Star Meat Co.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 908 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Star Meat Company, a wholly owned subsidiary of
Kane-Miller Corp. and Local No. 26, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case 7 CA 13935(2)
August 25, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, ANI) TRt I S[)AI.1
On April 4, 1978, Administrative Law Judge Mar-
ion C. Ladwig issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting 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 brief
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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Star Meat Company,
Warren, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
The Respondent's request for oral argument is hereby denied, as the
record, brief, and exceptions, in our view, adequately present the issues and
positions of the parties.
DECISION
STATEMENF OF THE CASE
MARION C. LADWIG Administrative Law Judge: This case
was heard at Detroit, Michigan, on January 11, 1978. The
charge was filed on May 20, 1977 ,' and the complaint was
issued on July 6 (amended November 30). The primary
issue is whether the Company, the Respondent, unlawfully
discharged a striking employee for engaging in protected
picketing activity, in violation of Section 8(a)( 1) of the Na-
tional Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
All dates are in 1977 unless otherwise stated
the arguments at the hearing and the Company's brief, I
make the following:
FINDINGS OF FA( I
I JURISDICTION
Star Meat Company. a Michigan corporation, is engaged
in pork packing and the distribution of meat at its plant in
Warren, Michigan, where it annually ships products valued
in excess of $50,000 directly to points outside the State.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union, Local No. 26,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
11 ALLEGIEI) UNFAIR LABOR PRACTICES
A. Single Incident
Zivko Dimovski had worked 8 years at the plant. On the
afternoon of May II (the 2d day of the Union's economic
strike), Dimovski was picketing in front of the plant with
another employee, in the presence of a security guard.
When Ligourius Mitri (presumably a strike replacement)
approached the picket line, Dimovski asked him (in En-
glish. although Dimovski speaks little English), "Where are
you going, man?" Mitri answered that he was going to
work. Telling him "No" and using the word "strike," Di-
movski grabbed Mitri by the shoulders with some force
and pushed him about 4 or 5 feet. At "that same moment,"
the security guard (who did not testify) grabbed and
pushed Dimovski, and Mitri proceeded to work. (Dimovski
was 6 feet tall, and weighed about 265 pounds. Mitri-who
did not testify was "medium height" and "a little bit
husky," but smaller than Dimovski.) Mitri was not hurt.
He continued to work for several days.
Dimovski admitted that he had tried to keep Mitri from
going to work. Dimovski testified (through a translator), "I
didn't meet [anybody] else who tried to go to work" that
afternoon, and explained, "I was trying to protect my job
that I was holding for eight years" and trying to get better
benefits: "nobody told me that I cannot touch or talk with
the people who try to cross the picket line."
The next day, the Union's business agent "told all of us
tihat we cannot touch or push anybody who try to cross the
picket line," and Dimovski did not try to stop anyone else
from going to work.
Although Dimovski was involved in only the single inci-
dent, and continued to picket without any recurrence, Vice
President Larry Clark (who did not testify) discharged him
2 days later, on May 13. Thereafter the Company rein-
stated Dimovski on July 9.
B. Contentions and Concluding Findings
The General Counsel argued at the hearing that Dimov-
ski had a language problem and did not understand about
picketing; that when this single incident occurred, on the
237 NLRB No. 132
908
STAR MEAT COMPANY
second day of the strike. Dimovski believed he had the
right to do as he did in "protecting his job": that he acted
"impulsively": that when the union official told him he
should not be doing this, he ceased: and that Mitri was not
harmed and proceeded to walk through the picket line. [he
General Counsel also contended that the pushing incident.
in which Dimovski did not strike Mitri. was not such mis-
conduct which would entitle the Companr to discharge
him, and that although Dimovski has been reinstated and
is working. he was unlawfully discharged for engaging in
"protected concerted activity of picketing" and remained a
discharged employee for a period of almost 2 months.
The Company contended at the hearing that Dimos ski
was a "big man" who effectively intimidated Mitri; that
Mitri "didn't work any longer"; that "the episode was ef-
fective for its purpose and that is to intimidate this emplos-
ee from working." (Thereafter the Compan_ stipulated to
the contrary that Mitri worked on May 11. 12., 13. and 16.,
In its brief, the Company contends that Dimovski's action
"was beyond the permissible bounds of protected strike
and picket line activity": that the strike replacement "was
grabbed with both hands by this very large man and suffi-
cient force applied against his bods so as to remove it to a
point four or five feet away." after being told "that there
was a strike in progress and that he wvould not be allowed
to enter the premises": that Dimovski's acts "were of such
a serious nature as to incite [Mitri] to engage in violence or
physical retaliation": and that kMitri was "touched" and
forcibly subjected to an "assault and batters" which was in
itself "a threat of future physical harm." The C(ompany
asserts, "To contend that the misconduct of Zivko I)imov-
ski was not sufficiently serious and therefore protected is
ludicrous."
Although I cannot condone such conduct on the picket
line. I find that the pushing incident was impulsive, was
minor-not causing any injury and not deterring the strike
replacement from going to work and was a single. isolat-
ed incident, which was "insufficiently serious to deprive an
employee caught up in a lawful strike from the protection
of the Act." MP Industries. Inc.. 227 NLRB 1709 (1977). 1
therefore find that this impropriety did not deprive this
striking employee of the protective mantle of the Act, and
that Dimovski's discharge for engaging in the protected
concerted activity of picketing violated Section 8(a)(1) of
the Act. (Although the discharge was also alleged to be a
violation of Section 8(a)(3), I find it unnecessary to rule on
that allegation.)
CONCLUSIONS OF LAW
By discharging Zivko Dimovski on May 13, 1977. be-
cause of his engaging in protected picketing activity. the
Company engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(1) and Sec-
tion 2(6) and (7) of the Act.
THi RFMFDY
Having found that the Respondent has engaged in an
unfair labor practice, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
TIhe Respondent having reinstated employee Zivko Di-
mosski on JulN 9. 1977. after having unlawfully discharged
him on Ma, 13. 1977. I find it necessary to order it to
compensate him for his lost earnings, plus interest, com-
puted in the manner prescribed in F. W. Woolworth Com-
pan,i 90 Nl RB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977), 2 from the date of discharge to the
date of reinstatement.
Upon the foregoing findings of fact, conclusions of law.
and the entire record. and pursuant to Section 10(c) of the
Act. I herehb issue the following recommended:
ORI)ER 3
The Respondent. Star Meat Company. Warren. Michi-
gan. a ,wholl, owned subsidiary of Kane-Miller Corp., its
officers. agents. successors, and assigns, shall:
I. ('Cease and desist from:
(a) Discharging an) employee for engaging in protected
concerted activitv.
(b) In any like or related manner interfering with, re-
straining, or coercing emplo sees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make Zivko Dimovski whole for any loss of pay and
other benefits in the manner set forth in the Remedy sec-
tion.
(b) Preserve and. upon request, make available to the
Board or its agents. for examination and copying. all pay-
roll records. social security pa ment records. timecards.
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Warren. Michigan. copies of the
attached notice marked "Appendix."' Copies of the no-
See. generaill. Iol Plumbhin and Heaing (o,. 138 NIRB 716 (1962)
In IhI e' Cnl i o exceptilns are filed as provided hs Sec 10246 of the
Rules and Reculaltins of the National I.abor Relations Board, the findings.
conclusions. and recomnlmended Order herein shall. as provided in Sec
102 48 of the Rules and Regulalions. be adopted hb the Board and become
its find n. con,:lusians. and Order. and all objeclions Ihereto shall be
deemned .alsxed for all purposes
In the esent tha Ithis Order is enforced hb a judgment of a United Stiaes
(ourl of Appea.i, the o.,rds in Ihe notice reading "Posied bh Order of Ihe
Nali.onal I.lhabo R elalnons Board" shall reamd "Posted Pursuanl to a Judg-
menl of the t vlied States (Coiurtl o Appeals lEnforcing an Order of the
Nationall I lhor Relations BoaRrd "
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice, on forms provided by the Regional Director for Re-
gion 7, after being duly signed by the Respondent's author-
ized representative. shall be posted by the Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS ALSO RECOMMENDED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE To EMPLOYEES
POSlED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of you for engaging in
protected picketing activity.
WE WILL NOT in any similar manner interfere with
your rights under Section 7 of the Act.
WE wn.L make Zivko Dimovski whole for his loss of
pay and other benefits from the date of his discharge
on May 13 to the date of his reinstatement on July 9,
1977, plus interest.
STAR MEAT COMPANY
910