.
Respondent's interests are both to provide employment for its presently laid-off
employees at Waterloo and to secure a reservoir of experienced employees for its
expanding Columbus Junction operations. UPWA naturally has a perfectly legit-
imate and worthy interest in securing further employment for those employees it
represents at Waterloo, many of whom, due to the diminution of operation at Water-
loo, are now on layoff status. And, of course, Amalgamated, as the exclusive repre-
sentative of the Columbus Junction employees, has a worthy and legitimate interest
in protecting the interest of the employees it represents at Columbus Junction-
as well as protecting its own position as such exclusive representative. Unfortunately
some of these various interests do conflict. It seems to me that reasonable men could
easily have accomplished all of these worthy aims without involving unfair labor
practices and the Board if only Rath and UPWA had included Amalgamated in
their negotiations.
When Amalgamated won the representation election at the Columbus Junction
plant in 1961, it became under Section 9(a) of the Act "the exclusive representative
of all the employees in such unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment and other conditions of employment ..."
of the employees in that appropriate unit at Columbus Junction, and entitled to
bargain collectively with Respondent in regard thereto.
However, the supplemental agreement of July 3, 1964, between Respondent and
UPWA sets up a sort of "exclusive hiring arrangement" for prospective lobs at
Columbus Junction whereby Respondent agreed with UPWA, as the exclusive repre-
sentative of the employees at Waterloo, that Respondent would hire Waterloo
employees, either presently employed or on layoff status at Waterloo in accordance
with their Waterloo seniority, for the new lobs at Columbus Junction.
This raises the fundamental issue as to whether Amalgamated, as the exclusive
bargaining representative at Columbus Junction had any right or interest in the
source, methods, and procedures whereby Respondent secured prospective employees
or applicants for employment for new jobs at Columbus Junction.
Respondent and UPWA argue that the source; methods, and procedures by which
an employer secures such applicants for employment is a management prerogative
exclusively. This is based upon the fact that Section 9(a) of the Act made.Amal-
gamated as the exclusive representative of those employees over "rates of pay, wages,
hours of employment or other conditions of employment" only, i.e., the word "hire"
is there omitted from the Act. Hence these parties argue that the exclusive repre-
sentative of the employees has no interest or control in the hiring of new employees.
796-027-66-vol. 153-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fundamental as this question would seem to be, it was not until July 29, 1963, in
the case of Houston Chapter, Associated General Contractors of America, Inc., 143
NLRB 409, that a divided Board decided that this issue was contrary to the con-
tention of Respondent and UPWA when it held that bargaining over the institution
of a hiring hall was a mandatory subject of collective bargaining and said further:
"In similar fashion the concept of `hire,' though not specifically set out within 8(d),
is clearly a `term or condition of employment,' and makes bargaining mandatory
with respect to the hiring of prospective employees." 4 The Houston Chapter case
forecloses Respondent's first line of defense.
Next, Respondent and UPWA maintain that Amalgamated bargained away or
waived all of its interest in such prehire clauses when it agreed to section 11 of the
collective-bargaining agreement at Columbus Junction, wherein it was agreed that
management prerogative included "the right to establish reasonable rules and reg-
ulations and production schedules, to hire, promote to outside bargaining unit, or
discharge ." provided that the exercise of those rights were not used for the
purpose of discriminating against members of the Amalgamated. The Board has
frequently held that the exclusive bargaining representative could waive or bargain
away bargainable rights by agreement so long as the intent so to do was clearly
and unambiguously expressed. However, here it is not clear whether the phrase
"to hire" in section 11 means to hire initially, or like "promote" in that clause, to
hire for outside the bargaining unit. Furthermore, a strong case can be made for
the proposition that, whether intentionally or not, the giving of priority in the hire
to Waterloo employees, the majority of whom also had to be UPWA members by
reason of fact that UPWA had become the exclusive bargaining representative at
Waterloo, necessarily discriminated against Amalgamated members. Accordingly,
I must find that Amalgamated did not waive nor bargain away its rights in regard
to prehire sources, method, and procedures by section 11.
Then Respondent and UPWA argue that the sole intent of the supplemental agree-
ment was to affect the rights and conditions of employment at Waterloo only, and
that the supplemental agreement was to have no effect upon the working conditions
at Columbus Junction. As to the first, I can agree. As to the latter contention, I
cannot. In fact, the very candid briefs of both Respondent and UPWA confirm
these opinions.5
If, in fact, Respondent has negotiated a supplemental agreement with UPWA
which does affect the "rates of pay, wages, hours of employment or other conditions
of employment" at the Columbus Junction unit represented by Amalgamated with-
out consulting Amalgamated, and has, as the record proves, thereafter refused to
negotiate on these subjects of mandatory bargaining with the exclusive representative
for the Columbus Junction unit, then, of course, Respondent has violated Section
8 (a) (5) of the Act.
Consequently, it is necessary to determine if the supplemental agreement does,
in fact, affect the working conditions of the Columbus Junction unit.
Paragraph 1 of the supplemental agreement confirms one contention of Respond-
ent and UPWA by providing that nothing therein should affect the rights of the
current Columbus Junction employees.
Paragraph 2(a) and (b) then proceeds to set out an exclusive source or reservoir
from which Respondent agreed that it would select its new employees for Columbus
Junction : to wit, the Waterloo employees, past or present , in accordance with their
* From the number of collective agreements prior to 1963 which contained nondis-
criminatory hiring halls and other prehire clauses , it would seem that both management
and labor had, prior thereto , assumed the right of the exclusive representative to bargain
thereon.
s Respondent 's brief contains the following significant sentence : "That as pointed out
above, Respondent claims that the provisions of 2(a ), 2(b), substantially all of 2(c) and
2(d) of the supplemental agreement are valid and not in violation of the National Labor
Relations Act, as alleged in the complaint." [ Emphasis supplied.]
UPWA's brief makes the same point as follows:
In conclusion , it is submitted that except for the possible exceptions heretofore
referred to,* there can be no question that the agreement of July 3, 1964 relates solely
to the terms and conditions of employment and benefits accrued at the Company's
Waterloo plant and in no way relates to or interferes with terms and conditions of
employment at its Columbus Junction plant . [Emphasis supplied.]
* The provision concerning seniority rights within the group of transferred em-
ployees (which the parties have in practice cancelled) and the provision concerning
second shifts, which is poorly phrases to express a perfectly lawful intent.
THE RATH PACKING COMPANY 131
Waterloo seniority. I have already held in American Coal Shipping Company, Case
No. 2-CA-5169, a case settled upon the Intermediate Report and hence unreported,
that a new shipping Company without a certified bargaining representative does not
commit an unfair labor practice by unilaterally selecting one of two nondiscrim-
inatory union hiring halls as the source for its seamen. However, the source Respond-
ent here chose to select for its future supply of employees cannot qualify as a non-
discriminatory source because, although Iowa is a right-to-work State, the majority
of the Waterloo employees had to be members of UPWA for UPWA to have ever
become the recognized or certified bargaining representative at Waterloo.6 It requires
only a pure mathematical calculation to come to the conclusion that, by selecting all
future applicants for employment at Columbus Junction from a UPWA source,
Respondent would ultimately replace Amalgamated with UPWA as the exclusive
bargaining representative of its employees at Columbus Junction. Respondent's
unilateral selection of this discriminatory source of supply for future employees,
without consultation with the then certified bargaining representative for the unit
involved, constitutes a violation of Section 8(a)(5) of the Act. I so find. The
selection of such a discriminatory source also constitutes unlawful assistance to the
noncertified union in violation of Section 8(a)(2) and (1) of the Act.
After first providing that the terms and conditions of employment of transferees
would be governed by the collective-bargaining agreement in effect at Columbus
Junction, paragraph 2(c) of the supplemental agreement provided that, "for the
purposes of all benefits at Columbus Junction" the transferees would "retain full
credit for their service at Waterloo." The Columbus Junction collective-bargaining
agreement , for example, provided for a graduated vacation period, i.e., 1 week of
vacation for 1 continuous year of service, 2 weeks for 3 years service, etc. Conse-
quently, it is obvious that transferees entering into employment at Columbus Junction
with credit for their previous service at Waterloo, enjoyed different rights as to
vacation than did the employees previously employed at Columbus Junction. This
definitely affected and changed the working conditions of the unit employees pro-
vided for in the collective-bargaining agreement in existence at Columbus Junction
to the detriment of those represented by the Amalgamated. This normally and
naturally would have the effect of assisting UPWA among the employees at Colum-
bus Junction, thus constituting illegal assistance to UPWA in violation of Section
8(a) (2) of the Act.
Paragraph 2(c) of the supplemental agreement also provided that, "for the pur-
poses of layoff, recall, promotion" etc., the transferred Waterloo employees would
rank below those currently employed by Columbus Junction but that, as among the
transferees themselves, their seniority rights would be based "on length of plant
service at the Waterloo plant." As the collective-bargaining agreement at Columbus
Junction provided for plant seniority and, therefore, from the date of hire, it is
obvious that the arrangement made between Respondent and UPWA in the supple-
mental agreement both abrogated the seniority system setup in the Columbus Junction
collective-bargaining agreement , but also substituted therefore a completely different
seniority system for the transferees based on service acquired elsewhere than at
Columbus Junction . There can be no question but this substituted seniority system
affected working conditions for unit experience at Columbus Junction . Both Respond-
ent and UPWA subsequently recognized this particular invasion of the rights of
Amalgamated as the exclusive representative at Columbus Junction because both
these parties acknowledged, in their respective briefs, that ultimately they agreed that
the separate seniority system for transferees would not be enforced. The oral reces-
sion of this part of the supplemental agreement , however, made no change as far as
the vacations were concerned.
Thus it is clear that, regardless of the subsequent change made in the supplemental
agreement , above referred to, paragraph 2(c) thereof still impinged upon the rights
and prerogatives of Amalgamated as the exclusive bargaining representative at
Columbus Junction.
In addition , the transferee under Section 2(c) of the supplemental agreement not
only retained his Waterloo seniority but also his reemployment rights at Waterloo,
which also constituted the granting of a right over and beyond any right granted
under the collective-bargaining agreement in existence at Columbus Junction. This
necessarily favored the Waterloo transferee over those whose rights depended upon
the Columbus Junction collective agreement . This also constituted illegal assistance
to UPWA.
6 The offer of proof made by UPWA at the hearing confirms this by specifically men-
tioning that one non-UPWA Waterloo employee was among the group of Waterloo em-
ployees indicating a desire to transfer to Columbus Junction.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 3 of the supplemental agreement provided that Columbus Junction
could operate but one shift at any time when the Waterloo plant was not operating
two shifts at full capacity. This negotiated tie-in between operations at Columbus
Junction and Waterloo prevents Respondent from an independent determination of
the work programs at Columbus Junction and makes those programs dependent
upon working conditions at Waterloo,7 again affecting working conditions at Colum-
bus Junction.
Paragraph 4 of the supplemental agreement provided that it should remain in
existence throughout the life, not only of the current collective-bargaining agreement
at Columbus Junction, which expired August 31, but also throughout the life of the
renewal agreement at Columbus Junction which was then in the process of nego-
tiation. Thus, the effect of this supplemental agreement was to affect and change
the working conditions negotiated by Amalgamated, not only in the existing collective
agreement at Columbus Junction but also during the period of the renewal agree-
ment there.
While the supplemental agreement was no doubt entered into with the most
innocent and best intentions in the world by both Respondent and UPWA, the above
discussion shows that the terms thereof, plus Respondent's subsequent refusal to
discuss terms for hiring new employees with Amalgamated, violated Section 8(a) (5)
in that Respondent refused to discuss matters of mandatory bargaining with the
certified exclusive representative of the employees at Columbus Junction. It also
violated Section 8(a)(3) in that the terms of said supplemental agreement dis-
criminated in favor of UPWA employees at Waterloo as against the members of
Amalgamated at Columbus Junction, thereby encouraging membership in UPWA
and discouraging membership in Amalgamated at Columbus Junction. And further,
this supplemental agreement, containing terms advantageous to the UPWA Waterloo
employees, illegally assisted UPWA at Columbus Junction in violation of Section
8(a) (2) and (1) of the Act. I must so find.
In its brief Respondent maintains "that the Trial Examiner has the duty and
obligation to determine whether or not certain parts or paragraphs of said Supple-
mental Agreement are valid and enforceable and to then sever only those parts of
said Supplemental Agreement which he determined to be violations of the National
Labor Relations Act as alleged in the complaint." I do not so conceive his duty. In
fact, he has no authority to create a new agreement for the parties, as would have
to be the case here, in view of the above findings that all four paragraphs of the
supplemental agreement of July 3, 1964, contain illegal features. However, because
of the worthy aims of the supplemental agreement, I will reiterate the thought previ-
ously expressed that Respondent negotiate its hiring practices with the Amalgamated,
and, if necessary, UPWA, in the hope that reasonable men will be able to attain
worthy objectives.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I,, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the policies of the Act.
As all the unfair labor practices found stem from • the execution of the supple-
mental agreement of July 3, 1964, by and between Respondent and UPWA, I will
recommend that this agreement be cancelled and held for naught
It having been found that on July 29, 1964, and at all, times thereafter, Respondent
has refused to bargain collectively with District Local Union No. 431, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive
bargaining representative of Respondent's employees in the above-found appropriate
unit at its Columbus Junction plant in regard to source, methods, and procedures of
obtaining applicants for future employment at Columbus Junction, it will be recom-
mended that Respondent, upon request, bargain collectively with said Union in
regard to the aforementioned subject.
P In regard to this point, the UPWA brief states. "The UPWA concedes that the language
of this paragraph is quite unfortunately phrased." The understatement of this concession
would please an Englishman.
THE RATH PACKING COMPANY 133
CONCLUSIONS OF LAW >
1. District Local Union No. 431', Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, and Local 46, United Packinghouse, Food, and
Allied Workers, AFL-CIO, are labor organizations within the meaning of Section
2(5) of the Act.
2. All production and maintenance employees of Respondent at its Columbus
Junction plant, cooler employees, scalers, shipping and receiving employees, live-
stock handlers, and cleanup employees, excluding office clerical employees, guards,
supervisors, and professional employees as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
3. At all times since July 27, 1961, District Local Union No. 431, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, has been and
now is the exclusive representative of all the employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
4. By failing and refusing on, and at all times since, July 29, 1964, to bargain
collectively with District Local Union No. 431, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, as the exclusive representative of
the employees in the aforesaid unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. By negotiating and executing an agreement dated July 3, 1964,,with Local 46,
United Packinghouse, .Food and Allied Workers, AFL-CIO in.regaid to the source,
methods, and procedures whereby-Respondent would obtain and hire applicants for
future employment at its Columbus )unction plant, without notice to or, participation
by District Local Union No 431, Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) of the Act.
6. By executing the supplemental agreement of July 3, 1964, with UPWA, certain
terms of which illegally assisted UPWA and also discouraged membership-in Amal-
gamated, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) and (2) of the Act.
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 foregoing findings of fact and conclusions of law, and upon
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that Respondent, The Rath Packing Com-
pany, Waterloo and Columbus Junction, Iowa, its officers, agents, successors, and
assigns, shall-
1 Cease and desist from:
(a) Giving any force or effect to the terms of that supplemental agreement with
UPWA executed on July 3, 1964, insofar as they affect working conditions in the
appropriate unit at Respondent's plant in Columbus Junction, Iowa.
(b) Refusing to bargain collectively with respect to rates of pay, wages, hours of
employment, or other terms and conditions of employment, and in particular as to
the source, methods, and procedures for hiring applicants for future employment at
the Columbus Junction plant, with District Local Union No. 431, Amalgamated
Meat Cutters and Butcher Workmen,of North America, AFL-CIO, as the exclusive
representative of all its employees in the appropriate unit as found above at its
Columbus Junction, Iowa, plant.
(c) Giving illegal assistance to, or encouraging or discouraging membership and
activities in, any labor organization by discriminating in any manner in regard to
the hire and tenure of employment or of any term or condition of employment in the
above appropriate unit at its Columbus Junction plant.
(d) Interfering with, restraining, or coercing its employees in the exercise of
their right to self organization, to form labor organizations, to join or assist District
Local Union No. 431, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or 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 District Local Union No. 431, Amal-
gamated Meat Cutters'and Butcher Workmefrof North America, AFL-CIO; as the
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of the employees in the above -described appropriate unit at
Columbus Junction, Iowa, plant with respect to rates of pay, wages, hours of work,
and other terms and conditions of employment , and embody in a signed agreement
if any understanding is reached.
(b) Notify all interested parties that Respondent will give no force or effect to
the supplemental agreement signed July 3, 1964, with UPWA insofar as said agree-
ment affects job openings at its Columbus Junction , Iowa, plant.
(c) Post at its plant in Columbus Junction and in Waterloo , Iowa, copies of the
attached notice marked "Appendix A." 8 Copies of said notice, to be furnished by
the Regional Director for Region 38, shall, upon being duly signed by Respondent's
representatives , 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.
(d) Notify the Regional Director for Region 38, in writing, within 20 days from
the date of receipt of this Decision, what steps have been taken to comply with the
foregoing Recommended Order. I further recommend that unless, within 20 days
from the date of receipt of this Decision , Respondent has notified said Regional
Director that it will comply with the foregoing Recommended Order, the Board
issue an Order requiring Respondent to take the aforesaid action.9
8 If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted 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".
0 If this Recommended Order Is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 38, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
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, as amended, we hereby notify you that:
WE WILL, upon request, bargain collectively with respect to rates of pay,
wages, hours of employment , and other terms and conditions of employment,
and particularly in regard to the source , method, and procedure for hiring
applicants for future employment at our Columbus Junction plant , with District
Local Union No. 431, Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, as the exclusive representative of employees in the
appropriate unit at Columbus Junction plant described as follows:
All production and maintenance employees at our Columbus - Junction
plant , cooler employees , scalers, shipping and receiving employees , livestock
handlers, and cleanup employees , excluding office clerical employees, guards,
supervisors , and professional employees as defined in the Act.
WE WILL NOT encourage or discourage membership or activities of our employ-
ees in any labor organization by discriminating in regard to the hire , tenure
of employment , or any term or condition of employment at our Columbus
Junction plant.
WE WILL NOT interfere with , restrain or coerce our employees in the exercise
of their right to self-organization , to form labor organizations , to join or assist
District Local Union No. 431, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, or in any other labor organization, to bar-
gain collectively through representatives of their own choosing , and to engage
in any other concerted activities for the purposes of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities.
All our employees are free to become, remain , or to refrain from becoming or
remaining members in the above -named or in any other organization.
THE RATH PACKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
MID-STATE BEVERAGES INC. 135
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 , Fourth
Floor Citizens Building, 225 Main Street, Peoria, Illinois, Telephone No. 673-9283,
if they have any questions concerning this notice or compliance with its provisions.
Mid-State Beverages Inc. and Local Union 263, Beer Drivers,
Brewery, Soft Drink and Maintenance Workers, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, of America . Case No. 3-CA-2384. June 21, 1965
DECISION AND ORDER
On March 24,1965, Trial Examiner Owsley Vose issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members 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 Trial
Examiner's Decision, the exceptions thereto, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,- as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Mid-State Beverages Inc., Elmira,
New York, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified :
1. Substitute the following as paragraph 1(b) of the Trial Exam-
iner's Recommended Order:
"(b) Threatening to sell its business or to engage in other reprisals
because of the employees' affiliation with the Union, coercively polling
employees as to their union adherence, coercively questioning employ-
ees regarding union matters, offering benefits to employees to induce
them to renounce the Union, coercively enlisting employees' assistance
153 NLRB No. 14.