Beatrice Food Co.

National Labor Relations Board - Board Decisions

Mar 25, 1975

217 N.L.R.B. 80 (N.L.R.B. 1975)

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Sexton & Co., a Division of Beatrice Food Co.
and John W. Knuth. Case 13-CA-11989
March 25, 1975
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On October 2, 1974, the National Labor Relations
Board issued a Decision and Order Remanding Pro-
ceeding to the Administrative Law Judge' in "the
above-entitled proceeding in which it directed him to
decide the case on its merits. On October 25, 1974,
Administrative Law Judge Thomas S. Ricci issued the
attached Supplemental Decision in this proceeding.
Thereafter, Respondent filed exceptions to the Ad-
ministrative Law Judge's Supplemental Decision and a
supporting brief, General Counsel filed cross-excep-
tions and a supporting brief, and Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the exceptions
and briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order as modi-
fied herein.' -
The Administrative Law Judge concluded that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discharging John Knuth because he persisted in filing
grievances under Respondent's collective-bargaining
agreement with Local 705 of the International Brother-
hood of Teamsters. We agree.
The General Counsel contends, however, that Knuth
was also discharged because, in refusing to drive on
November 17 with a suspended driver's license, he was
attempting to implement a contract right,' and that
his discharge for this reason constituted a separate vio-
1 213 NLRB No. 111.
2 The Administrative Law Judge inadvertently omitted the word "Supp-
plemental" from the title of his Decision.
3 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
4 Respondent's request for oral argument is hereby denied, since the
record, exceptions, and briefs adequately present the issues and the posi-
tions of the parties
5 According to General Counsel, Knuth's refusal to drive constituted an
attempt to enforce the right of drivers to refuse to drive where driving would
be "in violation of any applicable statute" as provided for in art 14 of the
collective-bargaining agreement then in effect.
lation of Section 8(a)(1) of the Act. The General Coun-
sel'scontention is premised upon a finding being made
that Knuth was discharged at least in part for refusing
to drive a truck on November 17. The Administrative
Law Judge expressly rejected this finding as pretextual.
Rather, the Administrative Law Judge found that
Knuth was discharged solely because he filed many
grievances against Respondent, a finding which the
record supports and with which we are in complete
agreement.
However, even if Knuth had been discharged for
refusing to drive, as Respondent claims, we neverthe-
less would be compelled to find that, considering Re-
spondent's knowledge that Knuth's refusal stemmed
from the apparent suspension of his license, his dis-
charge would have been in violation of Section 8(a)(1)
of the Act. For, under article 14 of the existing collec-
tive-bargaining agreement, Knuth had an arguable
right to refuse to drive with a suspended license and,
thus, his assertion of that right constituted a grievance
within the framework of the contract that affected the
rights of all the unit employees. The Board has consist-
ently held that Section 7 of the Act protects employees
attempts, such as Knuth's, to implement the terms of
bargaining agreements irrespective of whether the as-
serted contract claims are ultimately found meritorious
and regardless of whether the employees expressly refer
to applicable contracts in support of their actions or,
indeed, are even aware of the existence of such
agreements.' Consequently, were we to find that Re-
spondent's asserted reason for Knuth's dismissal was
not pretextual, we nonetheless, under the circum-
stances here, would find his discharge unlawful.
However, wholly apart from the discharge issue, we
find that the Respondent did violate Section 8(a)(l)
when it told Knuth, albeit falsely, that he was being
discharged for refusing to accept a driving assignment
on November 17. As we have found above, Knuth, in
refusing to drive without a valid license in assertion of
a contract right, was protected by the Act. Thus, Re-
spondent's conduct of merely telling him that his
refusal to drive was the reason for his being fired had
the tendency to restrain and coerce Knuth and his
fellow employees, who subsequently would learn of his
discharge and the stated cause therefor, from thence-
forth exercising their rights under the Act to seek im-
plementation of contract provisions governing their
employment with Respondent. Accordingly, we find an
8(a)(1) violation based on this statement alone and
6 Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495
(C A. 2, 1967); and C& IAir Conditioning, Inc., McKeon Construction, 193
NLRB 911 (1971), enforcement denied 486 F.2d 977 (C.A. 9. 1973).
7 Although the complaint does not specifically allege that Respondent
independently violated the Act by this statement, we find that this matter
is encompassed in the broader allegations that Knuth was discharged for
trying to enforce the contract and that, thus, the Respondent was fully
217 NLRB No. 12
JOHN SEXTON & CO.
we shall order that Respondent cease and desist from
engaging in such conduct.
AMENDED CONCLUSIONS OF LAW
Renumber paragraphs 1 and 2 of the Administrative
Law Judge's Conclusions of Law as paragraphs 2 and
3, respectively, and insert the following paragraph as
paragraph 1:
1. By threatening to discharge employees for assert-
ing or attempting to assert their rights under a collec-
tive-bargaining agreement governing the terms and
conditions of their employment, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below, and
hereby orders that Respondent, John Sexton & Co., a
Division of Beatrice Food Co., Elk Grove Village, Il-
linois, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended Or-
der, as so modified:
1. Insert the following paragraph as paragraph 1(a)
of the recommended Order and reletter the subsequent
paragraphs accordingly:
"'(a) Threatening employees that they will be dis-
charged for asserting or attempting to assert their
rights under a collective-bargaining agreement govern-
ing, the terms or conditions of their employment."
2. Substitute the attached notice for the Administra-
tive Law Judge's notice.
apprised of its existence as an issue In any event, we find that it was fully
litigated by the parties and that, therefore, no denial of due process is
involved,
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated the Federal law by dis-
charging an employee because he engaged in union
activities:
WE WILL NOT threaten to discharge our em-
ployees for asserting or attempting to assert their
rights under a collective-bargaining agreement
governing the terms or conditions of their employ-
ment.
81
WE WILL NOT discharge or otherwise discriminate
against any employee because he files grievances
against us, through his union.
WE WILL NOT In any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the National
Labor Relations Act, except to the extent that
those rights may be affected by an agreement re-
quiring membership in a labor organization as a
condition of employment, as authorized in Section
8(a)(3) of the Act.
WE WILL offer to John Knuth immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to his senior-
ity and other rights and privileges and make him
whole for any loss of earnings he may, have suf-
fered as a result of the discrimination against him.
JOHN SEXTON & Co, A DIVISION OF
BEATRICE FOOD CO
DECISION
STATEMENT OF THE CASE
THOMAS A.-Ricci, Administrative Law Judge: After a full
hearing on the merits of the substantive issue of the complaint
in this proceeding, the complaint was dismissed in its entirety
on September 11, 1973. The dismissal rested exclusively on
the ground that the discharge of John Knuth, alleged to have
constituted a violation of Section 8(a)(3) of the Act, had been
processed through final binding arbitration by the parties
pursuant to their collective-bargaining agreement. On Octo-
ber 2, 1974, the Board remanded the case for decision based
upon the record evidence, oral and documentary, as received
in the National Labor Relations Board hearing. Accordingly,
again upon the record as a whole and from my observation
of the witnesses, I make the following findings and conclu-
sions.
A. The Question in Brief
Knuth, a truckdnver, worked for the Respondent from
September 1969 through November 1972. During that period
he initiated a number of grievances against the Company
through Teamster Local 705, his collective-bargaining agent,
with which the Respondnet has had written contracts for
many years. Knuth won certain major grievances, the Re-
spondent paying him substantial sums in consequence, and
lost others. He was dismissed summarily 4 days after submit-
ting still another grievance. The complaint alleges he was
released in retaliation for his repetitive insistence upon exac-
tion of contractually guaranteed employment rights through
the Union, and that the act of discharge violated Section
8(a)(1) and (3). Denying any illegal motive in its conduct, the
Respondent contends,, in affirmative defense, that he was
dismissed because on November 17, 1974, he literally refused
to drive on a regularly and properly scheduled delivery route.
There are questions of credibility presented, and there are
conflicting inferences urged by the parties. The following
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facts, however, are established beyond question. On Thurs-
day, November 16, while Knuth was on the road with his
truck, a state trooper delivered to his home a written docu-
ment reading:
FINAL NOTICE
OFFICE OF THE SECRETARY OF STATE
INVESTIGATION SECTION
5301 W. Lexington Ave.
Chicago, Ill. 60644
Date November 15, 1972
Name John Knuth
Address 4544 S. Knox
You are hereby notified to appear at the above address
On 11/17 1972 at 1:00 P.M.
Officer Dahcin Star No. 142
ES-9-5616
379 5600 Hearing
Notice of an Order of Suspension has already been for-
warded to you, together with instructions to surrender
the items listed below. You have failed to surrender
them . Unless they are received at the above address on
or before the appearance date shown , it will be necessary
for you to bring them personally.
[X] DRIVERS LICENSES K530 47941222
[ ] CHAUFFEURS LICENSE
[X] LICENSE PLATES
[ ] REGISTRATION CARD
Failure or refusal to surrender the items listed above is
a violation of Section 6-301 or 8-123 of the Illinois
Motor Vehicle Law.
The following morning, at 6 a.m., Knuth presented himself
at the company yard, where the drivers were gathered as
usual and where the day's schedule of runs was posted. He
spoke to Bob Baldino, the supervisor in charge, and to Joe
D'Amato, the Teamster 705 steward on the job, himself also
a driver. Knuth's name was on the driver list for that day. In
the face of Baldino's insistence that he take the truck out and
make the deliveries, he refused. His refusal was reported
during the day to James Mank, the dispatcher and Baldino's
superior, who arrived in the afternoon, and to Norman
Porges, the general manager.
During that same day Knuth reported to the office of the
Secretary of State in keeping with the order of suspension
detailed in the written notice he had received the previous
Thursday. He was told- the notice had been issued in error,
that his driving license was not suspended, and that he need
not surrender either his driver's license or his license plates.
Knuth was not scheduled to work on Saturday, November
18. He was scheduled the following week and worked 5 con-
secutive days. He was scheduled off Saturday, November 25,
and that day received a telegraphic message from the Com-
pany, telephoned to him at home, advising that "as of today
November 27, John Knuth is fired." No one advised Knuth
of this intended action before that moment, and no one, on
behalf of the Company, advised any agent of the Union before
Knuth arrived at the truck depot the following Monday,
November 27_
Another objective and absolute fact of record is that on
Thursday, November 30, Knuth returned to the office of the
Secretary of State and was given a letter addressed "To
Whom It May Concern," certifying that he was in full com-
pliance with all legal driving requirements. The officer in
charge even added his telephone -number to the
document-a ready convenience for anyone who might want
to verify the statement. Knuth returned to the Company that
evening, but his request for reinstatement was rejected.
B. Credibility
Knuth's testimony is that when he went to the truck depot
on November 17 with the notice saying it was improper for
him to drive, he showed it to Supervisor Baldino, saying "I
couldn't drive," and when the supervisor said "nothing he
could do . . . I had to take the drive," he, Knuth, showed it
to Union Steward D'Amato, again saying, "I received a sus-
pension . . . I don't think I want to jeopardize my job." Both
Baldino and D'Amato told him that he nevertheless had to
drive. Baldino is no longer with the Respondent and was not
called to testify; D'Amato gave shifting testimony. At one
point he said Knuth did not tell him "that he could not legally
drive his truck." The steward also recalled, however, that
Knuth told him "Something about going to ,the Secretary of
State and to have his license plates." D'Amato also said the
driver "showed me a piece of paper and I didn't read it all,
I know there was a date on it and he had to be there at one
o'clock." He then also admitted he put his glasses on in order
to read the notice, but was familiar only with "the top of it,"
he did not bother to read it all. I do not credit this man's
testimony against that of Knuth. Knuth's testimony was cor-
roborated by that of Baltazar, another driver.
The night before, after finding the suspension notice at his
home, Knuth called the dispatcher, Marik, to alert him to the
fact he would not be able to drive the next day because his
license had been suspended. According to Knuth's testimony,
Marik told him he was greatly in need of men and would try
to utilize Knuth in some other way. Again, Marik's version
is different; he testified Knuth said only "that he had some
business to take care of at the Secretary of State the next day,"
and asked for a driving assignment that would take him close
to that office. Marik said Knuth did not tell him why he had
to report to the Secretary of State.
Marik was not present in the morning, when Knuth ar-
nved with his suspension notice and talked to Baldino and
D'Amato. But this is as convenient a place as any to consider
the dispatcher's credibility also. He and Baldino reported
everything that same day to Porges, the general manager.
Porges testified, and he said all he knew was what the two
lower supervisors told him. He said he definitely decided to
discharge the man that very day, after being told that Knuth
had refused to drive, and after the subordinates had told him
"that he [Knuth] had some business at the Secretary of State's
office. . . " I am asked to believe that not one of these three
JOHN SEXTON & CO.
meni Marik, D'Amato, and Porges, professional truckdriv-
ers all, knowing that Knuth refused to drive, and that he had
to report to the office of the Secretary of State-asked, either
of him or of one another, why it was that the driver had to
go to that office, that not one of them knew or suspected that
the problem involved the driver's driving license. I am asked
to believe that Knuth, with the written revocation of license
inhis hands, would talk to BaIdino, Marik, and D'Amato
about it, would ask for time off-without driving-to do
something about it, but would say nothing to any of them
about the very substance of the official notification.
Apart from the inherent implausibility of the driver hold-
ing back on the heart of his reason for refusing the driving
assignment that day, there is more in the testimony casting
a very serious doubt upon the credibility of the Respondent's
witnesses . After straightening out the State's record concern-
ing his driving license that Friday, Knuth telephoned the
dispatcher in the evening, and advised him, according to his
testimony, that he was now in the clear, that he would be back
to work regularly on Monday, 'and that he was available for
assignment even the'next day, Saturday, if there were work
to be done. Marik, as a witness, said he received many calls
every evening from drivers, to ask about the next day's
schedule, to ask such questions as "What do you have me
on," or "What time," and things of that kind. His version of
Knuth's call that night is that the man said he had been out
on the truck of another driver, Baltazar, during that day, and
not another word. Marik insisted Knuth did not tell him why
he called, and he did not bother to ask him. In short, Marik
attributes an irrational and pointless act to the driver. Marik
even said he had learned earlier in the day, from Baltazar,
that Knuth had accompanied him earlier. What are the
chances Knuth, in trouble with his employer after refusing a
direct order to drive in the morning , relieved now of the
worry about losing his license, and no doubt happy to go
about his normal work, would call the dispatcher-his
boss-to tell him nothing? More important, what are the
chances Marik would say nothing to him, now that the deci-
sion had already been made with finality-according to
Porges-to discharge the man? Why did not Marik at least
tell him not to report on Monday? On the face of his tes-
timony, Marik cannot be believed.
There is also a direct conflict in testimony between Knuth
and Porges. After obtaining the exculpating note from the
Secretary of State's office on Thursday, November 30, Knuth
returned to the plant, and, as he testified, showed it to Porges
and D'Amato. As Knuth testified: "Mr. Porges read it and
he handed it back to me and he said that it didn't mean
nothing to him and if I thought it meant something to me I
should take it down to my grievance proceeding coming up
and as far as he was concerned I was fired." According to
Porges: "John [Knuth] related the incidents, he had a piece
of white paper in his hand. Conversation was basically that
I could not drive that day, I shouldn't have been fired. Joe
D'Amato supported him. I can recall Joe saying give him one
more chance." Porges added he refused the request and told
Knuth to "go through grievance."
It is too facile a story to refer so passingly to Knuth's very
formal document from the Financial Responsibility Depart-
ment of the Secretary of State, as a "piece of paper." When
Knuth told the boss of the "incidents" which explained why
83
he "could not drive that day," he must have been emphasiz-
ing the erroneous suspension of his driver's license. There
could be no other reason for him to have that "piece of paper"
in his hands. I do not believe D'Amato's, Marik's, and
Porges' stories. I fmd that the company managers knew, from
the first day, that Knuth's driver's license had been sus-
pended and they refused to recognize that fact as sufficient
reason for him, not to drive until the matter was resolved. The
company representatives also knew, of course, that it would
have been improper if not unlawful for him to drive, to say
nothing of the danger that liability insurance might not be
effective while he drove under such a disability. And the
Respondent also knew, of necessity, of the provision in its
contract with Teamsters Local 705 that effectively said
Knuth was not to drive that day. i
There is a certain persuasiveness in the assertion set out in
the Respondent's brief that no employer carrying on a truck-
ing business would discharge a man whose license was sus-
pended and who refused to drive for that reason. As this
record does show the Respondent was aware of such restraint
upon Knuth, I also fmd that whatever its true motivation
may have been, the one it stated in Knuth's discharge notice,
and that it reasserted at the hearing, is not the true reason for
his discharge. A reason there had to be, not only in the mind
of management for dismissing him, but also in the thinking
of the Union, through its steward, D'Amato, in failing to
support Knuth's position on the morning of November 17
and in advising him, to drive a truck in violation of both
applicable law and the Union's own contract. And it is the
theory of complaint that the true reason for the discharge is
the fact Knuth filed too many grievances through the Union
to suit the Company. Indeed, there is even a hint in the record
that he filed too many for the Union's comfort.
C. Protected Union Activity
1. Knuth started as a 10-percent driver, at the bottom of
the seniority list; for several months he worked only 2 or 3
days a week. Because of his subordinate status, the Respond-
ent did not contribute to the Union's health and welfare fund
on his behalf. Knuth protested, to the supervisors and to both
the Local 705 stewards-D'Amato and Ramacotti. Knuth
read the union contract as giving him these fringe benefits,
too. The Company paid.
2. In December 1971, Knuth was suspended allegedly for
having two accidents in 1 year. He filed a grievance claiming
the Company was wrong. The grievance went to arbitration,
he won, and was paid about $700 in compensation.
3. In June 1972 Knuth was suspended again because of a
$1 shortage in his travel expense account. He filed another
grievance, again there was arbitration pursuant to the con-
tract, and again the Union prevailed. This time he was re-
1 Art. 14 in the collective-bargaining agreement then in effect contains the
following provision-
Dangerous Conditions Section 4 Under no circumstances will an Em-
ployee be required or assigned to engage in any activity involving
dangerous conditions of work or danger to person or property or in
violation of any applicable statute or court order, or in violation of a
government regulation relating to safety of person or equipment. The
term "dangerous condition of work" does not relate to the type of cargo
which is hauled or handled
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stored to good standard and paid about $1,500 in loss of
wages.
4. About a month later Knuth complained to dispatcher
Marik that his pay was between $9 and $12 short; he read the
union contract as calling for full pay while a man was waiting
assignment in the warehouse, but the Company thought he
was only entitled to 15 minutes' pay, unless a supervisor, in
writing, authorized more. Knuth then brought the question
to the union steward's attention, but, by that time, the 5-day
contract period allowed for filing grievances had passed, and
the matter died.
5. There was once still another dispute between Knuth and
management involving a money shortage. He was suspended
in discipline, and lost "a week or two in pay." The record
shows no details about this except that he filed a grievance
and that it was resolved in favor of the Company.
6. Finally, Knuth wrote out another grievance and handed
it to Supervisor Gatles, a supervisor, on the morning of Mon-
day, November 20, when he returned to work after being
cleared a few days earlier by the Secretary of State. It will be
recalled he telephoned the dispatcher on the evening of Fri-
day, November 17, to say he was available for assignment for
the following day. When Knuth arrived at the depot on Mon-
day, the schedule of assignment for the previous Saturday
was still posted, and it showed that a driver with less seniority
than he had been given a run, but not Knuth. As he read the
union contract, Knuth should have been given that run in-
stead. When he told Ramacotti, the union steward, about
this, Ramacotti said "claim the money." Knuth did that.
There is no indication as to what was ever done about that
complaint.
D. Analysis and Conclusions
delayed , but instead "Procedure would have it we contact the
union offices, the business agent to apprise him of the situa-
tion , whenever we suspect a grievance to be filed ." With this
Porges then had to explain why no one on behalf of the
Company spoke to any agent of the Union anyway. He said
three calls were made to Heim , the business agent , but "he
did not answer our calls." He also said each day of that week
he asked Supervisor Gatles had he been able to get in touch
with Heim and always the answer was no. And finally , Porges
admitted no one even attempted to give notice to the two
union stewards-D'Amato and Ramacotti-who appeared
everyday at the plant as regular company drivers.
The inference that Knuth was discharged because he filed
union grievances , and not because of the November 17 inci-
dent, is inescapable on this total record . It is an unfair labor
practice to discriminate against an employee because he turns
to his collective-bargaining agent to enforce his contract
rights against the employer. Illinois Ruan Transport Corpora-
tion, 165 NLRB 227 (1967). And the Board has held it is not
a defense to the complaint that the employee may have been
wrong in the grievance complaint he urged against the Com-
pany. Mushroom Transportation Co., Inc., 142 NLRB 1150
(1963), reversed on other grounds 330 F . 2d 683 (C.A. 3,
1964). This is certainly not the case of a deliberate and
habitual troublemaker filing repetitive grievances totally
lacking in merit . Knuth turned out to be right in most of his
complaints . But he did file many of them . Indeed, considering
Teamsters Steward D 'Amato's cooperative attitude with the
dispatcher's insistence that Knuth drive on November 17
without a license, it seems clear that the Union , too, was tired
of the man's grievances and was happy to see him fired.
I find, as alleged in the complaint, that the Respondent
discharged Knuth because he filed grievances through his
Union, and that it thereby violated Section 8(a)(1) and (3) of
the Act. The offense of refusing to drive, if offense it
was-what with the contract clearly providing he should not
drive with a suspended license-occurred on November' 17.
Despite Porges' statement that he decided upon the dismissal
that very day, he did nothing about it until a week later and
told nobody about his asserted decision. Nothing happened
in connection with Knuth's work between November 17 and
25 except the fact he filed still another grievance when he
claimed pay for Saturday work which he did not perform. To
push his discharge action back from November 25 to the day
the alleged misconduct took place, Porges gave inconsistent
and unconvincing explanations. During the first day of the
hearing he said he makes it a practice always to wait 5 days
after deciding to discharge a man before doing so. This was
purely a self-serving statement and had no objective evidenti-
ary value. He also said at this point of his testimony that the
union contract required the 5-day delay: ". . . it is specifi-
cally written in there there is a 5-day waiting period." But his
contract with Local 705, the one which governed Knuth's
employment, contains no such provision. Moreover, he did
not communicate in any way with any agent of the Union at
all.-Recalled by the Respondent to testify in defense a second
time the next day, Porges changed his story. Now he said it
was not a contractual requirement that disciplinary action be
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities as set forth herein, occurring in
connection with the operations of the Respondent in its com-
mercial activities, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. The Respondent must rein-
state John Knuth to his former position or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
it must make him whole for any loss of earnings resulting
from the discrimination against him, with interest at 6 per-
cent. The Respondent must also cease from in any other
manner interfering with the statutory self-organizational
rights of its employees.
JOHN SEXTON & CO. 85
CONCLUSIONS OF LAW
It. By discharging John Knuth for filing grievances through
his Union , the respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, John Sexton and Co., a Division of Bea-
trice Food Co., Elk Grove Village, Illinois, its officers, agents,
successors , and assigns, shall:
It. Cease and desist from:
(a) Discharging or in any other manner discriminating
against its employees because they file grievances through
their Union.
(b) In any other manner interfering with , restraining, or
coercing employees in the exercise of the right to self-organi-
zation, to form, join, or assist labor organizations , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
,(a) Offer to John Knuth immediate and full reinstatement
to his former job , or if that job no longer exists, to a substan-
tially equivalent position without prejudice to his seniority
and other rights and privileges.
(b) Make John Knuth whole for any loss of earnings he
may have lost by payment to him of a sum of money equal
to the amount he would have normally earned as wages from
November 25, 1972, to the date of the Respondent's offer to
him of full and complete reinstatement, together with interest
at the rate of 6 percent per annum, less his net earnings during
the aforesaid period.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports , and all other records necessary to
analyze the amount of backpay due under the terms of the
Order.
(d) Post at its Elk Grove Village, Illinois, place of business,
copies of the attached notice marked "Appendix."3 Copies
of said notice on forms provided by the Regional Director for
Region 13, after being duly signed by its representatives, shall
be posted by the Respondent immediately upon receipt
thereof, and be.maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by it to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its bindings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
3 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 Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."