AMPAC

National Labor Relations Board - Board Decisions

Jan 15, 1982

259 N.L.R.B. 1075 (N.L.R.B. 1982)

AMPAC 1075 AMPAC, a subsidiary of Kane-Miller Corp. and its officers, agents, successors, and assigns, shall Beef, Boners and Sausage Makers Union, Local take the action set forth in the said recommended 100, United Food and Commercial Workers Order, except that the attached notice is substituted Union and Jan Piton and Jesus Gonzalez and for that of the Administrative Law Judge. Joseph Wargacki. Cases 13-CA-19346, 13- CA-19724, 13-CA-19735, 13-CA-19641, 13- APPENDIX CA-19720, and 13-CA-19733 NOTICE To EMPLOYEES January 15, 1982 POSTED BY ORDER OF THE DECISION AND ORDER NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN After a hearing at which all sides had an opportu- On June 23, 1981, Administrative Law Judge nity to present evidence and state their positions, Robert A. Giannasi issued the attached Decision in the National Labor Relations Board found that we this proceeding. Thereafter, the General Counsel have violated the National Labor Relations Act, as and the Charging Party filed exceptions and sup- amended, and has ordered us to post this notice. porting briefs, and the Respondent filed an answer- WE WILL NOT discharge or otherwise dis- ing brief. criminate against our employees because they Pursuant to the provisions of Section 3(b) of the participate in a strike or engage in other pro- National Labor Relations Act, as amended, the Na- tected concerted or union activity. tional Labor Relations Board has delegated its au- WE WILL NOT in any like or related manner thority in this proceeding to a three-member panel. interfere with, restrain, or coerce our employ- The Board has considered the record and the at- ees in the exercise of the rights guaranteed tached Decision in light of the exceptions and them under the National Labor Relations Act. briefs and has decided to affirm the rulings, find- WE WILL offer to Stanley Karwaczka full ings,' and conclusions 2 of the Administrative Law and immediate reinstatement to his former job Judge and to adopt his recommended Order.3 or, if that job no longer exists, to a substantial- ORDER ly equivalent position, without prejudice to his seniority or other rights, and WE WILL make Pursuant to Section 10(c) of the National Labor him and employees Frank Sekula, Jesus Gon- Relations Act, as amended, the National Labor Re- zales, Juan Perez, Warren Mills, Alfonso lations Board adopts as its Order the recommended Pineda, Joseph Wargacki, and Stanislaw Kry- Order of the Administrative Law Judge and cinski whole for any loss of earnings or bene- hereby orders that the Respondent, AMPAC, a fits they may have suffered as a result of their subsidiary of Kane-Miller Corp., Chicago, Illinois, unlawful discharge, with interest. 'The Charging Party has excepted to certain credibility findings made A SUB Y OF by the Administrative Law Judge. It is the Board's established policy not AMPAC, A SUBSIDIARY OF KANE- to overrule an administrative law judge's resolutions with respect to MILLER CORP. credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Prod- DECISION ucts Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his STT OF TE findings. STATEMENT OF THE CASEfi i s. 'We adopt the Administrative Law Judge's conclusion that an alterca- ROBERT A. GIANNAsI, Administrative Law Judge: tion between Supervisor Mojica and Union Representative Ramirez did Administ Law not constitute a violation of Sec. 8(aXI) of the Act. However, we find it This case was heard for 10 days in December 1980 and unnecessary to rely on his additional comment that, even if the incident in February and March 1981 in Chicago, Illinois. The had been found to be coercive, the time and events that have elapsed original complaint in Case 13-CA-19346 issued on Janu- since the incident make it doubtful that a violation should be found and a ay 16 1980 and that ondent violated Sec- remedy ordered. ary 16, 1980, and alleges that Respondent violated Sec- 'We find no merit in the General Counsel's or the Charging Party's tion 8(aX5) and (1) of the National Labor Relations exceptions to the failure of the Administrative Law Judge to provide cer- Board Act, as amended, by making proposals during bar- tain additional remedies. While the General Counsel excepts to the failure gaining negotiations with the Charging Party Union to order "unconditional" reinstatement of certain discharged strikers who which were manifestly unacceptable to it. Those propos- have, in fact, been reinstated, he does not contend that their reinstate- ment remains other than unconditional and complete. We also deny the als were identified as follows: A 94-cent-per-hour wage Charging Party's request for attorneys' fees, bargaining expenses, and reduction with no claim of financial inability to pay and other costs incurred. See Wellington Hall Nursing Home. Inc., 257 NLRB the elimination of the cost-of-living allowance clause, the No. 106, fn. 2 (1981), and cases cited therein. No. 106, fn. 2 (19811 and cases cited therein. arbitration clause, the union-shop provision, and theIn accordance with his dissent in Olympic Medical Corporation, 250 arbitration clause, the union-shop provision, and the NLRB 146 (1980), Member Jenkins would award interest on the backpay union dues-checkoff clause from the contract of the par- due based on the formula set forth therein. ties which was to and did expire on December 20, 1979. 259 NLRB No. 151 . , tive i. - - ary t o h a v e f. l t ti t r t ati al a r elations ct. i ,' l i 2 t i i t ti i i t i t t t t i l s, r , arre ills, lfonso , i, t i l ., i , Illi i , la f l discharge, ith interest. The i ilit fi i i t. t ry ll rod- ISI l a , i f r r r i is fi i . l i l RT (lAN AsI, r i i tivp law i c : r i ntati i i ROB E R T A . GIANNASi, i i trative Judge: (aXD1 f t r i , t ti ts t at ela se ri i l l i t i s - - iss e On Ja - re edy ordered. 16 19 80 an d th a t l t i o n 5 i . il t r l l t t t e fail re i i ti ti s it t e ar i arty nion t r er " c iti al" rei state e t f certai discharged stri ers i r if tl t l t it. r - i sta~te s I t r t i rr . ee lli t ll rsi o e. Inc., 257 t e eli i ati f the cost-of-living allo ance clause, the ^a, c rn 2 i ti i , l orP tlion, r ato l th n op vsoadte ), , rOR I NN ll i 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint also alleges that Respondent, through merce within the meaning of Section 2(6) and (7) of the statements by General Superintendent Albert Mojica, Act. committed three violations of Section 8(a)(l) of the Act. An amendment to this complaint alleges that a strike by II. THE LABOR ORGANIZATION INVOLVED Respondent's employees on and after January 18, 1980, The Charging Party Union (hereafter the Union) is a was an unfair labor practice strike. A second amendment, labor organization within the meaning of Section 2(5) of dated May 29, 1980, alleges that Joseph P. Carey, an at- the Act. torney and an officer of Kane-Miller, was an agent of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A consolidated complaint in Cases 13-CA-19724, et al, which issued on June 2, 1980, alleges that Respond- A. The Alleged Refusal To Bargain ent violated Section 8(a)(5) and (1) of the Act by distrib- uting letters to employees during the course of negotia- I. The facts tions, describing Respondent's negotiating positions, and by encouraging the Union to engage in a strike. Also al- a. Introduction leged as violations of Section 8(a)(5) and (1) of the Act Respondent maintains two separate offices and plants are Respondent's failure, after February 25, 1980, to in Chicago. One plant is located at 4277 South Racine deduct and tender dues to the Union and its refusal todeduct and tender dues to the Union and ite s refusal to Avenue; the other plant is located at 3946 South Normal permit the Union to designate its own stewards and busi- Avenue. Respondent engages in the business of killing, ness representatives to administer a collective-bargaining cutting, and boning heavy hogs for sale to other firms agreement allegedly reached by the parties on that date. which further process the meat. Although at one time The consolidated complaint also alleges that Respondent nearly all of the commercial hog slaughtering in the violated Section 8(a)(l) of the Act by virtue of a physi- United States was done in Chicago, Respondent is now cal assault by Mojica on a union business representative the only entity in Chicago engaged in this business. in the presence of employees and Section 8(a)(3) and (1) The purchase of livestock constitutes 58 percent of Re- of the Act by discharging a number of employees for en- spondents cost of goods sold. The next largest factor isspondent's cost of goods sold. The next largest factor is gaging in the strike. the cost of direct and indirect labor, which constitutes 5 The two outstanding complaints were further consoli-The two outsding c ints we f r c i- percent of the total cost. Respondent has no control overdated by order dated June 2, 1980. A third amendment r livditit ithe price paid for livestock, a commodity item; it doesto Case 13-CA-19346 was issued on July 2, 1980, alleg- have some control over the cost o o to t have some control over the cost of labor through theing that Respondent violated the Act by placing adver- collective-bargaining process. When Respondent is ablecollective-bargaining process. When Respondent is able tisements in local newspapers "seeking employees as per- to achieve lower labor costs there is more money availa- manent replacements for its striking employees who b t c i., ,, ,, ble to compete in the marketplace for the purchase ofwere engaged in an unfair labor practice strike" and by l i alivestock in a volume sufficient to operate its plants atfailing, since on or about December 20, 1979, to deduct t m oduo levls. The meat industry, of whichoptimum production levels. The meat industry, of whichand tender dues deductions to the Union pursuant to an Respondent is a part, is a high volume industry with aRespondent is a part, is a high volume industry with aorally extended collective-bargaining agreement. Thisorally extended c llecti e- ar ai i r t. typical return of profit on sales of about I to 2 percent. amendment also alleges that Respondent violated the Act n tober an aain a to l , since December 20, 1979, by ceasing to recognize the cials of Respondent, ncluding Lawrence Claer, f- Union as bargaining representative.' cials of Respondent, including Lawrence Clark, Re- r r sentative.. Respondent dutifully and timely filed answers to all spondent's vice president, general manager, and chief ex- the above documents disputing the substantive allega- ecutive officer, and Joseph P. Carey, Respondent's laborcounsel, met with representatives of the Union, including tions therein. After the hearing in this case the parties c o u nse l m e t with representatives of the Union, includinglons therein. After the hearing in this case the parties Walter Piotrowski, the Union's secretary-treasurer. Clark Qile s w h we r d on or a t My told the union representatives that Respondent was losing money and asked the Union to agree to a waiverUpon the entire record herein, the testimony of the o i n e a n a e t e o n o t a a er witnesses and my observation of their demeanor, I make o f the 3 4 cen t w ag e n c rease d u e h o r t l y tere r t o the following: employees under the then-current collective-bargaining agreement and also two cost-of-living adjustments that FINDINGS OF FACT were to become effective prior to the expiration of the agreement on December 19, 1979. Respondent produced 1. THE BUSINESS OF RESPONDENT financial statements in support of its request. Piotrowski denied the relief sought. Clark became quite upset andRespondent, an Illinois corporation with plants and of- either he or Carey stated that Respondent would seek to fices in Chicago, Illinois, is engaged in the slaughtering obtain relief from what it believed were inordinately of hogs. During a representative I-year period, Respond- high wages in the next bargaining negotiations and that ent purchased and received materials, valued in excess of the Union could expt some "problems" when the cur- $50,000, at its Chicago facilities directly from points out- rent agreeme exped side the State of Illinois. Accordingly, I find, as Re- agreement expired. spondent admits, that it is an employer engaged in corn- b. The negotiations ' On September 4, 1980, another name was added to the list of employ- Prior to the commencement of collective-bargaining ees allegedly unlawfully discharged for participating in the strike. negotiations for a new agreement in late October 1979, a t' l ft r , , rt f i l ti t i . t, l r i ti it i t i f ti ( ) f - i 11n. L, 1. l i l ti ti t i r t' f il r , ft , , i l permt te Uionto sinat it ow stwars ad bsi- Avenue; the other plant is located at 3946 South or al r it t i t si t its ste ards and bus,- venue. espondent engages in the business of killing, ss r r t ti t i i t r ll ti - r ini g i i l t ll l i lt li t l i t l ll t r i l l ri i l t ti ( )(l) f t t i t i it t l ult ji i i nt ti i r t r e pl ti ( )( ) ( ) r f li st tit t 58 r t f - f t t i r i r f l s 1 r . , ' ., c ° * *~~~~~~spondent .,, ,, .n ,',.,The two outstanding ompla re urther onsoli- t t , . t pi r a c itm - does. ^ n <^A .m~r * -i Tii ,nor, 1the t s - - i l , , ll - l hrough he .1. . D -i.-it-i~i.A~i-i-'have i t at s t i l t t t l i - . - . . * , .. i * i~~~~collective-barg in g tise ents in l cal e s a ers "see i l s s r- t i l r l r t , t is il „. , ,., ,. *manent replacement for its striking employees, w r in a f ir l r r ti stri l i v s to o i plans a, ... - ° , , r, r ,„ ,„-„ , , , failing, since r a t r , , t t o p vel. in , hic, ," , ., ,. , ,. ,, . , a t r s ti t t i r t t i i i ,, , , , „ . , . . ~-,. ~~Respon *i r . 11 ri i.ioraly exende col ctie-bagainng areemnt. his typical return of profit on sales of about I to 2 percent. t l ll t t t i l t t t t I l c t e r 1978, n a o n o r t o l offi- sinceDeceber 0 199, b ceasng t recgniz the I n O ct o b er 19 78, and again a month or two later, offi- since ece ber 20, 1979, by ceasing to rec ize t e caso epnet ldn arneCak e i r i i t ti ' cials f espondent, including Lawrence Clark, Re- nt tif l l r ll i i t, r l r, and c i f ex- oven dutifllya i i t ti l ti i . r , s t's labor aouhe ri in this case the parties u ns el, t with representatives of the nion, including filed briefs which were received on or about May 4,r Walter Piotrowski, the Union's secretary-treasurer, lark ri c told t ti t i ti l s ng o y d s k d h e n i t B^ ° i v r itne r ti i f t h e -c t e in c re as e d u e sh o r t ly th er e af t er t o the following: l y s r t t - rr t ll ti r ini g Respondent, an Illinois corporation with plants and of- i t r li f t. lar c it upset and espondent, an Illinois corporation ith plants and of- either he or Carey stated that Respondent would seek to fi i i , Illi i , i mn t l t ri tai r li f fr t it believed ere inordinately nt ti 1- r obai relief frm ha i i i ti ti t t , l i hihwgs tenxtbraigngoainsndht ^^ ^dn. r e e w e d ~ t en a ' v al e~i n e x c ss o the Union could expect some "problems" when the cur-, , i tl i t t the Union coul xpe"n h li i l , r t ir . . I , r i r t t h e Co lecti - l 1 " itm ° , . .optimum to - rmwhati ^ ^* .^ "B15- u d l e plaintsA so * -r *g to hon r A «. l, L o f Asrds lated the Act by ili d - heckoff cards sons O O t O t f t i . t t t iti t t nei ther ar ey nor - ill r- f w hic h he i a i r-i i i i al r t. r l l i Of i t ill . tir fli t i t ^""" ti i t ues-checkof re o i t AMPAC 1087 B. The Status of the Strike stand. They testified that they engaged in the strike and picketing and they denied engaging in the alleged mis-It is clear from the evidence that the employees and c ad y e i the Union decided to strike because of the bargaining po- conduct which led to their discharge No witnesses were presented in this proceeding to rebut their testimony andsitions and posture of Respondent. I have found that Re-s to rebut their testimony and the documentary evidence is insufficient to counter theirspondent's bargaining positions and posture before the t y e ene insuicin co r ir strike of January 18, 1980, did not constitute bad-faith denials that they engaged in misconduct. Accordingly, bargaining within the meaning of Section 8(a)(5) and (1) Respondent's discharge of these employees was improper of the Act. Accordingly, the strike herein was an eco- since they did not in fact engage in the strike misconduct nomic rather than an unfair labor practice strike. f o r whic h t h e y w e r e terminated. See N.L.R.B. v . Burnup & Sims, Inc., 379 U.S. 21 (1964). C. The Discharge of Striking Employees for Alleged The evidence concerning the remaining three employ- Picket Line Misconduct ees whose discharges are at issue is discussed below: In the course of the strike, Respondent received infor- L. V. Thomas mation about the possible misconduct of some striking employees while they were on the picket line. As a On the morning of February 21, Amedo Orlino, a result of initial reports focusing on individual named em- strike replacement at the Normal Avenue plant, appeared ployees, a number of them were suspended pending a at the plant to report for work. As he got off a bus near further investigation into the alleged acts of misconduct. the plant, he encountered two black men. One ap- The notices of suspension, dated March 7, 1980, in- proached Orlino from the front, attempted to block him formed employees that they would be interviewed as from proceeding toward the plant entrance, and asked part of the investigation and asked them to consult their Orlino where he was going. Orlino answered that he was union representative. going to work. As Orlino was speaking, he was struck Following Respondent's investigation into the alleged from behind on the back of the head. The blow caused strike misconduct, which included holding interviews Orlino to stagger. He turned, looked behind him, and with and taking affidavits from witnesses and other em- saw the face of his assailant whom he identified as L. V. ployees, Respondent afforded each of the 10 accused em- Thomas.20 ployees an opportunity to be heard. At these interviews, After he was hit, Orlino ran for the plant entrance, but representatives of the Union and the International Union the other man continued to obstruct his way. Orlino ran were present. A translator was provided where needed. in another direction until he saw another employee he Notes were taken by Clark's secretary which were there- knew, Miguel Ramirez, in the front seat of a car ap- after transcribed for review by Clark. In these inter- preaching the plant. Ramirez, who had seen Orlino being views, the accused employees were asked whether there struck, corroborated Orlino and identified Thomas as the were any witnesses that they desired Respondent to con- assailant. He asked the driver of the car to stop and tact in the investigation. Where names were mentioned, Orlino got into the rear seat. The car then proceeded to Respondent interviewed those witnesses and notes were the plant entrance and Orlino got out. also taken of those interviews. Later that day, Orlino was X-rayed and was released After reviewing all the notes of the interviews and as a from a local clinic. He then went back to the plant, result of Respondent's investigation, Clark concluded punched out, and went home. Orlino testified that he did that 10 employees, all of whom had previously been sus- not know, nor could he identify, the second man because pended, should be discharged for strike misconduct. On he focused primarily on the man who hit him. He had March 25, 1980, these employees were notified of Re- both men in his sight even after he reached the plant en- spondent's decision by letter. trance because they followed the car the short distance On March 24, 1980, Hayes submitted a "formal griev- from the point of the attack to the plant entrance. ance" on behalf of the employees who had not been rein- As a consequence of Orlino's report of the incident of stated after the strike. On April 3, 1980, Respondent an- February 21, Thomas was suspended by Respondent. swered the Hayes letter by referring to a conference be- Thereafter, Thomas was afforded an interview by Re- tween Lassiter and Albert Mojica on the matter. Re- spondent. In the interview, Thomas was asked if he had spondent stated that the 10 employees were discharged "anyone you want us to contact in your behalf." Thomas for strike misconduct. Respondent also stated that five of answered that he did not. However, at the hearing, the employees were being reinstated pending a determi- Thomas testified that he was with Earl Warfield, another nation by the Labor Board as to whether their dis- striker, the day that Orlino was hit and that Warfield charges were unlawful. Later Respondent decided simi- told Thomas, at that time, that he, Warfield, had larly to reinstate two other employees. Only three of the "slapped" Orlino. He also testified that Warfield again discharged employees-L. V. Thomas, Jan Piton, and admitted, on March 3, the first day the employees came Stanley Karwaczka-were not reinstated. back to work after the end of the strike, that he had hit Although Respondent submitted the documentary evi- dence it relied on in discharging all 10 employees in this o Orlino identified Thomas from identification card photographs proceeding, Respondent has not contested the General shown to him during the investigation of this incident by Respondent. He Counsel's allegations with respect to the 7 employees al- also identified Thomas in person through a one-way mirror, presumably at the time of the interviews. At the hearing, Orlino again identified legedly discharged for misconduct who were eventually Thomas as his assailant by reference to the latter's identification card reinstated. All seven of these employees took the witness photograph. t i k t y en i i n in th llgd i s - i i i t i l t t ir i r . itnesses ere i nt. t t - prst in h is preedig t r t t ir t sti y and spondent's bargaining positions and posture before the t h e c ntary evidence is i s ffici t t t r t ir r ti -f i i l t t t i i t. r i l , i i i ti t' i r f t s l y s as i proper i l , i i n c e t d id o t i f ac t e ng ag e i t tri i t i t i f r ic t ey er e t i te . ee . . . . v . urnup i ). . v. a t , .20 , ,. l , , instated,.back l' l l l l t t a l i il t f t t l tt ' i tifi ti r mis 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orlino. Warfield told him, "L.V. there is the guy that I people different stories and his prehearing affidavits con- slapped." According to Thomas, there were two or three flicted not only with his testimony but also with each people present when this was said. Thomas also testified other. His whole testimony was motivated by a desire to to two other times when Warfield mentioned that he, help Thomas whose job was on the line. Moreover, Warfield, had hit Orlino, the last time being in the office Thomas himself was an unreliable witness. He allegedly of Thomas' attorney, where Warfield appeared pursuant knew about Warfield striking Orlino prior to the inter- to Thomas' invitation. Yet, Thomas never told Respond- view in which he was permitted to give his side of the ent of Warfield's alleged admissions even though story but he clearly stated he had no witnesses to offer in Thomas admittedly had knowledge of them when inter- his defense and he never mentioned the Warfield "alibi" viewed by Respondent following his suspension, and to Respondent. In these circumstances, I find that even though he told Clark he had no witnesses to sup- Thomas engaged in strike misconduct which clearly jus- port his denial that he had struck Orlino. tified his discharge by Respondent. Earl Warfield, who is 6 feet tall and weighs about 230 pounds, testified that he had been on picket duty with Jan Piton Thomas one morning when he approached Orlino who was going to work. Warfield advised Orlino that there On January 18, 1980, the first day of the strike, was a strike and asked that he not report for work. Ac- George Schiller, Respondent's controller, was asked to cording to Warfield, Orlino shifted his weight to his left go from the Normal Avenue plant to the Racine Avenue foot and Warfield thought that Orlino was about to give plant, about 2 miles distant. Schiller drove to the Racine him a karate kick. Then, according to Warfield, he put plant with two other passengers, James Dillon, Respond- out his hand and brushed Orlino's shoulder. ent's chief accountant, who sat in the front seat, and Warfield testified that he told Thomas, on February James Gutsell, who sat in the rear seat. 21, the day of the incident, that he had simply brushed When Schiller and his passengers approached the en- Orlino's shoulder or "put him off balance." He testified trance of the Racine Avenue plant in Schiller's car, they that he spoke to Thomas about the Orlino incident one observed some 50 to 60 pickets around the gate. Another more time after Thomas was discharged but did not car in front of Schiller's was permitted into the plant by elaborate on the details of that conversation. Later, the pickets without incident. However, as Schiller drove Thomas asked Warfield to go to his attorney's office and up to the entrance gate, his car was surrounded by pick- tell her that Thomas did not hit Orlino. Warfield identi- ets who proceeded to "bang" on the car while yelling fied a sworn affidavit he gave to Thomas' attorney on and screaming obscenities at Schiller and his passengers. June 14, 1980, in which he stated that he had "shoved The pickets forced Schiller to stop his car and they Orlino in the face" after arguing with him about the opened the front doors. As this occurred, one of the strike and "being frustrated at what he was saying pickets "took a swing at [Schiller], hit the back of [his] ... ,"21 In another sworn affidavit given to Respond- head and grabbed [his] coat." Schiller then slowly ent's counsel on February 13, 1981, a week before he tes- moved his car forward. The man who hit Schiller held tified, he stated that: "At no time during the period of on to his coat until the forward progress of Schiller's car the strike did I hit anyone. At no time did I tell Thomas forced the man to release him. I had hit a man." He admitted at the conclusion of his This entire incident was observed by then Sergeant testimony that he was trying to help Thomas. Brad Douglas Muirhead, Jr., a field supervisor employed In rebuttal, Orlino denied that Warfield, a fellow em- by Wackenhut Security Agency. At the time, Muirhead ployee and a "friend," had ever pushed him in the shoul- was inside the plant entrance about 6 or 8 feet from the der or the face. Orlino also testified that counsel for Re- gate. From this vantage point, Muirhead saw pickets spondent had brought him and Warfield together the pound Schiller's car and heard them yelling obscenities prior week, at which time Orlino denied in the presence at the occupants. He also observed one picket open the of Warfield that he had ever been touched by him. door on the driver's side, throw a punch at Schiller and I find that Thomas did strike Orlino as Orlino testified. pull him by the collar and the hood of his coat while at- Orlino was an honest and reliable witness. He was cor- tempting to drag him from his car before letting go. roborated by another employee witness whose testimony Shortly after the assault on Schiller, Muirhead had a was also reliable and straightforward. The testimony conversation with Carey, the attorney for Respondent, concerning the size of Thomas as compared with War- who inquired whether Muirhead had seen what had oc- field is insignificant. Nor is it significant that Ramirez curred. A few days later, Muirhead was shown some thought that Thomas was the smaller of the two men photographs for the purpose of identifying the person and Orlino thought him to be the larger of the two. First who had hit Schiller. After viewing a number of photo- of all, Thomas is 5 feet 8 inches tall. He is taller than graphs in Clark's office, Muirhead identified Jan Piton as Orlino who is 5 feet 5 inches tall and could well have the assailant. been viewed by Orlino as "large" or larger than thebeen viewed by Orlino as "large" or larger than the Piton denied that he had ever stopped a car or hit or second man. Secondly, and more importantly, I do notsecond man. Secondly, and ore I rta tl , I t attempted to pull a driver out of a car under the circum- believe that Warfield was the other man. Warfield's testi- stances testified to by Schiller and Muirhead although mony was completely unreliable. He told different stances testified to by Schiller and Murhead, althoughm y ws c y u . He td d t he admitted he was picketing at the Racine Avenue plant on the first day of the strike. 21 Prior to being shown the content of his affidavit. Warfield insisted that he had told Thomas' attorney that he "shoved [Orlino] in the shoul- In the course of Respondent's investigation into the in- der." cident involving Schiller, Piton was interviewed by . n , , t ,. e n t 's . . ." 1 ' i , t i ti li i i t t . ti ll l t l t i l i . r r t t l it t ti rtl ft t ult ill , ir l i tf . ti ti t, r i t i f i i i ir fi l i i i ifi t. i i i i i t i ir l tif rli t t i t t l r r f t t . ir t it ill . t i i ll ll. l p r ' i ir i ntifi it as i f t i t ll and could ell have the assailant. o. . 1 ., . ,,been viewed by rlino as "large" or largerithan the Piton denied that he had ever stopped a car r it r sec a . l , i r t l ti c testif pedto d r v e r o u t o f a c ar u n de r th e cl r c u - l t l l l . t tifi t ill r ir , althoughmony was co pletlyunreliale.Hetol ifferent i ti i ^"n" ~~i~ i. . <* i. n-^ ,„ ,- i-. -" Co - . r t Piton a p i O ""te tified AMPAC 1089 Clark. Piton refused to divulge to Clark the names of floor window onto Normal Avenue. One, Henrietta any witnesses he contended were available to support his Stashwick, had her head out an open window watching denial that he had hit anyone or pulled anyone out of a the pickets when Mollet's tractor-trailer first appeared. car. Piton testified that he did not do so because he was She observed the striking employees gather around it told not to by a union representative. At the hearing, after it was stopped and saw a man in a green jacket po- however, Piton named three witnesses, including Raul sition himself between the tractor-trailer, where he "put Sanchez, a fellow employee, who could corroborate his out his arm" and retracted it. She testified that she rec- denial. None of these named employees was mentioned ognized the man in the green jacket and she called out in the pretrial affidavit given by Piton to the Labor his name. Board. In her direct testimony, Stashwick identified the man Sanchez, a union steward, was subpenaed by Respond- in the green jacket as "Joseph Wargacki," another em- ent from Guadalajara, Mexico, and interrogated regard- ployee who was discharged for alleged misconduct but ing the attack on Schiller. Sanchez testified that Piton later reinstated. She was adamant on this point. After stopped the car which Schiller was driving, the door cross-examination, Respondent's counsel stated that he opened, and Piton "had the arm of [Schiller]." He testi- believed that her identification was incorrect. The prior fled that he did not know if Piton hit Schiller, but he witness, Karwaczka, was brought into the courtroom, saw Piton try to pull the "driver out of the car." with the agreement of counsel for the General Counsel The testimony of Muirhead and Sanchez is mutually and after Stashwick gave a general description of the corroborative insofar as they identified Piton as the man she observed which fit that of Karwaczka. Sash- person who stopped Schiller's car and attempted to pull wick attributed her admitted error to being "extremely him out of it. Sanchez, a friend of Piton's, did not see a explanation. She seemed very con- blow struck but Muirhead did and, in this respect, he fi t identifying Wargacki and only appeared ner- corroborates Schiller who could not identify his assail- tiony ant. Dillon also testified. He generally corroborated v w . Schiller, but he could not see what was happening on In a pretrial affidavit given about these events on Jan- Schiller's side of the car because the door was being uary 18, 1980, Stashwick simply mentioned that she saw opened on his side of the car. I viewed all of these wit- a man in a green jacket "reach between the cab and the nesses as reliable and their testimony cumulatively estab- trailer and pull something out." She did not mention lishes that Piton did strike Schiller and attempt to pull Karwaczka by name. One of the office employees pres- him out of his car while Schiller was driving. Piton's tes- ent with Stashwick, Joan Miller, testified that Stashwick timony is not credible. He was not corroborated even mentioned Karwaczka's name later in the day. She did though he named some people who allegedly could have not hear Stashwick call out any name at the time the in- testified on his behalf. One of those, Sanchez, actually cident occurred. contradicted Piton. Piton's conduct was serious. He not Karwaczka testified that, on January 18, he appeared only struck an individual but interfered with a moving at the Normal Avenue plant around 5:15 a.m. and that he vehicle. In these circumstances, I find that Respondent left to go home around 9:30 a.m., after receiving his pay- properly discharged him for engaging in strike miscon- check from a supervisor. He denied that he had discon- duct. nected the air hose on any tractor-trailer that day. Also, while Karwaczka admitted to owning a green jacket, he Stanley Karwaczka asserted it was inside the locker room of the Normal On January 18, 1980, the first day of the strike, truck- Avenue plant on January 18, and that he had worn a driver George Mollet sought to deliver a trailer load of black leather jacket on that day. boars to Respondent's Normal Avenue plant between 10 Richard Backert, superintendent of the Normal and 11 a.m. As he approached the plant entrance with Avenue plant, testified that he distributed paychecks at his tractor-trailer, he observed a number of pickets in that location between 10 a.m. and noon, and that Kar- front of the gate. Mollet stopped his tractor-trailer. A waczka was one of the striking employees to whom he number of pickets gathered in front of the tractor and gave a check during that period. He also testified that around the side yelling to Mollet not to enter the plant. Karwaczka wore a green jacket. Backert noted Kar- One of the pickets walked by the driver's side of the waczka particularly since Backert had earlier heard in tractor-trailer and, some seconds later, Mollet heard a the office that Karwaczka was "the guy that pulled the "loud pop." Mollet got out of his cab and inspected his thing off the truck" earlier that morning. Backert also tires, believing one of them may have blown out. Mollet testified that he was involved about a week later in open- noticed that the air hose was disconnected from the trac- ing the lockers of about 180 striking employees to make tor-trailer. After connecting the air hose, which took him such lockers available for strike replacements. When the a few seconds, Mollet reentered his cab and drove off. lock on Karwaczka's locker was clipped and the locker He returned and entered the plant, without incident. contents inventoried, according to Backert, there was no Mollet could not identify the person who disconnected green jacket inside the locker. However, he does not the air hose although he noticed a man wearing a green recall whether Karwaczka's personal belongings were jacket walking past his tractor-trailer just before he ever returned to him. heard the pop. There was no damage to the truck. I do not believe that Karwaczka was the person who The above events were witnessed by some of Re- disconnected the air hose on the morning of January 18. spondent's employees who were looking out of a second Karwaczka's denial seemed to me to be credible. He was , i t r j t " r ki," t r - l j , i i l i r f r ll isc ct t i tt ill r. t tifi t t it l t r r i t t . he as ada ant on this point. fter il - x i ti ' l i ill t ti li i ti i i i t i i f ill r, t it t t ll t i t t . l r l t ti f irh i t ll h i l cri ti rr r ti i s f r as they identified iton as the an she observed which fit that of Karwaczka. Stash- r t ill r' r tt t t ll i tt i t i i r l . , i n I du t ti . l tr t irh i , i t i r t, f i tif i i l ill l i tif i ail v w tes imon . l ti r l il l i I n af id a v it i i 18, 19 80 , t h i i l ti t t s s r. ll a m an n a r ea c t t t i ti l ti l a nd t i t. i t ti i il l t ffi l r - il h i , l ti i i l . ' l i t . i l l l l " t h i ll ti t i ti lf. , t l t , t t r l a c k t t . . . l j b 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a candid witness who was not impeached on cross-exam- When he got there, Mojica asked him why the employ- ination. Respondent's evidence to the contrary is flimsy. ees did not form their own union. He also "understood" The two office personnel who observed the incident and Mojica to suggest that if the employees left the Union testified herein were speculating on the identity of the they would not have their pay reduced by 94 cents. person who disconnected the air hose. The reports on Mojica also told Martinez that replacements would be this entire incident, which was one of several that oc- hired for employees who went on strike. Martinez also curred on this, the first day of the strike, were fraught testified that he did not mention this conversation to his with confusion and uncertainty. Stashwick did not even fellow employees. Griffin testified that, on or about the identify the person in the green jacket in an affidavit same day or a day later, he was called into Mojica's given the very day of the incident and, at the hearing, office by Mojicahimself. Mojica asked Griffin what he she confidently identified a person other than Karwaczka thought about the Union and whether he would rather before correcting herself. Miller relied on what others have a voluntary union rather than a "mandatory one had told her and Backert had likewise heard from un- like you have now." Gri said he liked the one he had identified office personnel that Karwaczka had been in- at present. On cross-examination, Martine admitted to volved in the incident. All had participated in investiga- r n r tions and interviews by Respondent which had focused matte he 94-cent rollback himslf.r on Karwaczka and which solidified their identifications He also admitted he was very "mad at Moca for prior to the hearing herein. Moreover, I do not believe having fired his brother, sometime earlier. that Backert could have remembered what Karwaczka Mojica testified that Martinez came to his office on or wore on January 18 when he was one of numerous em- about December 13, 1979, with questions about a letter ployees given a check or what was not in his locker of that date distributed to employees about the negotia- when he cleared it out as he did the lockers of 180 other tions. Gonzales testified that Martinez approached him employees. Nor can I be confident that Backert was en- with questions about the letter and, as a result, he re- tirely sure of the time when the checks were distributed ferred Martinez to Mojica. Mojica met with Martinez. so as to place Karwaczka on the premises at the time of He had the December 13 letter in front of him and he the air hose incident. If, as he testified, Backert knew, answered Martinez' questions about the 94-cent rollback. prior to giving Karwaczka his check, that he had been They discussed other issues including the possibility of a identified as having disconnected an air hose, it is reason- strike. Mojica denied asking that the employees form able to assume that Backert would have mentioned it to their own union or threatening to reduce wages unless him at the time. He did not. In all the circumstances, I the employees rejected the Union. He also denied ques- find that the identification by Respondent's witnesses of tioning Griffin as the latter testified. According to Karwaczka as the person who disconnected the air hose Mojica, he saw Griffin outside his office reading Clark's is too speculative for me to base a finding and I therefore letter. Mojica asked Griffin if he had any comments or credit Karwaczka's denial that he was involved in the in- questions and Griffin said he had none. Mojica denied cident. that he invited Griffin into his office or that he had in- In any event, even if, contrary to the above analysis, I quired whether Griffin liked a voluntary or mandatory were to find that Karwaczka did disconnect the air hose, union. the incident is not significant enough to justify his dis-is a t of bh . . I credit Mojica's account of both conversations. His charge. There was no damage to the truck, it took sec- a o mnri i onds to reconnect the air hose, and the truckdriver was testimony was candid and included meaningful detail, not impeded from eventually entering the plant. The dis- articularly the fact that these employees had just re- charge of a striker in these circumstances would give the ceived a letter from management which may have impression that the employer was so interested in curtail- prompted some questions. Griffin testified on cross-exam- ing the right to picket and strike that he was willing to ination that he may have seen and read the December 13 punish employees for minor incidents to that end. I letter. Gonzales corroborated Mojica that Martinez had therefore find that Respondent violated the Act by dis- some questions about the letter and that he referred him charging Karwaczka for alleged misconduct while he to Mojica. Martinez himself testified he raised the issue was engaged in protected concerted activity. of the 94-cent rollback. The testimony of Griffin and Martinez was devoid of context and not as clear or as D. The Alleged 8(a)(1) Violations detailed as that of Mojica and Gonzales. In addition, Two current employees, Rudolfo Martinez and Willie Martinez seemed to have a personal grudge against Griffin, testified in support of the allegations in the Gen- Mojica for firing his brother. Accordingly, I credit eral Counsel's complaint that Albert Mojica threatened Mojica and Gonzales and I shall dismiss the allegations and interrogated employees. The evidence shows that, that Respondent violated Section 8(a)() of the Act by during negotiations, Respondent sent letters to employees Mojica's remarks on December 12 or 13, 1979. describing the negotiations and setting forth Respond- The General Counsel also alleges as unlawful "help ent's positions. Mojica testified that there were many wanted" advertisements placed by Respondent in the times when he had conversations with employees about Sunday Sun-Times edition of January 20, 1980, the Chi- the status of negotiations. cago Tribune edition of January 21, 1980, and in certain Employee Martinez testified that, on or about Decem- Spanish and Polish language newspapers on or about ber 12, 1979, his immediate supervisor, Bals Gonzales, such dates seeking replacements for striking employees. told him that Mojica wanted to see him in his office. These advertisements read basically as follows: ,. l i i it r l t r, s calle i t jica's t i i t , t t ri , ffi ji rhi self. jica asked riffin hat he lf. w l t i tifi ffi r l t t i i i z l i t i i t. ll P rti i t i bg up tr ti s i t r i t i f He a a h w v "a aMi fo li i i ti H e al so ad l r t te d he w as v m ad a t M o ^ f o ri i . li i f ir ed h is b r o t h er , s ti rli r. t. ' i i I t r f r l tt r. jica as e riffin if he had any co ents or de nt i i i i i i i t t i I t, if, tr r t t l i , I i t i i li l t . t i i t is t si ifi t t j tif is is- I cd M c cnesto. Hi. - " . . " , - ., - ,~~~~I r . r s t t tr , it t t was c a i detail, ptestimo t l ri t. is-Particularl l c eiv ed a l e t t er f ro m t i i l il i i t t ji t t rti f t ti r i t lf ti ti it . . ti i i t l )(l) tions i i l . iti , l t r l r i t if ti r l i i i i l , I r it l l i M o c a l ll i i t ll ti l . i l ti ( )(l) f t t ti t , t AMPAC 1091 LABORERS CONCLUSIONS OF LAW Wanted for meat packing plants. Immediate open- 1. By discharging employees Frank Sekula, Jesus Gon- ings. $8.31/hr. base labor rate. These employees zales, Juan Perez, Warren Mills, Alfonso Pineda, Joseph will be permanent replacements for striking employ- Wargacki, Stanislaw Krycinski, and Stanley Karwaczka, ees. Respondent violated Section 8(a)(3) and (I) of the Act. 2. The above violations are unfair labor practices af- Since the strike herein was not an unfair labor practice fecting commerce within the meaning of Section 2(6) strike and since, neither in the advertisements nor at any and (7) of the Act. time, did Respondent threaten to deprive unfair labor 3. Respondent has not otherwise violated the Act. practice strikers of their rights under the Act, the adver- tisements were not coercive or in any other manner un- THE REMEDY lawful. I shall therefore dismiss the allegation that the advertisements were violative of the Act. Having found that Respondent has engaged in certain The General Counsel also alleges that, on the day the unfair labor practices, I shall recommend that Respond- strike ended, Albert Mojica assaulted a union representa- ent be ordered to cease and desist therefrom and to take tive, Reuben Ramirez, on public property in the presence certain affirmative action designed to effectuate the poli- of a number of picketing employees. The evidence pre- cies of the Act. sents two competing views, each held strongly by the Since all the discriminatorily discharged employees antagonists and witnesses on their behalf. A fair reading except one have been reinstated and there is no evidence of the evidence reveals that, in the early morning hours or contention that they have not been properly reinstat- of February 28, Mojica arrived at the picketers' station ed, I shall order the reinstatement only of employee across the street from the Racine Avenue plant with Stanley Karwaczka to his former job or, if that job no Raul Sanchez, an employee and a union steward. San- longer exists, to a substantially equivalent position with- chez, who had been drinking with Mojica earlier in the out prejudice to his seniority or other rights. Karwaczka evening, invited Mojica to have a drink there. Mojica ac- and the seven other discriminatorily discharged employ- cepted and had a few drinks with the strikers. Sometime ees shall be made whole for any and all losses of earn- later, Ramirez appeared and told Mojica to leave. An ar- ings caused by their unlawful discharges. The amounts gument ensued between the two men, which included due to these employees shall be computed as provided in some pushing and shoving, over whether Mojica be- F. W. Woolworth Company, 90 NLRB 289 (1950), with longed at the site. Mojica insisted that he had been invit- interest as provided in Florida Steel Corporation, 231 ed. At one point following some shoving, Mojica NLRB 651 (1977).23 grabbed Ramirez' cap and threw it into a fire barrel. At Upon the foregoing findings of fact and conclusions of another point, Mojica struck Ramirez. Mojica and two law, I hereby issue the following recommended: other employee witnesses testified that Mojica patted Ra- mirez "lightly" on the face in an attempt to calm Ra- ORDER 24 mirez. Ramirez and his two witnesses, one, another rep- resentative of the Union, testified that the slaps were The Respondent, AMPAC, a subsidiary of Kane- more substantial. Frankly, I am unable to determine Miller Corp., Chicago, Illinois, its officers, agents, suc- whether the slaps were substantial or who started the cessors, and assigns, shall: shoving and pushing. 1. Cease and desist from: I do not believe that the evidence set forth above is (a) Discharging or otherwise discriminating against sufficient to establish a violation of the Act. Mojica was employees because they participate in a strike or engage invited to the strikers' station which was on public prop- in other protected concerted or union activity. erty and engaged in an altercation with Ramirez who (b) In any like or related manner interfering with, re- had come onto the scene in an attempt to eject him. I straining, or coercing its employees in the exercise of cannot conclude that Mojica was the aggressor nor can I their Section 7 rights. conclude that any employee would have been restrained 2. Take the following affirmative action which is nec- from engaging in protected activity by Mojica's conduct. essary to effectuate the policies of the Act: From my observation of the witnesses and their demea- (a) Offer Stanley Karwaczka full and immediate rein- nor I believe the fight involved the personalities of the statement to his former job or, if that job no longer participants as much as any disagreement over the labor exists, to a substantially equivalent position without prej- dispute. No employees could have believed that they udice to his seniority or other rights, and make him and would be subjected to assaults from Mojica for striking employees Frank Sekula, Jesus Gonzales, Juan Perez, or otherwise engaging in union activities. Nor was there any evidence that any employees were or could have Memories are hazy as to exactly what happened, and, at present, Ramirez been coerced by what transpired. I shall therefore dis- is acting as a servicing representative and presumably dealing with miss this allegation of the complaint. 2 2 Mojica on an amicable basis.miss See, generally, Isis Plumbing &i Heating Co.. 138 NLRB 716 (1962). -" In the event no exceptions are filed as provided by Sec. 102.46 of 12 Even if I were to credit Ramirez' testimony in its entirety and if I the Rules and Regulations of the National Labor Relations Board, the were to conclude that Mojica's conduct "coerced" or "restrained" em- findings, conclusions, and recommended Order herein shall, as provided ployees, I doubt very much if it would effectuate the policies of the Act in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and or promote labor peace to make findings of a violation on this issue and become its findings, conclusions, and Order, and all objections thereto to issue a remedial order Over a year has passed since the confrontation. shall be deemed waived for all purposes. 1 . i i i i l i i i i t rti t nor at any and (7) of the Act. , t t t i . t t i i l t t . t - T E RE EDY . , . , t r r - T h e , i i f - i l le r a in W O as a r i i i t i ll ti f t l i t." ojica on an amicable basis.15S , ll , i l i ri ., B ( 62). - " l t . 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warren Mills, Alfonso Pineda, Joseph Wargacki, and notice, on forms provided by the Regional Director for Stanislaw Krycinski whole for any loss of earnings or Region 13, after being duly signed by Respondent's rep- benefits they may have suffered as a result of their un- resentative, shall be posted by Respondent immediately lawful discharge in the manner set forth in the upon receipt thereof, and be maintained by it for 60 con- "Remedy" section of this Decision. secutive days thereafter, in conspicuous places, including (b) Preserve and, upon request, make available to the all places where notices to employees are customarily Board or its agents, for its examination and copying, all posted. Reasonable steps shall be taken by Respondent to payroll and other records necessary or useful in order to insure that said notices are not altered, defaced, or cov- analyze and determine the amount of backpay due under ered by any other material. this Order. (d) Notify the Regional Director for Region 13, in .... . .. writing, within 20 days from the date of this Order, what (c) Post at its facilities in Chicago, Illinois, copies of steps Respondent has taken to comply herewith. the attached notice marked "Appendix." 25 Copies of said IT IS FURTHER ORDERED that the complaints be dis- missed insofar as they allege violations not found herein. " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" shall read "Posted Pursu- Order of the National Labor Relations Board." , , cision,.secutive r i l t ll l ti t l are c st rily i ti i , ll . l t ll t t to r ll ary f l n su r e th a t s a d n o t ic es a r e n o t a l t er e d , f , r - e r e d b y t m a t e ria l . . , i t t it f iliti i i , lli i i t l r it . tt i . 2 i i I t t t l i t i - i i "