Russell Packing Co.

National Labor Relations Board - Board Decisions

Sep 18, 1961

133 N.L.R.B. 194 (N.L.R.B. 1961)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pattern storage attendants' duties involve transporting the pat-
terns to and from the storage area adjacent to the shop. Apprentice
patternmakers are recruited from the pattern storage attendants.
The pattern storage checker tags the patterns after they are completed
and checked. The millwright repairs and maintains the machinery in
the pattern shop.
In view of the above, we find that the patternmakers, apprentices,
and pattern checkers are craftsmen and the pattern storage checker
and pattern storage attendants are the type of pattern shop helper
which the Board customarily includes in a craft unit. See Southern
States Equipment Corporation, 113 NLRB 537. As the millwright
works only in the pattern shop and as he would be the sole exclusion,
we shall also include him in the unit.
We therefore find that the following employees of the Employer,
who comprise the contract unit, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act : 2
All wood patternmakers, apprentices, pattern checkers, pattern stor-
age attendants, pattern storage checkers, and millwright, excluding
office clerical employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
2 As the unit found appropriate is broader than that requested by the Petitioner, it
may, upon timely notice to the Regional Director , withdraw its petition.
Russell Packing Company and Peerless Packing Company and
Charles Hampton . Case No. 13-CA-3593-1. September 18, 1961
DECISION AND ORDER
On October 25, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Intermedi-
ate Report attached hereto. Thereafter, the Respondents filed ex-
ceptions to the Intermediate Report and a supporting brief.
On March 29, 1961, pursuant to a request by the General Counsel,
the Board remanded this proceeding for a further hearing before the
same Trial Examiner on the credibility of Alvaro Elzy, a witness for
the General Counsel. On June 5, 1961, the Trial Examiner issued a
Supplemental Intermediate Report attached hereto, in which he found
that Elzy's testimony was now untrustworthy because of inconsistent
testimony which he had given at an unemployment compensation
133 NLRB No. 24.
RUSSELL PACKING CO. AND PEERLESS PACKING CO. 195
hearing. He concluded, however, though giving no weight to Elzy's
testimony, that he saw no substantial reason to recommend any ma-
terial alterations in his essential findings or conclusions as they ap-
peared in his original Intermediate Report. The Respondents have
filed exceptions and a supporting brief to the Supplemental Inter-
mediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Reports, the exceptions and briefs, and the entire record in
this case, and finds merit in the Respondent's exceptions for the reasons
noted hereafter.
The Respondents are engaged in the business of slaughtering and
dressing hogs. Its employees have been represented by Local 87,
Amalgamated Meat Cutters and Butcher Workmen of North America,
since 1937. The complaint alleges that the Respondents discrimi-
natorily discharged Charles Hampton, the Union's chief steward at
the plant, because of his attempt to process a grievance on behalf of
a fellow employee. The events leading up to Hampton's discharge
were as follows :
About 8 a.m. on November 10, 1959, employee Portis complained to
Novak, the cutting room foreman, that his arm hurt him and he could
not do the job assigned him. Novak told Portis to go home and to
come back to work when his arm was better. Portis first complained
to Elzy, the assistant chief steward, and then to Hampton, the chief
steward, that he should have been assigned an easier job instead of
being sent home. Despite protests of the two stewards, Novak would
not alter his decision about Portis, pointing out that a written griev-
ance could be filed on the matter and that Portis would be paid for his
lost time if he was being unfairly treated. Thereafter, Elzy requested
permission of Novak to see the personnel manager, Russell, about the
grievance, but was refused. About 9 a.m., the conveyor belt in the
cutting room was suddenly stopped when Elzy left his place of work
without permission and went to see Russell about the Portis grievance.
With the conveyor belt stopped, work quickly ceased, and a few min-
utes later Hampton also left his work station and joined Elzy in
attempting to talk to Russell.' Elzy's action precipitated an unau-
thorized work stoppage of approximately 4 hours, toward the end of
which period the Company discharged both Elzy and Hampton. Only
Hampton's discharge is at issue here.
' At both hearings in this - proceeding, Elzy corroborated the testimony of Hampton
and that of other General Counsel 's witnesses that he ( Elzy ) had left his work station
alone in order to see the personnel manager . At an unemployment compensation hearing,
shortly after his discharge , and prior to the first Board hearing, Elzy had testified that he
and Hampton had left together as soon as the conveyor belt stopped. Like the Trial
Examiner , we credit Hampton's testimony without relying on Elzy's testimony.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner considered the relevant issues to be whether
Hampton led the walkout and whether management in good faith
believed that he had. He concluded, on the basis of his credibility
findings, that Hampton had not instigated or led the work stoppage,
that the Company had no reasonable grounds for believing that he
had, and consequently, that Hampton had been discriminatorily dis-
charged for attempting to process the Portis grievance.
Although it is normally a protected concerted activity to present
and handle grievances, an employer may impose reasonable rules re-
lating to the prosecution of such matters on working time. In the
absence of a contractual agreement permitting the investigation and
prosecution of complaints on working time, the rights of employees
and of union stewards to undertake such activities may be limited.'
The grievance provision of the agreement between the Respondents
and the bargaining representative is general in nature, and, although
outlining certain procedures to be followed, does not specifically pro-
vide when grievances are to be handled.'
The Employers are engaged in processing perishable pork prod-
ucts on a continuous basis, the product moving by conveyor belt, and
the absence of any employee from his assigned station at the belt im-
mediately affects production. Because of the problems that ensued
through the handling of grievances on working time, the Respondents
permitted foremen to discuss and settle minor grievances while the
steward continued to work, but had advised the stewards that com-
plaints which could not be so handled should be submitted in writing
to be discussed at joint meetings on nonworking time.
On this record it is clear that Elzy was engaged in an unprotected
activity when he left his work station without permission, thereby
.-causing an unauthorized work stoppage in violation of the contract's
no-strike clause, in order to force an immediate settlement of the Portis
grievance.4 The illegality of Hampton's discharge, however, is not
established merely because, as the Trial Examiner found, he had not
personally instigated the unauthorized work stoppage. If Hampton
allied himself with Elzy in his unprotected activity, then he also was
engaged in an unprotected activity for which he could be discharged.'
2 Doyle W. Terry, d/b/a Terry Poultry Company, et al., 109 NLRB 1097, at 1098.
'Article XIII entitled "Grievance Procedure and Arbitration" states in part : "Any
employee who may have a grievance shall present such grievance- through the Shop
Committee or an accredited representative of the Union to the proper official designated
by the management . If no agreement is arrived at, then the grievance shall be referred to
the Business Agent of the Union and the Plant Superintendent for adjustment ." In the
event no agreement was reached , the contract provided for the grievance to be referred to
a board of arbitration.
4 Article XXIII of the collective-bargaining agreement between the parties, entitled
"NO Strike Clause" states : "There shall be no slowdowns , strikes, stoppages of work or
lock -outs of any kind during the terms of this Agreement . Any dispute of any kind or
nature which cannot be adjusted between the parties shall be referred to the Board of
Arbitration as hereinbefore provided."
5 Armstrong Cork Company, 112 NLRB 1420.
RUSSELL PACKING CO. AND PEERLESS PACKING CO. 197
The record establishes that prior to the work stoppage at 9 a.m.
Hampton knew that Portis had spoken to Elzy about his grievance.
Hampton himself had argued with Foreman Novak that there should
be an immediate resolution of the matter. Hampton admitted seeing
Elzy leave his work station but claimed to be unaware of what Elzy
was doing. He testified that he continued working for a few minutes
before attempting to learn why the conveyor belt had suddenly
stopped. He then went immediately to Russell's office where he
found Elzy who was waiting to see Russell, and was informed that the
Union's business agent had been called. Even crediting Hampton's
further testimony that, after consulting with Elzy, he returned to the
cutting room and urged the employees there to return to work, there
is nothing in the record to indicate that he warned Elzy of his vio-
lation of the no-strike agreement or attempted to-induce him, as the
obvious instigator of the stoppage, to return to work. At no time
during the 4-hour stoppage did he disavow Elzy's actions although,
as the Union's chief spokesman in the affected area, he was aware that
the agreement was being violated by the unauthorized work stoppage.
By joining Elzy in seeking an immediate settlement of the grievance,
Hampton participated and acquiesced in Elzy's unprotected conduct
and ratified it as his own.'
Based on the foregoing, we find that Hampton was discharged be-
cause of his active participation in an unauthorized work stoppage
rather than for his attempt to prosecute the Portis grievance. The
findings of the Trial Examiner to the contrary are reversed.
[The Board dismissed the complaint.]
MEMBER BROWN, dissenting :
Contrary to my colleagues , I would affirm Trial Examiner Whitte-
more's finding that the Respondent violated Section 8(a) (3) and (1)
of the Act by discharging Chief Union Steward Hampton. The
Trial Examiner found that Hampton neither instigated nor led the
work stoppage and that he was discharged for attempting to process
a grievance . Reversing the Trial Examiner, the majority concludes
that the Respondent discharged Hampton for engaging in a work
stoppage in violation of the contract and for ratifying the related
conduct of Elzy, the assistant steward.
Hampton's role in the incident was, as I view the case, directed
solely at terminating the stoppage . Thus, shortly after Elzy left his
work station in connection -with the brewing dispute, Hampton went to
the personnel office to ascertain Elzy's whereabouts and activities, and
6 See University Overland Express , Inc., 129 NLRB 82; and Stockham Pipe Fittings
Company, 84 NLRB 629. Cf. Pontiac Motors Division, General Motors Corporation, 132
NLRB 413, finding that the discharge of a steward who neither caused nor took part
In an Illegal work stoppage was discriminatory.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hampton thereupon returned to the floor and urged the men to re-
sume work, warning them that they were violating the contract and
assuring them that a union representative would soon be there to
settle the dispute. I find, in the circumstances detailed by the Trial
Examiner, that Hampton was carrying out his contract obligations
as chief steward and that he neither engaged in nor was otherwise
responsible for any unprotected strike activity.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed and duly served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labol
Relations Board, and an answer having been filed by the above-named Respondents,
a hearing involving allegations of unfair labor practices in violation of Section
8(a)(1) and (3) of the National Labor Relations Act, as amended, was held in
Chicago, Illinois, on July 12 and September 22, 1960.1
At the hearing the Respondents and General Counsel were represented by counsel
and were afforded full opportunity to present evidence pertinent to the issues, to
argue orally, and to file briefs. After the hearing a brief was received from General
Counsel and a memorandum from counsel for the Respondents.
The Respondents' motion to dismiss the complaint, upon which ruling was re-
served at the hearing, is disposed of by the following findings, conclusions, and
recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Russell Packing Company and Peerless Packing Company are Illinois corpora-
tions, both with place of business at the same address and building in Chicago, Illi-
nois. The former is engaged in the business of purchasing hogs and, after having
them slaughtered and dressed by the latter, of selling the dressed meat to customers
both within and without the State of Illinois.
During the calendar year 1959 Russell purchased hogs, goods, and materials
valued at more than $50,000 and shipped directly to the Chicago plant from points
outside Illinois. During the same period it sold and shipped meats and other finished
products valued at more than $50,000 from the Chicago plant to points outside
Illinois.
During the same period Peerless processed, sold, and delivered at the Chicago
plant products and services valued at more than $50,000 to Russell.
Russell and Peerless are affiliated businesses with common officers, ownership,
directors, and operators, having a common labor policy affecting the employees who
are commonly employed by them. The companies constitute a single, integrated
enterprise, and a single employer within the meaning of Section 2(2) of the Act.
The Respondents are engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The principal question here is whether the preponderance of credible evidence
supports General Counsel's allegation that Charles Hampton, for several years the
chief steward for the Amalgamated at the plant, was discharged on November 10,
1 Upon motion of the Respondents, the hearing was reopened on the latter date
RUSSELL PACKING CO. AND PEERLESS PACKING CO. 199
1959, because he was engaging in his lawful right to process a grievance. The Re-
spondents deny this allegation and affirmatively contend that he was dismissed
because he led an unauthorized refusal to work in violation of a contract with Amal-
gamated. Thus stated, the problem of alternatives seems susceptible of quick solu-
tion, especially in view of certain undisputed circumstances: a work stoppage of
about half a day, a no-strike clause in the contract, and the acquiescence of the
Amalgamated in failing to protest against the summary firing of its chief representa-
tive at the plant.
The state of the record, however, comparatively short though it is, discourages
snap judgment The quantity of often confused and freqeuntly conflicting testimony
of the many witnesses called by the Respondents does not clarify, but beclouds, their
simple claim: that Hampton led a walkout and was promptly fired for it. And the
marked contrast between the employers' volubleness and the Amalgamated's silence
not only aggravates the difficulty of distinguishing significant truths from plausible
falsehoods but also suggests a suspicion that some pertinent facts, known to these
two parties, were conveniently withheld from the record.
The events in issue occurred between 9 o'clock and noon of November 10, 1959.
B. Relevant facts
Employees involved in the events at issue work on two floors at the plant, one
being referred to as the "cutting" floor and the other, beneath, as the "trimming"
floor. On the upper floor some 40 or 45 employees have regular stations on either
side of moving "tables," or conveyors, or "chains," as the terms were variously used
during the hearing. At sections along the conveyors different cutting operations
are performed, the meat moving along from one section to another in one continuous
operation.
On the morning of November 10, Charles Hampton was working at the last sta-
tion on one conveyor. At the opposite end, some 30 feet away according to one
witness' testimony, was Alvaro Elzy, a shop steward. Meat being processed moved
from Elzy's station toward that of Hampton.
During the 8 o'clock break that morning, Frank Novak, cutting room foreman,
told employee Portis to go home and rest his arm after he had complained that he
could not do the job assigned to him. Portis promptly reported Novak's action to
Elzy, who apparently was a room steward.
After work resumed, Novak came to Elzy's station and the latter protested his
action in sending Portis home instead of transferring him to another job. Novak
told him he had orders from Personnel Director Russell. Elzy requested permission
from the foreman to go down to see Russell on the matter. Novak refused, stating
that he had orders from Russell not to let him "out."
At 8:30 Portis approached Hampton at his work and told him of Novak's action.
The chief steward asked if he had taken the matter up with Elzy. Portis said he
had. Hampton told Portis to go to the dressing room and that he would talk with
him after he had obtained a relief or "spell man." He asked Novak for, and was
given, relief and on his way to the dressing room queried the foreman about the
Portis matter. Novak told him, as he had previously told Elzy, that he was sending
Portis home on Russell's orders. Hampton protested that such action was contrary
to an agreement made with management shortly before this that an employee was
to be transferred to some other job if he could not perform the one assigned to
him. Novak insisted that the orders came from Russell. After talking with Portis,
Hampton returned and renewed his protest to Novak. The latter was adamant,
however, and Hampton went back to his station, resumed his work, and remained
there until after 9 o'clock.
Up to this point of time the testimony relating to Hampton is not in significant
dispute.2
Somewhat later Elzy asked William Ziegler, Novak's assistant on the same floor,
for relief. Ziegler refused, saying that he could not overrule the foreman. The
steward thereupon told Ziegler that he had asked Novak to send for Russell and that
if the personnel director did not come to see him by 9 o'clock, he would "come up
and see him."
2 Foreman Novak did testify that upon his being relieved Hampton first went to talk
with Elzy. While Hampton was not asked about this on rebuttal, and so there is no
specific denial in the record of Novak's testimony on this point, counsel for the Respondents
obtained an effective denial when he elicited from Hampton, on cross-examination, the
clear statement that the "only person that I spoke with was Novak," after his relief and
on his way to the dressing room. The Trial Examiner believes Hampton For the
reasons set out later , scant reliance can be placed upon Novak's testimony
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the testimony of Ziegler, a witness for the Respondents, after Elzy
made this threat he telephoned Russell and reported, "Pat, Elzy says if you don't
come up here by nine o'clock, he is coming to see you." Ziegler quoted Russell as
replying, "Well, let him come up here." The assistant foreman also placed his
conversation with Elzy, which he then reported to Russell, as taking place "about 10
minutes to nine."
Thus, to fix a fact at its proper place in time, by the Respondents ' own witness it
is plain that no crisis was precipitated by delivery of an ultimatum from Elzy until
8:50 that morning. Nor is there any evidence that Hampton, 30 feet away at the
far end of a moving conveyor, had any awareness of Elzy's threat to leave his sta-
tion or of his conversation with Ziegler. Indeed Novak's testimony is to the effect
that after his earlier discussion with him, Hampton returned to and remained at his
work until 9 o'clock, when Elzy left his station.
As to events from 9 o'clock on, there are about as many varying accounts from
the Respondent 's witnesses as there are witnesses . Viewed compositely, it reveals
the texture of pork sausage encased in polysyllables. For example, there is no con-
sistency in the testimony of three supervisors who claimed to be on the floor and near
the conveyor at 9 o'clock: Novak, Ziegler, and Bagato, an assistant foreman from
the floor below whose presence there is unexplained by any credible evidence.3 The
last mentioned supervisor said that at 9 o'clock, when he was only 6 feet away from
Hampton, he saw the chief steward call some unidentified employee over to him,
heard him say to this employee, "Go over there and tell Elzy what is he going to do.
It is 9:00 o'clock." Bagato also said he then "moved over," and saw this employee
speak to Elzy, whereupon the latter "pointed at Freddie to stop the table." Not
even Bagato's testimony that he was up there finds any support in the testimony of
the two supervisors whose duties were to be there, and certainly no corroboration
of the details he claims he saw and heard. According to Novak, on direct examina-
tion, at 9 o'clock "little Elzy shut down the chain," got down "off the bench," and
"brushed by me like I was cold." This testimony plainly infers that he was close
enough to Elzy to have seen some employee who did not belong there get up on the
bench to speak to Elzy, had such happened. On cross-examination, however, Novak
declared, "I didn't say that Mr. Elzy shut the chain down. In fact, I don't know who
actually pressed the button," or stopped the chain. And according to Ziegler, whose
precise whereabouts in the vicinity at the time is not established, he heard Elzy say
at 9 o'clock, "Hold the chain, boys. No more work."
From such inconsistent and mutually unsupported testimony the Trial Examiner
is unable to determine exactly with what action and in what words Elzy caused the
stoppage to occur. And although, in spite of Elzy's denial, the Trial Examiner is
convinced and finds that this steward did in some fashion bring the conveyor to a
halt, there is no testimony from either of the foremen who were supposed to be
there to the effect that Hampton had anything to do with the actual stoppage.4
The credible testimony of Hampton, supported by that of a number of employees
working at his conveyor, is to the effect and the Trial Examiner finds that Hampton
remained at his station, at work, and did not leave for several minutes after Elzy had
proceeded downstairs towards Russell's office .5 After the meat was cleared from his
table, Hampton and other stewards left to go downstairs, where Elzy was waiting to
see Russell in the "cashier's cage."
When it became apparent that Russell would not talk with Elzy, the latter tele-
phoned the Amalgamated to have some representative come to the plant. Hampton
and the other stewards then returned to the upper floors. On the cutting floor,
Hampton urged the men standing around idle to go back to work, warning them that
they were violating the contract, and assuring them that a union representative would
8 Bagato's explanation is that he went up there to commiserate Hampton on the passing
of "Brother Branch" at 8 :45 and then just hung around by the lard room door.
4 The Trial Examiner is aware of the fallibility of human recollection, and of the im-
probability that three casual witnesses of any event can recall the same precise details.
If Novak's testimony, or any part of it, is deserving of face value, he was not a "casual"
witness. According to him he had been "alerted" by Plant Superintendent Zagorski before
9 o'clock and instructed to watch out and "pinpoint the leaders" of a possible walkout.
And it may well be that he was so instructed, although Novak at one point in his testi-
mony fixed his receipt of such direction at an impossible time-before 8:50, when Elzy
first made his threat to Ziegler.
s The Trial Examiner does not accept as true the testimony of Novak, Ziegler, and
Bagato that Elzy and Hampton left the cutting room together. Elzy's testimony that he
arrived several minutes ahead of the others, and was told by Russell to wait is not dis-
puted by Russell.
RUSSELL PACKING CO. AND PEERLESS PACKING CO. 201
soon be there to settle the matter. ' The employees refused, however, to return to
work until the Portis matter had been dispose,,' of.6
in due time Robert Nielubowski, secretary-treasurer of the Amalgamated Local
involved, arrived at the plant. With no apprent objection from management he
called the plant stewards together, including Hampton and Elzy. Upon being in-
formed that "the people stopped working" because of Portis' discharge, he tried to
get them to return to work. According to his testimony he tried in vain for some
15 minutes, and then went with the stewards to take up the Portis grievance with
Russell. And contrary to what Russell claimed was his policy of not taking up
grievances during working hours, it is clear that Nielubowski had no difficulty in ob-
taining audience with the personnel director or in discussing the grievance. After
Russell had assured the union officer that Portis would be permitted to come back
to work the next day, Nielubowski assembled the employees and reported to them
the outcome. He again urged them to go back to work. They refused. Again
Nielubowski, Hampton, Elzy, and others returned to the front office, and here, for
the first time, Russell announced that both Hampton and Elzy were discharged. He
gave as the reason possession of "proof to the fact that Elzy and Hampton had
caused the walkout."
So far as Nielubowski's testimony shows, he made not the slightest protest against
this summary action, nor did he inquire as to what sort of proof Russell had.
Both Hampton and Elzy were, in fact, discharged at that time. Neither has been
reinstated. Only Hampton's dismissal is in issue.
C. Conclusions as to Hampton's discharge
There is no evidence that a charge was filed with the Board by or on behalf of Elzy,
nor does the complaint contain allegations as to him. The legality of his discharge
is therefore not for determination here.
As a witness for the Respondents Personnel Director Russell asserted that Hampton
was discharged "for leading an unauthorized strike." This assertion raises two ques-
tions of fact, one of which must be answered in the affirmative if merit is to be
found in the claim: (1) Did Hampton lead the walkoff, and (2) did management
in good faith believe he did?
On the basis of the foregoing findings of fact the Trial Examiner concludes that
the answer to the first question must be in the negative. As noted, the substance of
testimony of both room supervisors, Novak and Ziegler, is to the effect that Hampton
neither precipitated, nor led, nor even knew in advance of the action which Elzy
took at 9 o'clock. Neither foreman testified that Hampton threatened to leave the
jab, as had Elzy. Indeed Ziegler said, as to Hampton before 9 o'clock, "he didn't
do anything. He just continued on his job." Even more candidly and to the point,
Ziegler implied his own disbelief that Hampton had anything to do with the walkoff
by testifying: "What .I couldn't understand, if he (Elzy) is an assistant to Hampton,
the chief steward don't call-he is the one that is supposed to call the shut off,
wasn't he?"
The question of "good faith belief," being subjective, finds its answer less readily
in facts established by testimony: that is, no member of management except Ziegler
admitted in effect that he did not believe Hampton led the action. And circumstances
surrounding the decision to fire the chief steward, as described by management wit-
nesses themselves, fail by a large measure to support the claim of "good faith belief."
In the first place, it might be assumed that before choosing between alternative
decisions some effort at investigation would be made to ascertain facts which might
support one or the other. Yet such assumption is refuted by the testimony of the
6 The finding rests upon the credible testimony of Hampton and all employees called as
witnesses. The only evidence tending to refute it comes from Assistant Foremen Ziegler
and Bagato, who merely said they did not hear Hampton make such request of the em-
ployees. Not only is Bagato's continued presence on the floor away from his own job
unexplained, but if he is to be believed there was no walkout anyway. According to film
no employee left his station while Elzy and Hampton were downstairs on this occasion.
If this had been the case, all that need have been done was to push the button and start
the conveyor. Nor does the Trial Examiner consider that the sworn testimony of Hampton
and several employees as to what he did do on the morning of November 10, in this re-
spect, is effectively negated by testimony brought forward at the reopened hearing to the
effect that nearly a month later, at a union meeting, Hampton replied in the negative
when asked by the union attorney if he tried to get the men to go back to work. Any
possible presumption that had he tried the men would of course gone back to work is
made futile by the clear fact that the Union's secretary-treasurer tried unsuccessfully for
at least 2 hours to attain the same end.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two foremen in charge of both Hampton and Elzy. Both Novak and Ziegler testified
to the effect that neither knew nor was consulted about the discharges until after they
were made. Novak stated flatly that no one of higher management even discussed
the matter of the work stoppage with him from the time he told the superintendent,
before the event, what he thought might happen.
In the face of Novak's testimony on this point, elicited on searching cross-
examination, the Trial Examiner can place no reliance upon the following testimony
of Russell-a rambling, excitable witness-which was given immediately after his
own counsel had admonished him: "Stick to what was told you, sir":
As I say, I talked to Shano or Frank Novak 7-excuse me-after that, and he
said that Elzy had stepped down and the chain had stopped and then I heard a
lot of conflicting statements from-from whom I couldn't remember, seriously,
but the basis of the thing was that Elzy stepped down off the chain and went
over to Hampton and the two of them together walked off the cutting floor,
stopping the chain from all production, because you would have plates and
things and things of that nature going down stairs and the nature of our
business is that every man has to be in position, unless we leave.
Upon that evidence, I recommend, 1 myself, personally, recommend a
very stringent disciplinary action.
To urge, as Russell apparently does, belief of his claim that he decided upon a
course of "stringent action" on the basis of "a lot of conflicting statements from-
from whom I couldn't remember, seriously," is to ask acceptance of the claim without
question or appraisal of its manifest irrationality. Reason suggests that not because
of "conflicting statements," but in spite of them, the personnel manager took action
which for some other reason he had already decided to take-mot after the stoppage,
but before it.
Finally, the following factors, tending to show that management itself made not
the slightest effort to prevent either Elzy's coming to the office or the work stoppage,
fully deprive the claim of "good faith belief" of any merit•
(1) It is undisputed that when Assistant Foreman Ziegler informed Russell shortly
after 8:50 that Elzy said he was going to leave at 9 o'clock to see him, the personnel
director merely said, "Well, let him come up here."
(2) Russell admitted that, although warned in advance of possible "trouble" at
9 o'clock, he did nothing personally to prevent it.8
(3) Ziegler testified and Russell admitted that the latter said nothing about firing
Elzy or any other steward if they came to see him.
(4) Neither Novak nor Ziegler made the least attempt to prevent the walkoff, to
order the men back to work, or to start the chain.
5. There is no evidence that Plant Superintendent Zagorski, when he came to the
cutting room later, made any effort to have the men return to work.
In summary, the Trial Examiner concludes that credible evidence fails to sustain
the proposition that Hampton actually led the walkoff, or the claim that management
in good faith believed he did. There is no merit, therefore, in the Respondents'
contentions as to why Hampton was discharged.
On the contrary, the Trial Examiner concludes and finds that the preponderance
of evidence sustains the allegations of the complaint. That management did not
take kindly to the presentation of grievances by either Elzy or Hampton is reflected
in Ziegler's testimony:
I wouldn't say they were troublemakers, but every day that things came up, they
would have their hands in it.
And Russell testified:
I made it a policy not to settle grievances on company time. I was going to
stick to it. It was getting pretty tough not to do it, but it was becoming ex-
tremely difficult to handle all these little matters that could have been possibly
handled by-by the foreman on the spot.
It is noted that if there had been such a unilateral policy at the time, Russell did
not invoke it-or, so far as the record shows, even mention it-when Nielubowski
brought the stewards to his office. On that occasion Russell not only discussed the
grievance but agreed to put Portis back to work the next day.
7 As the record shows, "Shano" Is a nickname used for Novak
8 Russell did claim that he sent two "extra foremen" to the floor to see if they "couldn't
call it down " He did not identify such individuals, however, nor were any such called
as witnesses Nor is there any evidence that any supervisor tried to "call it down " The
Trial Examiner can place no reliance upon Russell's claim.
RUSSELL PACKING CO. AND PEERLESS PACKING CO. 203
The Trial Examiner concludes and finds that the Respondents discriminatorily
discharged Hampton because he, and other stewards , came to the office in an
attempt to take up a grievance , and that such action tended to discourage member-
ship in and activity on behalf of a labor organization , and interfered with, re-
strained , and coerced employees in the exercise of rights guaranteed by the Act.
D. Other alleged interference
At the hearing General Counsel amended the complaint to allege that on No-
vember 19, 1959, the Respondents further interfered with employees' legal rights.
This claim is based upon a letter of that date, sent to Nielubowski by Respondents'
counsel, in which the latter implied in no uncertain fashion that unless the Union
came to some "amicable agreement" regarding the firing of Hampton and Elzy,
the Respondents would sue the Union for damages "arising out of the violation of
the contract, which is provided by Section 301" of the Act.
It appears to be General Counsel' s position that because this letter was thereafter
read to the Union's executive board, upon which some of the Respondents' em-
ployees served, the letter served as an unlawful threat to employees generally.
The sending of this letter, threatening to bring suit unless the Union agreed to
settle the grievance without resort to the contractual right of arbitration, is but
another example of the Respondents' far from candid conduct since it is undisputed
that about noon on November 10 Russell persuaded employees to go back to work
after Nielubowski for some 2 hours had failed-upon the promise that the Hampton-
Elzy discharges would be taken up "under the regular procedure at a later time." 9
It does not, however, in the opinion of the Trial Examiner, constitute a violation of
the law. General Counsel cites no authority for such claim in his brief.
Since the law itself accords the right to either party to bring suit for violation
of a contract in any district court of the United States, it is difficult to perceive how
mere announcement by one party to the other that it may exercise this lawful right
becomes unlawful under any circumstances. Whether the Union actually declined to
process further the Hampton-Elzy grievance because of the threat, or whether by
yielding the Union gained credit among its members are matters immaterial to the
issue raised by General Counsel.
In short, the Trial Examiner concludes that this allegation of the complaint should
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section 1, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in and are engaging in unfair
labor practices, the Trial Examiner will recommend that they cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
It will be recommended that the Respondents offer immediate and full reinstate-
ment to employee Charles Hampton, to his former or substantially equivalent em-
ployment and without prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered by reason of the dis-
crimination , by payment to him of a sum of money he would normally have earned
as wages from the date of the discrimination against him to the date of offer of
reinstatement, less his net earnings during said period, and in a manner consistent
with Board policy as set out in F. W. Woolworth Company, 90 NLRB 289, and
Crossett Lumber Company, 8 NLRB 440.
Since the violation of the Act which the Respondents committed is closely related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from their past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are co-
extensive with the threat. To effectuate the policies of the Act, therefore, it will be
recommended that the Respondents cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
9 Assistant Foreman Ziegler so testified, as did Hampton
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Charles
Hampton , thereby discouraging membership in and activity on behalf of the above-
named labor organization , the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a) (3) of the Act.
3. By interfering with , restraining , and'coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On October 25, 1960, the duly designated Trial Examiner issued his Intermediate
Report ( IR-366 ) in the above-entitled proceeding . Upon requests of General
Counsel , the Respondents , and the Amalgamated , the National Labor Relations
Board on March 29, 1961, .issued an order reopening the record and remanding the
proceeding for further hearing. Pursuant to this order further hearing was held
in Chicago, Illinois, on May 9, 1961, before the same Trial Examiner.
At the hearing all parties were represented , participated, and were accorded full
opportunity to present evidence pertinent to the single issue defined in the Board's
order, to argue orally, and to file briefs. Briefs have been received from General
Counsel and the Respondents.
Upon the record thus made, and from his observation of the two witnesses called,
the Trial Examiner makes the following:
FINDINGS OF FACT
A. The issues
In preliminary summary it may be pointed out that in January 1961 , and for the
second time since July 12 , 1960, when the original hearing was held , the Respond-
ents requested and were granted reopening of the proceedings for the purpose of
receiving what they urged was newly discovered evidence bearing upon the credi-
bility of certain of General Counsel 's witnesses.
The present reopening is concerned with the credibility of witness Alvaro Elzy
and was ordered by the Board because "the testimony and credibility of the witness
in question" at an unemployment compensation hearing prior to testimony given
before this Trial Examiner in July 1960, "may be determinative as to whether a
violation exists."
B. Relevant facts
Briefly, the setting is as follows:
The chief question raised by the complaint is why one Charles Hampton, the
employee chief steward of the Amalgamated at the Respondents ' plant, was sum-
marily dismissed in November 1959 . General Counsel has consistently urged, at
the original and both subsequent reopening sessions, that Hampton 's discharge was
unlawfully designed to discourage union activity and specifically because this
employee endeavored to process grievances. On the other hand, the Respondents
continue to maintain that Hampton was dismissed only because he, together with
Alvaro Elzy, a union steward , led an unauthorized work stoppage in the plant at a
time when a no-strike clause was effective in an existing contract between the Amal-
gamated and the Respondents.
In his Intermediate Report the Trial Examiner found that the preponderance of
credible evidence sustained the complaint . In substance it was found that while
Elzy (who was not alleged as a discriminatee ) in fact did precipitate and lead a
work stoppage , Hampton did not-and on the contrary tried unsuccessfully, as did
a union representative called to the plant, to persuade other employees to resume
their work.
GIORDANO LUMBER CO., INC. 205
At the original hearing before the Trial Examiner , Elzy testified , as did Hampton,
to the effect that he alone left the conveyor or "chain " on the occasion in question
and proceeded to the office and that Hampton did not follow until later.
At the reopened hearing now involved it was established beyond question that
in February 1960 , before a referee for the Division of Unemployment Compensation,
Department of Labor , State of Illinois, Elzy testified that after he left the "chain,"
thereby stopping it, he went directly to Hampton at the other end of the "chain,"
and "him and I both goes on to Pat Russell"-the Respondents ' personnel manager.
C. Conclusions
Elzy's testimony at the two hearings was plainly inconsistent . And under the
circumstances of differing testimony under oath the Trial Examiner is reluctant to,
and does not, accept as true Elzy's testimony at the reopened hearing that he testi-
fied falsely before the referee only because he had been advised to do so by a union
representative.
Inconsistency , however, was a common characteristic of most of the Respond-
ents' witnesses, as set out at length and in detail in the Intermediate Report. And
the Trial Examiner is aware of no rule of evidence or logic which requires that now,
merely because he must find Elzy's entire testimony to be untrustworthy , he must
also and automatically believe previously discredited witnesses of the Respondents
or disbelieve Hampton.
In short, the Trial Examiner discerns no substantial reason to recommend any
material alteration in the essential findings or conclusions appearing in his original
Intermediate Report.
Giordano Lumber Co ., Inc. and United Brotherhood of Carpen-
ters & Joiners of America, AFL-CIO, Petitioner
Giordano Lumber Co ., Inc. and Local Union #398, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers, Petitioner. Cases Nos. 3-RC-2397 and 3-RC-2398.
September 18, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a hearing was held before John W. Irv-
ing, hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
Upon the entire record in this case, the Board finds :
1. The Employer 1 is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
1 The name of the Company appears as amended at the hearing.
133 NLRB No. 22.