Sioux Quality Packers

National Labor Relations Board - Board Decisions

Oct 13, 1977

232 N.L.R.B. 1166 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sioux Quality Packers, Division of Armour and
Company and Philip C. Mossberg and Eugene
Means and Eugene E. Means. Cases 18-CA-4380
and 18-CA-4783
October 13, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 2, 1977, Administrative Law Judge James
M. Fitzpatrick issued the attached Supplemental
Decision in this proceeding.' Thereafter, Respondent
and the Charging Party filed exceptions and support-
ing briefs, and Respondent filed a brief in answer to
the Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge to the extent consistent herewith, to
modify the remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977),2 and to adopt his recom-
mended Order, as modified herein.
The Administrative Law Judge found, and we
agree, that Eugene Means was discriminatorily
suspended and discharged, in violation of Section
8(a)(3) of the Act, on October 8 and 10, 1974,
respectively. Through intervention of the union
representing Means' bargaining unit, Means was
reinstated to his position on December 30, 1974,
although without backpay. The Administrative Law
Judge therefore properly ordered that Means be
awarded backpay to the time of his reinstatement.
Means was discharged again, however, on May 7,
1975, after having been suspended on May 6, 1975,
for alleged insubordination. The Administrative Law
Judge found the discharge lawful stating, "His
resulting suspension and discharge for insubordina-
tion was not an unlawful discrimination." Thus, the
Administrative Law Judge treated the suspension
and subsequent discharge as a response solely to the
alleged insubordination. The record, however, does
not support this finding.
Whatever the merits of the suspension for insubor-
dination may be,3 it is clear that the conversion of
the suspension to a discharge the following day was
caused by more than the insubordination. Respon-
dent informed Means that the decision to convert the
suspension to a discharge was based not only upon
232 NLRB No. 170
his actions of May 6, but also upon his "poor overall
work record." Respondent admits that Means'
overall work record includes his previous discharge.
As we have found the first discharge to be unlawful,
the second discharge, based in part upon the first
unlawful discharge is, afortiori, also unlawful. We so
find. Accordingly, we shall order that Means be
offered reinstatement and made whole for the losses
which he has sustained as a result of his unlawful
discharge on May 7, 1975, as well as the losses
generated by his suspension and discharge of
October 8 and 10, 1974, respectively.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below, and hereby orders that the Respon-
dent, Sioux Quality Packers, Division of Armour and
Company, Sioux City, Iowa, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Eugene E. Means immediate and full
reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent position,
and make him whole for any loss of earnings he may
have sustained as a result of Respondent's discrimi-
nation against him in the manner set forth in the
remedy, as amended."
2. Substitute the following for paragraph 2(b):
"(b) Revoke and expunge from its records all
personnel actions and memoranda relating to the
suspension and discharge of Eugene Means in
October 1974 and his discharge in May 1975 and
notify Means in writing when such actions and
memoranda have been revoked and expunged from
his records."
3. Substitute the attached notice for that of the
Administrative Law Judge.
' The Board's original Decision and Order in this proceeding is found at
228 NLRB 1034 (1977).
2 See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
' The suspension was not alleged in the complaint as an unfair labor
practice, nor was its legality apart from the discharge litigated at the
hearing.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
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SIOUX QUALITY PACKERS
To act together for collective bargaining
or mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing without inter-
ference, restraint, coercion, or discrimina-
tion from management
To refrain from any or all of these things.
WE WILL NOT suspend, discharge, or in other
ways discriminate against employees for engaging
in union activities or concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by
Section 7 of the Act.
WE WILL offer Eugene Means reinstatement to
his former job or, if that job no longer exists, to a
substantially equivalent one.
WE WILL pay Eugene Means for any loss of
earnings resulting from his suspension and dis-
charge in October 1974 and his discharge in May
1975 with interest.
WE WIL L revoke and expunge from our records
all personnel actions and memoranda relating to
the suspension and discharge of Eugene Means in
October 1974 and his discharge in May 1975 and
notify Means in writing when such actions and
memoranda have been revoked and expunged
from his records.
SIOUX QUALITY PACKERS,
DIVISION OF ARMOUR
AND COMPANY
SUPPLEMENTAL DECISION
JAMES M. FITZPATRICK, Administrative Law Judge: On
March 23, 1977, the Board remanded this case' with
directions to prepare a supplemental decision. Based on the
entire record, including my observation of the witnesses
and consideration of the briefs filed by the General
Counsel and the Respondent, I make the following
additional:
FINDINGS OF FACT-
A. The Issues
It is undisputed that on October 8, 1974, Respondent
indefinitely suspended employee Eugene Means, and on
October II discharged him, on the grounds he did not
report for work on October 8. The General Counsel
contends he did report and the Respondent took action
against him because he was an aggressive union steward.
228 NLRB 1034.
2 Local P 1142, Amalgamated Meat C'utters and Butcher Workmen of
On December 30, 1974, he was reinstated but without
backpay.
On May 6, 1975, Means was again suspended, and on
May 7 discharged, for leaving his work station to go to the
toilet although his foreman had refused him permission to
leave. The General Counsel claims the same reasons
motivated this suspension and discharge.
As set out more fully below, I find that the October
suspension and discharge were unlawfully motivated but
that it is not established that the May suspension and
discharge were unlawful. At the end of the hearing I
reserved ruling on Respondent's motion to dismiss. I now
deny that motion as to the allegations dealing with the
October suspension and discharge and grant the motion as
to those dealing with the May incident.
B. Means' Employment Record
Means began his employment with Respondent on
October 9, 1969. Since 1973 he has been classified as an
aitchbone breaker in the kill department but also performs
other jobs when so assigned by the foreman.
The kill department slaughters hogs. The central feature
of the operation is a continuously moving chain carrying
hog carcasses from the stick pen at the beginning of the line
to the cooler at the end, at speeds of either 600 or 480 hogs
per hour. A foreman and two assistants supervise about 81
employees working along this line. When the chain is
started at the beginning of a shift about 14 minutes elapse
before the first hog reaches the end of the line in the cooler.
During this time the supervisors must assign workers to all
the jobs along the line.
In the eyes of management Means was less than a model
employee. Between his hiring in 1969 and his discharge in
October 1974 he was twice warned in writing for excessive
tardiness. He was also given three written warnings for
leaving his work station without permission. With the
second of these warnings he received a 2-week suspension,
and with the third an indefinite suspension pending
investigation. He was later reinstated. In May 1974 he
received a written warning for failing to follow instructions.
C. Management's Attitude Toward Means' Union
Activity
Means joined the Union 2 2 weeks after he was hired in
October 1969. During much of his tenure with Respondent
he served as union steward. Thus, he was an ordinary
steward in the kill department from February 1972 to
February 1974, chief department steward from February
1974 to February 1975, and ordinary steward from
February 1975 to May 7, 1975.
While he was chief department steward he filed.
according to him, between 200 and 300 grievances. This,
however, must be understood in context. At the time there
were a total of 20 stewards in that department and Means
may have included in his count grievances he handled with
other stewards. In any case, a great many grievances were
being filed. The plant employment manager. Robert
Dather, testified credibly, and I find, that between Jul)
North America, AFL.-CIO, and Res.pondent were parties to a collective-
bargaining agreement covering the unit te which Means belonged
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974 and May 1975, 23,000 grievances were filed in the
plant and of those Means filed only 107. The chief
department steward who succeeded Means filed 123
grievances during the year preceding the hearing. I find
that although Means was active in filing grievances, the
number he filed was not outstanding compared with others
and by no means could he be classed as a great grievance
giver.
Nevertheless, management considered him a trouble-
maker, an attitude based in substantial part on his
representation of employees in grievances. Thus, in 1973
Arlo Fay, one of the kill department foremen, decided not
to assign employee Ronnie Guy to work next to Means and
Michael Klein (both of whom were union stewards)
because, "That is a bad place for you. They are bad ones
for you guys to get associated with."
Ir. September 1974, the month preceding his October
1974 discharge, Means was twice described by manage-
ment officials as a troublemaker in connection with his
representation of employees. Thus, at a grievance hearing
involving Lyle Parker who was being represented by
Means as chief departmental steward, then Plant Manager
Gene West told Means he was nothing but a damn
troublemaker because he was always going to bat for
grievants. On another occasion, when Means advised
employee Thomas Peters, who had cut his finger on the
job, that he was entitled to go home if he wished rather
than be reassigned by foreman Arlo Fay to another job,
Fay questioned Peters as to whether Means had put him up
to stating that he wanted to go home and described Means
and his group as troublemakers.
D. The October 1974 Discharge
1. The evidence
For several days prior to October 8, 1974, Means was off
work due to illness. On the morning of October 8 he
reported to the plant at the normal starting time. Not
finding his timecard at the timeclock, he went to the
personnel office to obtain it.3 He then punched in and
about 7:02 a.m. appeared at the top of the stairs going on
to the floor of the kill department where he joined two
other workers, Ronnie Guy and Thomas Peters, who were
awaiting assignments. According to Guy, whom I credit,
they were all equally prepared for work in that they wore
hard hats and had with them steels for sharpening knives. 4
Means had job rights (i.e., he was entitled to perform) to
the work of breaking aitchbones when that job was being
performed, as it was on October 8, and irrespective of the
chain speed.5 While he was off sick, someone else had
performed that job and on the morning in question was
already at that work station, about 5 feet from the top of
the stairs, when Means arrived. He could have "bumped"
that worker off the job, subject to the right of management
to assign him to another spot. But on October 8, Means for
some reason did not go up on the bench to stand beside the
3 It is not clear why at this particular time his timecard was in the
personnel office rather than at the timeclock where he expected it to be.
4 Their supervisor, Eugene tluls, who was assigning work, attempted to
buttress his testimony that he was unsure whether Means was there for work
by giving the impression that Means was unprepared for work. I do not
man on "his" job, as he had on prior occasions. He
remained a few feet away at the head of the stairs with Guy
and Peters.
Huls, his foreman, saw him there with the other two
shortly after 7 o'clock. During the next few minutes Huls
assigned work to both Guy and Peters, neither of whom
had the job rights of Means, but he said nothing to Means
nor did Means speak to him. Means was waiting to be told
where to work. Huls was waiting for him to claim the
aitchbone breaking job or to ask for an assignment. Huls
testified he was unsure whether Means was available for
work or not since he had been off sick and it was not
unknown for employees on sick leave to be at the plant for
some reason. In this I find Huls was less than candid.
Means was at the place where work was being assigned, at
the time when assignments were being made, in the
company of other employees to whom Huls was giving
assignments, and only about 5 feet from the place of his
usual assignment. The reasonable inference from these
circumstances is that he was reporting for work. But Huls
felt no compulsion to speak to him since he did not
consider that part of his job. Circumstances remained
substantially unchanged for almost half an hour during
much of which Means was at the stairs. Huls testified that
Means came and went several times. But even if such were
the case, established practice allowed those awaiting
assignment to briefly leave the vicinity of the top of the
stairs.
Huls and Means each felt the other ought to take some
further step. But neither did. On this conflict I find the
greater onus falls on the supervisor who had the more
fundamental responsibility of staffing the entire line.
Where, as here, the rank-and-file employee has effectively
reported for work by being in approximately the right place
at the right time, and any doubt in the mind of the
supervisor could have been easily dispelled by the ex-
change of a few words, it was nit-picking for Huls to
assume he was not reporting for work because he neither
mounted the bench to stand behind the man assigned to
aitchbone breaking nor verbally requested an assignment.
In the circumstances his presence was a request.
Huls' specious rationale raises doubt as to his motive in
not giving Means an assignment. He himself doubted the
soundness of his position. About 7:35 he went to Robert
Dather in personnel to ask if Means was supposed to be
working. Dather informed him he was. Huls indicated he
could not find him. Dather then looked for and found him
in the lunchroom 5 minutes later.
Still, neither assigned him any work, or even spoke to
him. Instead they decided to play a game, to watch him to
see how long it would take him to verbally contact a
supervisor, to see what he was up to. During the next hour
Dather kept Means under surveillance while making notes.
At 7:45 Means went back to the stairway at the kill
department. Ten minutes later he returned to the lunch-
room. Nine minutes later he was back at the bottom of the
stairs, then he went to the locker room. At 8:10 he was
credit him in this. It was common practice for a worker to obtain
appropnate knives from his locker after receiving a work assignment.
I Means took the position that he "owned" that job only at a chain speed
of 600 hogs per hour. In this he was mistaken. He was entitled to the job if it
was being performed as a separate job, irrespective of chain speed.
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SIOUX QUALITY PACKERS
back on the stairs where he spoke with a number of
employees coming and going. At 8:19 he again went to the
locker room, returning to the stairs at 8:32. At 8:40 he went
down to the hallway, then a minute later back to the top of
the stairs. At 8:45 Huls suspended him. During that hour
Huls passed him a number of times while going up or down
the stairs, but neither spoke to the other.
Means suspected all was not well because 5 or 10
minutes before his suspension he asked another employee
what was going on.
The weight of the evidence indicates that on occasion
employees awaiting assignment wait for substantial periods
before being assigned a job and during their wait do not
necessarily remain at the top of the stairs.
Immediately after his suspension Means, in accordance
with established procedures, requested an emergency
meeting between management and union stewards on his
suspension. The emergency meeting was held at 9 a.m.
Assistant Plant Manager Harvey Misenor informed Means
he was suspended indefinitely pending a complete investi-
gation.
It was understood that the meeting would reconvene
when the investigation was completed. However, no further
meeting was called on October 8 or 9. By the time of the
morning break on October 10, kill department employees
were sufficiently upset so that they engaged in a brief work
stoppage by not returning to work after the break.
Management then immediately met with the union com-
mittee even though they had not reached a decision on
Means. The credited testimony of both Means and Michael
Klein indicates, however, that management blamed Means
for the work stoppage. In fact he had recommended against
it.
Local management decided Means should be fired. After
obtaining concurrence from corporate management in
Phoenix, Misenor reconvended the meeting with the union
committee in mid-afternoon on October 10. He announced
the discharge of Means,
Due to similar instances of behavior in the last two
years, and this individual's overall work record, we feel
the decision that must be taken is complete discharge.
Means remained discharged until December 30, 1974, at
which time through the efforts of the Union he was
reinstated without backpay.
2. Concluding findings regarding the October
1974 discharge
I find that Huls and Dather never had grounds to
discharge Means. They had only minor reason to criticize
him which they used as a premise for indulging in game
playing, a game which would never have started if either
Huls or Means had spoken to the other. In these
circumstances earlier comments indicating a management
opinion that Means was a troublemaker in representing
employees take on added significance. They supply a
reason why Huls and Dather would participate in their
6 The following account of the events on May 6 is based on the credited
testimony of Klein. In major respects he is corroborated by Means and
Huls. Insolar as their accounts vary from his, I credit Klein as the more
childish charade-the aim being to maneuver Means out of
his employment at the plant. His suspension and termina-
tion in such circumstances would inevitably discourage
employee support for the Union. I find, therefore, that his
suspension on October 8 and his discharge on October 11
were unfair labor practices prohibited by Section 8(a)(3)
and (1) of the Act.
E. The Discharge in May 1975
I. The evidence
As already noted, Means was reinstated to his job on
December 30, 1974. On the morning of May 6, 1975, he
and Michael Klein were assigned to work on the same
bench opening hogs.
Respondent maintains a plant rule requiring employees
to remain at their work stations unless they have permis-
sion from a supervisor to leave. The collective-bargaining
agreement provides exceptions to the rule in the form of a
lunchtime break, a mid-morning break, and a mid-after-
noon break. Other breaks for which permission is obtained
are accommodated by a spell out or relief man employed
for that purpose. He, of course, cannot be in more than one
place at a time and employees wishing to be relieved
frequently must wait until he is available. In emergencies a
foreman takes over an employee's duties until the spell out
man arrives.
Means and Klein, who frequently worked together, had
on occasion spelled out each other when they wanted extra
breaks. One would take a break while the other performed
both jobs. But in the morning of May 6 they had been
ordered by Huls to discontinue this practice. In any case,
according to Klein, 6 Means had a sore hand that day
which would prevent his performing both jobs.
According to Klein, both he and Means needed to use
the toilet at the same time that morning and they caused
the horn to be blown so they could be relieved. When Huls
arrived at their station in answer to the horn, Klein told
him of his need and asked for an emergency break. Means
also told Huls of his need. Huls just waved his hand and
left. Four or five minutes later he returned to tell them he
(presumably Huls himself) would not spell them out
because they had been leaving every day and were abusing
the matter. He told Means, in effect, that he could defecate
in his pants.
When Huls refused to spell out Klein on an emergency
basis, Klein requested the presence of the chief plant
steward, Ed Jeffers. When he arrived 5 minutes later
accompanied by Huls and Chief Departmental Steward
Javier Fuentes, Means intervened, claiming that both he
and Klein had to go at once. Jeffers instructed Huls he
should let them out if it was an emergency. But Huls
refused, declaring that Klein and Means abused the matter.
Means then walked off the job saying he had to take an
emergency break. Huls took over his job. Five minutes
later the spell out man arrived and relieved Klein.
disinterested witness and because in demeanor he appeared the most
forthright and believable witness.
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DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
After relieving himself Means returned to his work.
About a half hour later Huls suspended him indefinitely for
walking off the job without permission.
The next day, May 7, the union committee and
management, with Means present, discussed the suspen-
sion. During the discussion, Jeffers admitted that Means
was in the wrong. Later that day management changed the
suspension to discharge because of what happened May 6
and also because of Means' poor overall record.
2. Concluding findings regarding the May
discharge
The circumstances of the May 6 incident make clear that
Huls did not believe a true emergency existed even though
Klein and Means declared it did and, accordingly, refused
them permission to leave until relieved by the spell out
man. This was an honest, nondiscriminatory business
judgment even if in fact Huls was in error (which I do not
find). Means was insubordinate in affronting that decision.
His resulting suspension and discharge for insubordination
was not an unlawful discrimination.
The General Counsel argues that this was more of the
same discrimination which occurred in October. But that
does not follow. Five months had elapsed between the
incidents. In May there was clear cause for discharge. And
even an employer with animus toward a union activist is
not by that circumstance deprived of the power to
discharge for cause. See Whitcraft Houseboat Division,
North American Rockwell Corporation. 195 NLRB 1046,
1048 (1972).
In sum, I find there is insufficient evidence to sustain the
allegations of the complaint regarding the May discharge.
F. The Effect of the Unfair Labor Practices Upon
Commerce
The activities of Respondent set forth above, which are
found to be unfair labor practices, occurring in connection
with its operations described in the initial decision herein,
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By suspending Eugene Means on October 8, 1974,
discharging him on October 10, 1974, and thereafter not
reinstating him until December 30, 1974, Respondent
discriminated against him, thereby discouraging member-
ship in a labor organization, and thereby engaging in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National L abor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
3. The unfair labor practices found above affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies
of the Act. I recommend that Respondent be ordered to
make Eugene Means whole for any loss of earnings
suffered by reason of the unfair labor practices committed
against him by Respondent between October 8, 1974, and
December 30, 1974, as found above, by paying him a sum
of money equal to that which he would have earned, less
his net earnings, during such period. Backpay is to be
computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon at 6
percent calculated according to the formula set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I further
recommend that Respondent be required to preserve and
make available to Board agents, upon request, all pertinent
records and data necessary in analyzing and determining
whatever backpay may be due. I also recommend that
Respondent be required to expunge from its records all
memoranda and personnel actions relating to said discrimi-
nation. See Crown Central Petroleum Corporation, 177
NLRB 322, 323 (1969). 1 also recommend that Respondent
post appropriate notices at its plant in Sioux City, Iowa.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 7
Respondent, Sioux Quality Packers, Division of Armour
and Company, Sioux City, Iowa, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Suspending, discharging or otherwise discriminating
against employees for engaging in union or protected
concerted activity.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist a
labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section
7 of the Act, or to refrain from any or all such activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Make Eugene Means whole for any loss of earnings in
the manner set forth in the section entitled "The Remedy."
(b) Revoke and expunge from its records all personnel
actions and memoranda relating to the suspension and
discharge of Eugene Means in October 1974 and notify
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.
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SIOUX QUALITY PACKERS
Means in writing when such actions and memoranda have
been revoked and expunged from his records.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
personnel records and memoranda regarding Eugene
Means and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(d) Post at its Sioux City, Iowa, plant copies of the
attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director for
I In the event the Board's Order is enforced by a Judgment of the 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
Region 18, after being duly signed by Respondent's
authorized representative, shall be posted for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notice is not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Entorcing an Order of the
National Labor Relations Board."
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