Tyson's Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1970

187 N.L.R.B. 525 (N.L.R.B. 1970)

TYSON'S FOODS, INC.
Tyson's Foods, Inc., and Food Handlers Local 425,
AFL-CIO, affiliated with Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO
Tyson's Poultry Company and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Cases 26-CA-2500 and 26-CA-2546
December 30, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 10, 1968, the National Labor
Relations Board issued its Decision and Order in the
above-entitled consolidated proceeding, finding that
Respondent had not engaged in and was not engaging
in unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended, and ordering that the complaint be
dismissed in its entirety.'
Thereafter, on October 17, 1969, the United States
Court of Appeals for the District of Columbia handed
down its opinion, in which it held that "at least some
of the evidence offered by the union was relevant to
the good faith of the employer's June 6 increase,"
including "the evidence offered by the union of the
course of the negotiations from the time the decertifi-
cation movement was initiated in May of 1966 to the
giving of further wage increases in September of that
year." Therefore, the court remanded the proceeding
to the Board for further consideration in the light of
this evidence.2
On November 25, 1969, the Board ordered that the
record be reopened for the purpose of permitting the
parties to adduce evidence and to litigate the issues
relevant to Respondent's good faith and motivation in
granting the June 6 increases or bearing on the general
bad faith of Respondent contingent on the General
Counsel's clarification of the complaint, and that the
Trial Examiner prepare a Supplemental Decision
based on the entire record, including the aforesaid
evidence.
Subsequently, on May 27, 1970, Trial Examiner
Owsley Vose issued his Supplemental Decision in the
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the Act and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Supplemental
Decision. He also found that Respondent had not
committed certain other unfair labor practices alleged
in the complaint. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
187 NLRB No. 69
525
filed cross-exceptions, a supporting brief, and an
answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Supplemental Decision, the exceptions,
cross-exceptions, briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions,3
and recommendations of the Trial Examiner, as
modified herein.4
The Charging Party seeks a compensatory remedy
requiring payment to employees for probable losses
resulting from the unlawful refusal to bargain. In Ex-
Cello-O Corporatton,5 the Board set forth fully its
reasons for concluding in that case that a reimburse-
ment remedy such as is sought in the instant
proceeding was not warranted. Accordingly, we shall
not order such a remedy herein, but shall adopt the
Remedy recommended by the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondents, Tyson's Foods, Inc., and its subsidiaries
Tyson's Poultry Company, and Arkansas Animal
Foods, Inc., Springdale, Arkansas, their officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.6
i 172 NLRB No 224
2 Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, and Food Handlers Local 425 [Tyson's Foods] v N LR B, 420
F 2d 148 (CADC)
3 We do not adopt the Trial Examiner 's conclusion that Respondent's
refusal to continue bargaining after July 13, 1966, because of the filing of
the decertification petition violated Sec 8(a)(5) Such matter was not
alleged in the complaint nor was it fully litigated
4 The Charging Party has excepted to certain credibility findings made
by the Trial Examiner It is the Board's established policy, however, not to
overrule a Trial Examiner 's resolutions with respect to credibility unless, as
is not the case here, the preponderance of all the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3)
5 185 NLRB No 20, Members McCulloch and Brown dissenting
6 In footnote 12 of the Trial Examiner's Decision substitute "20" for
"10" days
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case was heard by
me at Fayetteville, Arkansas, on February 18 and 19, 1970,
pursuant to an order of the Board dated November 25,
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1969, remanding the proceeding for further hearing. All
parties were represented by counsel and fully participated
in the hearing. At the opening of the hearing counsel for the
Union moved to receive in evidence certain testimony of
Jasper Rose which, after having been excluded by me at the
original hearing because of the objections of the General
Counsel and the Respondents, was permitted to be spread
of record as an offer of proof in question and answer form.
The Union's motion in this regard is granted and the
testimony of Jasper Rose which was allowed as an offer of
proof only is hereby received in evidence.i Briefs, duly filed
by all parties on or before April 27, 1970, have been fully
considered.
The Prior Proceedings
After a hearing before me on January 30 and 31, 1968, I
issued my decision on May 4, 1968, finding that Tyson's
Foods, Inc. and its subsidiaries, Tyson's Poultry, Inc. and
Arkansas Animal Foods, Inc. (herein referred to jointly as
the Company), were engaged in an integrated poultry
business, and that the Company's action on June 6, 1966,
"in instituting plant-wide increases to maintain previously
existing wage differentials was a deliberate effort . . . to
discredit the Union in the eyes of the employees and to give
encouragement and support to the movement to secure
revocation of the Union's bargaining authority " On
September 10, 1968, the Board issued its decision (172
NLRB No. 224) in which it disagreed with the conclusion
stated above, holding that the increase in the base rate was
motivated by a desire to halt the high turnover in its labor
force, that the issue of the plantwide increase (the increase
for employees receiving a premium above the base rates
paid male and female employees) had not been litigated in
the proceeding, and that in any event the increases for
employees receiving premium pay above the base rates
were given merely to maintain the existing pay differentials.
The Board accordingly concluded that the Company had
not violated Section 8(a)(5) and (1) of the Act and ordered
the complaint dismissed in its entirety
Thereafter the Union filed a petition to review the
Board 's Order dismissing the complaint in the United
States Court of Appeals for the District of Columbia. That
court on October 17, 1969, rendered its opinion remanding
the case to the Board for further consideration (420 F.2d
148) In its opinion the court stated in part as follows (420
F.2d, at 149-150):
. . . we think that at least some of the evidence
i Due to Rose's death in an auto accident in 1968, he was not available
for cross-examination However, in my opinion it is within my discretion to
receive Rose 's testimony The exclusion of Rose's testimony resulted not
from any fault on the part of the Union which offered it but rather was the
result of the objections of the General Counsel and the Respondents to its
admissibility See Inland Bonding Co v Mainland National Bank, 3 F R D
438 (D C NJ), 5 Wigmore, Evidence, 3rd Ed 1390, p 110, Waterman
Steamship Corp v Gay Cottons, 414 F 2d 724, 727-728 and fn 5 (C A 9)
2 The General Counsel in proceedings preliminary to the reopened
hearing and in a statement made at the outset of the reopened hearing
made clear his position that the complaint did not raise any issue as to the
Company's "general bad faith" in the negotiations
3 The Union takes the position that there is also in issue in this
proceeding the question whether the wage increases granted by the
Company to its employees in September 1966 and October 1967 without
consultation with the Union and during the pendency of a decertification
offered by the union was relevant to the good faith of
the employer's June 6 increase . Central to our concern
in this regard is the evidence offered by the union of the
course of negotiations from the time the decertification
movement was initiated in May of 1966 to the giving of
further wage increases in September of that year. We
think that the proof offered by the union in this regard
should have been admitted as relevant to the employer's
purposes in respect of the June 6 increase, wholly apart
from whether a general bad faith issue was regarded as
in the case
The Board's remand order of November 25, 1969,
followed. In it the Board, after citing the court's language
quoted above, directed the reopening of the record "for the
purpose of permitting the parties to adduce evidence and to
litigate the issues relevant to the Employer's good faith in
granting the June 6 increases or bearing on the general bad
faith of the Employer contingent on the General Counsel's
clarification of the complaint."2
Issues Involved
I Was the Company's course of conduct culminating in
the June 6, 1966, wage increase announcement motivated
by a desire to undermine the Union's representative status
and therefore violative of Section 8(a)(5) and (1) of the Act.
2. Was the Company's refusal, because of the filing of
the decertification petition, to reduce to writing and to sign
the agreement tentatively reached at the July 6 meeting
violative of Section 8(a)(5) and (1) of the Act.3
A. The Company's Conduct Culminating in its
Announcement of New Base Rates on June 6
I Events prior to June 6
a. The Company's failure to comply with the
Union's request for job and wage data
Although the Union and the Company adduced evidence
at the original hearing concerning the bargaining meetings
on April 26 and May 5, 16-17, and 27, 1966, at the second
hearing they sought to cover these bargaining meetings in
greater detail. For the most part, in my opinion, this
additional evidence does not cast significant light on the
Company's conduct here in question. Consequently, I will
not treat the evidence in detail, but will confine myself to
setting forth the salient facts adduced at both hearings
petition violated Section 8(a)(5) and (I) of the Act However, in view of the
fact that the Regional Director refused to issue a complaint based upon the
Amalgamated's charge specifically alleging the September 19, 1966, wage
increase as an unfair labor practice and that the General Counsel's office
on appeal did not reverse the Regional Director' s action in this regard, I
conclude that the issue of the September 1966 and October 1967 wage
increases is not properly before me I do consider the facts relating to these
wage increases in passing upon the issues stated above In any event, in
view of my conclusion herein that the Company's course of conduct
culminating in its June 6 wage increase announcement and its action in
breaking off the negotiations after the July 6 meeting because of the filing
of the decertification petition violated Section 8(a)(5) and (1) of the Act it
is of no great significance that I do not also consider whether the
Company's September 1966 and October 1967 wage increases constituted
additional independent violations of Section 8(a)(5) and (1) of the Act
TYSON'S FOODS, INC.
which I believe tend to illuminate the Company's motives
in engaging in the conduct which is in issue in this case.
One of the issues at the original hearing which was
further litigated at the second hearing was the question
whether the Company had complied with the Union's
request for wage and job classification information. As
found in my original decision, from the beginning of the
negotiations the Union had sought detailed information
concerning the pay scales and job classifications of the
Company's employees, and on April 6 had requested in
writing that the Company furnish it with (1) a list of
employees in the bargaining unit setting forth the grades
and job classification of each employee and (2) information
concerning "the elements, conditions, requirements, duties
and/or functions of employees for eachjob classification."
Apparently the Company's original response to this letter
dated April 16, 1966, went astray for it was never received
by the Union. Consequently, the Company, when it was
advised at the May 17, 1966, meeting that the Union had
not received its earlier letter, mailed to the Union two
copies of the material enclosed in its earlier letter. The
material consisted of a list of the employees with an
indication whether they were in grade 1, grade 2, grade 3 or
were probationary employees. No wage information was
included in the material sent and no explanation was given
as to the meaning of the terms grade 1, grade 2, and grade 3.
It now appears that the Company uses, or at that time
used, grade I to refer to female employees, grade 2 to refer
to male employees, and grade 3 to refer to employees in
premium pay jobs, of which there were six However, these
facts were not made known to the Union at the time this
information was sent to the Union and the union
representatives were unaware of it at that time
At the second hearing the Company offered into evidence
for the first time two additional documents containing wage
and classification information which it asserts were
received by the Union "prior to, or around the time of" the
Union's April 6, 1966, request. Regarding the first
document, Respondent's Exhibit 18, a list of 182 employees
in order of their seniority, giving their rate of pay, date of
hire, and job title as of March 3, 1966 (the date of hire of the
last two employees hired was March 3, 1966), Personnel
Manager Knight testified that he transmitted this informa-
tion to the Union. However, when asked when he submitted
this information to the Union, Knight answered, "I don't
recall ." After counsel directed Knight's attention to the
date of hire of the last man on the list, March 3, 1966,
Knight testified as follows:
Q. Can you tell us approximately when you
transmitted this to Mr. Parker and when, or how rather,
you did it?
A. Evidently it must have been transmitted to him
in March of 1966.
The second document, Respondent's Exhibit 19, consists
of a list of 47 job titles, giving a beef description of the job
duties, the number of such jobs at the plant, and the pay
scale for each job. The pay scales shown in the document
are those in effect prior to the institution of the $1.41 base
rate on June 6, 1966. It thus appears that this document was
prepared prior to June 6, 1966. At the time this document
was offered in evidence, I asked whether the Respondent
527
had established when this document was furnished to the
Union. Counsel for the Respondent replied that this would
be done later through other witnesses. I have been unable to
find any such testimony in the record.
In view of the Company's contention that these two
documents, Respondent's Exhibits 18 and 19, were
furnished to the Union at about the time of the Union's
April 6 request for job and wage data, and since the
information contained on these two documents appears
fully to comply with the Union's request for such data, it is
essential that I determine whether these documents were in
fact given to the Union as claimed . With respect to
Respondent's Exhibit 19, as indicated above, there is no
evidence that it was furnished to the Union at any time. In
view of this fact and the further facts and circumstances
discussed below, I conclude that Respondent's Exhibit 19,
although in existence prior to June 6, was not furnished to
the Union prior to that date.
Regarding Respondent's Exhibit 18, the only evidence
suggesting that this document was given to the Union is the
wholly conclusionary testimony of Personnel Manager
Knight, based upon the date the document was apparently
prepared, that "it must have been ... in March 1966."
That Knight's testimony is in error is indicated by the
following circumstances. In refusing to agree to the
Company's request at the May 16-17, 1966, bargaining
meeting that it be allowed to institute a $1.41 base rate
immediately, Union Secretary-Treasurer Parker explained,
among other things, that the Union had not been furnished
with the information which it had previously sought
concerning the duties and classifications of employees and
as to premium jobs. At the May 27, 1966, bargaining
meeting Parker again stated that he was not satisfied with
the employee data furnished by the Company by letter
dated May 17 (the grade 1, grade 2, grade 3 list). There is no
evidence of any communication sent by the Company to
the Union between the May 27 meeting and June 6, 1966,
when the Respondent announced the new $1.41 base rate.
Although the question of the Respondent's refusal to
furnish the requested job and wage data was much in issue
at the first hearing in January 1968, Respondent's Exhibits
18 and 19 were not offered in evidence at that time. Only at
the second hearing, almost 4 years after the event, at a time
when recollections were naturally dim, were these docu-
ments produced. Under all the circumstances I conclude
that these documents, which would have materially assisted
the Union in making more precise wage proposals, were not
furnished to the Union at any time prior to the Company's
institution of the $1.41 base rate on June 6, 1966.
b. The May 16-26 period
It will be recalled that the certification of the Union as
the bargaining representative of the Company's production
and maintenance employees was issued on May 14, 1965.
Consequently, the certification year expired on May 13,
1966. At the first bargaining meeting held after this date, on
May 16-17, 1966, the Company for the first time asserted
that it wanted to put into effect immediately its proposed
$1.41 base rate for all employees. Under the Company's
proposal, the base rate was applicable after the employees
had completed a 60-day probationary period. The Union
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused, giving the reasons stated in my original decision.
At this time Attorney James Gilker, the Company's
principal spokesman in the negotiations, threatened to post
a notice stating that the Union was refusing to allow the
Company to put into effect a 9-cent-per-hour increase for
the female employees and a 5-cent-per-hour increase for the
men.4
As indicated in my original decision, the Company on
May 17 sent the Union a letter in which it attributed the
employees' failure to receive a wage increase months earlier
to the Union's objections. The full text of the letter is as
follows:
At the conclusion of our negotiating session today,
when you indicated that it was apparent that we weren't
going to reach an agreement on a contract, I advised
you that Tyson Foods, Inc. and Arkansas Animal
Foods, Inc. felt that it was only fair and equitable to put
into effect this payroll week, the increase in the base
rate of pay which we have offered. As you know, this
would increase our base rate for all employees who have
completed their probationary period to $1.41 per hour.
Many months ago, the Company offered a lesser
increase which was rejected by your Union and, since
you indicated that you did not wish it placed in effect at
that time, and since bargaining was actively continuing
in an effort to reach an agreement, such an increase in
wages was not placed in effect. We feel that the increase
proposed is fair and equitable and that the employees
are deserving of it at this time. It is our hope that you
will take no action which might put in question the
Company's right to install this wage adjustment
immediately.
Please let me hear from you on this matter as soon as
possible.
In response to this letter, as found in my original decision,
the Union on May 19, 1966, wrote the Company requesting
that it defer putting the wage increase into effect pending
the outcome of a bargaining meeting scheduled for May 26,
1966, at Kansas City.
In a letter sent to the Union the next day, May 20,
Attorney Gilker replied as follows:
I have your letter of May 19, 1966, in which you
request that we not install the new base rate of $1.41 per
hour at this time.
We feel that your position is unreasonable and not in
keeping with your professed interest in the employees.
The Company feels quite strongly that our employees
are entitled to this increase at this time and cannot
understand your objections to installing the increase
immediately.
For your further information, we do not at this time
have any meeting scheduled with your Union for May
26, 1966. Anyone who gave you this information has
done so erroneously
I found in my original decision that about this time the
Company posted on its bulletin board the letter of May 17,
4 This is the testimony of Jasper Rose, an International Vice President
of the Union. Rose was in error as to the 5-cent-per-hour increase for the
men, as the Company's proposal contemplated raising the men from $1 37
to $1 41 per hour , a 4-cent increase
5 The Company president, Don Tyson, testified that one of the main
reasons he attended the April 26, 1966, meeting in Chicago without his
first above quoted. The Union contends in its brief that it is
not clear in the record which of the two letters, the letter
dated May 17 or the letter dated May 20, was posted by the
Company. While the matter is not free of all doubt, in my
opinion the evidence is sufficient to justify my original
finding and I adhere to it. In any event it is immaterial
whether the Company posted the first or the second letter in
view of the fact that the record clearly shows that one letter
or the other was posted before Employee Douthit
commenced circulating the Union renunciation petition
discussed below and the further fact that the Company
blamed the Union for the failure of the employees to
receive a wage increase in both letters.
A few days after the posting of the letter employees Edith
Douthit, Barbara Sparks, and two other female employees
commenced soliciting signatures on the Union renunciation
petition, which was the forerunner of the decertification
petition later filed by Douthit. As Duce Smith credibly
testified, Sparks "said she wanted us to sign this petition to
bring the Union, vote it in or vote it out so we could get a
raise." The great bulk of the signatures were obtained on
May 25 and 26. Personnel Manager Knight was informed
that a petition "to get rid of the Union" was being
circulated among the employees at least by the time the
circulation of the petition was completed on May 30, 1966.
c. The May 27 meeting
One aspect of the May 27 meeting merits discussion for
the light which it throws on the Company's motives in
dealing with the Union during this period. It relates to the
parties' wage proposals at this meeting and the economic
factors affecting the Company's position.
At this time the Company was experiencing a very high
rate turnover among its employees. In the 6-month period
prior to June 6, 120 employees out of a workforce of 190 to
200 quit the Company's employ, without notice. During all
of 1966 the Company hired, or at least issued W-2 forms to,
675 employees in order to maintain a workforce of about
200 employees.5
Throughout the negotiations the Company's base rate for
female employees had been $1.32 per hour and for male
employees, $1.37 per hour. Except for six premiumjobs the
Company paid no wages in excess of the base rate. At the
May 27 meeting the Company renewed the offers which it
had made at the April 26 and May 5 and 16-17 meetings of
a base rate of $1.41 per hour, to be increased as follows: to
$1.44 on February 1, 1967, to $1.52 on August 1, 1967, to
$1.63 on February 1, 1968, and to $1.67 on August 1, 1968.
During this May 27 meeting the Company's general
manager in charge of processing informed President Tyson
that he had heard that Ralston Purina, one of the
Company's competitors in Springdale, was "going $1.60
nationwide, June 1 " Tyson passed a note to this effect to
attorney, who was unable to be present, was to attempt to do something
about the high rate of turnover of employees which was giving him
difficulty in keeping the plant staffed A higher base rate to be applicable
after the employee's first 60 days of employment was essential , according
to Tyson
TYSON'S FOODS, INC
Attorney Gilker who was the Company's principal
spokesman at this meeting.6
During lunch that day the parties reconsidered their
positions. After lunch Company adhered to its previously
stated position, offering a $1.41 base rate immediately with
periodic increases as stated above. The Union countered
with a proposal for a $1.44 base rate immediately, to remain
the same on February 1, 1967 (the Company had proposed
$1.44 on February 1, 1967), to be increased to $1.52 in
August 1967 (the same as the Company's proposal), and to
be increased to $1.68 per hour in August 1968 (1 cent more
per hour than the Company's proposal). Although the only
difference of any substance between the two proposals on
May 27 was 3 cents per hour for the 8-month period
between June 1 and February 1, 1967, the parties failed to
reach agreement on this subject. The Company again asked
for the Union's agreement on putting its proposed $1 41
base rate into effect immediately. The Union refused to
agree, pointing out, as found above, that other matters
relating to the employees' pay were still to be resolved and
that the information furnished by the Company with its
May 17 letter (the grade 1, grade 2, grade 3 list) was
inadequate.
2. Events on June 6 and thereafter
a. The announcement of the increase in the starting
and base rates
For the convenience of all concerned I am again setting
forth the text of the notice issued by the Company on June
6, after the Company received the consent of International
Vice President Rose.
Effective Monday, June 6, 1966, the following base
rate will be in effect-
Starting rate . . . .... . . . $1.35 per hour
After 30 working days ....... $1.41 per hour
All present premium rates will be increased to maintain
their present differential above base rate.
Many other increases and improvements in company
benefits have been proposed to the Union and would
have been already placed into effect except for their
delays and stalling tactics.
Tyson's, in line with our past policies, will always be
the poultry plant with the greatest take-home pay,
steadiest work and best job security.
You will be pleased to see further announcements
which will be made as soon as possible.
b The July 6 meeting
This meeting was held at Kansas City. Although Local
425 Secretary-Treasurer Parker was present at this meeting
6 At the second trial the Company introduced into evidence copies of
supplemental agreements between the Union and both Wilson & Co, Inc,
and Ralston Purina Company, in which, effective as of June 6 and May 30,
1966, respectively, the parties agreed to a $1 60 base rate This was an
increase in the base rate at the Wilson plant of 18 cents to 20 cents per
hour
7 The Local Union was the certified bargaining agent Since the
Company did not raise any objection to continuing the negotiations with
the International and since the question of the authority of the
International to take over the negotiations from the Local Union was not
litigated in this proceeding, I am assuming, as apparently all the parties to
529
as an observer, he had previously relinquished responsibili-
ty for the conduct of the negotiations to the International.
International Vice Presidents Jasper Rose and Steven
Coyle represented the International at this meeting. Rose
was the International's spokesman. It was explained to the
Company at the outset that any contract negotiated would
be with the International and that the Local Union would
not be a signatory to the contract.7 Rose further stated that
he had been instructed by International President Lloyd to
make every effort that day to reach an agreement and to
terminate the strike which had been in progress since
August 1965.
Rose and Gilker, the Company spokesman, each
proceeded separately to list in two columns the various
provisions in the Union's proposed contract that the parties
were agreed upon and those which had not been agreed
upon. Then a discussion of the unresolved provisions
followed. Both parties made concessions and a number of
the open questions were resolved. After a recess the
discussion of the open issues resumed , and most of these
were resolved. Among these were the provisions dealing
with subcontracting and supervisors working, which had
been the subject of considerable disagreement. After the
recess the Union accepted the Company suggestion that its
proposals regarding these subjects would be embodied in a
"side letter" which would be signed by both parties, and
would not be included in the contract itself. At this point
Rose said, according to Parker's credited testimony, "give
us a checkoff and you've got a contract."
The Company requested a recess. Upon returning from
the recess Tyson stated that he personally was no longer
opposed to a checkoff, but in view of the fact that he had
previously taken the position with others in management
and with his father, the majority stockholder in the
Company, that he would never agree to a checkoff, he
wanted an opportunity to gain their acquiescence in a
checkoff provision before he committed himself finally.
Tyson indicated at the same time that since the parties had
reached an understanding that the Company "could live
with" he would have no difficulty in bringing the others
around to his point of view regarding a checkoff.8
The parties agreed that Gilker would commence drafting
an agreement embodying the understandings reached at the
meeting on the following day, Thursday, July 7, would
discuss it with Parker on Friday, July 8, before putting it
into final form, and would mail it to Rose for signature on
Friday night.
The Union then brought up the question of reinstating
the strikers. The Company agreed to reinstate any
remaining strikers who still desired reinstatement , dating
their service back to their date of original hire. Their
the proceeding do, that the takeover of the negotiations by the
International does not raise any question in this case
s I base this latter finding on the fact, discussed below , that the parties
agreed at this meeting that Gilker should immediately start drafting a
contract setting forth the understandings reached At the time the
agreement was reached the checkoff provision was pivotal as far as the
Union was concerned, without it the parties had no agreement I find it
difficult to believe that the Company would have had Gilker spend time
drafting the contract if there was any possibility of a disagreement over a
checkoff rendering his work fruitless
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement was to take effect when the contract was
signed.
The July 6 meeting ended with the parties congratulating
themselves on having reached an agreement.
On the following day, July 7, Gilker encountered
difficulty in articulating some of the understandings
reached and tried to reach Parker by telephone. When
Parker finally called Gilker back, he was in Little Rock, and
said he would try to stop by Gilker's office on the following
day on his way back from Little Rock. However, Parker did
not visit Gilker's office that Friday or at any other time
regarding this matter.9
Gilker did not finish his drafting of the contract by
Friday night, July 8, and consequently did not mail it to
Rose. When Rose failed to receive the contract on Monday,
July 11, as planned, he first called Parker and then called
Gilker. Gilker told Rose that he had been busy, that there
were matters about which he wanted to consult Tyson, and
that he would complete the contract that day and send it on
to Rose.
On Tuesday, July 12, Gilker was advised by a representa-
tive of the Board's Memphis Regional Office, in the course
of a conversation about another case, that a decertification
petition covering the Company's employees had been filed
in the Regional Office.
Rose finally reached Gilker by telephone, after several
unsuccessful attempts, on July 13. When he did so, Gilker
apologized for not completing the contract, but at the same
time informed Rose of the filing of the decertification
petition. In a telephone call on the following day, Gilker
told Rose that the filing of the decertification petition
raised a question concerning representation and precluded
the Company from taking any further action with respect to
the contract. In support of this position, Gilker cited to
Rose the Appalachian Shale case (121 NLRB 1160), a
contract-bar decision. Gilker did not, so far as the record
shows, mention the Union's majority status during this
conversation.
c. The reinstatement of strikers
As found above, at the July 6 meeting, the Company
agreed to reinstate the strikers as soon as the contract was
signed. No contract having been signed by July 15, the
Union on that date sent the Company a telegram in which it
made an unconditional offer to return to work on behalf of
10 named employees.
Four of these 10 employees-Lorena Perryman, Rose
Carender, Betty Lansdowne, and Robert Bowers-were
reinstated by the Company later in July. The three female
employees were given more arduous or more unpleasant
operations on the chicken lines than they had previously
had. Bowers was given night shift work as a maintenance
man rather than the day shift work he had previously
performed. The jobs these four employees had previously
9 The above findings are based on Gilker's credited testimony
According to Parker's testimony he toed to reach Gilker two or three times
by telephone on Friday, July 8, but did not succeed in reaching him
Gilker's version appears to be more in accord with the logic of the
situation Gilker, all parties agree , was instructed to draft the contract
Having difficulties doing so, he sought Parker's help Parker was wholly
opposed to entering into this contract in his words, the understanding
occupied were all filled at the time of their reinstatement.
Carender testified that when she was reinstated she was told
by a company official that she would be put on her old job,
pinning, when an opening became available. Despite the
fact that pinning jobs thereafter became available,
Carender was not transferred to such jobs.
The Union contends that the assignment of reinstated
strikers to more arduous tasks shows that it was attempting
to demonstrate the futility of supporting the Union and
urges that the Company's conduct in this regard further
evidences the Company's intention to undermine the
Union. The only evidence of any discriminatory treatment,
where the employee's old jobs were available, is that
relating to Carender. This evidence, in my opinion, is not
sufficient to warrant the inference which the Union seeks to
have me draw.
d The Company's September 1966 and October
1967 wage increase
On September 12, the Company increased its base rate
from $1.41 per hour for regular employees with less than 1
year of service to $1.46 per hour, and to $1.51 per hour for
those employees with more than 1 year of service.
Previously the Company had not had any difference in
wage rates based on length of service.
On October 16, 1967, the Company increased the hourly
rate of all employees 7 cents per hour and put into effect an
additional night premium of 5 cents per hour at this time.
Both the September 1966 and October 1967 wage
increases were granted without notice to or bargaining with
the Union.
B. Summary; Conclusions
1. The June 6 announcement concerning the new
base rate
Although, as found in my original decision, International
Vice President Rose had consented over the telephone to
the Company's putting into effect the new $1.41 base rate
on June 6, I conclude that the Company announced its new
base rate on June 6 in the manner in which it did as but
another step in a deliberate plan to discredit the Union and
undermine its support among the employees.
The adoption of this strategy was foreshadowed by
Gilker's threat at the May 16-17 meeting to post a notice
blaming the Union for the failure of the employees to
receive a substantial wage increase. The first overt move to
effectuate this strategy was the posting of the Company's
May 17 letter to the Union attributing the employees'
failure to receive increases in wages and other benefits to
the objections of the Union. The action of Douthit and
Sparks and the others commencing on May 25 in seeking
signatures on the union renunciation petition was the
predictable response to the Company's posting of its May
between the parties "stunk " in these circumstances, it is reasonable to
infer that he would not put himself out to help the Company's attorney
draft a contract setting forth such an understanding I conclude that in the
more than 3-1/2 years which elapsed between the incident and the second
trial of the case Parker 's memory failed him As indicated above, Gilker's
version is credited
TYSON'S FOODS, INC. 531
17 letter. Despite the fact that Rose had agreed to the
institution of the $1.41 base rate on June 6, the Company in
making its announcement of the new base rate did not
inform the employees of this fact, but instead utilized the
occasion of the announcement to accuse the Union of
blocking other increases in wages and improvements in
company benefits. There was no occasion for such a slur
upon the Union. The negotiations were still in progress The
Union had been seeking in good faith throughout the
negotiations to find a satisfactory basis for agreement
regarding wages and other benefits. On the other hand, the
Company had been stalling for months with regard to
furnishing the Union with the wage and job data to which
the Union was entitled, and had acted in bad faith in
withholding from the Union wage and job data which the
Company already had in its possession, Respondent's
Exhibits 18 and 19.
The negotiations continued and the parties reached a
tentative agreement on July 6. Gilker commenced writing
up the contract containing the oral understanding the next
day. Before completing this task, however, Gilker was
informed that a decertification petition had been filed in
the Board's Memphis Regional Office. Gilker then raised
the decertification petition as a bar to completing the
negotiations . As found below, the Company was not legally
justified in taking this position in the circumstances of this
case . The Company's action in seizing upon the filing of the
decertification petition as an excuse for breaking off the
negotiations-without legal justification therefor-further
evidences, in my opinion, that the Company's earlier
actions had been part of a scheme to get rid of the Union as
the bargaining agent of its employees.
Then the Company in September, without consultation
with the Union, put into effect a new schedule of wage
rates. At all levels, these rates were higher than those which
the Company had offered to the Union and, in the case of
employees having more than a year's service with the
Company, the rates were substantially higher.
The Company contends that this wage increase was
necessary in order to meet the competition of its
competitors which had put into effect both a spring and a
summer increase . However, this contention, in my opinion,
is not credible in view of the fact that even after hearing at
the May 27 meeting that Ralston-Purina intended to put a
$1.60 base rate into effect on June 1 the Company could not
be moved to increase its $1.41 base rate proposal to the
$1.44 level which the Union was seeking. And, as late as
July 6, after operating for a month in competition with the
$1.60 base rates paid by Ralston-Purina and Wilson, the
Company still held out for a $1.41 base rate, to be raised to
$1.44 on February 1, 1967. See General Electric Co, 163
NLRB 198, 211, enfd. in pertinent part 400 F.2d 713, 719
(C.A. 5). The Company's disparate action regarding
wages-its insistence upon a low base rate in its dealings
with the Union and its more generous action when, in its
view, the Union was out of the picture-I believe, tends to
confirm the conclusion that the Company's earlier actions
were motivated by a desire to discredit the Union in the
eyes of the employees.
To recapitulate, I conclude that the Company by the
course of conduct culminating in its June 6 announcement
of a new base rate was motivated by a desire to undermine
the Union and to spur the efforts of the circulators of the
antiunion petition into taking further action to get rid of the
Union. By engaging in such conduct the Company has
violated its duty to bargain collectively with the Union in
good faith and has interfered with, restrained and coerced
its employees in the exercise of their statutory rights, in
violation of Section 8(a)(5) and (1) of the Act.
2. The refusal to continue bargaining after July
13 because of the filing of the decertification
petition
The Union contends that the Company further violated
Section 8(a)(5) and (1) of the Act when, because of the
filing of the decertification petition, it refused to complete
the drafting of the agreement embodying the understand-
ings reached at the July 6 meeting and to sign such
agreement.
While I am convinced that both parties believed that they
had reached a complete understanding at the July 6
meeting, in my opinion the parties had not reached such an
agreement as would warrant a finding that a refusal to sign
by either party, standing alone, would constitute a refusal
to bargain. Cf. Bradenton Coca-Cola Bottling Co, 162
NLRB 38, 45. In the first place, the Company had reserved
for itself a technical loophole by refusing finally to agree to
a checkoff until discussions had been had with others in
management. Secondly, in a number of instances the oral
understandings reached represented compromises between
the opposing positions of the parties, compromises which
would be difficult to articulate to the satisfaction of both
parties, and in this kind of a situation , in my opinion, the
parties must have contemplated further discussion and
consideration of the draft prepared by the Company,
before the draft contract could be deemed ready for
signing. Consequently I conclude that the failure of the
Company to sign a contract embodying the understandings
reached at the July 6 meeting standing alone, cannot be
regarded as an unfair labor practice.
However, I am persuaded that Gilker's refusal to
continue the negotiations because of the filing of the
decertification petition was not justified, particularly in
view of the Company's unfair labor practices discussed in
part I hereof. As in Bradenton Coca-Cola Bottling Co., 162
NLRB 38, 39 fn. 1, enfd. 402 F.2d 84 (C.A. 5), such unfair
labor practices "may well have precipitated the filing of
that [decertification] petition."
The authorities do not support the Company's contention
that the filing of the decertification petition justified it in
discontinuing the negotiations. Even in the absence of
earlier unfair labor practices an employer is required to
continue bargaining with the certified bargaining agent of
his employees, absent a good-faith doubt of the agent's
representative status, even if a decertification petition has
been filed. Boren Clay Products Company v. N.L.R.B., 419
F.2d 385, 386 (C.A. 4); Bradenton Coca-Cola Bottling Co.,
162 NLRB 38, 46-47, enfd. 402 F.2d 84 (C.A. 5); Universal
Gear Service Corporation, 157 NLRB 1169, enfd. 394 F.2d
396 (C.A. 6); Montgomery Ward & Co, 162 NLRB 294,
enfd. 399 F.2d 409 (C.A. 7). No claim is made herein that
any such assertion of good-faith doubt of the Union's
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority status was made in this case . Hence, the Company
was not warranted in abandoning the negotiations as it did,
and its conduct violated Section 8(a)(5) and (1) of the Act.
Cf. N. L. R. B. v. Frick Co., 423 F.2d 1327 (CA. 3). The
Appalachian Shale case (121 NLRB 1160), relied on by
Gilker in his conversation with Rose , deals, among other
things , with the question whether understandings reached,
but not reduced to writing and signed before a representa-
tion petition is filed , are available as a bar to the petition.
Such a decision has no application to a bargaining situation
like the one involved in this case.
CONCLUSIONS OF LAW
1. Tyson's Poultry, Inc., and Arkansas Animal Foods,
Inc., are subsidiaries of Tyson's Foods, Inc., and are
engaged in an integrated poultry business.
2. Tyson's Poultry, Inc., and Arkansas Animal Foods,
Inc., administer a common labor policy.
3. All production and maintenance employees of
Tyson's Poultry, Inc., and Arkansas Animal Foods, Inc.,
employed at the adjoining plants at Springdale, Arkansas,
excluding office clerical employees, professional employ-
ees, truckdrivers, salesmen, buyers, routemen, guards and
supervisors 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.
4. At all times since May 14, 1965, Food Handlers
Local 425, affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, has been
the exclusive certified bargaining representative of the
employees in the appropriate bargaining unit stated above.
5. By their course of conduct culminating in the posting
of their announcement of a new base rate of pay for all
employees on June 6, 1966, and by their action in breaking
off the negotiations with the Union on July 13, 1966,
because of the filing of the decertification petition, Tyson's
Foods, Inc., and its subsidiaries, Tyson's Poultry, Inc., and
Arkansas Animal Foods, Inc., have refused to bargain
collectively in good faith with the Union and have
interfered with, restrained, and coerced their employees in
the exercise of their Section 7 rights, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company violated Section 8(a)(5)
and (1) of the Act by its conduct during the negotiations
with the Union, my recommended Order will direct that the
Company cease and desist from such conduct and from like
and related forms of interference, restraint, and coercion.
Affirmatively, my recommended Order will provide that
the Company, upon request, bargain collectively with the
Union as the exclusive representative of all employees in
the aforesaid appropriate bargaining unit. In view of my
10 In the event no exceptions are filed to this Recommended Order as
provided in Section 102 46 of the Rules and Regulations of the National
Labor Relations Board, the findings, conclusions and Recommended
Order herein shall, as provided in Section 10(c) of the Act and to Section
finding that at the time the negotiations were broken off in
July by the Company the parties had not reached the stage
where only the signing of the contract remained, it is
inappropriate to grant the Union's request that the
Company be ordered to sign a written contract embodying
the understandings reached on July 6.
The Union, relying on International Union of Electrical,
etc., Workers v. N. L. R. B.; N. L. R. B. v. Tiidee Products, Inc.,
426 F.2d 1243 (C.A. D.C.) and two Trial Examiner's
decisions which are pending before the Board, Zinke's
Foods, Inc., TXD-662-66 and Ex-Cell-O Corp.,
TXD-80-67, requests that the Company be ordered to
make its employees whole for any loss or damage they may
have suffered as a result of the Company's refusal to
bargain. As my decision in the Ex-Cell-O case indicates, I
am in sympathy with the argument that the Board's
conventional remedial orders are inadequate in refusal to
bargain cases and am of the view that the formulation of
some form of monetary remedy in such cases, if a practical
one can be devised, is a desirable goal. However, the Board
has thus far failed to approve the kind of remedy sought by
the Union in this case, although the question has been
pending before the Board for several years. In these
circumstances it may be appropriate for Trial Examiners to
adhere to the conventional remedy in refusal to bargain
cases until the Board has clarified the situation. The
Union's request for a make-whole order for the employees
to remedy the refusal to bargain is therefore denied.
The Union also seeks a remedial provision which will
reimburse it for attorney's fees for litigating this case
through the General Counsel, the Board and the court and
for the damages suffered as a result of the loss of union
dues, fees, and income. As far as damages are concerned,
again I hesitate to pioneer in this area until the Board has
spoken in the Zinke case. The Union's request for
attorney's fees, has some appeal and I would not rule out in
an appropriate case considering the propriety of such a
remedial provision. However, in view of the fact that the
Union's expenses for attorney' s fees were caused by the
actions of the General Counsel, the Trial Examiner and the
Board, I doubt that it would be equitable to saddle the
Company with all such expenses. The Union's request for
attorney's fees and damages is denied.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER10
The Respondent, Tyson 's Foods, Inc., and its subsidiar-
ies, Tyson 's Poultry, Inc., and Arkansas Animal Foods,
Inc., their officers , agents, successors, and assigns, shall:
I Cease and desist from:
(a) Posting notices or announcements to employees
tending to discredit Food Handlers Local 425, affiliated
with Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO.
(b) Refusing to bargain collectively in good faith with
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
TYSON'S FOODS, INC.
Food Handlers Local 425, affiliated with Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, as the exclusive representative of all employees
in the appropriate unit stated above.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which it is
found 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 employees in the appropriate unit
stated below with respect to wages, hours, and other terms
and conditions of employment, and if an understanding is
reached, embody such understanding in a signed agree-
ment:
All production and maintenance employees of Tyson's
Poultry, Inc., and Arkansas Animal Foods, Inc.,
employed at the adjoining plants at Springdale,
Arkansas, excluding office clerical employees, profes-
sional employees, truckdrivers, salesmen, buyers, route-
men, guards and supervisors as defined in the Act.
(b) Post at their places of business in Springdale,
Arkansas, copies of the attached notice marked
"Appendix." Copies of said notice, on forms provided by
the Regional Director for Region 26, after being duly
signed by Tyson's Foods, Inc., Tyson's Poultry, Inc., and
Arkansas Animal Foods, Inc., shall be posted immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted at the Springdale plant. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material. i i
(c) Notify said Regional Director for Region 26, in
writing, within 20 days from the date of this Decision, what
steps they have taken to comply herewith.12
11 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
12 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of the Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
533
WE WILL NOT seek to discredit Food Handlers Local
425, affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, the
certified bargaining agent of our employees, in notices
or announcements to our employees.
WE WILL NOT refuse to bargain collectively in good
faith with Food Handlers Local 425, affiliated with
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive representa-
tive of the employees in the unit stated below:
All production and maintenance employees of
Tyson's Poultry, Inc., and Arkansas Animal
Foods, Inc., employed at the adjoining plants at
Springdale, Arkansas, excluding office clerical
employees, professional employees, truckdrivers,
salesmen , buyers, routemen, guards, and supervi-
sors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL upon request bargain collectively in good
faith with the Union as the exclusive bargaining
representative of the employees in the appropriate unit,
and if an understanding is reached WE WILL sign a
contract with the Union.
Dated By
TYSON'S FOODS, INC.,
TYSON'S POULTRY INC.,
AND ARKANSAS ANIMAL
FOODS, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 746
Federal Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.