NLRB Says It Will Sue ConAgra for Alleged Hiring Discrimination
The National Labor Relations Board disclosed late last week that it will soon file a major hiring discrimination case against a Midwestern conglomerate, ConAgra Inc., for refusing to hire union workers after it bought 13 Armour Food Co. meatpacking plants from Greyhound Corp. two years ago.
The case will be brought on behalf of close to 800 former Armour employees who worked in plants from South San Francisco to Charlotte, N.C., according to NLRB officials in Washington and San Francisco. The board will seek to compel ConAgra to offer jobs to the workers and award them back pay--the salaries they would have collected had ConAgra hired them.
ConAgra could face back-pay liability of $30 million, according to David Rosenfeld, a lawyer for a United Food and Commercial Workers local union that represented workers at Armour’s South San Francisco pork-processing plant. He said the case could become the largest hiring discrimination case in NLRB history in terms of its monetary value.
NLRB’s Accusation
“ConAgra deliberately failed to offer employment to the incumbent (Armour) employees to avoid incurring an obligation to bargain” with the union that had represented the employees, said Jerry Mayer, assistant general counsel of the NLRB in Washington. He said ConAgra had deliberately hired less than a majority of the former employees at each of the 13 plants.
While the previous union contract was nullified when the firm bought the Armour plants, under federal labor law, if a majority of the total old work force had been hired, ConAgra would have had to grant recognition to the union as the employees’ lawful bargaining agent.
The NLRB decided to file the case after a thorough investigation across the country, Mayer said. The board’s general counsel, Rosemary Collyer, a Reagan appointee, “made the decision herself,” said Mayer. “She’s been deeply involved in the case.”
The case has become a subject of some interest in labor circles, in part because ConAgra had hired Peter Nash, general counsel of the labor board during the administrations of Richard Nixon and Gerald Ford, to lobby the board not to file a complaint against it.
Labor board officials notified ConAgra of its plans to file the case a few days ago. Mayer said ConAgra, based in Omaha, has been given an opportunity to settle the case before the complaint is filed.
Settlement Unlikely
But that is an unlikely prospect, according to a ConAgra official. “Settlement without trial is not an issue when you’re looking at a complaint (such as this),” said Walt Casey, a ConAgra spokesman. He said the charges were “totally without merit,” but he declined to elaborate. In addition, two lawyers for ConAgra declined to comment.
The roots of the case go back to June, 1983, when Phoenix-based Greyhound announced that it would sell Armour to ConAgra for $166 million. Greyhound Chairman John Teets said that, although Armour had a profit of $13 million in 1982, the rate of return on its investment (about 0.5%) was too low to meet the company’s growth needs. Armour was paying double the wages and benefits of some of its competitors, making it increasingly difficult to operate at a profit, Teets said.
ConAgra said at the time that it would retain the Armour work force if “satisfactory” labor contracts were negotiated at each of Armour’s plants. Then, 2,250 Armour workers were employed under a master agreement with the Food and Commercial Workers union providing for an average base wage of $10.69 an hour.
Greyhound told union officials that the workers would have to accept a new base wage of $8 an hour as well as reductions in medical and pension benefits and vacation time. Otherwise, Teets said, the plants would be closed and ConAgra would reopen with a new, non-union work force.
The Armour workers voted overwhelmingly not to accept those conditions, which they called “take-aways.” So Greyhound shut down the plants shortly before they changed hands in December, 1983. As the new owner, ConAgra reopened the plants a few days later and announced that it had hired a new work force “at competitive compensation.” Armour employees are now paid an average base wage of $6 an hour, or about $3 an hour less than workers at other meatpacking companies where the Food and Commercial Workers have contracts, according to union Vice President Lewie Anderson.
One explanation as to why the NLRB decided to file the case against ConAgra was offered in a telephone interview late last week by Harvey Dasho, the San Francisco field investigator who coordinated data gathering in the case.
He said that three of the plants hired none of the veteran workers and that no more than 15% of the former work force was hired at any plant. Systemwide, only 10% of incumbent employees got their jobs back, Dasho said.
Not All Workers Benefit
Not all of the former Armour workers will benefit from the suit. Rosenfeld, the San Francisco lawyer representing several hundred aggrieved Armour workers, attempted to convince the NLRB that it should file the hiring discrimination case on behalf of all the former Armour employees. However, the general counsel decided to file the case only on behalf of former Armour employees who applied for jobs at ConAgra and were turned down, with the exception of workers from the South San Francisco plant.
Mayer of the NLRB said the company had attempted to discourage Armour employees at the South San Francisco plant from even applying for jobs after ConAgra reopened plants they had briefly shut after buying them from Greyhound. Because of this, Mayer said, all of the employees from that plant would be covered in the suit.
Walter Kintz, the board’s regional attorney in San Francisco, said it was unlikely that an NLRB trial of the case would begin before late spring. Considering the number of potential witnesses, the trial could last several months, he said. And given the possibility of appeals, it could be several years before there is a final result.
Despite that prospect, Rosenfeld said he was “very pleased” at the board’s decision. “We had an incredibly strong case,” he said. Part of that case is a sworn statement made by a former ConAgra official describing the company’s hiring strategy, said Dasho.
In the meantime, the Food and Commercial Workers will attempt to compel ConAgra to recognize the union as a bargaining agent for the workers at the plants, said George Murphy, the union’s general counsel in Washington. He asserted that the NLRB’s investigation revealed that “we would now represent a majority of the people if they (ConAgra) had not violated the law” in deliberately failing to hire the incumbent employees.
According to NLRB sources, ConAgra is unlikely to respond affirmatively to that demand.
Shortly after ConAgra took over the plants, union workers began to complain that the company was discriminating against them in hiring. Lawyers representing workers in three locals--South San Francisco, Charlotte and Fort Worth--filed charges with the labor board.
Criticism of Board
But the international union, based in Washington, decided not to file a case with the NLRB. The union’s president, William H. Wynn, has been highly critical of the board. Like virtually all labor leaders, he contends that the board has become more sympathetic to employers than workers since its composition has changed under President Reagan. The international decided that the best strategy was to attempt to reorganize the plants rather than attempt to win back workers’ jobs through what promised to be a lengthy legal process.
The union’s attempts have been unsuccessful, in part because the company has been able to turn the NLRB cases filed by the locals against the organizers. ConAgra has circulated leaflets urging workers not to vote for a union secretly trying to reinstate the old work force. The leaflets said that, if the NLRB cases succeeded, the new workers would lose their jobs. This tactic has been successful, even though the union has confined its organizing activities to locations other than the ones where former employees filed suits.
While advocating the cause of the South San Francisco workers, Rosenfeld attempted to convince the NLRB that any complaint it filed against ConAgra should include an order that ConAgra recognize the union as the lawful bargaining agent for its employees. But Mayer said the board had rejected that plea for several reasons. Among them, he said, was the fact that the international union had not previously requested a bargaining order from the NLRB.
If the international union filed a charge with the board seeking a bargaining order now, it would be faced with the NLRB’s statute of limitations, which provides that a charge must be filed within six months of the alleged violation.
