Jones Dairy Farm

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1109 (N.L.R.B. 1979)

JONES DAIRY FARM
Jones Dairy Farm and Local Union No. P-1236,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO.' Cases 30-CA-3944 and
30-CA-4049
September 28. 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI F
On December 7, 1977, Administrative Law Judge
John P. von Rohr issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel timely filed exceptions to the Administrative
Law Judge's Decision and a brief in support thereof,2
and Respondent timely filed an answering brief and
cross-exceptions to the Administrative Law Judge's
Decision. The Charging Party filed exceptions to the
Administrative Law Judge's Decision, and an answer-
ing brief to Respondent's exceptions. On May 26,
1978, the Board issued an order3 remanding the pro-
ceeding to the Administrative Law Judge for further
hearing and preparation of a Supplemental Decision.
On June 26, 1979, the Administrative Law Judge is-
sued the attached Supplemental Decision. Respon-
dent timely filed exceptions to the Supplemental De-
cision and a brief in support thereof, and the
Charging Party and counsel for the General Counsel
filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Acts, 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 Decision and Supplemental Decision in light
of the exceptions and briefs and has decided to affirm
the rulings, findings, and conclusions of the Adminis-
I The name of the Charging Party, formerly Local Union No. P 1236,
Amalgamated Meatcutters & Butcher Workmen of North America, AFL
CIO, has been amended to reflect the change resulting from the merger of
Retail Clerks International Union and Amalgamated Meatcutters and
Butcher Workmen of North Amenca on June 7, 1979.
2 The General Counsel attached to his bnef. in support of excetions, his
brief submitted to the Administrative Law Judge following the onginal hear-
ing. Respondent has filed a motion to reject this latter brief, and the General
Counsel has filed an opposition to Respondent's motion. Respondent asserts
as grounds for its motion that the General Counsel has failed to comply with
Sec. 102.46(c) of the Board's Rules and Regulations, Series 8. as amended,
which provides, inter alia, that a brief filed in support of exceptions "shall
contain no matter not included within the scope of the exceptions." Respon-
dent contends that the General Counsel's bnef to the Administrative Law
Judge contains many arguments which are outside the scope of the excep-
tions, thus violating Sec. 102.46(c). Furthermore, Respondent contends that
it is prejudiced inasmuch as Sec. 102.46(dK 1) limits Respondent's answering
brief to issues raised by the exceptions. We find Respondent's contentions
lacking in merit. We have considered only those portions of the General
Counsel's brief to the Administrative Law Judge which pertained to the
exceptions, and Respondent has not shown that it was in fact prejudiced by
resubmission of that brief. We therefore deny Respondent's motion.
I Not published in bound volumes of Board Decisions.
trative Law Judge as modified below and to adopt the
recommended Order contained in his Decision as
modified herein.4
The complaint alleged, inter alia., that Respondent
unlawfully discharged employee Michael Krebs in
July 19765 and that on December 3. 1976. Respon-
dent unlawfully threatened employees (Krebs) with
discharge or other reprisal "for pursuing and attempt-
ing to resolve a safety grievance." The Administrative
Law Judge found, and we agree for the reasons stated
by him, that the July 1976 discharge of Krebs was
caused by his involvement in pursuing a safety mat-
ter; but the Administrative Law Judge did not discuss
or make any findings with respect to the alleged De-
cember 3 threat. The General Counsel has excepted
to the Administrative Law Judge's failure to rule on
this allegation. We find merit to this exception. With
respect to the alleged threat, Krebs testified without
contradiction that, on December 3, 1976, after being
informed by another employee of a potential safety
hazard involving a slicing machine which would not
disconnect, Krebs, who at the time was a member of
the plant safety committee, approached Marshall
Ernst, a supervisor, to request that Ernst correct the
situation. After some discussion between the two and
an attempt by Ernst to secure assistance, Ernst told
Krebs to "remember what happened last time."
We conclude on the basis of the record that the
only reasonable construction of Ernst's statement is
that it referred to the discharge of Krebs in July 1976.
which, as noted above, was also for pursuing a safety
matter. Accordingly, we find that Ernst's comment
constituted an unlawful threat of further reprisal for
engaging in the protected concerted activity of pursu-
ing claims of unsafe working conditions, and that it
therefore violated Section 8(a)(l) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
'We find that the recommended Order of the Administrative Law Judge
in his Supplemental Decision does not constitute within the meaning of Sec
10(c) of the Act an Order requiring the Respondent to cease and desist from
the unfair labor practices found and to take certain affirmative action to
effectuate the policies of the Act, and we, therefore, do not adopt that Order
as part of our Order. We do, however, adopt the component parts of said
Order as modifications by the Administrative Law Judge of the Remedy.
Conclusions of Law, and Notice to Employees set forth by him in his original
Decision in this case. Accordingly, we have adopted as our Order the recom-
mended Order of the Adrmnistrative Law Judge contained in his Decision
herein. with appropriate modifications to reflect the additional violation
found above. to require expungement from employer Michael Krebs' person-
nel file any reference to his unlawful discharges, and to substitute in light of
our recent decision in Hickmott Foods, Inc.. 242 NLRB 761 (1979), the nar-
row language requiring Respondent to cease and desist from violating the
Act "in any like or related manner" for the broad language "in any other
manner" recommended by the Adrmnistrative Law Judge.
Respondent reinstated Krebs shortly thereafter.
245 NLRB No. 143
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge in his original
Decision, as modified below, and hereby orders that
the Respondent, Jones Dairy Farm, Fort Atkinson,
Wisconsin, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed order, as so modified:
1. Insert the following as new paragraph (d):
"(d) Threatening to discharge employees or threat-
ening them with reprisals because they engage in
union or other protected concerted activities."
2. Reletter former paragraph (d) as paragraph
l(e) and substitute therefor the following:
"(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them in Section 7 of the
Act."
3. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from Michael W. Krebs' personnel
file any reference to his discharges in July and De-
cember 1976."
(4) Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges the com-
mission by Respondent of any unfair labor practices
not specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or in any other man-
ner discriminate against our employees for en-
gaging in union activities or for engaging in pro-
tected activities.
WE WILL NOT transfer our employees to more
onerous jobs because they file grievances relating
to the terms of their working conditions or be-
cause they engage in protected activity.
WE WILL NOT threaten our employees with re-
prisals for participation in Board proceedings or
otherwise seek to persuade our employees to
forgo participation in Board proceedings.
WE WILL NOT threaten to discharge employees
or threaten employees with reprisals because
they engage in union or other protected con-
certed activities.
WE WILL make Michael Krebs whole, with in-
terest, for any loss of earnings he may have suf-
fered by reason of the discrimination practiced
against him on July 9, 1976, and on December 7,
1976, and expunge any references to his dis-
charges from his personnel file.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
JONES DAIRY FARM
SUPPLEMENTAL DECISION
JOHN P. von ROHR, Administrative Law Judge: Pursuant
to Board Order, hereinafter noted, a further hearing in this
case was held before me on September 19, 1978, following
which briefs were duly received from all parties.
At all times material hereto, Michael W. Krebs acted as
chief union steward at Respondent's plant and also served
as a member of the safety committee. Respondent indefi-
nitely suspended Krebs on July 9, 1976, and a few days
thereafter converted this suspension into a discharge. The
complaint in this case alleges, inter alia, that by the forego-
ing conduct Respondent violated Section 8(a)(l) and (3) of
the Act.
At the conclusion of the General Counsel's case in the
earlier hearing, I granted Respondent's motion that the
foregoing allegation be dismissed. My sole ground for so
doing, in view of certain admissions by Krebs and the ap-
parent contention of the Respondent, was my finding that
Krebs was discharged for insubordination; namely and spe-
cifically, for swearing at a supervisor.
On May 26, 1978, following my Decision on the other
allegations in this case, the Board issued an Order remand-
ing this proceeding for further hearing, stating in pertinent
part as follows: "The Board has considered the record and
the Decision in light of the exceptions and briefs and has
concluded, contrary to the Administrative Law Judge, that
the General Counsel has produced sufficient evidence to
establish a primafacie case of unlawful conduct with regard
to Krebs' July [9], 1976 discharge."
Whatever the Board's reasons for the finding of a prima
facie case as to Krebs, from certain additional facts brought
out during the presentation of Respondent's case I am now
persuaded that the allegation in question should be sus-
tained. I relate below the relevant facts and my reasons for
so finding.
A. The Facts
On July 9, 1976, a major ammonia leak occurred in the
west hog coller of Respondent's plant at about 7:30 a.m. At
this time approximately 80 employees were working or get-
ting ready to work in the kill-cut and rendering department,
where the kill had begun. Since the fumes seeped into this
and other areas of the plant, the employees were promptly
evacuated. One employee, Marshall Hahn, did not get out
of the cut room in time and collapsed as he was about to
reach the door. He was taken to the hospital.
Upon being summoned, the fire department arrived
about 8 a.m. and provided exhaust fans which were used to
help dispel the fumes from the hog cooler through the cut-
1110
JONES DAIRY FARM
ting room doors to the outside. Another system was used to
spray water into the atmosphere so as to condense the va-
pors and wash the residue down the drains.
Since the kill floor was not affected as much as the other
areas, the killing operation started again at 10 a.m. It was
completed at about I I a.m. A cutting operation usually
follows the kill. The cutting and boning room, it should be
noted, is immediately next to the west hog cooler where the
ammonia leak occurred, and, apart from the cooler, it was
this department that was most severely affected. It was be-
tween 10 a.m. and 10:45 a.m. that Vice President William
Lenton, accompanied by the company bacteriologist-chem-
ist, the personnel manager, and three departmental supervi-
sors, including Foreman Larry Wendorf and Marshall
Ernst, went into the cut room. Lenton credibly testified that
he had years of experience with ammonia, including plants
where he had been employed previous to coming with Re-
spondent.' Lenton testified that he determined, from his ob-
servation, that the concentration of ammonia was less than
50 parts per million, which he said is the limit permitted by
OSHA on an average over an 8-hour work period. He testi-
fied also that at this point he and the others were able to
breathe normally. According to Lenton, he personally
made the determination that the area was safe and that the
cutting work could be safely undertaken at I I a.m.
Shortly before 11 a.m., Larry Wendorf, the assistant su-
perintendent of the kill-cut department, instructed Dean
Simmons, a maintenance employee, to go into the cutting
boning room to clean off a liquid film that had accumulated
on certain copper tubing due to the ammonia leak.' No
other employees had yet been assigned to go to work in this
area.
In the meantime Krebs, who had finished his work on the
kill floor and was on his lunch hour, was occupied going
around the plant to look for Jeff Punzell, the other em-
ployee on the safety committee,' to consult with him con-
cerning safety conditions at the plant. Krebs credibly testi-
fied that it was his observation that ammonia fumes were
still present in the cutting room when he went through it. In
thus making the rounds, Krebs learned from another em-
ployee of Simmons' assignment to clean the pipes in the
cutting department. This leads us to the incident which
prompted the dispute at issue herein.
From my observation of the witnesses and upon the en-
tire record and testimony in this case, I am persuaded and
find that in substance the following occurred: Krebs came
up to Simmons as Simmons was getting his cleaning equip-
ment together in the area of the locker room. Krebs asked
Simmons if it was true that he had been assigned to go into
the cutting room. Simmons said yes. Krebs then told Sim-
' Lenton was in charge of manufacturing at the Respondent Company for
11-1/2 years.
2 While it is not particularly determinative of the issues, Richard Saur. the
supervisor of the kill-cut and rendering department, testified that it was he
who assigned Simmons to do this work. It was the testimony of Simmons
and Wendorf, however, that it was Wendorf who made the assignment.
Wendorf testified, "I personally brought him [Simmons] in and told him
what I wanted done," but later added, "then Mr. Saur saw Simmons there,
and he instructed him for some other cleanup in the boning department.
3 The safety committee is composed of two employees and Personnel Man-
ager Shelhoub.
mons that the cutting room still had ammonia in it, that as
chief steward and a member of the safety committee he
thought it would be unsafe for him [Simmons] to go into it.
and that under the circumstances it was within his rights
not to go in. In the meanwhile Foreman Wendorf came up
in time to overhear the foregoing exchange between Sim-
mons and Krebs. Wendorf asked Krebs if he was trying to
create a work stoppage or slowdown. Krebs replied that as
the chief steward and safety committeeman he felt that the
area was unsafe and that Simmons had the nght to have it
checked out to make sure that it met safety standards. Wen-
dorf replied that the Company had determined that the
room was safe and that "we are going to work in there."
Krebs replied that he would not accept the answer and that
he was going to call OSHA. Wendorf said, "Call your god-
darn OSHA." To this Krebs responded, "Kiss my ass."'
Wendorf asked "What did you say?" and repeated the
question two or three times. When there was no response
Wendorf finally told Krebs, "I've got you now," and that he
would speak to him in the office later about the matter.'
Within about 10 minutes after the above incident, Krebs,
together with Union President Roberts. was summoned to
the office. Present were Lenton, Wendorf, and Shelhoub.
There is no need to relate the entire details of the conversa-
tion which ensued. However, Krebs protested that he did
not say "kiss my ass" (only "kiss"). He also stated that he
thought as safety committeeman that the area was not safe
and that "we had to act immediately": and further, as he
testified, "I told Mr. Lenton, no way did I tell this employee
not to go into work. I was just telling him his rights." In any
event, Krebs was finally told that his case would be re-
viewed and that until then he was being indefinitely sus-
pended. As indicated, his suspension was shortly changed
to a discharge.
B. Conclusion
Some further facts are first in order. Thus, upon cross-
examination of Wendorf it was brought out that about 5 or
6 years ago an employee named James Becker became in-
volved in an altercation with Wendorf and on this occasion
finally told Wendorf "kiss my ass." It is undisputed that
Becker at first was suspended indefinitely, but that instead
of being discharged Becker was finally given a 2-week sus-
pension. Similarly, on September 20, 1977, employee Avis
Johnson, upon being given a work order, called her supervi-
sor a "horse's ass." The only disciplinary action taken
against Johnson was a letter of reprimand. Surely. if Re-
spondent had taken disciplinary action against Krebs of the
4 This is the most disputed aspect of this conversation. Krebs testified that
he used the word "kiss." but thereupon caught himself and walked away.
Simmons testified, "I wasn't paying too much attention to the conversation.
But I did hear Mike say kiss, and then he turned around and walked away."
Wendorf emphatically testified that Krebs used the entire phrase quoted
above. From my observation, I credit Wendorf on the point.
'Although I credit Krebs that Wendorf made a statement like "I've got
you now." I attach no particular significance to the statement. There is no
evidence that prior to this incident Wendorf bore any particular animus
toward Krebs (in fact, he was not Krebs' foreman) and I do not construe the
statement, as the General Counsel apparently urges, as manifesting that
Wendorf welcomed an excuse to take discriminatory action against this em-
ployee.
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
type taken in either of the two cases above, and had taken it
for the sole reason that Krebs swore at Foreman Wendorf,
absent other circumstances there clearly would be no viola-
tion of the Act. However, the fact that Respondent acted
disparately as to the chief steward by discharging him then
is one reason for finding, as I do, that his discharge was
unlawfully motivated.
Beyond the foregoing, there is an additional reason for
finding that ,Kreb's discharge violated the Act. As noted at
the outset, it appeared at the initial hearing that Respon-
dent terminated Krebs for the sole reason that he swore at
the foreman. In the instant hearing, however, Respondent
witnesses gave an additional reason for the firing of Krebs.
Thus, on direct examination Wendorf said that he recom-
mended to Lenton that Krebs be terminated because, as he
testified, "I felt that he was undermining management and
that he swore at me." Similarly Lenton testified, "The deci-
sion was made to suspend Mike Krebs indefinitely pending
further deliberation and further investigation for undermin-
ing supervisors, insolence, insubordination." And in a letter
dated December 20, 1976, which Shelhoub wrote to a union
representative explaining the reasons for Krebs' July 9 dis-
charge, Shelhoub stated: "Michael Krebs was indefinitely
suspended and subsequently discharged for insolence, in-
subordination, and interfering with a supervisor." Concern-
ing the meaning of assertedly "undermining management"
or "interfering with a supervisor," it is clear from the testi-
mony of respondent witnesses, as well as from the argument
in Respondent's brief, that this was in reference to Kreb's
telling Simmons that he was within his rights not to enter
the cutting room after he had been assigned by Wendorf to
perform work there.6
As discussed shortly, I find that except for his swearing at
the foreman, Chief Steward Krebs was engaged in pro-
tected activity when he engaged in the aforenoted discus-
sion with Simmons. But first I should comment on the ap-
plicability of Stop and Shop, Inc., 161 NLRB 75, 79 (1966),
a case upon which Respondent largely relies. This case in-
volved a steward's involvement in whether employees
should work on a newly installed drive-in rack, as they were
directed to by their supervisor. In pertinent part, after prior
involvement in the matter, two insurance company inspec-
tors and a professional safety engineer finally passed the
drive-in rack as meeting safety requirements and so ap-
prised the company. The company in turn advised the stew-
ard of this finding and then assigned several employees to
engage in selecting work on the safety rack. Notwithstand-
ing all the foregoing, the steward told the employees not to
select. The employees thereupon refused to engage in the
work thus assigned to them. On these facts, the Board
found that the steward had deliberately engaged in unpro-
tected activity and interfered with management by causing
fellow employees to refuse to obey the orders of their supe-
riors. However, prior to this concluding finding, the Board
also made the following finding of fact:
As Respondent argues in its brief, "Accordingly, it is established that
Krebs knowingly sought to countermand an order of management by telling
the employee to whom the order had been issued that he did not have to
comply." In defending on this ground, cases are also cited on the point.
We are convinced that the record as a whole estab-
lished that Machaby [the steward] was discharged for
cause. Machaby, himself, had requested that there be
no selecting from the new rack until it had been
cleared for safety and apparently mistakenly believed
that Downes and Dunlop had so agreed. Yet, when he
learned that the safety engineer had declared the rack
safe and adequate, he refused to accept their decision.
Machaby's reply to Downes that he had told all the
men not to select persuades us that he had determined
to take matters into his own hands regardless of the
decision of the safety engineers concerning the rack's
safety; he had apparently chosen to disregard both the
authority of management and the grievance procedure
of the collective-bargaining agreement.
The instant case differs from Stop and Shop, supra, in two
material respects. Most importantly, Chief Steward Krebs
did not, as in that case, tell employee Simmons that he
should not perform his work assignment. Rather, he simply
told this employee that as chief steward and safety commit-
teeman he felt the area was unsafe and that under the cir-
cumstances it would be within his (Simmon's) rights not to
enter the area. As a matter of fact, Simmons did not refuse
the assignment, but instead promptly went into the cutting
room to engage in the cleanup work he had been directed to
perform. Secondly, the situation here was entirely different
from that in Stop and Shop. There an already installed new
drive-in rack was duly inspected by safety engineers who
found it to be safe and adequate. However, there can be no
question, as previously described, that the instant case in-
volved an unanticipated emergency situation. While I have
no doubt that Lenton was experienced with ammonia, the
fact remains that his decision that the cutting room was a
safe place to work was based solely on his personal observa-
tion. There is no evidence that any measuring or testing
device was utilized to confirm his personal judgment. Sig-
nificantly, it turned out that in fact the ammonia problem
in the cutting room was not over and that Lenton erred in
declaring it to be safe. Thus, within 10 or 15 minutes after
Simmons entered the cutting room, as directed, his eyes
became so watered and his lungs so congested from ammo-
nia that he found it necessary to go out for fresh air. Wen-
dorf found him outside 5 to 10 minutes later and told him
to go back in and finish the job. Simmons did so, but testi-
fied that 5 minutes later "it really got to me" and he had to
go outside again. At this point respondent supervisors
found the ammonia situation in the cutting room to be so
bad that they shut it down and did not reopen until about 2
hours later.7
It is clear, therefore, that Krebs, who had gone through
the plant shortly before and had detected that some ammo-
nia fumes still remained, had some real basis for his re-
marks to Simmons.' Acting as chief steward and safety
committeeman, I find his conduct in this regard to have
constituted protected concerted activity.
I Concerning the cutting room Lenton testified, "We started at 11:48 and
shut it down at 12:36 as this ammonia that was pocketed back in among the
hogs started to be a problem... it was reopened the second time at 2:18."
' Whether or not Krebs passed through the cutting room with a handker-
chief over his face at the same time managerial representatives were also
present, I credit Krebs' testimony that he detected ammonia fumes in the
area before talking to Simmons.
1112
JONES DAIRY FARM
In sum, for all the reasons stated above, and apart from
the disparate treatment accorded Krebs for swearing at a
supervisor, I find that during the period in question Krebs
was engaged in both union and protected concerted activi-
ties and that Respondent, by suspending him and discharg-
ing him principally for engagined in such conduct, violated
Section 8(a)(l) and (3) of the Act.
Upon the foregoing facts and conclusions, I hereby issue
the following recommended:
ORDER
I. Delete the second paragraph of the section of the ini-
tial Decision entitled "The Remedy" and substitute the fol-
lowing paragraph:
It having been found that Respondent discharged
Michael W. Krebs on July 9, 1976, and December 7,
1976, 1 shall recommend that Respondent make him
whole for any loss of earnings he may have suffered
from the dates of said discharges until the dates of his
reinstatement following said discharges. Backpay and
interest thereon shall be computed in the manner and
in accordance with the formula described in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977)."
See, generally. Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
2. In paragraph 3 of that section of the Decision entitled
"Conclusions of Law," add the words "and in the Supple-
mental Decision" following the words "in section III
above."
3. Delete paragraph 4 of the Notice to Employees and
substitute the following paragraph:
"WE WILL make Michael W. Krebs whole for any
loss of earnings he may have suffered by reason of the
discrimination practiced against him on July 9, 1976,
and on December 7, 1976."
DECI SION
STATEMENT OF THE CASE
JOHN P. von ROHR, Administrative Law Judge: Upon
charges, duly filed, the General Counsel of the National
Labor Relations Board, by the Regional Director for Re-
gion 30 (Milwaukee, Wisconsin), issued a consolidated
complaint against Jones Dairy Farm, herein called the Re-
spondent or the Company, alleging that it had engaged in
certain unfair labor practices in violation of Section 8(a)(l)
and (3) of the National Labor Relations Act, as amended,
herein called the Act.' The Respondent filed an answer de-
nying the allegations of unlawful conduct alleged in the
consolidated complaint.
Pursuant to notice, a hearing was held before me in Jef-
ferson, Wisconsin, on May 5, 6, 11, and 12, 1977, and on
I The charges herein were filed on January 3, January 25, and March 14,
1977. The complaint in Case 30-CA-3944 issued on February 18. 1977, and
the complaint in Case 30-CA-4049 issued on April 14, 1977. Further
amendments to the consolidated complaint were made during the course of
the hearing.
July 12, 13, 14. and 15, 1977. Briefs were received from the
General Counsel, the Charing Party, and the Respondent
on August 22. 1977. and they have been carefully consid-
ered.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF IHE RESPONDENT
The Respondent is a Wisconsin corporation with its prin-
cipal office and place of business located in Fort Atkinson,
Wisconsin, where it is engaged in the processing of Jones
Pork Sausages and other meat products. During the year
preceding the hearing herein, Respondent sold and shipped
products valued in excess of $50,000 to customers located
outside the State of Wisconsin. During the same period, it
purchased and received goods valued in excess of $50,000
from points and places located outside the State of Wiscon-
sin. Respondent concedes, and I find. that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOIVED
Local Union No. P-1236, Amalgamated Meatcutters &
Butcher Workmen of North America, AFL CIO, herein
called the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Respondent, which engages in the manufacture and
processing of meat products, employed approximately 230
240 employees during the period relevant hereto. The
Union was recognized by Respondent as the bargaining
agent for the production and maintenance employees in
1966, and the parties have at all times since entered into
and maintained a series of collective-bargaining agree-
ments.
William Roberts, the president of the Local, described
the relationship of the Respondent and the Union during
their approximate 10 years of bargaining history as having
its "hills and valleys." From the record, however, it appears
that whatever the difficulties and disputes, they were gener-
ally resolved through the contractual grievance and arbitra-
tion procedure.
From the testimony in this case, it appears that certain ill
will developed between the parties in about the latter part
of 1976. From various comments made by representatives
of both sides throughout the hearing, it seems that Respon-
dent takes the position that the Union has become overly
aggressive and that it has unduly sought to interfere with
what it regards as its management rights and prerogatives.
The Union, on the other hand, takes the position that the
Respondent has been unduly restrictive with the statutory
rights of its stewards, and that it has, indeed, engaged in a
course of unlawful harassment and discrimination against
them. In fact the essence of this case is whether Respon-
dent. in the incidents hereinafter described, unlawfully ha-
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rassed or discriminated against stewards and employees be-
cause they engaged in union and/or protected activities.'
B. The Discharge of Michael Krebs on December 7, 1976
Employed by Respondent for approximately 9-1/2
years, Michael Krebs acted as the Union's chief steward for
the year 1976 and also was member of the safety commit-
tee. Preliminarily, it is to be noted that Krebs was dis-
charged on July 9, 1976, and that the complaint in this
proceeding alleged this discharge to be violative of Section
8(aXl) and (3) of the Act. However, at the conclusion of the
General Counsel's case, I granted a motion to dismiss this
allegation on the ground that the General Counsel had not
established a primafacie case as to Krebs. At the same time
I further found that Krebs was discharged for cause,
namely that during an altercation with a supervisor he en-
gaged in insubordinate swearing at the supervisor.' In any
event, after negotiations between the parties, Krebs was re-
instated to his former job shortly after his July 8, 1976,
termination.
At issue here is Respondent's second termination of
Krebs which occurred on December 7, 1976, and which the
complaint alleges was violative of Section 8(a)(I) and (3) of
the Act. The circumstances concerning this discharge are as
follows: Kenneth Dams, an employee who operates a de-
hairing machine, testified that after he returned from vaca-
tion he found the de-hairing machines and the work area to
be filthy. He decided to speak to Krebs about the matter.
Dams testified that after naming Joe O'Herron and John
Lemke as his vacation replacements, he told Krebs that
"these guys are taking our jobs when we're sick and when
we are off... they're not doing the work that supposed to
be done ... when we come back we got to do their work,
work which they already got paid for." Dams thereupon
asked Krebs to "talk to these guys or do something."
On or about December 2, 1976, which was subsequent to
the above conversation, Krebs wrote the following letter [in
longhand] to Joseph O'Herron:
Joe,
Bill Allen and I were told by some employees in
sanitation that they feel you are not doing your job.
When they go on vacation or when they are sick. They
feel it is not right, that they do the work the way they
were told, and you do it fast, and don't do a good job
2 Except for a subpena incident, most, if not all, of the disputes between
the Respondent and the Union which are alleged as unfair labor practices
herein are presently pending in various stages of the contractual grievance-
arbitration procedure. In view of the Board's Decisions in General American
Transportation Corporation, 228 NLRB 808 (1977), and in Roy Robinson, Inc.
d/b/a Roy Robinson Chevrolet, 228 NLRB 828 (1977), 1 must reject Respon-
dent's contention, as stated in its brief, that "the disputes in question belong
in the contractual grievance and arbitration procedure and not in the pro-
cesses of the Board ...
3The Board, by Order dated June 10, 1977, denied the General Counsel's
appeal of this ruling, at the same time adding that the General Counsel could
renew his position in any exceptions filed with the Board. The General
Counsel subsequently sought to amend the complaint by adding a Sec.
8(a)(5) amendment predicates upon facts arising out of the same situation
and by also adding a further Sec. 8(aXl) amendment. My denial of the
proposed amendments was sustained by Order of the Board dated July 15,
1977.
cleaning it at all. Bill and I don't know what is really
happening, but do hope if it is that it will stop. For we
are all union people and we must work together, not
try to make it bad for our other workers. If you have
any questions or would like to talk to Bill and me
please feel free to call us.
Thank you
Mike Krebs
Chief Steward
M. Krebs 563-2517
B. Allen 563-6207
The letter was received by O'Herron at the plant on De-
cember 3 when he found it attached to his timecard. Em-
ployee Lemke also received an identical letter from Krebs
on the same day. In any event, O'Herron testified that later
that day he was approached by his foreman, Wayne Bickle,
who asked him why he appeared so upset. O'Herron replied
that it was because the Union had given him a letter. Bickle
asked if he could see it and O'Herron handed it to him. Still
later that day, Bickle returned and asked if he could make a
copy of the letter. O'Herron permitted him to do so.
The Krebs letter subsequently came to the attention of
higher management, particularly William B. Lenton, Re-
spondent's vice president of manufacturing. On December
7, 1976, Krebs was indefinitely suspended and subsequently
discharged.
Citing the reason for terminating Krebs, Lenton testified
that the action was taken because he interpreted the letter
to be interference on the part of Krebs in attempting to get
the employees to slow down. The General Counsel, on the
other hand, contends that the December 2 letter "was con-
cerned with a work-related complaint" and that, as such,
Krebs' conduct in writing and sending the letter to O'Her-
ron constituted protected activity. This issue thus posed is a
narrow one and I see no need for lengthy discussion of the
point. In short, it is my view that the contents of the Krebs
letter, when taken in its entirety, are not indicative, as Re-
spondent would have it, that Krebs sought to direct or sug-
gest that O'Herron should engage in a slowdown. To the
contrary, I think it plain that the thrust of the entire letter
to O'Herron was that he was not doing his job right and
that he was not doing a good job cleaning. When read in
proper context, the clause "and you do it fast" can be rea-
sonably construed only to reflect that the writer's implica-
tion to O'Herron was that the reason he was not doing a
good job and that he did not clean properly was because, as
the letter stated, he was "doing it too fast." Accordingly,
and finding this to be the case, I find that Krebs' termina-
tion on December 6, 1976, did not result from unprotected
activity, but rather because he was engaged in the lawful
functions of a steward. Since these activities are protected
under the Act, I find that his discharge on the foregoing
date was violative of Section 8(a)(1) and (3) of the Act.
C. Alleged Discriminatory Retaliation Against Edward
Cusick
I. The December 13, 1976, letter of reprimand
Edward Cusick, employed by Respondent for 4-1/2
years, worked in the kill-cut and rendering department as a
1114
JONES DAIRY FARM
belly trimmer under the supervision of foreman Timothy
Eiden on the second shift from 3:18 p.m. to 11:06 p.m.
Cusick was a shop steward during the year 1976 and had
apparently held this role even before then. Involved in the
incident discussed below is an issue as to whether Cusick
had been appointed chief steward at the time the incident
occurred and, if so, whether Respondent had knowledge of
any such appointment.
Near the end of the shift on Thursday, December 9.
1976,4 Cusick requested and received permission from Ei-
den to talk to three employees before the end of the shift
concerning a newly established incentive rate. This was not
a particular favor from Eiden, for Eiden had previously
requested Cusick to explain the new rate to three employ-
ees. In any event, after speaking to the three employees,
Cusick punched out and walked through the bacon depart-
ment where he encountered his brother-in-law, Eugene
Bakken, a sanitation employee who was then engaged in
cleanup work. Cusick stopped to talk to Bakken. Eiden
came along and observed them talking. According to Eiden,
he proceeded to the bacon office and called Lenton to give
a production report. At the same time he reported to Len-
ton that he had observed Cusick talking to employee Bak-
ken outside his (Cusick's) department after his (Cusick's)
working hours, but while Bakken was still working, and
that this was in violation of Company rules. Lenton told
Eiden to confront Cusick and tell him that appropriate dis-
ciplinary action would be taken. Eiden hung up and re-
turned to the bacon area where, he said, he observed Cusick
just about to leave the area. However, as he was about to
catch up to Cusick, Eiden said he was paged by a bell and
was unable to talk to him at this time.
At the start of the shift on the following day, December
10, Eiden came up to Cusick and told him that he would be
receiving a letter of reprimand for being in the plant after
hours in an unauthorized area and for keeping Bakken
from his work by talking to him. Cusick replied that he had
punched out and that Bakken was on a break. Eiden re-
sponded that he had checked with Bakken's supervisor,
Wayne Bickle, and that Bickle had confirmed that Bakken
was not on a break at that time.
On the same day at the end of the shift, Cusick went to
the bacon office and again spoke to Eiden, this time to
protest the disciplinary action. Significantly, Cusick testified
that only he and Eiden were present at this time. Eiden
again stated that Bickle had confirmed that Bakken was not
on a break at the time of the incident. Cusick then stated
that he was not talking to Bakken about union business but
about personal matters. According to Cusick, Eiden there-
upon stated, "Well, everything that you do has to be right
to the letter seeing that you're chief steward, because we're
gonna make an example out of you." Eiden denied that he
made any statement to this effect. Rather, Eiden testified
that at this time he stated as follows:
Then I told Mr. Cusick, at this time, seeing that he's
steward he is looked upon as a leader in his depart-
Although in his testimony Cusick placed the date of this incident at being
December 13, it is clear from G.C. Exh. 17, the December 13 letter of repn-
mand, that it occurred on December 9. General Counsel's brief also treats
the incident as having occurred on December 9.
ment. He solves all the problems, That he should set a
good example for the people he represents and not a
bad example. In following company rules and so forth.
The complaint alleges that the disciplinary action taken
against Cusick [A letter of reprimand dated December 13,
1976, followed.] was taken because Cusick engaged in
union activity "and more specifically because Employee
Edward Cusick has been, and is now. an officer of the
Union."
If Cusick's version of what Eiden told him in the office at
the end of the shift is to be credited, a strong case could be
made in support of the above allegation. However, upon
the entire record and from my observation of the witnesses,
I do not credit Cusick's testimony that Eiden threatened to
make an example out of him because he was the chief stew-
ard. My reasons for not crediting this testimony are several
and they are as follows:
In the first place, as the record amply reflects and as
Respondent points out, Eiden could not have made the
statement in question simply because Cusick, in fact, had
not been appointed chief steward at the time the statement
was asserted to have been made. At best, Union President
William Roberts testified that a union meeting was held on
December 9, 1976, that Krebs resigned as chief steward at
this meeting, and that at this meeting Cusick indicated an
interest in becoming chief steward. There is, however, abso-
lutely no evidence that this expression of interest was ever
conveyed to Respondent on or before December 10, the
date the alleged statement was said to have been made.
Moreover, while the General Counsel's witnesses were un-
certain as to the exact time when Cusick in fact was ap-
pointed chief steward, even Roberts conceded that this did
not take place until "roughly the next week and a half'
after the December 9 meeting. Indeed, in his pre-hearing
affidavit, which is dated January 25, 1977, Cusick stated: "I
took over the duties of chief steward on or about December
28, 1976, but I was not officially in the office until on or
about January 13, 1977."
Secondly, there is a significant conflict in the testimony of
Edward Cusick and his brother, William Cusick, concern-
ing the time when the alleged statement was supposed to
have been made. Thus, it will be recalled that Edward Cu-
sick testified that the alleged statement by Eiden was made
at the end of the shift when he was talking to Eiden alone.
William Cusick, who was called as a witness after Edward
Cusick, testified that at the start of the shift on December
13,' in his presence and that of employee John Hausz, Ei-
den told Edward Cusick that he would receive a letter of
warning for the Bakken incident. Incredibly, William Cu-
sick testified that at this time he also heard Eiden say "that
seeing as Ed was steward, that he was going to make an
example out of him so that others would know that he
means business." Further compounding the falsity of this
testimony-and in view of the entire record I must clearly
regard it to have been so given-it was brought out on
cross-examination that William Cusick stated in his pre-
In a leading question the General Counsel placed the date as December
13. However, the record clearly establishes that it was on December 10 that
Eiden spoke to Cusick concerning the letter of repnmand which would result
from the incident of the day before.
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing affidavit, dated May 10, 1977, that Eiden said,
"Seeing as you are chief steward, we're going to make an
example of you to show to other people we mean business."
(Underlying supplied). Under further cross-examination,
Eiden thereupon stated that his affidavit was correct. The
foregoing testimony speaks for itself. Other than to state
that the testimony must cast a cloud over the entire incident
insofar as the General Counsel's case is concerned, no fur-
ther comment is necessary.6
In sum and for the reasons stated above, I do not credit
the testimony of Edward Cusick to the effect that he was
told by Eiden that he was receiving a warning concerning
the Bakken incident because he was chief steward and that
therefore the Respondent was going to make an example
out of him. Accepting Eiden's version, as heretofore quoted,
it will be recalled that the conversation took place after
Cusick for the second time asked for and received an expla-
nation for the warning. It was on this second occasion that
Eiden additionally told Cusick that as a steward he was
looked upon as a leader and that he should set a good
example rather than a bad example to the other employees.
This statement was not a threat, nor was it given as a rea-
son for the warning. Accordingly, and particularly since I
do not credit the testimony of either Cusick on the point, it
is recommended that the allegation in the complaint per-
taining to this incident be dismissed. 7
2. The verbal warning given to Edward Cusick and John
Hausz on January 24, 1977
Michael Kokoszka is supervisor of the bacon slicing and
bacon curing department. The grading of port bellies at the
times material hereto was a function performed by employ-
ees Edward Cusick and John Hausz in another department
before the bellies were brought to the bacon department for
further processing. Kokoszka testified that the bellies which
reached his department on Monday, January 24, 1977, were
grossly misgraded and were totally unacceptable. s He re-
ported this to Foreman Eiden on the same day and then
took Eiden to the cooler where the bellies were kept so that
he could personally view their condition. Eiden corrobo-
rated Kokoszka that the bellies were grossly misgraded. Af-
6 With reference to fn. 4, upra, it is further noteworthy that William Cu-
sick indisputably was on vacation from December 5 to December 13 and,
therefore, obviously was not even at work at the time of the December 10
conversation. Assuming that he intended to testify that the conversation in
question in fact occurred on Monday, December 13, this testimony would
likewise be incredible for it is reasonable to assume that it then would have
been corroborated by Edward Cusick and John Hausz, both of whom he
asserted were present.
Insofar as the merit of the incident is concerned, I credit the testimony of
Eiden that Bakken was still working when the incident occurred, rather than
Cusick's testimony that Bakken was on a break period at the time. General
Counsel's contention that Cusick was treated disparately because Bakken
did not also receive a warning is without merit. Not only was Bakken not
responsible for the incident, but Eiden, who gave Cusick the warning, was
not Bakken's supervisor.
In addition, it is noteworthy that less than 3 months before this incident
another employee was given a letter of reprimand for having engaged in an
indentical infraction. Resp. Exh. 22.1
s Between 1,000 and 1,500 bellies, he said, were misgraded and placed in
wrong containers.
ter viewing the bellies, Eiden returned and confronted Cu-
sick and Hausz about the situation. These employees asked
that Kokoszka be brought into the conversation. Eiden left
and returned with Kokoszka. Kokoszka thereupon further
explained the gross misgrading of the bellies. When he left,
Eiden told Cusick and Hausz that they were receiving a
verbal warning for poor and careless workmanship.
The complaint alleges that the foregoing warning was
given to Cusick and Hausz in violation of Section 8(a)(l) of
the Act for the same reason noted in the preceding section
herein. As to Hausz, the General Counsel contends that
Respondent "was forced to camouflage this action by disci-
plining both employees because it was a two-man opera-
tion.
To sustain the General Counsel's theory as to this alleged
violation would, in my view, require a finding that all or
most of Respondent's supervisors were engaged in a scheme
or a conspiracy to find a reason to retaliate or otherwise
discriminate against Edward Cusick for the purpose of dis-
couraging him from fully performing his duties as chief
steward. I find the evidence in this case to be wholly insuf-
ficient to support any such theory. Thus, Kokoszka, who is
not involved in any other incident or allegation in this case,
was the individual responsible for initiating the action
which led to the warnings in question. Kokoszka was not
the supervisor of either Cusick or Hausz. Kokoszka ap-
peared to be a credible and objective witness and I find it
incredible that he would take this action for the deliberate
purpose of ultimately causing any unwarranted or unlawful
action against Cusick. In short, I credit the testimony of
Kokoszka and Eiden concerning the poor work perform-
ance of Cusick and Hausz on January 21, 1977, and find
that the warning given them for it on January 24, 1977, was
not in violation of the Act. Accordingly, it is recommended
that he allegation be dismissed.9
3. The verbal warning to Cusick on January 24, 1977, for
going to the restroom without permission
The break period for Edward Cusick on Friday, January
21, 1977, as usual, was from 8:30 p.m. to 8:40 p.m. Fore-
man Eiden credibly testified that at 8:48 p.m. he observed
Cusick leave his work station without first obtaining his
[Eiden's] permission to do so.' ° Eiden testified that when
Cusick came out of the restroom he went up to him, told
him that he had gone there without first receiving permis-
sion, and that he [Eiden] would take appropriate disciplin-
ary action. Eiden testified, without contradiction, that Cu-
sick replied, "How can you go to the can, have a cup of
coffee and a cigarette in ten minutes?" On the following
Monday, Eiden told Cusick that he was receiving a verbal
warning for not asking permission to leave his work station
91 have considered, but do not deem it necessary to discuss, testimony to
the effect that the system of grading was somewhat changed after this inci-
dent. Neither do I find it necessary to discuss Eiden's explanation [relating to
a recent time studyl as to why Cusick and Hausz may have performed so
poorly on January 21.
' Cusick conceded that on this occasion he went to the restroom without
obtaining the foreman's permission, but testified that this was "an hour or
so" after the break. As indicated, I credit the testimony of Eiden. who took
specific note of the timeclock when the incident occurred.
1116
JONES DAIRY FARM
and go to the bathroom." According to Cusick, Eiden at
this time also told him "You, being chief steward, you came
down after the break and went to the bathroom, and the
girls that were working down in the bacon department seen
the chief steward go, so they thought they could go, too."
The complaint alleges that Respondent's conduct in giv-
ing Cusick the aforesaid warning was violative of Section
8(a)(1) of the Act because, in substance, the action was
taken for the purpose of discouraging his activities as chief
union steward. In support of this allegation, the General
Counsel contends that Respondent did not in fact have a
rule prohibiting employees from going to the restroom
without first obtaining permission from their foreman, and
that in any event any such rule was, in this instance, dispa-
rately enforced. Upon the entire record, I find that the Gen-
eral Counsel has not proved the allegation by a preponder-
ance of the evidence.
It is undisputed that on May 8, 1970, Respondent and
the Union reached a written agreement relating, inter alia.
to the use of restrooms and which, inter alia, provided as
follows: "In all cases an employee must receive authoriza-
tion before leaving his work station or route."
While the evidence is somewhat conflicting, I find that
while the rule appears not to have been continuously posted
on company bulletin boards at all times since 1970, it was
posted during a substantial part of this period. The testi-
mony further reflects that while the rule was not enforced at
all times, it was, in fact, enforced at others. For example, it
is undisputed that as recently as April 2, 1976, employee
Thomas Hookhan received a verbal warning for having
gone to the restroom without authorization during working
hours.
Apart from all the foregoing, and insofar as the kill-cut
department is concerned, employee John Hausz, a General
Counsel witness, testified as follows:
My understanding is that when Mr. Eiden is in the
work area we should ask to go to the bathroom. When
he is not, we just go.
From the foregoing, I am persuaded and find that the
employees were generally aware of the rule that if at all
possible they were to obtain permission from their supervi-
sor if they wished to go to the restroom. In light of all the
foregoing, and finding as I do that the warning to Cusick
was not given in violation of the Act, I have taken into
account the following considerations: (I1) Cusick went to
the restroom on this occasion just 8 minutes after his regu-
lar rest period; (2) Cusick did not testify that his unautho-
rized absence from his work station at this time was due to
any urgency or emergency; and (3) since Eiden observed
Cusick leave his work station and go to the restroom at this
time, it is apparent that he was within eyesight of Cusick at
the time and that therefore Cusick could have and should
have gone to him for permission before leaving. Indeed,
Cusick did not even testify that be attempted to locate Ei-
den before going to the restroom. Accordingly, and in view
of this aggravated situation, it cannot be said that Eiden
" Cusick testified that this warning was given when he and Hausz went to
Eiden to protest the warning given them concerning the misgrading of pork
bellies.
was not justified in giving Cusick the oral warning in ques-
tion. As has been often stated, and as I regard as applicable
here, union activity cannot serve to immunize employees
from disciplinary action for cause. It is, therefore, recom-
mended that the allegation be dismissed.'
D. The Alleged Discrimination Against Larr, Nickel
As indicated more fully hereinafter, employee Larry
Nickel filed a grievance concerning the adequacy of a new
incentive rate for the hot hog line on March 2, 1976. The
complaint, as amended, in substance alleges that Respon-
dent retaliated against Nickel because of this action: 1)
assigning him to a more onerous job on March 10, 1977: (2)
issuing him a letter of reprimand on April 13, 1977: and (3)
giving him a verbal warning on April 18. 1977.
I. The more onerous job assignment
Nickel was employed by Respondent for 4-1/2 years.
during which time he gained experience at various jobs
around the plant. Until the time of the instant dispute,
Nickel had a good record with the Respondent. UInlike nu-
merous other employees, he had not received any warnings
or reprimands for his work performance or for any other
reason.
The dispute as to Nickel occurred after he was assigned
to a new operation called the hot hog line which was estab-
lished in Respondent's kill-cut and rendering department in
May 1976. Respondent's principal end product is pork sau-
sage. The function of the hot hog line is to produce a differ-
ent type of pork sausage from the Company's otherwise
longstanding product. The hot hog operation entailed pro-
curing the raw material for the new type of pork sausage
before rigor mortis set in.
The work on the hot hog line is performed at six different
stations, with one employee being assigned to perform a
particular function at each station. When the line first
started, the jobs were not posted. Nickel was chosen by
Foreman Lawrence Wendorf for the hot hog line operation
when it first began primarily for seniority reasons. Some
further explanation is here in order. Thus, the hot hog line
works only in the mornings: and on some days, although
apparently infrequently, it does not run at all. Prior to
being placed on the hot hog line, Nickel was classified as a
scaler clerk, a job which he performed in the afternoons.
After being assigned to the hot hog line, Nickel continued
to perform his afternoon scaler clerk job. On the occasions
when the hot hog line did not run in the morning, Nickel
and the other hot hog employees would be assigned to var-
ious other jobs.
An incentive rate was placed on the hot hog line [17-1/2
hogs per hour] for the first time on February 23. 1977. On
March 2, Nickel stopped Marshall Ernst, the supervisor of
the cutting floor, as he was passing through the department
and told him that he was starting a first-step grievance by
requesting that the hot hog line incentive rate be restudied.
He further told Ernst that although the employees had
2 In view of the findings above, I deem it unnecessary to resolve conflict-
ing testimony as to whether Eiden orally apprised the employees of the rule
at the time he became foreman.
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tried, there was "no way" they could make 100 percent on
the rate that had been established. Ernst asked if the em-
ployees wished a third party to come in and have the job
retimed. Nickel said yes. Thereafter, on March 6, Ernst
came up to Nickel and stated that the Company had
checked out the standard but that as far as the Company
was concerned the incentive rate was "OK." He added that
it was up to him [Nickel] if he wished to start the second
step of the grievance procedure by filing a grievance in writ-
ing. On March 8, Nickel signed a written grievance which
stated as follows:'"
The Union demands that the Company place the
proper rate on the hot hog line. The Union demands
that the Company pay all lost incentive.
As discussed hereinafter, the decision to transfer Nickel
to the alleged more onerous job on March 10, as well as the
implementation of this decision, was made by Richard
Saur, the supervisor of the kill-cut and rendering depart-
ment. Saur ranks above both Ernst and Foreman Wendorf.
There is a conflict in the testimony as to whether Saur knew
of the fact that Nickel had filed the grievance in question
before the transfer was made. I turn to this now.
It is undisputed that William Roberts, the union pres-
ident, took the above-quoted written grievance signed by
Nickel to the kill-cut office at lunchtime on March 9. Rob-
erts testified that when he entered the office, Ernst and
Wendorf were sitting at desks adjoining each other with
Saur standing about 3 or 4 feet away from them putting on
his coat. Roberts said that he placed the written grievance
in front of Ernst and stated, "Here's the grievance on the
hot hog line." Acknowledging that Roberts brought the
grievance to him at this time, Ernst testified that Saur was
not in the office at the time. He did not say whether Wen-
dorf was present or not. Wendorf, although called as a wit-
ness, was not queried about the incident. Saur testified not
only that he was not present when the grievance was
brought in by Roberts, but on direct examination also de-
nied that he had any knowledge of the written grievance, or
that a written grievance had been filed, before transferring
Nickel from the hot hog line on March 10. However, on
cross-examination, Saur's testimony concerning his knowl-
edge of the oral grievance filed by Nickel on March 2 was
as follows:
Q. Are you trying to tell us, Mr. Saur, that one of
your supervisors, Mr. Ernst, was handling grievances
without your knowledge?
A. No, I'm not.
MR. WIEDEMANN: I - that's -
Q. (By Mr. Mulcahy) What are you telling us then?
A. I'm telling you that I did not know that this par-
ticular grievance was reduced to writing before I put
Larry Nickel out on the kill floor.
Q. Okay. Were you aware that there was a problem
before that?
A. Yes, I was.
*
JUDGE VON ROHR: Well, before the grievance was
reduced to writing, was there an oral grievance?
THE WITNESS: Yes, there was.
JUDGE VON ROHR: Involving Nickel?
THE WITNESS: Yes, there was.
JUDGE VON ROHR: Now, when did you become
aware of the oral grievance?
THE WITNESS: Be on the day that it happened, I
would imagine, Your Honor.
JUDGE VON ROHR: All right. Proceed.
THE WITNESS: When they first grieved them.
Upon consideration of all the testimony on the subject, I
am inclined to credit Roberts that Saur was present when
he gave the written grievance to Ernst on March 10. But
whether he was or not, I find it difficult to believe that the
matter of the written grievance was not reported to him or
that it was not brought to his attention prior to Nickel's
being transferred on March 10. In any event, and at the
very least, it was finally brought out in the quoted testi-
mony above that Saur admittedly did learn the fact that it
was Nickel who evoked the grievance procedure with the
first-step oral grievance which he made to Ernst on March
2.
There is no substantial dispute concerning the manner in
which Nickel's transfer from the hot hog line to the job of
leaf-fat pulling on March 10, 1977, was accomplished. For
decisional purposes, I shall accept the testimony of Saur,
who was responsible for the transfer. Saur's testimony as to
what occurred when Nickel came to the kill-cut office at the
start of the shift to receive his specific job assignment on the
hot hog line4 for this day was as follows:
Larry Nickel came into the office and asked Larry
Wendorf whether he would be up or down on the hot
hog line. Meaning was he going to be in the up stations
or one of the down stations.
Larry Wendorf turned to Marshall Ernst who was
sitting there and asked where he wanted him. Marshall
looked at Larry and said. "Do I have a choice?" Larry
then at that time said, "You can have Stan Cook an-
other employee] or Larry Nickel." Marshall Ernst said,
"I [will] take Stan Cook."
Larry Wendorf turned to Larry Nickel and said,
"Okay, you can go into the freezer," And Larry Nickel
went out of the office.
I asked Larry Wendorf, I said, "Do you really need
him in the freezer?" And Larry said, "No." I said
"Okay, I can use him on the kill floor to train on leaf
fat."
He [Wendorf] went out of the office and informed
Larry Nickel that he would be on the kill floor. I, in
turn, left the office.
With this, as Saur testified, Nickel was transferred to the
job of leaf-fat pulling. I need not dwell on the General
Counsel's contention that the leaf-fat job is more onerous
than any of the jobs on the hot hog line, for the record not
only abundantly supports this contention but it indeed re-
* *
13Although Nickel had Union President Roberts prepare the written
grievance, Nickel was the only one to sign it.
" The employees on the hot hog line did not always work at the same
station every day, for on occasions the jobs were interchanged among them.
It was for the purpose of ascertaining his job assignment on the line for this
day that Nickel came into the office.
1118
JONES DAIRY FARM
flects that the job of leaf-fat pulling, which is a one-man
operation, undoubtedly is physically the toughest job in the
plant. To put it briefly, the job requires that the employee,
with the use of his hands and fingers, must pull and remove
the layers of fat from the inside of hogs. Saur testified that
he disqualified one employee, Stan Cook, from ever being
assigned to this job again because it tore off his fingernails.
Indeed, at least two employees testified that when their
foreman was not satisfied with their work performance he
would threaten them with transfer to the leaf-fat job if they
did not improve.
One further point should be made before turning to Re-
spondent's defense, which is that Nickel's transfer to the job
of leaf-fat pulling was not a permanent assignment. This
job is a one-man job and the employee who regularly holds
this position is William Zibell. However, the record estab-
lishes that Respondent has need for other employees to be
trained for this job when Zibell is absent or when he is used
as a replacement at other kill floor work stations. It is un-
disputed that when Nickel was transferred on March 10, he
was assigned to the leaf-fat job only as a trainee who was to
learn the job from Zibell.'5 As it happened, the training
period for Nickel took about 1-1/2 weeks, after which he
was removed from this assignment.
Turning to Respondent's defense, Saur gave two reasons
for transferring Nickel from the hot hog line to leaf-fat pull-
ing on March 10. The first was because "he was giving us a
very, very poor work performance on the hot hog line on
the 7th and also on the 9th," and the second was that in any
event he had previously decided that it was time to train
another employee for the leaf fat job and that the employee
due for this training was Nickel.
Upon the entire record in this case, and having consid-
ered all the testimony on the subject, I am persuaded and
find that Respondent's defense concerning Nickel's transfer
on March 10 does not stand up under scrutiny. First, con-
cerning Nickel's alleged poor work performance on March
7 and 9, it is to be noted that on these dates Nickel was
transferred from his usual station on the upstairs hot hog
line to the job of blender-mixer, a downstairs hot hog op-
eration, on March 7 and 9.16 When queried as to Nickel's
work performance from February 23 through March 9,
Ernst testified, "On the upstairs portion of the job, I would
say it was satisfactory." However, according to Ernst, a
backup occurred at the mixer-blender station on March 7
and 9 because, he testified, "he [Nickel] was not giving me
an effort to keep up with the line and to get the product
moving rapidly as it should have been." Ernst did not tes-
tify that he imparted this information to Saur; and Saur,
who claimed that Nickel gave a "very, very poor work per-
formance" on these dates, did not testify that he personally
observed Nickel on the job on the dates in question. On the
whole, I am persuaded that the foremen's testimony con-
cerning Nickel's work performance on March 7 and 9 was
exaggerated. But even assuming that Nickel did not per-
form satisfactorily on these dates, the fact remains, as the
record establishes, that it was Respondent's practice to give
its employees oral or written warnings in the event of poor
'5The transfer did not involve any change in Nickel's pay rate.
" The hot hog line did not operate on March 8.
workmanship." It seems strange, therefore, that if Nickel's
work on March 7 and 9 was as poor as Respondent would
have it, he would not have first been warned before being
subjected to the more severe penalty of being transferred to
the leaf-fat job.'
The second reason given for the transfer was that an ad-
ditional employee was needed to be trained for the leaf-fat
job to be available as a replacement for Zibell, the regular
employee on this job. However, the record does not demon-
strate that there was any urgency or real need for Nickel or
any other employee to be trained at this particular time.
Thus, not only was it shown that Zibell was not scheduled
for any vacation four other employees had been trained for
the leaf-fat job and were available if needed.'
Coupled with all the foregoing, perhaps the most reveal-
ing evidence that Nickel's transfer to the leaf-fat job was
not of a bona fide nature are the circumstances immediately
involved at the time the action was taken. Thus, it will be
recalled that Saur testified that it was he who decided that
Nickel should be transferred; and it was Saur who testified
as to the reasons for taking this action. Yet it will be re-
called that Saur was present when Nickel came in for his
job assignment on the morning of March 10, and that for
the moment he stood idly by while Wendorf and Ernst dis-
cussed the situation and finally made the decision that
Nickel be assgined to the freezer. It was not until Nickel left
the office to prepare for this assignment that Saur, in a most
casual manner, finally asked Wendorf, "Do you really need
him in the freezer?" When Wendorf said he did not, Saur
stated, again most casually, "OK, I can use him on the killl
floor to train on leaf fat." This, in my view, does not sound
like a supervisor who supposedly had predetermined to
transfer an employee either for disciplinary purposes or for
the reason that he in fact was needed for training elsewhere.
Obviously, Saur had not previously conveyed his decision
to transfer Nickel to Nickel's immediate supervisors, Wen-
dorf and Ernst; and it is equally obvious that he had not
previously consulted with them concerning the need or pur-
poses for taking this action. Again, I think it reasonable to
assume that both steps would have been taken in any nor-
mal course of events.
In light of all the foregoing, and upon the entire record in
this case, I am persuaded and find that the transfer of
Nickel to the more onerous job of leaf-fat pulling on March
10 was taken, if not entirely, at least in substantial part, as
a measure of retaliation against him for having shortly prior
thereto filed a grievance concerning the newly established
rate for the hot hog line. Since the filing of a grievance is
protected activity, I find that Respondent thereby violated
Section 8(a)(1) of the Act. I would further add that the
17 Oral warnings of this nature are recorded in the employee's personnel
files.
'I Indeed, when asked whether Nickel's transfer to the leaf-fat job rather
than to any other job was intended as a punishment to him for not doing his
job properly, Saur responded, "It was considered by me-yes, that I was
going to put Larry Nickel on a job where he was going to have to work.
Where there was no question about it."
"' Further, there were an additional three other employees on layoff status
who were trained for this job.
2 Respondent, not without some persuasiveness, argues that since practi-
cally all new incentive rates become the subject of grievances and that since
Respondent customarily anticipates that such grievances will be filed, there
(Continued)
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident in question is not of an isolated nature, but must be
considered, as I have done, in the context of Respondent's
other unlawful conduct herein found.
2. The April 13, 1977, letter of reprimand to Larry Nickel
Nickel was taken off the leaf-fat job as a trainee on
March 23, 1977, and from that point until April 1 was as-
signed to various other jobs on the kill floor. The plant was
on vacation from April 4 to April 10. On Monday, April I I,
Nickel was reassigned to the hot hog line at the number one
station. The job on this station involves a cutting operation
with the use of a knife. Nickel concededly had worked at
this station before. In any event, Ernst testified that he ob-
served Nickel on April I I and that it appeared to him that
Nickel was deliberately slowing down. Without detailing
the testimony, Ernst related specific examples and instances
wherein he observed Nickel engaging in unnecessary move-
ments. He reported this to Lenton.2' Thereafter, for the next
2 days, Ernst and Lenton alternatively stood close to Nickel
to observe him at his work. Both Ernst and Lenton testified
that Nickel continued to grossly underperform on the job.
Ernst testified that on the second day, April 12, he talked to
Nickel and told him that he would have to speed up his
productivity. Ernst testified that after again observing that
Nickel's work did not improve on the 13th, he took the
matter up with Lenton at the end of the shift, which was
about noontime. At this time Ernst told Lenton that he
believed Nickel was intentionally slowing down and recom-
mended that Nickel be discharged. Lenton, however, stated
that he thought they should be more lenient in an effort "to
shake the hot hog line loose," and that instead Nickel
should be given a letter of reprimand. 2
After lunch on the same day, April 13, Nickel was called
into the office with his departmental steward, John Sher-
man. Present were Lenton and Ernst. At this time Nickel
was told that he had been observed to restrict production,
that he would receive a letter therefor, and that if his per-
formance did not improve, further disciplinary action
would be taken. Nickel, however, was given the opportuni-
ty to provide an explanation. Conceding that his production
was poor during the period in question,23 Nickel stated that
the reason was because " the hogs were cutting awfully bad
that day." Nickel's explanation was not accepted and he
subsequently was given a letter of reprimand.
The General Counsel contends, as the complaint alleges,
that the letter of reprimand was given in further retaliation
for Nickel's having filed the hot hot line rate grievance on
March 2, 1977, and that Respondent thereby further vio-
lated Section 8(a)(1) of the Act. Upon the entire record in
would be no reason for Respondent to retaliate against Nickel because of his
filing a grievance. However, while it appears that in some instances individ-
uals did file grievances, Vice President Lenton testified that "nearly 100% of
them have been written by Mr. William Roberts." In any event, having fully
considered this argument and the evidence in support of it, for all the reasons
stated above I adhere to the findings and conclusions as herein found.
:1 Saur, Ernst's supervisor, was on vacation at this time.
12 Testimony of Ernst and Lenton.
2 Nickel also testified that during this discussion John Sherman, the stew-
ard, told Lenton and Ernst, "Well, I understand they had a bad day" appar-
ently referring to April 13.1
this case, I find that the General Counsel has not sustained
the burden of proof as to this allegation. In the first place,
Respondent's records, which are kept in its normal course
of business, reflect that the percentage of employee produc-
tivity for April 11, 12, and 13 was the lowest since the line
started on February 23. Indeed, the productivity for April
13 (71 percent) was the lowest for any day since the incep-
tion of the line.24 It therefore can hardly be doubted that
there was a problem on the line and that by the same token
Respondent's supervisors must have been aware of it. There
is also corroborative testimony of Lenton and Nickel con-
cerning their observance of Nickel's poor work perform-
ance during the period in question. Although some of this
may have been exaggerated," I cannot say that their testi-
mony on this point did not bear some ring of truth. In
addition, as heretofore found, Nickel had already been dis-
ciplined for filing the March 2 grievance. I find it difficult to
believe that Respondent continued to bear animosity
toward this employee for such a long period to the extent
that it would penalize him further at such a later date. In-
deed, if Respondent wished to retaliate further against
Nickel, no doubt it could have found fault with him after he
was assigned to the various jobs when taken off the leaf-fat
job on March 20 but before he was returned to the hot hog
line. Additionally, and aside from so conceding to Lenton
and Ernst when he received the warning, Nickel conceded
in his testimony at the hearing that his productivity, partic-
ularly on April 13, had fallen off. On balance, and for the
reasons stated, it is recommended that the allegation be
dismissed.2 6
3. The April 18, 1977, verbal warning to Larry Nickel
On April 18, 1977, Nickel was working on station num-
ber two of the hot hog line, behind Duane Buchanan who
worked on station number one. Concerning his observation
of the line that morning, Ernst testified "it very vividly ap-
peared to me that Larry Nickel was controlling the line
from his second station . .. and that Duane Buchanan was
slowing down to match his production so that he would not
make Larry Nickel look so bad that day ... again it was my
opinion that Larry Nickel was intentionally slowing down
the line." The matter was then discussed by Ernst, Lenton,
and Saur (the latter having just returned from a I-week
vacation) and it was decided to give Nickel a verbal warn-
ing for poor work performance. Saur did so shortly there-
after. Again, the General Counsel has not persuaded me by
a preponderance of the evidence that Ernst was deliberately
fabricating his testimony concerning Nickel's work per-
formance and that he chose this occasion for the purpose of
further penalizing Nickel for filing the rate grievance some
4 or 5 weeks earlier. For the reasons stated with respect to
24 The previous low, and that was only on one occasion, was 76 percent. I
note that in his brief the General Counsel states. "One need only peruse this
document [Resp. Exh. 6, the productivity recordl to be able to see that on
previous occasions the performance on the hot hog line was equal to or lower
than the rates on the days that Nickel operated station ." This statement is
not in accord with the facts.
25 This is especially true of Lenton's testimony to the effect that "the more
we talked to him, counseled and advised him, the slower he went."
16 This is not to say, however, that any of the findings herein are intended
to reflect that Nickel in fact engaged in a deliberate slowdown.
1120
JONES DAIRY FARM
the April 13 letter of reprimand, it is recommended that the
allegation in the complaint to the effect that the April 13
oral warning involved conduct violative of Section 8(a)(l)
of the Act be dismissed.
E. The March 31, 1977, letter of reprimand to John
Wellman
The complaint, as amended, alleges that Respondent vio-
lated Section 8(a)(l) of the Act by reprimanding John Well-
man on March 31, 1977, because he engaged in "union
activity or protected concerted activities." Wellman, it
should be noted, was not a steward and did not hold any
position in the Union.
The facts leading to the reprimand of Wellman are virtu-
ally undisputed. John Wellman and Kazimierz Wojtkow.
the latter another employee involved in the incident, work
on the previously described hot hog line. Recalling that the
hot hog line commenced operation in May 1976, it appears
that from time to time Wojtkow was criticized by Respon-
dent's foremen for his work performance on the line. Addi-
tionally, Wellman testified that the foremen, principally
Ernst, spent an undue amount of time standing near Wojt-
kow and watching him at his work.
On March 29 or 30, Ernst told Wojtkow that his produc-
tion was too low and that he would be subject to disciplin-
ary action if he did not show improvement. According to
Wojtkow, "it was probably the same day" that he com-
plained to Wellman, "[W]hy should I have to get pushed
around or anything else like that as long as I feel I'm doing
my job and trying my best at it." In any event, on the same
day or the next, Ernst was about to leave the area of the hot
hog line when Wellman stated to Wojtkow in a voice loud
enough for Ernst to hear, "Hey Kaz, there he goes, he's the
one." Ernst thereupon turned to Wellman and asked Well-
man if he was threatening him. Wellman retorted that he
was "trying to get you hot once."" An argument ensued,
with Wellman protesting Ernst's warning to Wojtkow. Ac-
cording to Ernst, whose testimony I credit on the point,
Wellman kept talking louder and louder and finally started
pounding a bone on the table as he continued the argu-
ment. Employee Duane Buchanan, who was standing some
distance away, yelled down the chute, "[T]hata way, John,
give it to him." Finally, with reference to Ernst's warning to
Wojtkow, 2' Wellman told Ernst, "You just better not ever
try to push me that way." Ernst asked if this was a threat.
Wellman replied, "Take it for what it's worth."
By reason of the foregoing conduct, Wellman received a
letter of reprimand dated March 31.9
The General Counsel contends that Wellman's conduct
in the above incident involved "protected activity" and that
Respondent violated Section 8(a)(1) of the Act by disciplin-
ing him for it. I disagree, for this plainly was not protected
n1 Testimony of Wellman. Ernst phrased it somewhat differently and said
that at this point Wellman stated "I'm trying to rile you up a little for a
change."
2 Even Wojtkow testified that Wellman and Ernst were having an argu-
ment and that they "were yelling at each other."
9 The stated reason for the reprimand was for "creating a disturbance and
for insolence, inteference and disrespect towards your supervisor in violation
of established work rules and practices."
activity in any sense of the word. Moreover, not only was
Wellman's conduct disrespectful and unwarranted, but
there was an established route for him to follow, namely the
grievance procedure, if he felt that Wojtkow was being un-
duly harassed. It is recommended that the allegation be
dismissed.
F. The Suhpena Incident
Paragraph 6(c) of the amended complaint alleges as fol-
lows:
On or about May 3. 1977, the Respondent through
its agent William Lenton at the Jones Dairy plant
threatened employees with layoffs and/or other repri-
sals all for having engaged in protected concerted ac-
tivities and for being involved in this proceedings.
The evidence concerning the above allegation is as fol-
lows: On May 3. 1977, employee Duane Buchanan and
John Wellman went to the kill-cut office concerning their
subpenas to testify in the instant hearing. Wendorf, Saur,
and Lenton were present. It is undisputed that when Bu-
chanan displayed his subpena to apprise Respondent that
he would have to leave for the hearing, Lenton spoke up
and said, "What's going on, are we going to have a May
Day party?"
Later that same day Buchanan went to the office and
advised Lenton and Wendorf, who were present, that there
would be a change in his subpena time. According to Bu-
chanan, Lenton at this time spoke up and stated "Duane,
what we ought to do. maybe we ought to just lay you guys
off." At the same time, Buchanan testified, Wendorf
laughed at him because it was a Friday.30 Lenton testified,
as did Wendorf, that he [Lenton] did not say anything at all
during the period when Buchanan came to the office on this
occasion. I was distinctly not impressed by these apparent
denials of Wendorf and Lenton concerning the remark at-
tributed to Lenton by Buchanan. Buchanan impressed me
as an honest witness, I do not believe his testimony to have
been fabricated, and I credit him on the point.
I find that Lenton's threat to lay off employees, coming
as it did in the context of Buchanan's apprising Respondent
of his intent to comply with a Board subpena, to be clearly
in violation of Section 8(a)(1) of the Act and I so find. As
the Board stated in an analogous situation:3
... we find that the ... conduct of the Respondent
interfered with the right of employees to participate in
proceedings before the Board and that this conduct
further tended to impede the Board in the exercise of
its power to compel the attendance of witnesses at its
proceedings and to obstruct the Board in its investiga-
tion. As this conduct had the tendency to deprive em-
ployees of vindication by the Board of their statutory
rights, it violated Section 8(a)(1) of the Act.
10 Wendorf conceded laughing at this time and said he did so because the
subpena was for a Fnday afternoon and he knew that Buchanan always
wished to be off work on FndaS afternoons
n Winn-Dixie Sores, Inc. and 'Wnn-Dixie Green.ille. Inc. 128 NLRB
574, 579 (1960).
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON
COMMERCE
ORDER'4
The activities of the Respondent set forth in section II1,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent discharged Michael W.
Krebs on December 7, 1976, in violation of Section 8(a)(l)
and (3) of the Act, I shall recommend that Respondent
make him whole for any loss of earnings he may have suf-
fered from the date of his discharge until the date of his
reinstatement." Backpay shall be computed in accordance
with the formula and in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977)."
In view of the nature and extent of the unfair labor prac-
tices herein found, particularly the discharge of Michael W.
Krebs, I will recommend that Respondent be ordered to
cease and desist from in any manner infringing upon the
rights guaranteed employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described in section III
above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(l) and
(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent has not engaged in the other unfair
labor practices alleged in the complaint, except to the ex-
tent herein specifically found.
On the basis of the above 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:
n Krebs was reinstated at a later date after his December 7, 1976. dis-
charge.
33See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The Respondent, Jones Dairy Farm, Fort Atkinson, Wis-
consin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because they engage in union
activities or in protected concerted activities.
(b) Transferring employees to more onerous jobs be-
cause they file grievances related to their working condi-
tions or because they engage in other protected activities."
(c) Threatening employees with reprisals for participat-
ing in Board proceedings or otherwise seeking to persuade
employees to forego participation in Board proceedings.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make employee Michael W. Krebs whole for any loss
of pay he may have suffered by reason of the discrimination
against him in the manner set forth in section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its plant in Jefferson, Wisconsin, copies of the
attached notice marked "Appendix."3 Copies of said no-
tice, on forms to be provided by the Regional Director for
Region 30, after being duly signed by Respondent's autho-
rized representative, shall be posted by it immediately upon
receipt 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 Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
4 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 the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
's This case and desist order will, in my view, serve to remedy the violation
concerning the transfer of Nickel to the more onerous job of leaf-fat pulling.
Although upon completion of his training on the latter job he was not per-
manently reassigned to the hot hog line, there is no indication that the other
jobs to which he was assigned thereafter were more onerous than those on
the hot hog line. In addition, he at all times maintained his regular afternoon
job as a scale clerk.
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1122