Wisconsin Beef Industries, Inc., 256 (1980)

Wisconsin Beef Industries, Inc. and United Food and Commercial Workers International Union,

AFL-CIO' and Wisconsin Beef Industries, Inc.

Employee Committee, Party in Interest. Case 18-CA-5962

May 2, 1980

BY MEMBERS JENKINS, PENELLO, AND TRUESDALE

DECISION AND ORDER

On November 13, 1979, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order, as modified herein.

The Administrative Law Judge concluded that Respondent had engaged in numerous acts in violation of Section 8(a)(1), (2), and (3) of the Act. With one exception, we affirm these findings of the Administrative Law Judge. 2 i The name of the Charging Party, formerly Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is amended to reflect the change resulting from the merger of Retail Clerks International Union and Amalgamated Mealcutters and Butcher Workmen of North America, AFL-CIO, on June 7, 1979.

2 In agreeing with the Administrative Law Judge that Respondent violated Sec. 8(a)(2) of the Act by, inter aa, dominating the Wisconsin Beef Industries, Inc. Employee Committee, we note that the vice of a dominated labor organization 'is that an employer can discourage collective bargaining by holding the organization] out to his employees as an instrument for that purpose which they can adhere to without incurring his disfavor' Grafton Boat Company, Inc., 173 NLRB 999, 1003 (1968) In effect, the dominated labor organization discourages genuine collective bargaining by giving employees only the semblance of collective-bargaining strength while ultimate control is still maintained by the employer.

The Employee Committee at Respondent clearly demonstrates this vice Plant Manager McDevitt repeatedly made known to employees that he viewed the Employee Committee as a means of solving Respondent's problems without a union. McDevitt testified that the Committee was never recognized as a bargaining representative and that he did not consider his meetings with the Committee to be negotiations. The record shows only one instance in which a suggestion of the Committee was approved by McDevitt. This fact, along with McDevitt's position during meetings, sitting behind a desk placed in front of the employee representatives, and his role in opening meetings and initiating discussion of specific topics, inevitably led employees to the conclusion that it was Respondent through McDevitt who was in control of the organization. This is graphically illustrated by the fact that when an employee representatise resigned from the Committee because she felt it was ineffectual, she first told McDevitt and asked him what employees to tell and how to select a new representative. On the facts before us, the Administrative Law Judge was justified in finding that Respondent unlawfully dminated the Employee Committee.

249 NLRB No. 34

On October 24, 1978, the Union filed a second petition for an election in a production and maintenance unit at Respondent.3

On November 3, 1978, 10 days after the Union had filed its most recent petition, Respondent announced to the employees that they were receiving a wage increase, retroactive to October 29, 1978, and would receive another wage increase in July 1979. The Administrative Law Judge found this announcement and grant of the increase to be a violation of the Act. In finding a violation, the Administrative Law Judge did note that Respondent had announced in September 1978, several weeks prior to the filing of the October 1978 petition, its intention to conduct an industry wage survey and to adjust its wages accordingly. Respondent's officials testified that in mid-October 1978, and before the petition was filed, Respondent decided upon the amount of the increase, but, according to its officials, awaited advice from counsel concerning the impact of President Carter's wage price guidelines on the proposed increase before announcing any increase. The employees were told in late October that an increase would be given and, as noted, on November 3 the increase was announced.

In finding a violation in the announcement and granting of the increase, the Administrative Law Judge first noted that Respondent had offered as a defense to its earlier July 1978 layoff its precarious financial condition. He then found it 'startling' that in so short a period of time after a layoff for alleged economic reasons Respondent could afford the 50-cent increase which it granted. He further noted the timing of the increase, and Respondent's previous unlawful action directed toward the employees' organizing efforts. Based on these factors, he found it 'impossible to credit' Respondent's defense that the increase was decided on prior to its knowing of the employees' resurgent interest in unionization as demonstrated by the second petition, and was not intended to have an effect on the Union organizational efforts. In its exceptions Respondent argues that in finding a violation the Administrative Law Judge failed to consider all the relevant evidence. We find merit in Respondent's exception.

Thus, we conclude the Administrative Law Judge failed to take into account that the announcement of the wage survey to the employees in September 1978, coincided with a marked improvement of Respondent's financial condition, :' The Union had earlier withdrawn a petition for an election in such a unit after the July 21, 1978, layoff of the production and maintenance employees. The Administrative Law Judge found this layoff violated Sec.

8(a)(3) and (I) of the Act. We are affirming that finding WISCONSIN BEEF INDUSTRIES, INC. 257 which had previously been poor. 4

Indeed, since it began operation in February 1978, Respondent had lost money during every month except June. But, in September, Respondent began recouping these losses, and by the end of November it was making profit.5

The Administrative Law Judge also failed to give adequate weight to the fact that Respondent's initial announcement in September 1978 concerning the wage survey (which was to be completed as soon as possible), and future salary adjustments antedated the Union's second petition and followed withdrawal of the first petition by almost 2 months. According to uncontroverted evidence, the decision to give the increase was made a week before the second petition was filed. In spite of this, the Administrative Law Judge chose to discredit Respondent's claim that the increase was decided on prior to its ascertaining knowledge of the renewed organizational activities. We cannot agree with his basis for doing so. The Administrative Law Judge concluded that Respondent knew about the second organizing effort prior to its decision to grant the wage increase because, during October, one employee had worn a union sticker on her hard hat, while another had asked whether she would be 'hassled about the Union' when she was recalled from layoff. Contrary to the Administrative Law Judge, we are not persuaded that knowledge that one employee was wearing a union sticker establishes knowledge of organizing activity.

Furthermore, in view of the first organizing campaign, Respondent may have understood the second employee's statement as an expression of fear of retaliation for union activity in connection with the first campaign. In sum, neither incident establishes Respondent's knowledge of renewed organizing effort. Thus, although the timing of the increase and Respondent's prior unfair labor practices are cause for suspicion, they do not, without more, establish a violation in the face of evidence that the employees were told an increase was forthcoming and that the increase was decided upon before the petition was filed. Accordingly, we shall dismiss this allegation of the complaint.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re' We stress, however, that this characterization of Respondent's prior economic situation in no way signals a disagreement with the Administrative Law Judge's finding of an 8(a)(3) violation in the July 1978 layoff and his rejection of Respondent's economic defense offered there as a justification for that layoff , Respondenl's balance sheet for the month of October appears to indicate additional losses. However, Respondent's vice president of finance,

James Coulombe, testified without contradiction that this as due to a change in accounting methods adopted on the advice of Respondent's auditors, who had just conducted a fiscal year audit.

lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent,

Wisconsin Beef Industries, Inc., Eau Claire, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

1. Delete paragraph l(e) and renumber the subsequent paragraphs accordingly.

2. Substitute the attached notice for that of the Administrative Law Judge.

APPENDIX

NOTICE To EMPLOYEES POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government Following a hearing at which all sides had the opportunity to participate and offer evidence, it has been found that we violated the Act and we have been ordered to post this notice and to abide by the following.

WE WILL NOT fire or layoff employees for engaging in union and concerted activities among themselves and with other employees for their mutual aid...