Vernon Calhoun Packing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1968

173 N.L.R.B. 753 (N.L.R.B. 1968)

VERNON CALHOUN PACKING CO., INC
Vernon Calhoun Packing Company, Inc. and Allied
Food Workers , District Union No. 103, Amalga-
mated Meat Cutters and Butcher Workmen of
North America , AFL-CIO
Vernon Calhoun Packing Company , Inc. and Trans-
Continent Packing Company and Allied Food
Workers, District Union No . 103, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Cases 16-CA-2970 and
16-CA-3160
November 12, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On July 16, 1968, Trial Examiner Herbert Silber-
man issued his Decision in the above-entitled consol-
idated proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision
He also found that the Respondents had not engaged
in certain other unfair labor practices alleged in the
consolidated complaint and recommended that such
allegations be dismissed. Thereafter, the Respondents
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
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 these cases to a three-
member panel.
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, brief, and the
entire record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of 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 Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondents, Vernon Calhoun Pack-
ing Company, Inc., and Trans-Continent Packing
Company, Palestine, Texas, their officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
i The Trial Examiner found that Respondent Packing Company
"refused to discuss the adjustments in wage rates which it was planning
753
to make in order to comply with the Fair Labor Standards Act " We do
not interpret this as a finding that Respondent violated Section 8(a)(5)
by refusing to discuss application of the Fair Labor Standards Act
Rather, we find, in agreement with the Trial Examiner , that Respondent
refused to discuss the economic package , and wages in particular,
including any increase or planned increase which would maintain a
spread or differential in rates on or after February 1, 1967 , the time the
minimum wage was increased according to law
In addition , the Respondent excepted to the Trial Examiner's
computation of General Durham's working hours as reflected in
footnote 29 of the Trial Examiner's Decision However , even if we
accept Respondent 's computations (which in all respects do not
conform to our own ) as correct , it would not affect our agreement with
the Trial Examiner that the payroll records tend to support his ultimate
conclusions
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner Upon a charge
filed on April 20, 1967, by the above-named Union, a
complaint and a superseding amended complaint, respectively
dated June 22, 1967, and July 18, 1967, were issued in Case
16-CA-2970. The amended complaint alleges that the
Respondent, Vernon Calhoun Packing Company, Inc., herein-
after sometimes referred to as Packing Company, has engaged
in and is engaging in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Said amended
complaint, as further amended at the hearing, in substance,
alleges that (a) Packing Company on February 15, 1967,
discharged Sherman Nixon because he joined or assisted the
Union or engaged in other concerted activities protected by
the Act, (b) following an election held on October 20, 1966,
the National Labor Relations Board on November 29, 1966,
certified the Union as the collective-bargaining representative
of all production and maintenance employees at the plant of
Packing Company, and commencing on or about November
30, 1966, Packing Company has refused to bargain collectively
with the Union because (1) it engaged in negotiations with no
intention of reaching an agreement, (2) it bargained directly
and individually with employees in the unit, (3) it solicited
employees engaged in a strike to return to work and to
abandon the Union thereby undermining the Umon,1 and (4)
it has refused to permit the Union to make a job study, (c)
employees engaged in a strike against Packing Company during
the period from April 17 to July 6, 1967, which strike was
caused and prolonged by Packing Company's unfair labor
practices,2 and (d) since August 1, 1967, Packing Company
unlawfully has refused to reinstate General Durham, one of the
striking employees, to his former job. Packing Company's
answer generally denies that it has engaged in the alleged unfair
labor practices
1 In his brief General Counsel does not refer to Packing Company's
alleged direct bargaining with employees or to Packing Company's
alleged solicitation of strikers to return to work as among the issues
"presented by the facts " The only evidence offered in support of these
allegations was the testimony of A. D . Smith. Smith's testimony was
self-contradictory, confused , and unconvincing and was disputed by the
testimony of Leonard Scroggins I do not credit A D Smith and I find
these allegations of the complaint were not proved
2 No specific evidence was offered in support of this allegation
General Counsel appears to have abandoned the contention that the
strike was an unfair labor practice strike because in his brief it is not
included among the "issues presented by the facts "
173 NLRB No. 112
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hearing in Case 16-CA-2970, which began on August
23, 1967, was held on said date, on August 24 and also on
December 6, 1967, when a further adjournment was ordered.
Before the date on which the hearing resumed, upon a charge
and an amended charge filed by the Union on November 17,
1967, and January 15, 1968, respectively, a complaint, dated
January 31, 1968, was issued in Case 16-CA-3160 alleging
that the Respondents therein named, Vernon Calhoun Packing
Company, Inc. and Trans-Continent Packing Company (herein-
after sometimes referred to as Trans-Continent), have engaged
in and are engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), (4), and (5) and Section 2(6)
and (7) of the National Labor Relations Act, as amended. In
substance, said complaint alleges that Respondents constitute a
single-integrated enterprise, that about November 1, 1967,
Respondents refused to recall to work John D Gaston, who
had been laid off by Packing Company on July 27, 1967,
because Gaston was named in charges filed under the Act by
the Union against Packing Company on October 18, 1967, and
because Gaston gave testimony in a Board proceeding on
October 26, 1967, and that Respondents since October 20,
1967, have refused to bargain collectively with the Union in
that they engaged in negotiations with no intention of reaching
an agreement and about October 20, 1967, unilaterally
changed rates of pay and job descriptions of their employees in
the unit represented by the Union.3 Respondents in their
separate answers to the complaint generally deny the allega-
tions of the complaint and specifically aver that the allegations
in the complaint in Case 16-CA-3160 relating to the alleged
refusals to bargain should be dismissed because the charges,
upon which the complaint is founded do not assert any
violation of Section 8(a)(5) of the Act.
A motion, dated February 5, 1968, was filed with me by
counsel for the General Counsel requesting that Case 16-CA-
3160 be consolidated with Case 16-CA-2970 for hearing and
all other purposes. The hearing in Case 16-CA-2970 was
resumed and the hearing in Case 16-CA-3160 was begun
before me on February 13, 1968. The motion to consolidate
the two cases was granted and the hearing in the consolidated
cases was held on February 13 and 14, 1968.
At the opening of the hearing on February 13, 1968,
Respondents moved to dismiss certain allegations of the
complaint in Case 16-CA-3160 which set forth facts purpor-
ting to constitute violations of Section 8(a)(5) of the Act on
the ground that such allegations are not based upon any charge
filed against Respondents in the case. Decision on said motion
was reserved at the hearing. For the reasons stated below the
motion is granted.
The charges filed in Case 16-CA-3160 allege violations of
Section 8(a)(1), (3), and (4) of the Act. The charges state as
their basis that Respondents refused to recall John D. Gaston
to work because of his membership in and his activities on
behalf of the Union and because he filed charges and gave
testimony in another proceeding against Packing Company,
Case 16-CA-3130, and that by such conduct and "by other
acts and conduct" Respondents have interfered with, re-
strained, and coerced their employees in the exercise of the
rights guaranteed in Section 7 of the Act. These charges make
no reference to any violation of Section 8(a)(5) of the Act.
A charge is not a pleading but "merely sets in motion the
machinery of an inquiry ."4 Thus, in framing a complaint
General Counsel is not limited to the precise matters set forth
in the charge However, General Counsel does not have a
license to disregard the charges and allege in a complaint any
violation of the Act that his investigation may uncover
"[T] he courts in sustaining the General Counsel's power to
extend his complaint beyond the allegations of the charge have
insisted that the new violations be `closely related to the
violations named in the charge.' "5 The charges filed in Case
16-CA-3160 do not in any manner accuse Respondents of a
refusal to bargain Neither the specific averments concerning
the purported discrimination against Gaston nor the "catch-
all" paragraph have a sufficiently clear connection with the
refusal-to-bargain allegations in the complaint to meet and to
satisfy the requirement of a relationship between the contents
of the charge and the allegations of the complaint based
thereon. Accordingly, I grant Respondents' motion and strike
paragraphs numbered 11, 12, 13, 14, 15, and 17 from the
complaint in Case 16-CA-3160. This ruling does not serve as
a limitation upon the issues in these consolidated cases During
the hearing I ruled that certain alleged conduct on the part of
Packing Company and Trans-Continent, which occurred after
the filing of the charge and the issuance of the complaints in
Case 16-CA-2970, was within the scope of the issues framed
by the pleadings in said case I further observed that if it is
proved-and I find for the reasons stated below that it has been
proved-that Trans-Continent together with Packing Company
constitute a single employer then any remedial order which
may issue in said case could be made applicable to Trans-
Continent as well as to Packing Company.6 Accordingly, while
I grant Respondents' motion to strike certain allegations from
the complaint in Case 16-CA-3160, the matters sought to be
raised thereby were litigated fully at the hearing, are within the
ambit of the pleadings in Case 16-CA-2970, and are properly
before me for decision.
Subsequent to the hearing, General Counsel and Respond-
ents filed briefs which have been carefully considered.
Upon the entire record in the cases, and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESSES OF RESPONDENTS,
THE SINGLE EMPLOYER ISSUE
Vernon Calhoun Packing Company, Inc , a Texas corpora-
tion, is engaged in slaughtering mature cows and bulls and
processing meat and other animal products in its plant located
in Palestine, Texas. In the course of its business operations, the
annual purchases and receipts by Packing Company of goods
and materials from sources outside the State of Texas is in
excess of $50,000. I find that Packing Company is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
General Counsel does not contend that the operations of
Trans-Continent Packing Company, which is also a Texas
corporation, considered alone meet the Board's jurisdictional
standards but asserts that the Board will exercise jurisdiction
3 The Complaint in Case 16-CA-3160 repeats the matters set forth 4 N L R B v. Indiana & Michigan Electric Company, 318 U S 9, 18
in the amended complaint in Case 16-CA-2970 relating to the status 5 Champion Pneumatic Machinery Co., 152 NLRB 300, 303.
of the Union as the collective - bargaining representative of the unit of 6 See United Mineral & Chemical Corporation, 155 NLRB 1390,
production and maintenance employees here involved 1401, affd in this respect 391 F 2d 829, 67LRRM 2343, 2344 (C A. 2).
VERNON CALHOUN PACKING CO., INC.
over Trans-Continent because Trans-Continent and Packing
Company together constitute a single-integrated enterprise.
Packing Company, which has been in existence for a
substantial period of time, is a family owed and managed
business. Vernon Calhoun and his wife, Sue Calhoun, own 75
percent of the outstanding shares of capital stock of Packing
Company and the remaining 25 percent of said shares are
owned by their son, Mike Calhoun. The same three share-
holders are the directors of the Company and also are its
officers. Vernon Calhoun is president of the Company, Mike
Calhoun is vice president and Sue Calhoun is secretary-
treasurer. Packing Company employs from 170 to 200 persons.
Tians-Continent, which employs about 17 persons, is a
much smaller enterprise It began its business operations about
October 31, 1967, and is engaged in slaughtering horses and
mules. Trans-Continent does not process the by-products of
the animals it kills and to the extent that there is such
processing it is done by Packing Company. All the outstanding
shares of capital stock of Trans-Continent are owned by Mike
Calhoun The directors of the corporation are Mike Calhoun,
his wife, Tony Calhoun, and Danny Hughes. The officers of
Trans-Continent are Mike Calhoun-president, Tony Cal-
houn-vice president, and Danny Hughes-secretary-treasurer.
Danny Hughes, who does not appear to have any family
relationship with the Calhouns, is employed as bookkeeper and
accountant for Packing Company. He performs similar work
for Trans-Continent after his normal working hours.
The plants of both corporations are located within the same
triangular parcel of property the longest side of which is
approximately one-fourth mile. The property and all the
structures erected on it are owned or leased by Packing
Company." The largest structure on the grounds is occupied
by the plant of the Packing Company. Behind this building is
an office structure. There are three additional buildings on the
grounds including a canning plant and the premises occupied
by Trans-Continent. One end of a pen for the confinement of
animals abuts the plant of Packing Company and the opposite
side of the pen reaches to the plant of Trans-Continent.
Parking lots are provided on the grounds for the use of
employees. All the buildings on the grounds, including
Trans-Continent's plant, obtain steam from a central source
and are connected to a common sewerage disposal system.
Trans-Continent and Packing Company share common
administrative offices. Vernon Calhoun and Mike Calhoun have
separate desks in one large room which is also occupied by
Danny Hughes and the cattle buyer. In addition, each of the
Calhouns has a small individual private office in the same
building. A central switchboard operated by an employee of
Packing Company serves both corporations. Both firms use the
same post office box. All mail, including mail addressed to
Trans- Continent, is first delivered to Vernon Calhoun who
after sorting the letters gives Mike Calhoun his mail. Danny
Hughes in doing work for Trans-Continent uses bookkeeping
machines and other office equipment which belongs to Packing
Company.
There is substantial use of common facilities and services by
both companies in the performance of their normal production
work. Both companies obtain the animals which they slaughter
from the same source which is V.C. Cattle Company, a
corporation that has the same officers, directors, and share-
7 A portion of the property is owned by Vernon Calhoun
individually and is leased from him by Packing Company.
755
holders as Packing Company. V.C. Cattle Company obtains
cattle exclusively for Packing Company and Trans-Continent.
The animals which are slaughtered by both Companies are
customarily delivered to the pens after working hours. Packing
Company operates a guard house and employs two individuals
as night receivers who accept cattle and horses for both
Packing Company and Trans-Continent, oversee the unloading
of the animals, and the herding of the animals into the various
pens. These employees also function as watchmen. The horse
meat which is packaged at Trans-Continent's plant is trans-
ported to and stored in the cooler of Packing Company by
employees of Packing Company, and is later shipped for
Trans-Continent by employees of Packing Company. Animals,
whether cattle or horses, which die in the pens or otherwise are
unfit for slaughter into edible products are processed in a dead
room by employees of Packing Company. Trans-Continent
does not have any separate dead room. Employees of Packing
Company pick up hides and offal at the plant of Trans-
Continent and remove them to the plant of Packing Company
where these products are processed. Employees of both
companies use common showers and use common parking lots.
Trans-Continent is to a very large degree financially
dependent upon Packing Company. The capitalization of
Trans-Continent is $2,000. The business in which it is engaged
is a cash business. Horses and mules are purchased for cash.
However, Trans-Continent which purchases about $7,500
worth of horses each week is extended credit by V C. Cattle
Company although that company is required to pay within 2
days for the animals which it obtains. The plant occupied by
Trans-Continent was recently constructed by Packing Compa-
ny and Packing Company has provided the equipment neces-
sary for Trans-Continent's operations at a cost to Packing
Company from $10,000 to $15,000. The plant and equipment
are rented from Packing Company pursuant to an alleged lease
agreement.8 Mike Calhoun testified that the lease was pro-
bably for a term of 20 years, although he was not certain of
the fact, and that no security of any kind was given by
Trans-Continent to the lessor guaranteeing performance of the
agreement by the leasee. A lease under such terms probably
would not be available to a business concern with Trans-
Continent's small capitalization if it were truly independent of
Packing Company and of the latter's principal owners, Vernon
and Sue Calhoun.
Mike Calhoun testified that he alone determines the terms
and conditions of employment for the employees of Trans-
Continent while Vernon Calhoun makes such decisions for
Packing Company. However, Mike Calhoun participates on
behalf of management in labor relations matters for Packing
Company This is evidenced by the fact that he, and not his
father, attended the collective-bargaining negotiations between
Packing Company and the Union. A further connection
between the Companies in their employment practices is
reflected by the fact that many persons hired to work for
Trans-Continent had previously been employed by Packing
Company. In addition, Trans-Continent regularly offers
employees of Packing Company temporary work either when
Packing Company has no work for such employees or after
such employees have finished their normal working day at
Packing Company. It is common for supervisors of Trans-
Continent to go to the plant of Packing Company, and with
8 Respondents did not offer in evidence a copy of the lease
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the approval and cooperation of supervisors of said plant,
approach employees working for Packing Company and
inquire whether they wish to do temporary extra work for
Trans-Continent.
The uncontroverted evidence demonstrates that Trans-
Continent has no independent viability separate and apart
from Packing Company. Trans-Continent is dependent upon
Packing Company for its plant, equipment, and much of its
services. Equally important Trans-Continent is dependent upon
Packing Company for financial support in the form of credit
for the purchase of horses and mules and credit for the rental
of the premises occupied by it. In addition, the ammals used
by the companies are obtained through a common source and
are penned in a common enclosure. The meat packed by each
firm is stored in a common cooler and is shipped to
Respondents' respective customers by the same employees
who work for Packing Company. Also, the by-products of
Trans-Continent's slaughtering activities such as hides and offal
are handled by Packing Company and its employees. Thus,
except for the slaughtering of the cattle and horses in separate
buildings, the operations of the two Companies are effectively
one. Not without significance in explaining the situation is the
fact that the regulations of the United States Department of
Agriculture require that the slaughter of horses and the
preparation and handling of the meat and the meat food
products obtained from horses shall be conducted in establish-
ments separate and apart from any establishment m which
cattle are slaughtered. Furthermore, there are significant
interrelationships between the employees of the two compa-
nies. Trans-Continent has obtained many of its regular employ-
ees from Packing Company and also uses other employees of
Packing Company on a part-time basis. The employees of both
Companies share some common facilities such as showers and
parking lots. Mike Calhoun, who testified that he is responsible
for the labor and employment policies of Trans-Continent
participated in the collective-bargaining negotiations for Pack-
ing Company. Although Packing Company and Trans-
Continent are separately incorporated,' I find, in agreement
with General Counsel, that the relationship between Packing
Company and Trans-Continent is such that they function to a
substantial degree as a single enterprise and therefore consti-
tute a single employer under the Act.' 0
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal to Bargain
1. The designation of the Union
as bargaining representative
Pursuant to a representation petition filed by the Union in
accordance with Section 9 of the Act, an election was
9 See N L R. B v Deena Artware , Inc, 361 U S. 398, 403, where the
court observed in connection with a "single enterprise " contention
"The several companies may be represented as one Apart from that is
the question whether in fact the economic enterprise is one, the
corporate forms being largely paper arrangements that do not reflect the
business realities One company may in fact be operated as a division of
another, one may be only a shell , inadequately financed , the affairs of
conducted by the Board in Case 16-RC-4391 on October 20,
1966, in a voting unit composed of all production and
maintenance employees at Packing Company's Palestine,
Texas, plant, excluding office clerical employees, guards,
watchmen and supervisors as defined by the Act. The Union
won the election by a vote of 90 to 49."
During the campaign period which preceded the election
Packing Company distributed literature to its employees which
reflect its unequivocal opposition to the organization of its
employees Portions of such circulars can be construed as
hinting or suggesting to the employees that the Company was
determined that no benefits will accrue to them should the
Union be successful in the election Thus, one circular, in part,
states.
UNION PROMISES VS. FACTS
THE LAW DOES NOT PREVENT A UNION FROM MAKING
PROMISES IT CANNOT KEEP'
UNIONS MAY PROMISE.
HIGHER WAGES PAID VACATIONS
GUARANTEED WORKWEEK JOB SECURITY
PAID HOLIDAYS SENIORITY
THESE ARE THE FACTS
UNIONS CANNOT GUARANTEE TO KEEP ONE SINGLE PROMISE!
Increases in wages and benefits are determined by
Business Economics NOT by a Union.
Job Security and Seniority under Union contracts
require that employees possess ability and qualifications to
keep their jobs or get promotion to better lobs
A Union CANNOT protect an employee who does not
do his job.
Another circular which is headed "Facts You Should Know,"
in part, states-
7 WE BELIEVE THAT A UNION AT THIS PLANT COULD
NOT BENEFIT ANY EMPLOYEE.
8. WE BELIEVE THAT A UNION AT THIS PLANT COULD
HURT OUR EMPLOYEES
It is your decision. Make your own decision. Make your
decision based on facts, not promises.
The facts are that Unions have helped employees of
other companies in other places It is a fact that a Union did
not help employees of this company when the Union won
the last election
If you believe that a Union can help you and if you are
wilting to be loyal to the Union, then vote for it
BUT
If you believe that facts are facts and that prorruses are
just words , then you should VOTE NO
the group may be so intermingled that no distinct corporate lines are
maintained These are some, though by no means all, of the relevant
considerations , as the authorities recognize."
10 Cowles Communications, Inc, 170 NLRB No. 177, Welcome-
American Fertilizer Co, 169 NLRB No 104, Springfield Electrotype
Service, Inc , 166 NLRB No 43, Overton Markets, Inc, 142 NLRB 615
11 There were 145 eligible voters and 13 challenged ballots.
VERNON CALHOUN PACKING CO., INC.
YOU must decide whether a Union can help you or hurt
you
VOTE NO!
Following the election, Packing Company filed objections
which were overruled and on November 29, 1966, the Union
was certified as the exclusive collective-bargaining representa-
tive for said unit of employees.
2. The bargaining sessions
At the request of the Union, representatives of Packing
Company and the Union entered upon negotiations. In all, five
meetings were held on November 4 and 16, December 12, or
13, 1966, and on January 10 and 17, 1967, but no agreement
was reached General Counsel contends that Packing Company
approached negotiations with the Union in bad faith in that
while it sought to create the impression that it was bargaining
with the Union, in fact, it had no intention of arriving at an
agreement Pointing to statements made by Packing Company
in its preelection campaign propaganda, General Counsel
further argues, in effect, that the Company's purpose was to
undermine the Union and to disparage the Union in the eyes of
the employees by demonstrating to the employees that the
Umon was unable to secure any meaningful benefits for them
or effectively represent them in any dealings with their
employer.
The principal spokesmen for the respective parties at the
negotiations were A D. Downer, secretary-treasurer and busi-
ness manager of the Union, and Franklin R Sears, attorney for
Packing Company' 2 In lieu of oral testimony describing what
transpired at the bargaining sessions two affidavits, one quite
lengthy, executed by Downer and an extensive narrative
summary of each meeting dictated by Sears, was received in
evidence There is little direct conflict between Sears' and
Downer's versions of what transpired at the meetings. But, as
would be expected, there are substantial differences in
emphasis, particularly as reflected by the omissions from the
respective versions. My conclusions regarding what transpired
at the bargaining sessions and with respect to the other
transactions between the parties and as to the presence or
absence of good faith on the part of the Respondents and the
Union in their dealings with each other are based upon my
study of the documentary evidence in this case and the oral
testimony adduced at the hearing, including my evaluation of
the credibility of the witnesses and of their testimony. My
findings set forth herein reflect my resolution of the conflicts
and inconsistencies in the evidence I have omitted from the
summary of events certain evidence, which although not
irrelevant, I do not consider necessary to the explication of my
decision. The fact that I have not in this Decision summarized
such evidence does not mean that I have overlooked, or have
failed to give consideration or "weight" to such evidence To
set forth in detail all the testimony that was adduced at the
hearing and to include an analysis in detail of each document
received in evidence would unduly encumber this Decision
without, in my opinion, providing sufficient compensating
benefits to the parties in understanding the principal factual
and legal bases for my conclusions.
12 Vernon Calhoun attended none of the bargaining sessions
However, Mike Calhoun was present at all the meetings
757
The first meeting was held on November 4, 1966, while
Packing Company's objections to the election were still
pending. Downer presented a written proposal consisting of
three introductory paragraphs and 28 numbered articles. The
proposal was modeled upon other union agreements with
employers in the meat packing industry in the State of Texas.
Sears was generally familiar with the terms of the proposal
because he represents employers in the industry and has
negotiated collective-bargaining agreements on their behalf
with the Umon.
At the suggestion of Sears discussion of the economic
provisions of the Union's proposal was deferred. Downer
pointed out that the Union's proposal contained no formal
wage demand or schedule. He explained that the reason for
this omission was that Packing Company had installed new
equipment on the kill floor and in the boning room with which
he and other union officials were not familiar. Because of this
Downer requested permission for the Union's timestudy
engineer, John Powderly, to inspect the Company's operations
and to make a study of the jobs Downer proposed sometime
between December 1 and 10 for this task Sears stated that he
would have to speak to Vernon Calhoun about the matter, but
that the time suggested was not representative. Downer
requested permission to inspect the plant himself but this was
not agreed to. Downer also asked for a list of the employees in
the bargaining unit, their job classifications, their current
wages, and a description of their work. Sears agreed to furnish
such information
During the meeting the parties agreed upon several clauses
contained in the Union's proposal. The agreed-upon provisions
were mostly of a formal nature There was some discussion of
other noneconomic clauses, but there was almost no discussion
of any subject involving, whether directly or indirectly, cost
items.
The second bargaining session was held on November 16,
1966. Prior to the meeting Downer mailed to Sears copies of
certain contracts which the Union had entered into with other
employers and Sears mailed to Downer a list containing the
names of Packing Company's employees by departments, their
job classifications, and their respective hourly wage rates.
However, for employees who were paid on a piece-rate basis
the list merely indicated that fact without describing the piece
rates. Downer advised Sears that he considered the list which
had been furnished to him inadequate because there was no
description of the piece rates or of the jobs performed by the
employees. Sears promised to send to Downer an explanation
of the Company's piece rates. The Union renewed its request
for permission to make a job study in the plant. The
Company's response was negative and two reasons for its
position were advanced: namely, that the Company did not
believe December was representative of its production and,
second, that the Company did not believe it was necessary for
the Union to make a job study unless some question arose
concerning a particular job or jobs. Downer took issue with
this second point contending that the Union could not bargain
intelligently without observing the jobs being performed in the
plant. Downer suggested that, if the Company would not
permit an inspection to be made by the Union's timestudy
engineer, Downer himself should be allowed to go into the
plant and observe its operation. Downer stated he did not
believe that the Union could submit any wage proposals unless
it first had an opportunity to study the jobs. Sears responded
that he had discussed this question with Vernon Calhoun. He
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised Downer that he did not believe a job study was
necessary, and that the Union's committee, which was com-
posed of representatives of the various plant departments,
could tell Downer all he wanted to know about the plant
Downer insisted that he would not withdraw his demand for
permission to make a timestudy.l 3
The parties reviewed the Union's proposal Agreement was
reached on various sections. However, none of the matters
agreed to involved any direct improvement in the conditions of
employment of the employees represented by the Union.
Nor was there agreement on any proposal which would permit
the Union effectively to intercede with Packing Company on
behalf of the employees it represented Thus, while there was
discussion about a grievance procedure and the Company did
not reject a grievance procedure it did not come to any
agreement on the matter with the Union at this meeting
Furthermore, the Company's position was that it did not
desire an arbitration clause. The Company objected to any
agency shop clause and also objected to any voluntary
dues-deduction clause. In the latter respect the Company's
reasons for its opposition were that it did not want to know
which of its employees were supporting the Union and it did
not desire to perform administrative work for the Union. The
Company offered to permit the Union to set up a table in the
plant on paydays and collect dues from the employees as they
13 In connection with this discussion Downer accused Sears of not
bargaining in good faith and said that he was considering filing charges
with the Board Similar statements and threats were made by Downer
several times during the various meetings
14 The Union' s proposal is in evidence as Joint Exhibit 1. With
reference to the various articles and the introductory paragraphs of this
exhibit the following took place at the November 16 meeting
Parties to the agreement Accepted
Intent and Purpose Accepted
Maintenance of Standards Accepted
Article 1 Recognition and Bargaining Rights With minor
modifications accepted
Article 2 Authorized Dues Deductions Discussion deferred at
suggestion of Sears.
Article 3 Agency Shop. Union suggested a modification but the
Company rejected the suggestion
Article 4 Hours of Work Of the 20 sections in this article
agreement was reached as to the following
Sec 2 Certain premium payments for abnormal hours of
work
Sec 7 Split shifts . (According to Sears agreement was
reached at the second meeting, while according to Downer
agreement was reached at the third meeting
Sec 8 Definition of the workweek
Sec 9 Employees to be paid for attendance at compulsory
meetings called by Company
Sec 10 Two 15-minute rest periods This represented current
Company practice
Sec 11 Equitable distribution of overtime
Sec 17. Specific pay period weekly and employees to be
furnished a descriptive receipt for earnings
Sec. 19 Posting of work schedule
Sec 20 Overtime shall be voluntary (The specific agreement
between the parties as to this section and several other sections in
Article 4 was reached only after modification of the terms set
forth in the Union's proposal )
Article 5 . Wages Of the six sections in this Article agreement was
reached as to Section 4 only which provides that employees
performing work of a higher classification shall receive the rate for
such classification.
Article 6 Discharge and Suspension The Company indicated as
to Section 1 that it would accept a provision similar to the one
which appears in a contract between other employers and the Union
which was ieferred to from time to time in the record as the Texas
were leaving the plant. Downer explained that such method
was impractical. Sears agreed to article 23 of the Union's
proposal which provided that a committee composed of union
and company representatives should be established as a health
and safety committee However, Sears insisted that the
following sentence be eliminated. "The purpose of this
committee shall be to set up reasonable safety rules, weight
limitations , sanitation requirements , ventilation requirements,
etc " In effect the Company was agreeing to the establishment
of a committee but was insisting that the committee have no
function. Nevertheless the Union agreed to the modification,
proposed by the Company.
With only minor exceptions there was no discussion of any
economic items. Sears advised the Union that the Company
did not feel that it could add to its costs. He said if the
Company decided that it could afford to increase its operating
costs it would inform the Union of the amount and it would
permit the Union to apply such increase to whatever items the
Union wished. Sears did not leave open for discussion the
circumstances under which the Company might decide to
increase its operating costs 14
The third bargaining session was held either on December
12 or 13, 1966. Sears provided the piece rates which had been
omitted from the schedule previously given to the Union The
Union's proposal was again reviewed in its entirety and the
Meat contract The Company voiced a couple of objections to
Section 2 and the Union agreed to submit a substitute proposal.
Article 7 Holidays No agreement
Article 8 Union visitation Sears suggested using language similar
to the corresponding provision in the Texas Meat contiact
Article 9 Leave of Absence Generally agreed to with modifica-
tions
Article 10 Vacations No agreement.
Article 11. Health and Welfare No agreement (The Company
had in effect a health and welfare plan to which it made no
contribution According to Downer, he advised the Company that
the Union can substitute a plan which would be no more expensive
and would offer greater benefits, but the Company would not agree
to accept the proposed substitution According to Sears , the Union
at first proposed a contributory plan and Downer never successfully
demonstrated that the Union's plan was superior to the Company's
plan As no evidence was offered comparing the benefits of the two
plans there is no basis on the record before me to determine whether
the Union was in a position to offer a better olan for the same
premium contribution )
Article 12 Jury Duty No agreement
Article 13. Funeral Leave No agreement
Article 14 Cooperation. The Union agreed to strike all sections
of this Article except the last sentence . The Company rejected even
that portion of the Article
Article 16 Laundry, Uniforms and Tools No agreement.
Article 17 Change of Ownership No agreement.
Article 18 Severance Pay No agreement
Article 19 Pensions Union agreed to withdraw this provison
Article 20 Non-discrimination and Intimidation No agreement
Sears stated he would make a counterproposal
Article 21. Sick Pay No agreement
Article 22 Examinations No agreement
Article 23 Health & Safety Committee No agreement (Subse-
quently agreement was reached after elimination of language giving
the committee authority to establish safety and health rules )
Article 24 Seniority No agreement Sears stated he would make
a counterproposal
Article 25 Grievance procedure . No agreement
Article 26 Arbitration No agreement.
Article 27 Miscellaneous Provisions Agreement with modifica-
tions.
Article 28 Term of Contract. No agreement.
VERNON CALHOUN PACKING CO., INC.
agreements reached at the prior meeting were reaffirmed. At
this meeting Packing Company made some counterproposals
and agreement was reached as to some 15 The Union again
requested permission to conduct a job study Downer stated
that he could not offer any wage proposals until the study was
completed, and that in order for the Union to bargain
intelligently about wages it would be necessary to evaluate the
jobs. Downer also called attention to the fact that employees
in the same job classification were being paid varying rates
with differences as much as 40 cents per hour. Sears still
declined to approve such study, among other things, stating
that the plant might not be open during the first 10 days of
January when the Union's timestudy engineer had said he
again would be available.
Downer called attention to the fact that while agreement
had been reached on quite a few noneconomic subjects no
agreements had been reached on economic items Sears stated
that the Company was making a study of the effect the
increase in minimum wages required by the Wage-Hour Law
would have upon the Company's operations He advised that
he would submit an economic package to the Union for
consideration which would reflect Packing Company's obliga-
tions under the Fair Labor Standards Act. (On February 1,
1967, the applicable minimum wage was increased from $1 25
per hour to $1.40 per hour.) Sears emphasized that the
proposal would contain no provision guaranteeing any employ-
ees a minimum number of hours of work per week Beyond
this they would not discuss economic terms. The promised
wage proposal was never made to the Union
During the meeting Sears asked the union representatives if
a provision for checkoff of dues was deemed by the Union as
an absolute must. He received an affirmative reply There was
again discussion about the Company's willingness to provide
the Union with a table to collect dues and the Union's
explanation of the practical difficulties such procedure
presented. Sears explained that the Company's objection to
checkoff stemmed from the fact that it was not interested in
knowing who contributed support to the Union and it saw no
reason why it should perform any administrative duties for the
Union.16
Following the meeting, on December 21, 1966, Sears wrote
a letter to Downer which, in pertinent part, is as follows.
Since our last meeting on December 13, 1966, in
Palestine, Texas, I have had the opportunity to discuss our
negotiations with my client I advised Mr. Calhoun that
both you and Mr. Sam Twedell emphatically stated that the
Union would not enter into any collective bargaining
15 The actions taken with respect to the Company's counterpro-
posals were as follows
Article 4, Section 3 Oral counterproposal by Company-No
agreement
Article 4, Section 4 Oral counterproposal by Company-No
agreement
Article 6 Company submitted written counterproposal-Union
requested time to study Company's counterproposal
Article 8 Union visitation Company submitted written counter-
proposal-Union accepted Company's proposal
Article 15 Management Rights Company's written proposal
accepted.
Article 17 Change of Ownership. Company submitted written
counterproposal as to section 1 Agreement on this section was
reached . There was no agreement as to section 2
Article 20. No Discrimination Company presented written
counterproposal Agreement reached.
759
agreement unless we agree to a provision in a contract
providing for the deduction of dues from the wages of our
employees I further advised Mr. Calhoun that you had
specifically rejected our proposal which would permit the
Union, through a designated representative, to collect dues
on Company time and property. It is our position that we
do not feel obligated to perform an administrative function
for the benefit of the Union and we do not desire to know
the identity of our employees who are members of and/or
are supporting your labor organization. Your adamant
position in respect to insistence upon inclusion of a
check-off clause in whatever agreement may be reached
between the parties frustrates the purpose of collective
bargaining. Therefore, we believe that it would be fruitless
to continue negotiations under the conditions which you
impose upon final execution of an agreement.
Downer replied to Sears' letter on January 3, as follows-
I acknowledge receipt of your letter of December 21, 1966
which was written following our last negotiation session of
December 12, 1966.
My immediate reaction is "Let's not try to kid one
another," especially the National Labor Relations Board.
You have done a masterful job in lifting words out of
context and twisting the meanings of expressions in
addition to making outright untruthful statements
It is obvious that you are attempting to protect yourself
from what obviously will be charges before the National
Labor Relations Board by writing such a letter.
Neither Mr. Sam Twedell nor I stated that we would not
enter into a collective bargaining agreement unless the
Company agreed to a provision providing for deduction of
dues from the wages of the Company's employees. You are
attempting, with this statement, to twist our words You
also state that we had specifically rejected your proposal to
allow a Union Representative to collect dues on Company
time and property We did not say this but merely stated to
you that we had attempted to use this system in the past
and that it has proven through our experience to be
impracticable for the Company and the Union because of
the necessity of carrying such large sums of cash in order to
cash the employees' payroll checks
You further assert that we have taken an adamant position
in respect to insistence of the inclusion of a check-off clause
in the contract This is completely untrue We have
requested that you bargain on all of the elements of Union
Security. The only adamant position taken by anyone m
these negotiations have been those adamant positions taken
Article 22 Physical Examinations Modification suggested by
Company accepted by the Union
Article 24. Seniority This proposal contains nine sections Union
agreed to accept Section 2. Downer pointed out that the Company's
proposal was, in part, unreasonable because, under the proposal,
qualification to perform work is an ingredient in the determination
of layoff, reemployment , promotion and transfer and the employer
reserved to itself the exclusive right to determine an employee's
ability to perform work Furthermore , because there is no adequate
grievance procedure , in effect , the operation of the seniority system
would be within the sole control of the Company Downer further
pointed out that with respect to Section 3, which provides for a
6-month probationary period, the length of such probationary
period is unduly long
16 The Company withholds from employees ' wages contributions to
the Company 's health and welfare plan and also amounts necessary to
effect repayment of loans made to employees.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by you and the Company. At each session you have
completely refused to discuss any proposals which were
economic in nature and which would result in increased
cost to the employer. You, however, did agree at the
meeting of December 13, 1966, to submit to the Union a
written wage proposal before Christmas. Then, instead of
following your pledge and submitting a wage proposal, we
received your letter which is being answered here The
conclusions that must be drawn from these tactics is that
you tend to bait the negotiating committee of the Union
with wage offers on one hand while you use the other hand
to compose and write down the fantasies [sic] of your
mind in hopes that you can convince the National Labor
Relations Board that you have bargained in good faith
The Union has imposed no conditions upon the final
execution of an agreement which would render negotiations
fruitless. We demand that the Company and the Union
resume negotiations immediately and, more especially, that
upon receipt of this letter, you contact me stating that we
will still have our previously agreed to negotiating session
on Monday, January 9, 1967, at the Union Hall, 408 West
Oak Street, Palestine, Texas.
The next day Sears responded by letter which, in pertinent
part, is as follows
I completely disagree with your comments and charac-
terizations in respect to my letter of December 21, 1966. I
will accept your letter as a statement of the Union's
position in respect to dues deductions and disregard my
understanding of comments made by you and Mr. Twedell
in our last meeting. Therefore, I will consider it to be your
present position that dues deductions remain as a bargarn-
able issue and that you are not insisting upon our agreement
to your proposal on this subject as a condition precedent to
executing whatever agreement we may reach on other
subjects of bargaining.
Further, you may recall that on December 13th, 1966, I
advised you that the Company was undertaking a review of
its wage structure and that I believed that it would be com-
pleted sometime the following week and upon completion I
would submit it to you as our proposal even though you
had not submitted any proposal whatsoever concerning
wages to the Company. This is to advise you that the Com-
pany has reviewed its wage structure and we do not
consider it to be a necessity to change wage rates of em-
ployees except in such instances which may be required by
the Fair Labor Standards Act on February 1, 1967.
If it is your desire to meet and negotiate for the purpose
of reaching an agreement I suggest that we agree to meet
immediately following the conclusion of the unfair labor
17 The Union proposed certain fringe benefits and across-the-board
increases of 20 cents per hour effective by February i, 1967, an
additional 7 cents per hour on October 1, 1967, and further increases of
13 cents per hour on February 1, 1968, and of 5 cents per hour on
February 1, 1969. It is to be noted that, pursuant to the 1966
amendments of the Fair Labor Standards Act, on February 1, 1967, the
minimum wage rate required by law was increased from $1.25 per hour
to $ 1 40 per hour and effective February 1, 1968 , the minimum wage
under the Act increased to $ 1.60 per hour
As of November 1966, according to a list submitted by the
Company to the Union , the wages being paid by Packing Company to
its employees in the unit represented by the Union were as follows
Wage Rate No. of Employees at said Wage Rate
$ 1.25 41
$1 30 10
practice trial which is set for January 10, 1967. If a fantasy
exists in anyone's mind, let it be resolved by face to face
confrontation in everyone's presence. I hope that you will
keep in mind that as a bargaining representative of our
employees it is your duty to negotiate and not your prerog-
ative to dictate to the employer as to terms and conditions
of employment,
A fourth meeting was held on January 10, 1967 At this
meeting the Union proposed an economic package.' 7 Sears
stated he would submit the proposal to Vernon Calhoun, but if
pressed for an immediate answer it would be no Sears advised
that in his opinion the Union's proposal was exorbitant
Downer argued that most of the increase was required under
the Wage-Hour Law Sears denied this.
The fifth and final meeting between Packing Company and
the Union was held on January 17, 1967. Sears advised that
the Union's wage proposal had been reviewed and Packing
Company was of the opinion that it would add approximately
$383,599.99 to its labor costs Downer disagreed but asked
Sears if there was any economic item to which he would agree.
Sears said none at the present time. Sears requested a period of
30 days following February 1, 1967, when adjustments in
minimum wage rates would be required under the Fair Labor
Standards Act, during which the Company would be able to
review its operations and the effect of the wage rate changes
on its operations Sears stated that increases above the
minimum required under the Wage-Hour Law would be given
to some employees in order to maintain to some extent the
existing spread in rates and the Company wished to concen-
trate on this problem area first. Downer asked whether there
were any fringe benefits upon which agreement could be
reached Sears replied that he considered fringe benefits
secondary cost items and that wage rates was the primary cost
item which should be handled first The Company insisted
upon an opportunity to check its experience under the higher
minimum rates before the Company would consider secondary
cost items. Downer asked if the Company would enter into a
contract limited to the noneconomic subjects upon which
tentative agreement already had been reached plus only one
(any one selected by the Company) economic item, such as a
single paid holiday After being pressed for an answer Sears
replied that Company would not agree to anything which
would result in any increase in its costs He said that the
Company would be willing to talk about economic items
subsequent to March 1, 1967, after the Company will have had
an opportunity to determine the effect of the increases
required by the Wage-Hour Law upon its overall costs
Downer requested a meeting in February Sears replied that
there was no reason to meet in February since they were not
basically apart on noneconomic items, but on economic items
$1 35 *28
$1 40 15
$1 45 1
$1 50 26
$1 55
$1.60 9
$1.65 3
$1 70 3
$1 75 4
$1.85 1
$2 00 4
$2 50 4
Piece Work
*(including 2 night receivers)
22
VERNON CALHOUN PACKING CO., INC.
the Company desired 30 days' operating experience under the
higher minimum wage rates to "determine our views "
On March 3, Sears wrote to Downer advising that he had
appeared for a meeting on March 1, but the Union's
representatives were not present. Downer replied on March
17,18 explaining that he did not understand any meeting had
been arranged for March 1 Then on March 29, Sears wrote the
following letter to Downer
I was unable to reach Mr. Calhoun until late yesterday
afternoon. I advised him of your telephone call and your
request to meet this week. Mr. Calhoun advised me that
current business conditions do not justify any change in our
position on economic items at this time.
In view of these circumstances, it does not seem to be
realistic to schedule a meeting this week. It is my
understanding that you will not be available next week and
I have been informed by Mr Calhoun that he will not be
available until after the 21st of April Please advise me as to
your thinking in regard to this matter.
It does not appear that there were any further communica-
tions of consequence between the parties prior to the
commencement of the strike which began on April 17, 1967.
On June 1, Sears wrote the following letter to Downer
In response to your letter to me of May 29, 1967,
attaching a copy of your letter of same date to Mr.
Calhoun, please be advised as follows I have discussed your
letter with Mr. Calhoun and the terms of your proposal
which you made in negotiations on January 17, 1967. Mr.
Calhoun advised me that there had been no material change
in business conditions which would justify any change in
the terms and conditions of employment of the employees
at his company. In view of this fact, it appears to me that it
would serve no purpose to meet at this time since we would
not have any reason to change our position on the
economic matters which are in dispute.
On June 5, Downer again wrote to Sears pressing for a
meeting, as follows:
This will acknowledge receipt of your letter of June 1, 1967
in response to my request to meet and negotiate. I note the
last sentence in your letter "In view of this fact, it appears
to me that it would serve no purpose to meet at this time
since we would not have any reason to change our position
on the economic matters which are in dispute."
May I point out that not only are economic matters in
dispute but there are basic contractual terminologies cover-
ing working conditions which are still in dispute and which
have not been tentatively agreed to in addition to economic
matters.
I request again that we meet for contract negotiations at the
earliest possible time.
Sears replied by letter dated June 8, 1967, which, in
pertinent part, reads:
I have discussed your letter of June 5, 1967, with Mr.
Calhoun in respect to a possible meeting to negotiate on the
non-economic contractual matters which have not been
tentatively agreed upon.
We would be agreeable to a meeting if such would be
productive in bringing this matter to a successful conclu-
18 There had been a prior telephone conversation on March 6, 1967
19 The letter does not indicate that Downer then knew of the
organization of Trans-Continent as a separate corporate entity, but
761
sion However, we see no point in engaging in lengthy
bargaining sessions concerning the non-economic issues if
your position in regard to the economic issues remains the
same. As I have previously stated to you, on a number of
occasions, our position regarding the economic matters in
dispute remains the same and we see no justification for
changing this position You have taken the equally consist-
ent position that there has to be changes concerning the
economic matters.
Since you apparently intend to remain steadfast on the
economic matters, we can see no point in engaging in
lengthy and extensive bargaining sessions. We could agree to
all of the non-economic terms of the contract and still be
apart on the economic matters Under such circumstances,
it would be impossible to reach a contract.
At such time that you intend to change your position in
regard to the economic matters we will arrange to meet
with you to resolve whatever issues that are outstanding
There is no evidence in the record of any further efforts by
the Union or the Respondents to meet again.
3. The accretion issue
About October 31, 1967, Trans-Continent commenced its
operations. On December 1, 1967, Downer wrote to Packing
Company and Sears advising that he had recently learned
about the new operation' 9 and that the Union considered the
operation to be an expansion of Packing Company's existing
business and the employees engaged in the operation to be part
of the certified bargaining unit. The letter therefore demanded
that Packing Company recognize the Union as the bargaining
agent for "all the employees in the Company's expanded horse
kill unit " The letter further protested individual and unilateral
negotiations with such employees, and requested a meeting for
the purpose of collective bargaining at the earliest possible
time
Sears replied by letter on December 12, 1967, in which he
advised the Union that the horse kill abattoir was a separate
and independent business operation and therefore not an
accretion to the bargaining unit, and that the employees
working in the horse kill abattoir were employed by Mike
Calhoun .20 He advised that "[w] e respectfully decline to
recognize your claim as the representative of present or future
employees of ... the horse kill abattoir " No reference was
made in the letter to the Union's demand for a meeting
General Counsel's position is that Trans-Continent's opera-
tion is merely an expansion of the existing business of Packing
Company and that Trans-Continent's employees are accretions
to the certified bargaining unit for which the Union is
representative. Respondents acknowledge that the Union was
not given notice of the establishment of the horse kill abattoir
nor was the Union consulted regarding the establishment of
wage rates and other conditions of employment for the
employees of Trans-Continent. Respondents' position is, first,
that Trans-Continent is a business enterprise separate and
independent of Packing Company. However, for reasons
explicated above, I have found, contrary to Respondents, that
Trans-Continent together with Packing Company constitute a
indicates rather that Downer believed that the horse kill abattoir was
being operated by Packing Company.
20 Significantly Sears did not mention the existence of Trans-
Continent
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
single employer under the Act Respondents' next argument is
that the operation of Trans-Continent is not an accretion to
Packing Company's business and that the certification covering
Packing Company's employees does not extend to the employ-
ees of Trans-Continent.
There is no simple formula which can be mechanically
applied to determine the accretion question.
Whether or not a particular operation constitutes an
accretion or a separate unit turns, of course, on the entire
congeries of facts in each case In determining that a newly
established facility or operation is an accretion to an
existing unit, the Board has given weight to a variety of
factors, such as integration of the operations, centralization
of managerial and administrative control, geographic prox-
imity, similarity of working conditions, skills and functions,
common control over labor relations, collective-bargaining
history, and interchangeability of employees. Obviously,
cases in which all these, or only these, positive accretion
factors are present are rare. For, the normal situation
presents a vanety of elements, some militating toward and
some against accretion, so that a balancing of factors is
necessary.2 1
In this case an overwhelming number of the factors above
referred to are present
Trans-Continent's business is limited to the slaughter of
horses and mules and packaging their meat. The butchering
process involved in the slaughter of horses and mules is the
same as is involved in the slaughter of cows and bulls. The
differences which exist in the slaughtering operations of
Trans-Continent and Packing Company develop only from the
fact Packing Company has invested in certain new mechanical
equipment which speeds its work. However, many of the
manual operations in both slaughtering establishments are
similar and for such operations the employees exercise the
same techniques and skills This is emphasized by the fact that
a large proportion of the employees of Trans-Continent
formerly worked for Packing Company
At every level Trans-Continent has been staffed by present
or former employees of Packing Company. Starting at the top,
Mike Calhoun, who is in immediate charge of Trans-Continent,
is an officer, director, and substantial stockholder of Packing
Company. Danny Hughes, who is the accountant and book-
keeper for Packing Company, does similar work for Trans-
Continent Of the 17 rank-and-file employees who work for
Trans-Continent the following had previous employment ex-
perience with Packing Company Sammy Lee Kurling, June
Patterson, John Simmons, Charles Simmons, Clarence Boss,
R.T Patterson, Floyd Rogers, Angel Vagar, and E.L. Hawkins.
(On the other hand, the following employees of Packing
Company had worked for some period of time for Trans-
Continent- Elvin Green, Herbert Phillips, and Leo Lewis.)
Moreover, as described above, Trans-Continent frequently hires
regular employees of Packing Company to do temporary work
for Trans-Continent
The operations of the two corporations are closely linked.
The two Companies share the same administrative offices. The
management and administrative personnel of Trans-Continent,
namely, Mike Calhoun and Danny Hughes, are also employed
in similar capacities by Packing Company. Animals for both
Companies are purchased by the same buyer and are kept,
21 The Great Atlantic and Pacific Tea Company (Family Savings
Center), 140 NLRB 1011, 1021
prior to slaughter, in the same pens and are guarded by the
same night receivers or watchmen The meat products packed
by Trans-Continent are removed from Trans-Continent's plant
by employees of Packing Company and are stored in the same
refrigerators as are the products of Packing Company The
products of both Companies are shipped by the same
employees. Also, by-products of Trans-Continent's operations
are handled and disposed of by employees of Packing
Company and both Companies use the same dead room.
Additional factors which tend to reflect the integration of
the two operations are common use of a central switchboard,
common use of a single post office box, common use of
showers by employees, and the fact that Trans-Continent's
plant is an indistinguishable part of the complex occupied by
Packing Company
Accordingly, in agreement with General Counsel, I find that
the employees of Trans-Continent are accretions to the
certified unit of Packing Company's employees represented by
the Union and Respondents' refusal to recognize the Union
and to bargain with the Union as the representative of such
employees and Respondents' unilateral dealings with the
employees of Trans-Continent about wages and other condi-
tions of employment constitute, without more, violations of
Section 8(a)(1) and (5) of the Act.
4 Conclusions as to the remaining
refusal-to-bargain issues
General Counsel argues that, despite the five meetings
between Packing Company and the Union, Packing Company
did not bargain with the Union in good faith. He contends that
the Company from the outset had no intention of reaching any
agreement with the Union but participated in the meetings in
order to give the appearance of bargaining and in order to
disguise its true purpose which was to frustrate its employees'
self-organization aspirations and ultimately to cause them to
repudiate the representative they had selected. In addition,
General Counsel contends that certain conduct on the part of
Respondents violated their statutory bargaining obligations
regardless of Respondents' subjective attitude of good or bad
faith.
a The job-study request
At the very start of the negotiations the Union requested
permission for its timestudy engineer to inspect Packing
Company's operations and to study the jobs of the employees
in the unit which it represents. Downer explained that the
Union was unfamiliar with some of the new machinery in
Packing Company's plant and thus was unable to make
comprehensive wage proposals without an opportunity to
examine the Company's operations. He suggested some day
between December 1 and 10 for the requested study and at
another time early January was suggested. Packing Company
refused such permission It even refused to let Downer inspect
the premises alone.
The reasons advanced by Sears for such refusals I find were
sham. First, he took the position that the dates suggested for
the job study would not be representative of Packing Com-
pany's operations. However, no alternate date was at any time
suggested. Secondly, Sears stated that the Union did not need
such study because Downer could learn about the operations
from Packing Company's employees on the Union's committee
VERNON CALHOUN PACKING CO, INC.
and until a question should arise concerning a specific job
there was no need for such study. These latter reasons are also
without substance. Respondents do not dispute the Union's
assertion that Packing Company has installed new machinery
with which the Union is unfamiliar nor Downer's statement
made during the negotiations that he understood that employ-
ees doing the same work were being paid different wage rates.
Thus, Packing Company did not overcome, or even sincerely
seek to overcome, the Union's assertions that it required the
job study in order to inform itself about the work being done
by the employees it represents and to inform itself about the
reasons, if any, for the disparities in wage rates. The
information which the Union sought to obtain through a job
study was patently necessary in order for it to formulate
sensible wage proposals Sears' contention that a job study
would become relevant only if a question about a particular
job should arise is without any ment The reason advanced by
the Union for wishing to make a job study was in order to
frame its initial wage proposals. Such proposals first had to be
made before any dispute about them could arise. Likewise
without validity was Sears' assertion that the Union could
learn about the Company's operations from its membership
First, the Union should not be compelled to resort to
secondary, and more cumbersome and more difficult, ways of
obtaining information when no good reason is given as to why
information within the control of the employer should not be
made available to it. The possibility that the Union might be
able to obtain the information it requires through some
alternate means does not excuse the employer from its
obligation to furnish relevant collective-bargaining information
to its employees' representative upon proper request having
been made for such information. Second, employees' oral
descriptions of their work, in addition to the inconvenience
and excessive amount of time which would be required to
obtain such descriptions, are considerably less authoritative
and useful than an on-the-spot study by a competent profes-
sional
Packing Company did not assert that the job study
proposed by the Union would disrupt its operations, would
reveal trade secrets, or otherwise would impose any hardship
upon it. Thus, on the one hand, no valid reason has been
advanced by Packing Company for its refusal to permit the
Union to make a job study or even for its refusal to permit
Downer to inspect it operations, while on the other hand, the
Union's assertion that it was unable adequately to formulate
wage proposals without such study is undisputed.22
As the requested job study is directly related to wages and
conditions of employment, Respondents' refusal to permit
such study, in the circumstances here, constituted a patent
disregard of their statutory obligations and constituted a
violation of Section 8(a)(1) and (5) of the Act.2 3
22 Because of Packing Company's persistent refusals to authorize a
job study and its reluctance to discuss wages and other economic issues,
Downer ultimately felt compelled to propose an across-the-board
increase in order to initiate some meaningful discussion about economic
subjects This deference to Packing Company's intransigence on the part
of the Union in an effort to give some momentum to the negotiations
does not refute the Union's reasonable need for the job study
23 See Fafnir Bearing Company v. N L R B., 362 F 2d 716 (C A. 2),
enfg 146 NLRB 1582.
24 Packing Company made a trivial concession by agreeing that if at
any time in the future it were to impose a requirement-which it did not
then have -for a physical examination of its employees it would pay the
b The refusals to discuss economic issues
763
During the entire period of its negotiations with the Union,
Packing Company avoided meaningful discussion of wages and
other economic terms.24 Sears first insisted upon deferring
discussion of any economic question until the noneconomic
terms were agreed upon. When the Union finally made a wage
proposal-with out any prior job study and without any
significant discussion with Packing Company about fringe
benefits-its proposal was categorically rejected as exorbitantly
high. When Downer argued that a substantial part of the
proposed increase was required under the terms of the Fair
Labor Standards Act, Sears offered computations purporting
to refute such assertion by implausibly assuming that no
increases whatsoever would be given except as were required
by the terms of the law.2 5 No sincere effort was made by
Packing Company to explore the Union's proposal regarding
wage adjustments in order to ascertain whether there might be
any meeting of the minds.
Similarly, Packing Company refused to discuss with the
Union the adjustments of wage rates which it was required to
make on February 1, 1967, in order to comply with the Fair
Labor Standards Act. At the December 12, 1966, meeting
Sears informed the Union that Packing Company was making a
study of the effect that the increase in minimum wage rates
would have on the Company's operations and that he would
make a proposal which merely would reflect the Company's
obligations under the Wage-Hour Law. No such proposal was
made. Instead, on January 4, 1967, Sears wrote to Downer the
following. "Further, you may recall that on December 13,
1966, 1 advised you that the Company was undertaking a
review of its wage structure and that I believed that it would
be completed some time the following week and upon
completion I would submit it to you as our proposal even
though you had not submitted any proposal whatsoever
concerning wages to the Company This is to advise you that
the Company has reviewed its wage structure and we do not
consider it to he a necessity to change wage rates of employees
except in such instances which may be required by the Fair
Labor Standards Act on February 1, 1967." Packing Company
thus categorically refused to discuss with the Union the
adjustments in wage rates it was planning to make in order to
comply with the Fair Labor Standards Act. This was a blatant
refusal to bargain about wages in violation of Section 8(a)(1)
and (5) of the Act
c Respondents'refusal to continue negotiations
All efforts by the Union to meet with Packing Company
after the January 17, 1967, session, were to no avail. On March
29, 1967, Sears wrote to Downer.
cost of such examinations The only other economic concessions that
Packing Company made were to agree to continue its current practice of
giving employees two 15-minute rest periods during each full working
day, to agree to certain premium payments for abnormal hours of work,
to pay for attendance at compulsory meetings called by the Company,
and to agree that employees performing work of a higher classification
should receive the rate for such classification
25 Significantly , Respondents offered no payroll or other evidence
to show whether in connection with the February 1, 1967, and
February 1, 1968, wage adjustments which were required to be made
under the Wage-Hour Law they gave any increases other than those
which were absolutely necessary to comply with the law
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I advised [Mr. Calhoun] of your telephone call and your
request to meet this week. Mr. Calhoun advised me that
current business conditions do not justify any change in our
position on economic items at this time
In view of these circumstances, it does not seem to be
realistic to schedule a meeting this week.
Subsequently, on June 1, 1967, Sears wrote to Downer
Mr Calhoun advised me that there has been no material
change in business conditions which would justify any
change in the terms and conditions of employment of the
employees at his company In view of this fact, it appears to
me that it would serve no purpose to meet at this time since
we would not have any reason to change our positions on
the economic matters which are in dispute.
This same attitude was repeated in another letter which Sears
wrote to Downer on June 5, 1967 Thus, Packing Company
after avoiding any meaningful discussion about wages and
other economic terms during the negotiating sessions refused
further meetings on the ground that its position-never
adequately explained to the Union-had not changed.
There was no impasse in negotiations on and after January
17, 1967 There was no reason for Packing Company to cut off
further negotiations except that it had no wish to reach any
agreement with the Union and had no desire to continue its
pretense at bargaining Respondents' refusals to meet with the
Union after January 17, 1967, I find, were of themselves in
contravention of their statutory obligations and violations of
Section 8(a)(1) and (5) of the Act 26
d Conclusions regarding Respondents'good faith
In their brief Respondents mention three factors as demon-
strating their good faith in their negotiations with the Umon
First, they point to the fact that Packing Company began
negotiations with the Union before the Union was formally
certified While this shows that Packing Company did not take
advantage of a technicality to delay the commencement of
negotiations such fact has little bearing upon whether Re-
spondents in the later conduct of their negotiations acted in
good faith
Respondents' second point is that they attended five
negotiating sessions between November 4, 1966, and January
17, 1967, that there were "many" items agreed upon at these
meetings and Packing Company "committed itself to agree-
ment in principal to many of the concepts proposed by the
union which required no more than the proper terminology to
be mutually agreed to at a later date. In addition, Respondent
Calhoun submitted counterproposals to the union in an
effort to resolve language differences and the parties did, in
fact, reach agreement on some matters as the result of this
area of negotiations." Respondents anticipated that General
Counsel might argue that "agreement was not reached on the
Important items." Their answer is "This is a specious argu-
ment for the reason that once an agreement is reached on any
matter of bargaining, its degree of importance is submerged in
its relevancy to those items which remain unsettled." I am not
certain that I understand fully Respondents' answer just
quoted. But it is not necessary to decide whether any of the
26 According to correspondence between Sears and Downer, Sears
was prepared to meet on March 1, 1967, but there had been a
misunderstanding about the appointment However, thereafter Sears
rebuffed every effort by the Union to arrange another meeting.
items which Packing Company and the Union agreed upon can
be characterized as "important" because the question at issue
is whether Respondents in good faith were seeking to reach an
entire agreement if at all possible. The fact that Packing
Company might have agreed to several "important" items is
not inconsistent with the General Counsel's thesis that
although Respondents were seeking on the surface to give the
appearance of bargaining, they had no intention of entering
into a contract with the Union. Of greater significance in
evaluating Respondents' conduct than the matters agreed upon
is the fact that every economic term proposed by the Union
was rejected (with only trivial exceptions) and not a single
counterproposal relating to any economic term was made.
Respondents did not even propose to enter into an agreement
which would continue in effect the economic terms and
conditions which existed when the negotiations began. Con-
trary to Respondents, I find that the matters to which Packing
Company agreed during the negotiations do not demonstrate
good faith when measured against the totality of Respondents'
conduct in their dealings with the Union.
Respondents' third point is that the Union did not intend
to engage in good-faith negotiations "in view of Mr. Downer's
expressed intention to establish a basis for filing an unfair
labor practice charge against Respondent Calhoun to afford
Mr Downer the opportunity to engage in an unfair labor
practice strike against Respondent Calhoun and claim back
pay " This argument is founded more upon counsel's specula-
tions than upon fact. While the record shows that Downer
accused Packing Company of refusing to bargain in good faith
and threatened to file under labor practice charges, the
evidence also shows that such threats were made in frustration
at being unable to reach agreement on even a single meaningful
economic term and that the Union was seeking to cajole
Packing Company into more serious negotiations. There is no
basis for inferring, as Respondents do, that the Union was
anxiously planning a strike.
Contrary to Respondents, and in agreement with General
Counsel, I find that at no time since the Union made demand
upon Packing Company to engage in collective-bargaining
negotiations did the Respondents in good faith deal with the
Umon with a sincere objective of seeking to reach an
agreement with the Union if possible. The specific acts which I
find above constituted violations of Respondents' statutory
collective-bargaining obligations considered together lead to
such conclusion. Buttressing this finding is the fact that
Respondents terminated negotiations before there was any
discussion of the economic issues (except of a most perfunc-
tory nature) and after it had earlier sought to contrive a
situation which would furnish an excuse for discontinuing
negotiations. Thus, at the December 12 meeting Sears led the
Union into taking a strong position regarding checkoff of dues
and then during the following week attempted to terminate
negotiations by characterizing the Union's position as being
inflexible Ultimately, by letter written on June 8, 1967, Sears
on behalf of Respondents flatly refused to meet with the
Union asserting that "we see no point in engaging in lengthy
bargaining sessions concerning non-economic issues if your
position in regard to the economic issues remains the same. As
I have previously stated to you, on a number of occasions, our
position regarding the economic matters in dispute remains the
same and we see no justification for changing this position.
You have taken the equally consistent position that there has
to be changes concerning the economic matters.... At such
VERNON CALHOUN PACKING CO., INC.
time that you intend to change your position in regard to the
economic matters we will arrange to meet with you to resolve
whatever issues that are outstanding "
This last communication from the Respondents was nothing
but an unconvincing, disingenuous effort to place upon the
Union the onus for the failure to reach any productive results
in the bargaining negotiations. Packing Company's position to
which Sears refers in his letter and to which Packing Company
was adhering was never described to the Union except other
than that the Company refused to discuss with the Union any
economic provisions of a contract whatsoever The Company
even refused to discuss with the Union the increases in wage
rates it was required to give in order to comply with the Fair
Labor Standards Act, and did not later inform the Union
regarding the action it took. In this respect the Company gave
the Union contradictory advice. On January 4, 1967, Sears
wrote to Downer that "we do not consider it to be a necessity
to change wage rates of employees except in such instances
which may be required by the Fair Labor Standards Act on
February 1, 1967 " Inconsistently, at the January 17 meeting
Sears informed the Union's delegation that additional increases
would be given in order to maintain to some extent the
existing wage differentials. On the other hand, contrary to
Sears' assertion in his June 8 letter, the Union took no
steadfast position on economic matters. So far as the record
shows it merely sought to engage in some discussion on the
subject which was cansistently rejected by Respondents.
I find that Respondents during the period of their negotia-
tions with the Union had no intention of reaching an
agreement with the Union. Their dealings with the Union were
characterized by the absence of cooperation, a lack of candor,
an emphasis upon trivia during the bargaining sessions while
avoiding discussion about meaningful subjects, and an impa-
tience to terminate negotiations without adequate exploration
of the collective-bargaining issues. Respondents' unlawful
attitude in its dealing with the Union was of such an
aggravated character as to justify an inference that they were
not merely avoiding a collective-bargaining agreement but were
pursuing a scheme designed to remove the Union as the
representative of their employees by demonstrating to their
employees that no benefits would be obtained through the
Union.
B. The Alleged Discriminations
1. Sherman Nixon
Sherman Nixon was discharged by his supervisor, Clifford
James, on March 10, 1967, after approximately 7 years of
employment with Packing Company. James testified that he
discharged Nixon "[f] or not showing up to work" after Nixon
had previously been warned by James that he would be
discharged if he was again absent from work.''
Nixon had been a member of the Union's organizing
committee and had obtained signature cards from 15 to 20
employees during the organizing campaign. In addition, Nixon
acted as a union observer at the election and served on the
Union's negotiating committee. At the bargaining session
which was held on November 16, 1966, Downer complained
765
about a disciplinary action which had been taken against
Nixon and which he stated was an unfair labor practice.
Downer explained to Packing Company's representatives at the
meeting that the previous Monday Nixon had been absent
from work because of a recurrence of an infirmity which was
related to an injury that he had sustained on the job, that his
supervisor's wife was informed of the fact and, nevertheless,
when Nixon reported for work James laid him off for a couple
of days because of such absence. At the same meeting Downer
complained that Packing Company had transferred Nixon to a
different job and as a result of the transfer Nixon's earnings
were lowered. Sears promised Downer that he would look into
these complaints.
Nixon was confined in the Memorial Hospital of Palestine
from February 10 to 17, 1967. Before he entered the hospital
Downer telephoned Sears and complained that Packing Com-
pany had failed to file a report, required by Texas statute,
relating to an injury sustained by Nixon and threatened that he
would take appropriate action unless the Company promptly
filed the report. (The Texas statute provides that any employer
willfully failing or refusing to make such report within the
time provided shall be liable for a penalty of not more than
$1,000 for each offense )
As set forth in his brief, "General Counsel contends that the
reason for Nixon's discharge was because the Union, in behalf
of Sherman Nixon, attempted to enforce the provisions of
Section 8, Article 8303, of the Civil Statutes. This is supported
by the fact that Mr. James told Nixon in January when he
disciplined him, if he was ever off work again that he was going
to fire him Nixon stayed off work for a week to go into the
hospital and James did not fire him, but in the meantime, the
Respondent was faced with the threat of the enforcement of
the above-mentioned article of the Civil Statute which could
very easily have cost Respondent a thousand dollars a day on
account of Nixon Of course, the next time Nixon stayed off
work, Nixon was fired. At first glance this may appear to be a
strange analysis of the case .
General Counsel's analysis I find contrived and uncon-
vincing. However, Packing Company was opposed to the Union
and in its negotiations with the Union demonstrated that it
was not prepared to deal in good faith with the Union. On
March 10, 1967, it discharged Nixon, who had been in its
employ for 7 years and who had been active on behalf of the
Union, because of an unexcused absence On the surface such
offense does not appear to be serious. These circumstances
accordingly raise a suspicion that Nixon's union activities were
a motivating factor influencing the decision to discharge
Nixon Such suspicion alone, however, is not adequate to
overcome James' explanation that only 2 months earlier he
had warned Nixon that if Nixon once again remained away
from work he would be discharged. I find that General Counsel
has not proved by a preponderance of the evidence that Nixon
was discharged discriminatorily in violation of the Act.
2. General Durham
The complaint alleges that since August 1, 1967, Packing
Company unlawfully has refused to reinstate General Durham,
one of the striking employees, to his job. On July 7, 1967, the
27 1 do not credit the testimony of Cora Lee Nixon that about 8
am on March 10, 1967, she informed James by telephone that
Sherman Nixon was iii and would not be able to go to work
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union sent a telegram to Sears asking for the reinstatement of
all the striking employees. On July 10, 1967, Sears responded
by telegram in which he requested the names of the striking
employees who desired to return to work. On July 12, 1967,
Downer mailed such list, which included the name and address
of General Durham, to Sears.
Durham testified that upon the termination of the strike he
was informed that the Company would notify him when to
return to work. After a week had passed without having
received any such notice, he went to the plant to inquire about
his recall. There he spoke to Danny Hughes who told Durham
that Durham had not been at work on the Friday preceding
the strike28 and therefore Durham was not considered a
striker.
Leonard Scroggins, Durham's foreman, testified merely that
Durham was not employed at the time of the strike. No
additional-evidence was offered in support of Respondents'
defense other than certain payroll records. These records show
that Durham worked 18'% hours during the payroll period
ending April 13, 1967.2 9
The rule applicable to this situation recently has been
described by the Supreme Court as follows "[U] nless the
employer who refuses to reinstate strikers can show that his
action was due to `legitimate and substantial business justifica-
tion,' he is guilty of an unfair labor practice . . The burden
of proving justification is on the employer...." N.L R B. v
Fleetwood Trailer Co., Inc, 389 U.S. 375, 378 In this case I
find that Respondents have not sustained the burden of
proving justification. Accordingly, I further find that Respond-
ents have violated Section 8(a)(1) and (3) of the Act by their
failure to reinstate General Durham.
3. John Gaston
John Gaston worked for the Company intermittently over a
period of 20 years . He was one of the employees who joined
the strike called by the Union and was reinstated upon the
termination of the strike . About 2 weeks after his reinstate-
ment he was laid off because of lack of work. General Counsel
does not contend that the layoff was discriminatory. About
October 18 , 1967, the Union filed an unfair labor practice
charge in which it alleged that Packing Company had discrrml-
natorily discharged John D. Gaston on July 21, 1967. Such
charge was subsequently withdrawn on November 17, 1967.
General Counsel contends that when Trans-Continent began
its operations about October 31 , 1967, it hired additional
people and did not recall John Gaston to work.
General Counsel ' s position , as stated in his brief, is as
follows . ". . . the undisputed facts support a discriminatory
motivation for not recalling Gaston This is based upon the
fact that he was a striker who had been reinstated for only
about two weeks. While we do not contend that the economic
reason alleged for the layoff was a pretext but the promise to
recall was not made in good faith . It is clear that the one
outstanding factor which caused the Respondent not to recall
Gaston was the fact that the Union had attempted to enforce
his legal rights under the Act by filing charges . The Respond-
ent offered no defense to Gaston ' s discharge except that it
takes the position that no accretion existed in this case."
I find General Counsel's argument unpersuasive and further
that General Counsel has not proved by a preponderance of
the evidence that Respondents unlawfully have failed to recall
Gaston to work. Accordingly , I shall recommend dismissal of
28 The strike began on Monday, April 17, 1967
29 Durham testified that in February 1966, he made an arrangement payroll records showing the hours worked by Durham and four other
with his foreman , Leonard Scroggins , which permitted h,m to take days employees Presumably the purpose for introducing these records in
off whenever Durham considered it necessary in order to farm some 22 evidence was to refute Durham 's testimony concerning the arrangement
acres of land which he occupied . Scroggins denied the existence of any he had made with Scroggins However , the payroll records tend to
such agreement I credit Durham Respondent introduced in evidence corroborate , rather than refute , Durham 's testimony The records show
Hawkins Alford Chatman Angton Durham
Total hours 2/3/66 -4/13/67 2121 . 25 2378 . 25 1456 .25 1750.75 1004.50
Overtime ( included in total) 65 00 167 50 31 00 17.25 8.25
Quarterly hours
2/3- 3/24 / 66 225 50 255 00 190.75 190 25
3/31- 6/23/66 414 25 511.75 33.25 421 50 415 25
6/29- 9 /28/66 502 75 501.25 502 50 291 75 87.75
10/5-12 /27/66 490 50 579 50 462 . 50 427.50
1/5- 3/25 /67 398 25 435.00 382 00 342 75 251.00
3/30- 4,113/67 90.00 95.75 76 00 76 50 59.75
Monthly hours
February 1966 99 75 116.00 84.75 95.50
March 1966 159.00 179 . 00 135.50 127 50
April 1966 147 . 75 193.00 148 .00 158 00
May 1966 114 .00 145.00 122 .75 11100
June 1966 161.75 183.50 82.25 121.25 116.00
July 1966 115 25 126 00 131.25 39.75
August 1966 196.50 158.25 187 .50 124.00 30.25
September 1966 148 50 166.75 134.75 128.00 57 50
October 1966 182.50 198 . 00 166.00 163.00
November 1966 213.25 249.50 189.50 188.50
December 1966 94 75 132.00 107 .00 76.00
January 1967 140.25 142.00 125 00 111 00 76 25
February 1967 131.00 156.50 137 00 126 50 99 25
March 1967 156.50 164.25 147 00 130 . 50 91.25
April (to 4 / 13/67 ) 60.50 68.00 51.00 51.25 44.00
VERNON CALHOUN PACKING CO., INC.
the complaint to the extent that it alleges that the Respond-
ents have violated the Act by their failure to recall Gaston to
work
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the Respondents' opera-
tions described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce
V THE REMEDY
Having found that the Respondents have engaged in unfair
labor practices, I shall recommend that they cease and desist
therefrom and that they take certain affirmative action
designed to effectuate the policies of the Act
Having found that Respondents unlawfully refused to
remstate General Durham on August 1, 1967, to his former or
to a substantially equivalent position, I shall recommend that
Respondents offer him immediate and full reinstatement to his
former or to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suffered
by reason of the discrimination against him, by payment to
him of a sum of money equal to the amount which he
normally would have earned from August 1, 1967, to the date
of Respondents' offer of reinstatement less his net earnings
during such period The backpay provided herein shall be
computed on the basis of calendar quarters, in accordance with
the method prescribed in F. W Woolworth Company, 90
NLRB 289 Interest at the rate of 6 percent per annum shall be
added to such net backpay and shall be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716
Having found that Respondents have unlawfully refused to
bargain collectively with the Union, I shall recommend that
they be ordered to bargain collectively with the Union, upon
request, with respect to rates of pay, wages, hours of
employment, and other conditions of employment of the
employees in the appropriate unit described below and, if an
understanding is reached, embody such understanding in a
signed agreement.
I have found further that Respondents did not confer in
good faith with the Union. Packing Company's attendance at
the five meetings with the Union was a diversion, a mere
pretense of engaging in negotiations with the Union. While
seeking to give the appearance of bargaining, at no relevant
time did Respondents have any intention of consummating an
agreement with the Union. Respondents' purpose, I find, was
to frustrate bargaining, to make the negotiations a fruitless
waste of time, to convince their employees, as forecast in their
preelection literature, that "a union at this plant could not
benefit any employee," but "could hurt our employees," to
denigrate the Union in the eyes of their employees as a useless
empty vessel in which to place their hopes for job improve-
ments, and ultimately to eliminate the Union as their
employees' representative. The circumstances present here
reveal a refusal by Respondents "to accept the procedure of
collective bargaining."30 It can be anticipated from Respond-
ents' conduct in the past that they will continue in the future
767
to follow the same unlawful course of action by seeking to
avoid entering into any collective-bargaining agreement with
the Union Thus, after the complaint in these proceedings was
first issued Respondents instead of reappraising its dealings
with the Union in a belated effort to comply with its statutory
collective-bargaining obligations sought further to frustrate
their employees' self-organizational aspirations by the device
of splitting their operations artificially between two corpora-
tions, one of which, so far as the record shows, was organized
only to defeat the Union as an effective collective-bargaining
agency.
For the reasons set forth in M.FA Milling Company, 170
NLRB No. 111, I shall recommend that Respondents reim-
burse the employee members of the Union's negotiating
committee for wages lost, if any, while attending past
negotiating sessions with interest thereon at the rate of 6
percent per annum.
The record indicates that there is considerable fluctuation
in the level of employment at Respondents' plants and there is
a suggestion in the record that there is a relatively high degree
of turnover among their employees. In these circumstances and
particularly because of the aggravated nature of Respondents'
unfair labor practices, I shall recommend that a copy of the
notice attached to this Decision be mailed to each employee
who worked for Respondents within the certified bargaining
unit at any time between November 4, 1966, and the date of
Respondents' compliance with the terms of this Recom-
mended Order
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees employed at
the Palestine, Texas, plants of Vernon Calhoun Packing
Company, Inc., and Trans-Continent Packing Company, ex-
cluding office clerical employees, guards, watchmen and
supervisors as defined by the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
2 Allied Food Workers, District Union No 103, Amalga-
mated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, since October 20, 1966, and at all times material
herein, has been the exclusive collective-bargaining representa-
tive within the meaning of Section 9(a) of the Act of the
employees in the above-described unit
3. Since November 4, 1966, by failing and refusing to
bargain in good faith with the Union as the collective-bargain-
ing representative of Respondents' employees in the aforesaid
appropriate unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment,
Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(aX5) of the Act.
4. By refusing and failing, since November 4, 1966, to
permit the Union as the exclusive representative of the
employees in the aforesaid collective-bargaining unit to make a
study in Respondents' plants of the jobs being performed by
the employees represented by the Union, Respondents further
have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act
30 National Labor Relations Act, Sec 1.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By establishing wage rates for newly hired employees
and by granting wage increases to certain employees included
in the above-described bargaining unit on and after February 1,
1967, without affording the Union an opportunity to bargain
about such matters, Respondents further have engaged in and
are engaging in unfair labor practices within the meaning of
Section 8(aX5) of the Act.
6. By discriminating in regard to the reinstatement, tenure
of employment, and conditions of employment of General
Durham, who participated in the strike by the Union against
the Respondents, which commenced on April 17, 1967, and
continued until approximately July 7, 1967, thereby discour-
aging membership in the Union, Respondents have engaged in
and are engaging in unfair labor practices within the meaning
of Section 8(aX3) of the Act.
7. By the foregoing conduct, Respondents have interfered
with, restrained, and coerced their employees in the exercise of
the rights guaranteed in Section 7 of the Act, and have thereby
engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. Respondents have not violated the Act by reason of the
discharge of Sherman Nixon on March 10, 1967, or the failure
to recall to work John Gaston who was laid off by Respond-
ents in July 1967
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby recommend that Vernon Calhoun
Packing Company, Inc., and Trans-Continent Packing Com-
pany, their officers, agents, successors, and assigns, shall
1. Cease and desist from.
(a) Refusing to bargain collectively with Allied Food
Workers, District Union No. 103, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, as the
exclusive collective-bargaining representative of their employ-
ees in the following appropriate unit.
All production and maintenance employees employed by
Vernon Calhoun Packing Company, Inc., and Trans-Continent
Packing Company at their Palestine, Texas, plants excluding
office clerical employees, guards, watchmen and supervisors as
defined in the Act.
(b) Failing and refusing to permit the Union to make a
study in their plants of the jobs being performed by the
employees within the aforesaid collective-bargaining unit.
(c) Making or effecting any changes in the wages, hours, or
other terms and conditions of employment of employees in
the aforesaid collective-bargaining unit without first giving
notice to their collective-bargaining representative and afford-
ing such representative an opportunity to engage in collective
bargaining with respect to any such proposed change.
(d) Discouraging membership in any labor organization of
their employees by discriminating against any employees in
regard to their lure , tenure of employment , or any term or
condition of their employment.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their right to
self-organization , to form, join , or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing , to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action, which is deemed
necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively concerning rates of
pay, wages , hours of employment , and other terms and
conditions of employment with Allied Food Workers, District
Union No. 103, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive
representative of all the employees in the appropriate unit
described above and , if an agreement is reached , embody it in a
signed contract.
(b) Upon request permit the Union reasonable access to
their plants in order to study the jobs being performed by the
employees in the above-described collective -bargaining unit
(c) Make whole each employee member of the negotiating
committee of the Union for earnings lost while attending past
bargaining sessions with interest thereon at the rate of 6
percent per annum.
(d) Offer to General Durham immediate and full reinstate-
ment to his former or to his substantially equivalent position
without prejudice to his seniority or other rights and privileges
and make him whole in the manner set forth in the section of
this Decision entitled "The Remedy," for any loss of earnings
he may have suffered by reason of Respondents ' discrimina-
tion against him.
(e) Preserve and, upon request, make available to the Board
or its agents , for examination and copying, all payroll records,
social security payment records , timecards , personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended
Order.
(f) Notify General Durham, if presently serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed Forces.
(g) Promptly mail to each person who was employed at
their plants within the collective-bargaining unit described
above at any time between November 4, 1966, and the date
upon which Respondents shall have fully complied with the
terms of this Decision and Recommended Order, a copy of the
attached notice marked "Appendix."
(h) Post at their plants in Palestine, Texas, copies of the
attached notice marked "Appendix. ,31 Copies of said notice,
on forms provided by the Regional Director for Region 16,
shall be posted by Respondents , after being duly signed by
their representatives , immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
31 In the event that 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 In
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
VERNON CALHOUN PACKING CO., INC.
employees are customarily posted Reasonable steps shall be
taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(I) Notify the Regional Director for Region 16, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 32
32 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 this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that
WE WILL, upon request, bargain collectively with Allied
Food Workers, District Union No. 103, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of all employees in the
unit described below, with respect to wages, hours, and
other working conditions and, if an understanding is
reached, embody it in a signed contract. The appropriate
unit is.
All production and maintenance employees employed
by Vernon Calhoun Packing Company, Inc., and Trans-
Continent Packing Company at their Palestine , Texas,
plants, excluding office clerical employees, guards,
watchmen and supervisors as defined in the Act.
WE WILL, upon request, permit the above-named Union
to make a study in our plants of the jobs being performed
by the employees in the above-described collective -bargain-
ing unit.
WE WILL NOT make or effect any changes in the wages,
hours, or other terms and conditions of employment of our
employees in the above-described collective-bargaining unit
without first giving notice to the above-named Union and
affording such Union an opportunity to engage in collective
bargaining with respect to any such proposed change
769
WE WILL NOT discourage membership in the above-
named Union, or any other labor organization of our
employees, by discriminating against any of our employees
in regard to their hire, tenure of employment, or any term
or condition of their employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of their
right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL offer General Durham immediate and full
reinstatement to the job he held before April 17, 1967, or
to a substantially equivalent job, with all rights and
privileges he previously held. If he should now be serving in
the Armed Forces of the United States, WE WILL notify
him of his right to full reinstatement after discharge from
the Armed Forces, in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended.
WE WILL reimburse General Durham for any loss of
earnings caused by our failure to reinstate him with interest
thereon at the rate of 6 percent per annum.
WE WILL reimburse the employee members of the
above-named Union's negotiating committee for wages lost
while attending past negotiating sessions, with 6 percent
interest per annum
VERNON CALHOUN PACKING
COMPANY,INC AND TRANS-
CONTINENT
PACKING COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions they may communicate directly
with the Board's Regional Office, Room 8A24, Federal Office
Building, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 334-2921.