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National Labor Relations Board v. K & K Gourmet Meats Inc.

decided: February 6, 1981.



Before Gibbons and Rosenn, Circuit Judges, and Hannum, District Judge.*fn*

Author: Rosenn


This case comes before us on a petition for enforcement of an order of the National Labor Relations Board ("NLRB" or "Board"), filed pursuant to section 10(e) of the National Labor Relations Act ("Act"), 29 U.S.C. § 160(e). The Board found that K & K Gourmet Meats, Inc. ("K & K" or "Company") committed certain unfair labor practices during the course of a union organizing campaign and directed the Company to recognize and bargain with the United Food and Commercial Workers International Union, AFL-CIO, Food Employees Union Local 590 ("Union"). The practices complained of occurred at the K & K plant, located in Leetsdale, Pennsylvania.


K & K is a small, family-owned company engaged in processing specialty meats. The business is run by its president, Arthur Katz, assisted by Barbara Weiler, the most senior employee.*fn1 The Company was founded by Arthur and his brother Leo, who died shortly before the events giving rise to this proceeding. Besides Katz and Weiler, the Company employed fourteen full-time and three part-time workers at all times relevant to this cause.

In October 1978, employee Cheryl Welsh communicated with George Nestler, a Union representative, concerning the possibility of organizing the K & K workforce. A meeting was arranged for the evening of October 23. Eight employees attended the meeting, all of whom signed Union authorization cards at that time. One additional card was obtained the following morning.*fn2

Nestler confronted Katz with the cards on October 24, 1978, demanding that K & K recognize the Union as the authorized representative of its employees. Katz refused and referred Nestler to the Company's attorney who indicated that K & K had a good faith doubt that the Union represented an uncoerced majority of the employees.

After work on October 24, Weiler stopped for coffee at a local restaurant with employee Ann Anderson, a personal friend with whom she rode to work. In the course of their conversation, which ranged over various topics, the two women discussed the recent events surrounding the Union's organizing drive. Weiler expressed her opinion that the timing of the campaign was unfortunate, since Leo Katz had recently died and Arthur's wife was ill and hospitalized. Weiler also commented that a previous attempt to organize had been unsuccessful and that she thought the present one would also fail. Weiler then asked Anderson whether a majority of the employees were supporting the Union and whether she had signed a Union authorization card. Anderson answered "yes" to both inquiries and then asked that the subject be dropped. Weiler immediately honored that request.

On Saturday, October 28, Weiler telephoned Anderson and another employee, Nancy Green, and in the course of her discussion with each, the subject of working conditions came up. Weiler informed both women that Katz would hold a meeting with all the employees and that he would announce a new pay and benefit package. Weiler claimed that the package would include wages comparable to those paid at a larger food processing plant nearby, a hospitalization plan, and a profit-sharing plan.

Katz did, indeed, hold a meeting with all K & K employees on October 30, 1978, at which he discussed hospitalization insurance and profit-sharing. He indicated that he had considered these items as potential employee benefits and that he had taken steps to obtain further information relating to them. Also at this meeting, Katz made several statements to the employees expressing his interest in their concerns and his desire that those concerns be made known to him.

On the evening of October 30, the employees met with George Nestler to discuss Katz' remarks earlier that day. It was decided that Katz was not to be believed and that the employees would strike. Nestler then filed unfair labor practice charges against K & K, alleging various violations of section 8(a)(1) of the Act, as well as a refusal to bargain in violation of section 8(a)(5), 29 U.S.C. § 158(a)(1) & (5).

A hearing was held before an Administrative Law Judge ("ALJ") who, in a decision issued May 29, 1979, found four unfair labor practices on the part of K & K. First, the ALJ found that Ann Anderson was coercively interrogated by Barbara Weiler during their conversation at the coffee shop on October 24. Second, the ALJ found that, during the same conversation, Weiler had threatened Anderson by indicating that her Union activities would be futile. Third, he determined that Weiler, during her telephone conversations with Anderson and Nancy Green on October 28, had unlawfully promised a grant of benefits if the Union were defeated. Finally, the ALJ found that Arthur Katz promised benefits in the form of hospitalization and profit-sharing in exchange for the Union's defeat at his meeting with the employees on October 30. The ALJ specifically recommended dismissal of that portion of the complaint alleging that Katz had solicited employee grievances and expressly or impliedly promised to remedy them. Finally, the ALJ concluded that a bargaining order was not warranted and recommended that K & K be ordered to cease and desist from further violations of the Act and to post appropriate notices.

The Board, reviewing the parties' exceptions to the ALJ's decision, adopted that decision except as it dealt with issues of solicitation of grievances and the need for a bargaining order. The Board concluded that the evidence established that Katz had, in fact, solicited grievances at his October 30 meeting with the employees and "in so doing impliedly promised to remedy them." 245 N.L.R.B. No. 173, slip op. at 3. The Board also found that the Company's purpose underlying its unlawful acts was "to impress upon the employees the fact that they did not need a union to obtain satisfaction of their demands." Id. at 5. The Board therefore ordered the Company to cease and desist from engaging in such unfair labor practices, including the refusal to bargain collectively with the United Food and Commercial Workers International Union, AFL-CIO, Food Employees Union Local 590. Affirmatively, the Board ordered the Company to bargain upon request with such union as the exclusive representative of all its employees in the appropriate unit and to post appropriate notices. It is that order which is presently before us for enforcement.


In viewing the Board's findings of fact, we are limited by statute to a determination whether they are supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1950). As to the Board's choice of remedy, we are admonished that "(t)he Board's power is a broad discretionary one, subject to limited judicial review." Fibreboard Corp. v. NLRB, 379 U.S. 203, 216, 85 S. Ct. 398, 405, 13 L. Ed. 2d 233 (1964), citing NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S. Ct. 287, 288, 97 L. Ed. 377 (1953). The Board's choice of remedy "must ... be given special respect by reviewing courts." NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32, 89 S. Ct. 1918, 1939 n.32, 23 L. Ed. 2d 547 (1969).

These, then, are the parameters of our scrutiny in this case. They do not, however, render us, as judges, "automata." See Universal Camera Corp. v. NLRB, 340 U.S. 474, 489, 71 S. Ct. 456, 465, 95 L. Ed. 456 (1951). Courts are still charged with responsibility for seeing that national labor policies are carried out. As the Supreme Court explained in Universal Camera, "Congress has imposed on (courts) responsibility for assuring that the Board keeps within reasonable grounds." 340 U.S. at 490, 71 S. Ct. at 465. It is in the exercise of that responsibility that we proceed to examine the decision of the Board on the record before us.


Of the five unfair labor practices found to have been committed by K & K, two occurred while Barbara Weiler and her personal friend and commuting partner, Ann Anderson, were having coffee after work on October 24. The ALJ heard testimony from both women concerning the content of their conversation in the ...

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