Boyle's Famous Corned Beef Company v. NLRB
| Decision Date | 03 September 1968 |
| Docket Number | No. 19092.,19092. |
| Citation | 400 F.2d 154 |
| Parties | BOYLE'S FAMOUS CORNED BEEF COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Clifton L. Elliott and Harry L. Browne of Spencer, Fane, Britt & Browne, Kansas City, Mo., for petitioners.
Nancy M. Sherman, Atty., N. L. R. B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., and Laurence J. Hoffman, Atty., N. L. R. B., on the brief.
Before MEHAFFY, GIBSON and LAY, Circuit Judges.
Boyle's Famous Corned Beef Company petitions for review of a decision and order of the National Labor Relations Board dated November 17, 1967 reported at 168 N.L.R.B. No. 46, finding petitioner in violation of the National Labor Relations Act as amended. The Board cross-petitions for enforcement of its order. Jurisdiction is established under § 10(e) and (f) of the Act.
The Board found that Boyle's Famous Corned Beef Company ("Company") violated § 8(a)(2) and (1) of the Act by interfering with and assisting in the formation of the Independent Meat Cutters Union ("Independent") and by contributing other support to it. The Board also found the Company violated § 8(a) (5) and (1) of the Act1 by refusing to bargain collectively with the Amalgamated Meat Cutters & Butcher Workmen of North America, Local Union 576 ("Local 576"), as the recognized bargaining representative of its employees, after the Independent was formed.
The Company is a Missouri corporation with its principal office in Kansas City, Missouri, and is engaged in the processing, distributing, and sale of corned beef and other meat products on a wholesale basis. The Company has about 13 employees, excluding guards, clerical and executive employees. Andrew Schneider is "plant superintendent" with authority to hire and fire employees and is an admitted supervisor. He was a member of Local 576 for more than 25 years prior to the present dispute, his dues being checked off regularly, though he did not attend meetings since becoming superintendent in 1959. Fred Gabriel is "plant foreman" and substituted for Schneider during the latter's vacation in 1966; Gabriel was a member of Local 576 and served as union steward during 1964 or 1965. The remainder of the personnel is employed as beefboners, pumper cry-o-vac operators and unskilled workers. Stephen Ramsey, Boyle's grandnephew, is employed in a non-supervisory capacity and was a member of Local 576. Consistent with the Company's past practice in giving bonuses, Schneider received a bonus of $2,000 in 1966, Gabriel a bonus of $700, Ramsey a bonus of $600, while other employees received a bonus of approximately $100 or less.
Since 1951, the Company and Local 576 had entered into successive collective-bargaining agreements. The contracts have been substantially similar to those negotiated during that period between Local 576 and the Heart of America Meat Dealers Association ("Association"), a multi-employer association of wholesale meat companies in the Kansas City area. Although the Company is not a member of the Association, Robert Boyle, the Company's president, serves as president of both the Association and Boyle's Meat Company, (a related but separate company from Boyle's Famous Corned Beef Company) a member of the Association.
The last agreement between the Company and Local 576 was executed August 3, 1964, effective retroactively from June 21, 1964 to June 18, 1966. On June 28, 1966, a strike and lockout involving members of the Association and Local 576 began. The dispute continued until August 17, 1966, when a new contract between Local 576 and the Association was executed. Since the contract between the Company and Local 576 had expired on June 18, 1966, Boyle, as president of the Company, and Carl Nothnagel, spokesman for Local 576, met on or about July 7, 1966, and agreed to an extension of the terms and conditions of the previous contract until after the deadlock in negotiations between Local 576 and the Association ended, at which time negotiation of the Company's contract would resume.
About a month after the strike commenced, Local 576 sought the support of its members employed by the Company in its dispute with the Association at a meeting held in the union hall and requested them to participate in the picketing of Association members, including Boyle's Meat Company. Employee Harold Roberts, then on the executive board of Local 576, noted that all Company employees except Schneider were present. According to employee Kenneth Yardley, because there was talk that Company employees would get into trouble for walking picket, a meeting was held on the Company's premises between Ralph Angle, president of Local 576, and Yardley, Ramsey, Harold Roberts, and employee Millsap, with Angle assuring them they would not get into trouble for walking picket. Employee James Roberts testified that Schneider telephoned him the night Company employees first walked picket and told him that Boyle and Nothnagel had had a meeting and Company employees were not to picket and would be reprimanded for doing so. Roberts called the Local's business agent, Ernest Williams, who said that he had talked to Nothnagel and that they would walk picket. The next morning before working hours, Roberts asked for a meeting with Boyle. With most of the working force assembled, according to Roberts, Boyle "told us that it wasn't our fight, we shouldn't get involved, that he didn't want to injure or cause Corned Beef Company trouble, that we were not on strike and not to be involved in the situation." Yardley stated Boyle "didn't think that we should have to walk because we were putting in a full day at work and he thought if we walked we wouldn't be able to do the work we were doing." The meeting lasted about 10 minutes. Some of the Company's employees honored Local 576's request and picketed at Association member companies.2
During the strike or immediately thereafter, the idea of abandoning Local 576 and forming the Independent was discussed by some of the Company's employees. According to Yardley, "It was right after we walked picket," and Steve Ramsey came into the lunchroom and said "If we went Independent Union that Bob Boyle said we would get a two dollar a week raise over what the union paid." James Roberts first heard of the Independent about three weeks after the strike ended, around the first week in September, from Fred Gabriel and Steve Ramsey. The next day, Roberts spoke to Boyle about being transferred to Boyle's Meat Company, Roberts fearing that he would lose his accumulated pension and vacation rights with the Company if the Independent were formed. Roberts testified "Mr. Boyle said he was unaware that the union was being formed and not to be hasty, to see what the outcome would be." Roberts said he spoke to Gabriel and Ramsey about his concern and was told by them that they had a letter from Mutual of Omaha stating that the Independent would be able to purchase a plan from Mutual covering Roberts' pension rights and that employees would be guaranteed the same rights they had with Local 576, and "Steve Ramsey said Bob would pay this like he paid it to the union." Employees Yardley, Harold Roberts, and Slusser heard Ramsey and Gabriel's assertion.
On or about the first of September, Gabriel told Boyle that some of the employees of the Company were interested in forming their own union. It was stipulated that Boyle told Gabriel "that he could have nothing to do with it and couldn't advise them." Gabriel asked Boyle if he could refer him to an attorney and Boyle said he would check on it. Boyle contacted his own attorney, who advised him to have nothing to do with the formation of the Independent, but did suggest the names of two firms of possible attorneys, which names were given shortly thereafter to Gabriel. One of these firms, Fallon, Guffy and Jenkins — a general practice firm which does some labor work for both unions and management — accepted employment.
On September 21, 1966, Local 576 submitted its contract proposals to the Company. At a meeting on September 28, the Company submitted its counter-proposals. The proposals show that the Company's suggested contract followed the pattern set by the Association settlement, while the Local's suggested contract called for 50 per cent more in wage increases (about $2.40 per week greater than the recently negotiated contract with the Association), an additional holiday, advancement of eligibility for a fourth week of vacation and a one-year, instead of a three-year contract.3
No agreement was reached by the parties.
On October 4, 1966, Ramsey informed employees that there would be a meeting in the Company lunchroom at 2:00 p. m.; later Ramsey advised employees that the meeting could not be held during working hours and had been rescheduled for 3:30 p. m. when the workday ended. Ramsey had asked Boyle's permission to have the meeting on Company premises. Boyle disclaimed any knowledge that the meeting concerned the Independent. Boyle said he learned the meeting concerned formation of the Independent after the meeting was in progress when Nothnagel arrived to meet with Boyle for a second round of negotiations on behalf of Local 576. No agreement was reached at this second, and final, meeting between the Company and Local 576.
Meanwhile, Ramsey convened the meeting of the employees, most of whom were in attendance except for Schneider and James Roberts. According to James Jenkins, a member of the Fallon firm, Ramsey told the employees that a group of them had decided that they were "fed up with the treatment they had received from 576," primarily being required to walk picket during the recent dispute between the Association and Local 576; other dissatisfactions with Local 576 were...
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