Local 575, Meat Cutters, AFL-CIO

National Labor Relations Board - Board Decisions

Oct 24, 1973

206 N.L.R.B. 576 (N.L.R.B. 1973)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 575, Packinghouse Division, Amalgamated Meat
Cutters and Butcher Workmen , (UPWA), AFL-CIO
(Omaha Packing Company) and Evangelos Langadi-
nos. Case 1 -CB-2165
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
October 24, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 22, 1973, Administrative 'Law Judge Art-
hur Leff issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and Respondent filed an an-
swering 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 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a charge
filed November 24, 1972, by Evangelos Langadinos, the
General Counsel of the National Labor Relations Board, by
the Regional Director of Region 1, issued a complaint, dat-
ed March 6, 1973, against the above-named labor organiza-
tion, herein the Respondent, alleging that the Respondent
had engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the National Labor Relations Act, as
amended. The Respondent filed an answer denying the
commission of the alleged unfair labor practices. A hearing
was held at Boston, Massachusetts, on April 9, 1973. Briefs
were filed by the General Counsel and the Respondent on
May 21, 1973.'
1 On June 1, 1973, after the submission of briefs , the General Counsel
I THE BUSINESS OF THE COMPANY
Omaha Packing Company, Inc. (Omaha), a Massachu-
setts corporation, is engaged at Boston, Massachusetts, in
the processing, sale, and distribution of meat and related
products. Omaha annually receives at its Boston plant
meats valued in excess of $50,000 from points,located out-
side the Commonwealth of Massachusetts; it also annually
ships meats valued in excess of $50,000 directly from its
Boston plant to points located outside the Commonwealth
of Massachusetts. The Respondent admits that Omaha is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. It is so found.
II THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Question Presented
The Respondent is, and at all times material herein has
been, the exclusive bargaining representative of Omaha's
production and maintenance employees at Omaha's Boston
plant. As will more fully appear below, Evangelos Langadi-
nos, an employee in the bargaining unit and also a member
of the Respondent, was laid off by Omaha on November 10,
1972. Langadinos complained to the Respondent that he
had been selected for layoff out of seniority. Although the
Respondent took up Langadinos' grievance with Omaha, it
did not press his grievance to arbitration. The only issue
represented in this case is whether as alleged in the com-
plaint, the Respondent in connection with that grievance
refused properly to represent Langadinos in violation of
Section 8(b)(1)(A) of the Act.
B. Facts
The bargaining unit represented by the Respondent at
Omaha contains approximately 25 employees. Under the
governing collective-bargaining contract, the employees are
divided for, the purposes of work assignment and seniority
into four general classifications-"Grade A" and "Grade
B" cutters; "Grade A" and "Grade B" boners; Boxmen;
and "General Help." The "General Help" classification is
considered an unskilled one and covers all employees, re-
gardless of the specific work to which they may be assigned,
who do not fit into any of the three higher-rated classifica-
tions. With respect to layoffs and recalls, the collective-
bargaining contract, in pertinent part, provides:
issued a complaint in Case 1-CA-9035, alleging that Omaha violated Section filed a motion with me to reopen the hearing in the instant case to consolidate
8(a)(1) of the Act by its layoff of Langadmos. The General Counsel thereafter it with Case I-CA-9035. The Respondent's motion was denied.
206 NLRB No. 67
LOCAL 575, MEAT CUTTERS, AFL-CIO 577
Layoffs and recalls of full-time employees, as the case
may be shall be made on the basis of seniority [as
separately applicable to each of the four aforemen-
tioned classifications], provided the employee retained
or recalled as the case may be, shall have sufficient
ability, skill and experience to perform the work avail-
able....
In the event of a proposed layoff or recall out of senior-
ity, the employer shall consult with the Shop Steward.
If the employer proceeds to make the layoff or recall
out of seniority, he shall be entitled to do so, and if the
Union still feels that the employer was not justified in
the layoff or recall out of seniority, a grievance may be
submitted for arbitration by the Union.
Langadinos was hired by Omaha on January 5, 1970, as
a "General Help" employee, and joined the Respondent
about a month later. A Greek immigrant, Langadinos can-
not read or write English, and his ability to communicate
verbally in English is minimal at best .2
Following his hire, Langadinos, although occasionally
being given other duties, was assigned primarily to work
tasks as a helper in the box room. His principal duties
required him to move carcasses, which were suspended from
the ceiling on overhead tracks, to the box room where they
were broken down into smaller sections by box men (a
skilled job) and to hang the broken down sections on other
hooks, called trees, which were then moved to other areas
of the plant either for shipment to customers or for further
processing. The type of work performed by Langadinos at
that time did not require any detailed knowledge of the
various cuts of meat or an ability to communicate with
fellow employees or with customers in the English language.
About a month after he was first hired, Langadinos was
assigned for a period of a week or so to a general helper's
job at the far end of a conveyor belt, about 40-feet long,
which passes between two rows of meatcutters who cut
larger sections of meat into specific cuts that have been
ordered by customers. It is the function of the general helper
at the far end of the belt to segregate the various cuts as they
come off the belt and to place them in receptacles according
to the customers' orders being worked on. This job requires
a knowledge of the various cuts of beef in order to avoid
confusion in filling customers' orders. As appears from the
credited testimony of Sylvester Byrne, Omaha's plant man-
ager, Langadinos, after being tried out for about a week in
that job, was found incapable of performing it largely be-
cause of his inability to distinguish among the various cuts
of beef. He was then transferred back to the box room
where he remained until August 1970.
On August 12, 1970, Langadinos suffered an industrial
accident, and began receiving benefits under the Massachu-
setts Workmen's Compensation Act. Following his acci-
dent,, Langadinos was absent from work for over a year.
About the end of October or early November 1971, Langa-
dinos, after obtaining his doctor's approval, requested Oma-
ha to reinstate him in his job. The collective-bargaining
2 Langadinos testified through an interpreter
contract contains no specific provisions relating to the rein-
statement rights of employees in such circumstances. When
Omaha declared its unwillingness to reinstate him, Langadi-
nos called on the Respondent for assistance in getting his
job back, and the Respondent submitted a grievance on his
behalf. Omaha rejected the grievance, contending that Lan-
gadinos had waited too long after recovering from his acci-
dent before applying for reinstatement and also contending
that Langadinos had waived any right he might otherwise
have had to reinstatement by entering into a lump sum
settlement of his workmen's compensation claim. After
some delay, which the Respondent attributes in part to its
unsuccessful effort to have Omaha document its claim that
Langadinos had waived reinstatement in the workmen's
compensation settlement, the Respondent, on July 19, 1972,
noted the grievance for arbitration before the permanent
arbitrator under the collective-bargaining contract. The ar-
bitration hearing was, however, delayed for several months
more because of the unavailability of the arbitrator.
At the arbitration hearing held on October 5, 1972, a
settlement agreement was reached, apparently after evi-
dence was presented by both sides, under which it was
agreed that Langadinos would be reinstated, effective Octo-
ber 11, 1972, in his classification of "General Help," with
his original seniority date of January 5, 1970, but with no
backpay. An award to that effect was issued by the arbitra-
tor on October 6, 1972. Langadinos was accompanied at the
arbitration hearing by a Dr. Bebis whom he had brought to
the hearing to serve as his personal interpreter and adviser.
Langadinos and Dr. Bebis were consulted with regard to the
settlement agreement, and approved its terms before the
agreement was consummated. No claim is made in this case
that the Respondent violated the Act by failing to represent
Langadinos fairly in the prosecution or settlement of that
grievance. As noted above, the alleged unfair labor practice
in this case is addressed to events that came later.
Upon his return to work on October 11, 1972, Langadinos
was again assigned to the box room to perform the work
tasks he had been mainly performing prior to his injury. It
appears that for some time before Langadinos' reinstate-
ment, no employee classified as "General Help" had been
performing the work duties in the box room to which Lan-
gadinos was reassigned. This may suggest that Omaha re-
created this "General Help" job specifically to meet 'its
reinstatement obligation under the October 6 arbitration
award. Omaha's manager, Byrne, denied, however, that
Omaha's purpose was to subvert the arbitration award by
creating for Langadinos an unnecessary job that it might
soon dispense with. But even if that was Omaha's purpose,
there is no evidence that this was done with the
Respondent's foreknowledge or pursuant to a sub rosa ar-
rangement made by it with the Respondent when the arbi-
tration settlement was agreed upon.
Langadinos was laid off by the Respondent on Friday,
November 10, 1972 , some 4 weeks after his reinstatement.
Omaha attributed the,layoff to a falling off of business and
a consequent need to reduce operating expenses . Byrne tes-
tified that Omaha had initially decided to lay off three
employees at that time, two in the "General Help " classifi-
cation and one skilled employee; that in fact it did notify
two employees besides Langadinos that they were to be laid
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off at the same time ; but that almost immediately thereafter
it was compelled to cancel the layoffs of these two because
it had learned that two other employees would be lost to it
because of illness, one temporary and the other perma-
nently. Thus, Langadinos was the only employee actually
laid off on November 10. Omaha has hired no employee to
replace Langadinos and, indeed , since Langadinos ' layoff
has further reduced by one its complement of employees in
the "General Help" classification . Byrne stated at the hear-
ing that he then regarded Langadinos as still an employee
of Omaha in layoff status , and expressed Omaha's intention
to recall Langadinos to work in accordance with the
contract's seniority provisions as soon as business picked up
and before hiring anyone else from the outside.
Omaha had six employees besides Langadinos in the
"General Help" classification at the time of Langadinos'
layoff. Two of them, Robert Fasulo and Pasquale Bicchieri,
had been continuously in the Respondent's employ since
1969 and had seniority over Langadinos . The other four-
Robert Slowe, Joseph Como, Giovanni Cateno , and Deme -
tris Demeraukas-had been hired by Omaha in late 1970 or
early 1971, while Langadinos was receiving workmen's
compensation benefits . Although all of them had more actu-
al on-the-job experience than Langadinos , they were junior
to Langadinos in terms of contract seniority.
Byrne testified in substance that notwithstanding Langa-
dinos' greater paper seniority , he selected him for layoff
ahead of thejunior "General Help" employees, as permitted
by the collective-bargaining contract 's provisions, quoted
above, because , unlike the junior employees who were re-
tained, Langadinos did not have the ability, skill, and expe-
rience to perform the work that remained available. With
reference to the specific individuals involved , Byrne in his
testimony elaborated on this as follows: Slowe was perform-
ing quality evaluation work required by a Government con-
tract. This work required, inter alga, the filling out of
inspection reports, and an ability to read and write English
which Langadinos did not possess. Como was assigned to
the shipping area; he was required to wrap the various cuts
of meat, place them in boxes, weigh the boxes, write the
name of the customer and the weight on each box , and, on
occasions , converse with customers when complaints were
made about shipments . An ability to read and write and
communicate in the English language is essential to that job.
Cateno was assigned to work at the front end of the conve-
yor belt. Langadinos had no experience in thatjob. The job
required the "General Helper" occupying it, not only to
have a familiarity with the different cuts of beef, but also the
ability to communicate to the meatcutters on the bench
what cuts were to be made for given orders and what cus-
tomers they were for . Byrne considered Langadinos unqual-
ified for that job, because of his inability to communicate
in English to the butchers on the bench the necessary cut-
ting or boning instructions called for by a customer 's order.
Demeraukas was assigned to the job at the other end of the
bench, previously described, for which, as found above,
Langadinos had been tried out during the first period of his
employment and found wanting because of his inability to
distinguish among the various cuts of meat that had to be
segregated on that job. Moreover, that job at the time of the g p g p p
layoff required an even greater familiarity with meat cuts of Craig, Langadinos, and Byrne , to the extent credited.
than had-been the case when Langadinos had been tempo-
rarily assigned to it, for there had been a change in the
nature of Omaha 's operations while Langadinos was away,
and the Company was now cutting meat in more detailed
fashion. Further, although a knowledge of English may not
have been indispensable, it facilitated the performance of
this job, as the general helper occupying it was required to
notify the shipping employee of the name of the customer
for whom a segregated order was destined and also at times,
under the new method of operation , to speak to customers.
Demeraukas , although also a Greek immigrant and not pro-
ficient in English , was, in Byrne 's view, better able than
Langadinos to communicate in that language.
On the Monday or Tuesday following his layoff, Langa-
dinos complained to John R. Craig, the Respondent's presi-
dent, about the action taken against him by Omaha,
asserting , inter alia, that he had been laid off out of seniori-
ty. Craig telephoned the Company and spoke to Bryne
about Langadinos ' grievance . Byrne told Craig that the lay-
off was necessitated by a falling off in business ; that there
were going to be more layoffs; and that Langadinos had
been laid off out of seniority, as permitted by the, contract,
because he was not able, as were those retained in his classi-
fication, to perform the work that remained available. Craig
told Byrne that he wanted to come to the plant to look at
the records , and Byrne agreed to meet with him for that
purpose and to discuss the matter with him further. Follow-
ing the telephone conversation , Craig reported to Langadi-
nos what Byrne had told him, mentioning specifically
Byrne's assertion that Langadinos was unable to perform
the job tasks of the junior "General Help" employees who
were being retained . Langadinos, in response, declared that
he was able to do the work.3
After meeting with Langadinos, Craig visited Omaha's
plant to further investigate the circumstances of the layoff.
Before taking up the matter with the company representa-
tive , Craig discussed Langadinos' grievance with Plant
Steward Buddy Fredericks. Fredericks informed Craig that
the Company had consulted with him concerning the layoff
and had given him the reasons for it in timely fashion as
required by the contract. Fredericks, either at that time or
in an earlier telephone conversation, also informed Craig as
to where in the plant Langadinos had previously worked
and where he had not. Fredericks indicated to Craig his
personal agreement with the Company's position, as it had
been stated to him, that although Langadinos was able to
perform the "General Helpers" job, now being eliminated,
in the particular area of the box to which he had been
assigned, he was not qualified to take over the regular job
assignments of any of the other "General Help" employees
whom the Company was retaining . Following his prelimi-
nary conversation with Fredericks, Craig, accompanied by
Fredericks and Robert Fasulo, the assistant steward repre-
senting "General Help" employees , met with Company rep-
resentatives to discuss Langadinos ' layoff. At this meeting,
Byrne justified the Company's need for a layoff. He also
justified as in conformity with the contract Omaha' s selec-
tion of Langadinos for layoff out of seniority, on the ground
3 The findin s in this ara ra h are based on a com osite of the testimony
LOCAL 575, MEAT CUTTERS, AFL-CIO 579
that Langadinos was not qualified to perform the work
being done by the less senior employees, detailing in support
of that position the reasons stated by him in his testimony,
as reported above. After the meeting was over, Craig cau-
cused with the stewards and also, according to his testimo-
ny, checked out Byrne's explanation with other plant
employees. Craig testified that as a result of his conversa-
tions with the company representatives, the plant stewards,
and other employees, he was satisfied, notwithstanding
Langadinos' earlier protestation to the contrary, that Lan-
gadinos did not have the ability to perform any of the "Gen-
eral Help" jobs that were still available, and on that basis
concluded that Langadinos did not have a sufficiently meri-
torious case to take to arbitration.
The Respondent did not proceed further with Langadi-
nos' grievance, leading Langadinos to file the charge upon
which the complaint in this case is based.
c. Analysis and Concluding Findings
The principles of law that must guide decision on the
issue in this case are well settled. A union occupying an
exclusive bargaining status must serve the interests of all
bargaining unit employees fairly and in good faith, and
without hostile discrimination against any of them on the
basis of arbitrary, irrelevant, or invidious distinctions. See,
e.g., Vaca v. Sipes, 386 U.S. 171; Local Union No. 12, United
Rubber Cork, Linoleum & Plastic Workers [Goodyear Tire &
Rubber Co.] v. N.L.R.B., 368 F.2d 12 (C.A. 5, 1966), cert.
denied 389 U.S. 837; Miranda Fuel Co., 140 NLRB 181. The
Supreme Court has recognized, however, that in the interest
of effectively administering a contract's grievance-arbitra-
tion machinery a union must be allowed a considerable
range of discretion in screening out, settling, or abandoning,
short of arbitration, those grievances which the union in
good faith believes do not justify that costly and time-con-
suming final step. Vaca v. Sipes, supra at 191-192. Accord-
ingly, the Supreme Court has held that an individual
grievant has no absolute right to have his grievance taken
to arbitration. No inference of unfair representation may,
therefore, be drawn simply from a bargaining agent's failure
or refusal to press a grievant' s case through the ultimate
stage of a contract's grievance-arbitration procedures, or,
for that matter, through any intermediate stage . And this,
it has been held, is so even though it appears that the union
may have acted negligently or exercised poor judgment in
its handling of a grievance. Bazarte v. United Transportation
Union, 429 F.2d 868, 872 (C.A. 3). "A breach of the statuto-
ry duty of unfair representation," the Supreme Court has
made clear, "occurs only when a union's conduct toward a
member of the collective bargaining unit is arbitrary, discri-
minatory, or in bad faith." Vaca v. Sipes, supra at 190.
Applying that test to the facts established by the record in
this proceeding, I think it clear that the General Counsel has
not made out a case of unfair representation.
Thus, there is no substantial evidence in this record to
support a finding that either Craig or any of the
Respondent's stewards whom he consulted concerning Lan-
gadinos' grievance were motivated in their consideration of
that grievance by any personal hostility toward Langadinos,
by any favoritism toward other members of the bargaining
unit who night have been affected by the outcome of the
grievance, or by any other consideration of a discriminatory
or invidious nature.
Nor does the record made in this case fairly support a
finding either of bad faith or of arbitrary conduct on the
part of the Respondent in its handling and disposition of
Langadinos' grievance. To begin with, that grievance may
scarcely be viewed as one of unquestionable merit as the
General Counsel insists, since its validity depended not so
much on Langadinos' relative seniority standing, which of
course was clear, as it did on whether he satisfied the
contract's requirements relating to ability, skill and experi-
ence that also governed his right to retention in a layoff
situation. Further, contrary to the General Counsel's coin-
tention that the Respondent merely went through the per-
functory motions of processing Langadinos' grievance,
which he asserts was the practical equivalent'of ignoring it
entirely, the credited evidence demonstrates that actually
the Respondent conducted a reasonably full investigation
of Langadinos' grievance, consulting not only with Langa-
dinos and with company representatives, but also with stew-
ards and others at the plant who were likely to be familiar
with Langadinos work history and with his qualifications
for the work that remained available. The justification the
Respondent gave for Langadinos' layoff out of seniority
was consistent with the layoff provisions of the contract,
and the reasons it gave to support its claim that Langadinos
was not qualified for the work available were substantially
corroborated by the plant stewards. Langadinos , it is true,
disputed the Company's assertion that he could not do the
available work. But the Respondent, in fulfillment of its
duty of fair representation, was not obliged for that reason
alone to continue to support Langadinos' grievance or to
submit the question in dispute for resolution at an arbitra-
tion hearing. See Sarnelli v. Meat Cutters, 457 F.2d 807
(C.A. 1). Under the applicable law, the Respondent re-
mained free, subject only to the requirement that it act
honestly and in good faith, to make its own evaluation of
the grievance and to exercise its own discretion in determin-
ing whether Langadinos' grievance justified arbitration. In
the light of all the foregoing circumstances, I find no ade-
quate basis for inferring bad faith or arbitrary conduct on
the Respondent's part in its handling of Langadinos' griev-
ance, or for rejecting Craig's testimony that the decision he
made on behalf of the Respondent not to carry Langadinos'
grievance to arbitration was grounded on his genuine belief
that to do so would be fruitless. '
Concluding as I do that General Counsel has failed to
establish that the Respondent breached its obligation of fair
representation, as alleged, I shall recommend dismissal of
the complaint in its entirety.
CONCLUSIONS OF LAW
1. Omaha is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent has not , as alleged in the complaint,
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint herein be dismissed
in its entirety.