Tamaa Meat Packing Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 116 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tama Meat Packing Corp. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, Local P-46. Case 18-CA-5065
June 10, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On February 7, 1977, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
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 Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Tama Meat
Packing Corp., Tama, Iowa, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: The
above-captioned matter was heard before me on Novem-
ber 16 and 17, 1976, in Marshalltown, Iowa. On July 21,
1976, Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Local P-46 (herein called
the Union), filed a charge against Tama Meat Packing
Corp. (herein called Respondent) alleging violations of
Section 8(a)(1), (3), and (4) of the National Labor
Relations Act, as amended, herein called the Act. A
complaint and notice of hearing issued on September 2,
1976, alleging, inter alia, that Respondent violated Section
8(a)(1), (3), and (4) of the Act in refusing to transfer its
employee, Richard Thomas, to the position of utility man;
in denying Richard Thomas transfer to the position of
230 NLRB No. 24
"backsaw" operator; and thereafter unlawfully suspending
and discharging him. Respondent denied the allegations of
the complaint and alleges that Thomas was suspended and
discharged for cause; that its failure to transfer him to the
position of utility man was due to the abolition of that
classification; and that its denial of transfer to the position
of backsaw operator occurred because Thomas was already
discharged. Briefs were duly filed on January 7, 1977, by
both General Counsel and Respondent. Upon the entire
record, particularly my observation of the witnesses and
their demeanor, and after due consideration of the briefs
filed herein, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find
that Respondent, at all material times, has been and is a
corporation organized under and existing by virtue of the
laws of the State of Iowa, maintaining a principal place of
business in Tama, Iowa, where it has been engaged in the
business of nonretail processing and distribution of meat
and meat products. During the year ending December 31,
1975, a representative period of Respondent's operations,
Respondent processed, sold, and distributed at its Tama,
Iowa, facility goods valued in excess of $50,000 of which
goods valued in excess of $50,000 were shipped from said
facility directly to points located outside the State of Iowa.
During the same period, it purchased and had transported
to the said Iowa facility goods valued in excess of $50,000
which were transported to said facility directly from points
outside the State of Iowa. Respondent admits, and it is
found, that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
I1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
ii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Tama Meat Packing Corp., a beef slaughterhouse,
commenced operations on or about September 27, 1971,
having hired employees as early as May 1971. Richard
Thomas, the alleged discriminatee herein, was hired in
October 1971. The alleged unfair labor practices occurred
at Respondent's plant in Tama, Iowa.
On September 30, 1976, the Board issued an Order and
Direction of Second Election in Cases 18-CA-4809 and
18-RC-10677, wherein it directed, inter alia, that an
election conducted between the parties herein on Decem-
ber 5, 1975, on a petition for certification filed by the
Charging Party relating to a production and maintenance
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TAMA MEAT PACKING CORP.
unit of Respondent's Tama, Iowa, employees, be set aside
and a new election be held.' The Board's decision and
order, finding that Respondent violated Section 8(a)(l) of
the Act in various respects and forbidding repetition of
these violations, issued upon Respondent's failure to file
exceptions to the Decision of Administrative Law Judge
Josephine H. Klein in the above-consolidated case, which
Decision was issued on August 10, 1976, after hearings held
May 3 - 5, 1976. The 8(a)(1) violations found included
Respondent (I) having announced an unlawful wage
increase; (2) impressing employees with the futility of
selecting the Union as their statutory representative and
the inevitability of a strike and violence in the event of
unionization; (3) stating that it would not bargain with the
Union; (4) threatening employees with the loss of employ-
ment and other benefits in the event of a strike; (5)
unlawfully interrogating employees concerning their union
sympathies; and (6) unlawfully giving employee Richard L.
Thomas two written warnings of disciplinary action on
September 12 and December 17, 1975, because of his
activities on behalf of the Union.2 It was to these findings
and conclusions and the Direction of Second Election that
Respondent failed to take exceptions. Included in the
affirmative action recommended by the Administrative
Law Judge and adopted, pro forma, by the Board was a
direction to Respondent to expunge from its records any
and all copies of and references to the warning notices
given to employee Richard Thomas on September 12 and
December 17, 1975.
B. Richard L Thomas; Union Activities
There is no dispute that Thomas was among Respon-
dent's first employees, employed in October 1971, as a
"flanker" at $3.50 an hour. He was discharged, allegedly
for cause, on July 22, 1976, at which time his pay was $5.75
an hour. It is also undisputed that he was first suspended
on July 19, 1976; that his supervisor at all material times
was Stanley Sasker; and that his employment record with
Respondent carried no adverse comments except for the
two unlawfully motivated warnings of late 1975, supra.
Thomas' union activity began in May or June 1975 when
he requested the Charging Party's president to organize
Respondent's plant. On September 29, 1975, the Union
sent to Respondent, in care of Respondent's president,
Milton L. Whittington (who had become Respondent's
president in March 1975), a letter which advised Whitting-
ton that the employees of Respondent had created an
organizing body and elected a shop steward in an effort to
organize Respondent's employees. Among the six members
of the organizing committee elected by these employees of
Respondent was Richard Thomas. It also appears that,
together with a union agent (Fred Curler), and Richard
Thomas' brother, Ed Thomas, Richard Thomas was a chief
distributor of union membership cards and a chief collector
of the executed cards. In this September 1975 election for
union committeemen, Richard Thomas received the most
I The underlying facts, contained in the Administrative Law Judge's
Decision, show that the Charging Party herein also lost a Board-conducted
election in the same unit in December 1973.
2 The first warning notice (G.C. Exh. 4) accused Thomas of physically
threatening coemployee Kenneth Dahlman, and the second warning notice
votes and was named chief steward. Thereafter, until his
discharge on July 22, 1976, Richard Thomas wore on the
front of his work helmet a red sticker (described as the
union "steward" sticker measuring somewhat larger than a
silver dollar) and, at the back of his helmet, a yellow sticker
showing his membership in the Union. While other
committeemen and other employees from time to time
wore the red steward sticker and the yellow union
membership sticker, the undisputed testimony is that
Thomas was the only employee who, after the Board-
conducted December 5, 1975, election, which the Union
lost, wore both of them. On November 20, 1975, prior to
the Board-conducted election, Thomas wrote a letter to all
unit employees answering alleged misstatements by Re-
spondent. Thomas urged all employees to vote for the
Union. The record also shows that, while there had been
approximately six union meetings held prior to the
December 5, 1975, Board-conducted election, after the
election there was only one meeting. That meeting, held at
the end of December 1975, was attended by 8 to 10
employees and it related only to a discussion of whether
the Union would file unfair labor practice charges against
Respondent.
It is further undisputed that, at the May 1976 consolidat-
ed hearings before Administrative Law Judge Josephine
Klein, Thomas was a prominent witness, testifying both in
the direct case and in rebuttal.
C. The Instant Unfair Labor Practices
1. The failure to transfer Thomas to the job of
utility man or utility butcher
Paragraph 5(a) of the complaint alleges that, during late
June or early July 1976, Respondent unlawfully denied
Richard Thomas a transfer to the position of "utility man."
Whatever the exact contours of the functions of a "utility
man" or "utility butcher," the evidence shows that, among
duties of that classification, the utility man fills in for any
other employee who is sick, temporarily injured, on
vacation, or fatigued and in need of a spell of rest. The
utility man requires knowledge of all or almost all of the
skills involved in Respondent's production unit and is
among those employees most highly paid. At the time of
Thomas' discharge on July 22, 1976, and at all material
times prior thereto since mid-June 1976, the person
fulfilling at least the functions of utility man (Respondent
insists that, commencing June 14, 1976, there was no such
job title or classification, but rather that on that date the
job and title had been materially altered to that of "kill
floor leadman," allegedly a much expanded job, with the
job of utility man having been abolished) was James Kesl.
Thus, Respondent alleges that Kesl was no "utility man"
but rather the "kill floor leadman." Prior to Kesl, it is
undisputed that the actual job of utility man was held by
Jerry Jacobi. According to Respondent, Jacobi was the last
person to hold that job.
(G.C. Exh. 3) accused Thomas of spreading a false rumor. Both warning
notices were found not only to have been untrue, but also to have been
issued because of Thomas' union activities, in violation of Sec. 8(aX I) of the
Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The last occasion on which the job of utility man was
posted for "bidding" was on July 23, 1975 (Resp. Exh. 2).
Respondent followed a bid system in advertising among its
unit employees for rights to jobs which became available
through other employees quitting, being promoted, or
discharged. In the bidding system, Respondent posted a
notice on its bulletin board for 2 days describing the
particular job opening, together with its rate of pay.
Permanent employees signed their names to the posted
notice if they wanted the open job. The employee with the
most seniority who signed the posted notice would then be
placed in the job and was also given time to try out the job
and break in. A prominent exception to the bid system was
that an employee who bid for a job requiring lower
qualification than the job in which he was presently
working was thereafter frozen out of bidding on a job of
higher classification for a 1-year period (Resp. Exh. 6). In
any event, Jerry Jacobi was the successful bidder for the
"utility butcher" job in his bid on the July 23, 1975,
posting. The bid sheet shows, and it is not disputed, that, at
that time, employee Mike Hoffer was immediately second
in seniority to Jacobi, with Richard Thomas third.
About a year later, on or about June 14, 1976, Jerry
Jacobi was promoted to the supervisory position of
assistant kill floor foreman. The General Counsel alleges,
and Richard Thomas testified, that the utility man's job
thus became open but was never posted; that the
Respondent failed to post the job as open because he
would have succeeded to it as the most senior employee;
and that the failure to post the job was motivated by
Respondent's union animus.
In support of this position, Thomas testified that he had
several conversations with supervisors regarding the fact
that Jacobi's June 14 promotion left the utility man's job
open. Thus, some 3 weeks after the promotion, Thomas
spoke to Plant Superintendent Donald Derham. Thomas
asked Derham when the utility job would be posted for
bidding and Derham, showing no anger or impatience, did
not answer and walked away. Sometime in late June 1976,
Thomas also spoke with his supervisor, Stanley Sasker.
While Thomas was discussing the matter of the open utility
man job with coemployee Dale Albee, Sasker walked by
and Albee asked Sasker when the job would be posted.
Sasker answered by saying: "[Jim] Kesl's the leadman."
Lastly, on July 2, 1976, Thomas, in the presence of other
employees and supervisors, again asked Derham when the
job would be posted and Derham answered: "I've just got
my job to do." At this point, Thomas turned to Supervisor
Earl Rutledge and asked: "What kind of answer is that?"
To this, Rutledge merely laughed, shook his head, and
walked off.
I do not believe that these conversations, with their
ambiguous answers and with Sasker directly telling
Thomas that Kesl was the "leadman," support the General
Counsel's theory that the conversations indicated that the
failure to post the job was discriminatorily motivated. I
conclude that the conversations demonstrate the supervi-
sors' reluctance to discuss the matter with Thomas and that
3 The practice of "gang time" payment is discussed infra. It should be
noted that all persons described as supervisors herein were admitted to be
"supervisors" within the meaning of the Act.
such reluctance does not, of itself, manifest discriminatory
motivation.
2. Respondent's defense with regard to the
allegation regarding its denial of posting the utility
man job
On June 9, 1976, Respondent distributed personally to
all employees a document (Resp. Exh. 1), with a further
copy mailed to their homes, in which, inter alia, it was
asserted that Respondent was faced with increased compe-
tition, that it was no longer competitive economically with
other employers in its business, and had decided to reduce
its labor costs. No evidence to the contrary of these
contentions was adduced and no unlawful motivation to its
promulgation was alleged. Respondent stated therein that,
effective June 14, it would not only eliminate from
employees' pay a production bonus practice (gang time),
but would also eliminate a guaranteed 40-hour week and
reduce the guarantee to 36 hours.3 Respondent, at the same
time, nevertheless granted a 15-cent-an-hour wage increase
effective July 5. In addition, it also published at that time,
attached to the same announcement, classifications of its
production jobs into seven "skill levels" for all employees,
together with wage rates for each such skill level (Resp.
Exh. 1). The seven skill levels start with the most
elementary level called "base labor" followed by six
additional skill levels. The wage rate for each skill level is
higher than the previous skill level. The fifth skill level
includes the job classification "flanker" which was held at
all material times by Richard Thomas. The highest
classification, "skill level six" has four jobs included
therein: "Back Saw; Maintenance Lead Man; Electrician;
and Kill-Lead Man."
Respondent's personnel manager and director of indus-
trial relations, Robert Bristol, testified that the position of
utility man had indeed existed until June 14, 1976, but that
effective that date (in accordance with the June 9 statement
of Respondent's president in Resp. Exh. I), the job no
longer existed. It no longer existed, he testified, because it
was not included in the new job classifications which were
published by Respondent on June 9, 1976. Rather, he
testified, the utility man job was expanded into a different
job called "kill-lead man"; that the classification of utility
man was dropped; and that James Kesl was appointed kill
leadman on June 14, 1976. Bristol testified that, in addition
to the duties of utility man, the new "lead man" position
not only made the holder an acting supervisor in the
absence of a foreman but, among other things, unlike the
utility man, required him to keep records of "downtime"
on the production floor, attend supervisors' meetings,
respond to complaints of the United States Department of
Agriculture inspectors where there were such problems on
the production floor, and to assign and reassign employees
on the production floor as production requirements
changed. In addition, Bristol, supported in part by Kesl,
testified that Kesl recommended wage increases and
promotions, functions never performed by the utility man.
While Bristol's testimony thereafter showed that, with
118
TAMA MEAT PACKING CORP.
regard to wage increases and promotions, Kesl's recom-
mendations would be completely reviewed by the supervi-
sor-thus diminishing the power of his recommenda-
tions-Kesl testified without contradiction, and other
evidence of record showed, that he indeed had the power to
transfer production employees from one job to another and
exercised that power extensively on the production floor.
Evidence adduced by General Counsel failed to show said
power in the utility man job prior to June 14, 1976.
Bristol testified that on the same day (June 14, 1976) that
Jacobi was promoted from utility man to kill floor
foreman, the utility man's job, in accordance with the June
9 announcement, was abolished and Kesl was made the
new kill floor leadman. Furthermore, Respondent states
that there was no posting for the new leadman job because
the job itself was not subject to bidding in that it was no
longer a unit job but rather a trainee supervisor job. In
addition, it was stipulated that, in 55 separate postings for
job openings in the entire period June 15, 1976, to
November 3, 1976, there was no posting for either utility
man or for leadman. Bristol testified that the utility man
job was dropped and the leadman position was initiated
because Respondent did not want to fill the new leadman
job, which incorporated the functions of the old utility
man's job, by seniority alone, since the job led directly to a
supervisory position. Indeed, the old holder of the utility
man job was invariably promoted to supervision.
Finally Respondent points to the undisputed fact (Resp.
Exh. 3) that after July 1, 1976, the employee with the most
seniority was Arden Vestal, the employee with the most
next seniority was Dale Albee, and the third in highest
seniority was Richard Thomas.
The testimony of both Bristol and Sasker show that as
early as June 11, 1976, Sasker was told by Superintendent
Derham of the change in the utility man's job to that of
leadman and decided to tell Kesl of the change. On that
same day, Sasker called Kesl into his office and told him
that he was the new kill floor leadman and had duties
beyond that of utility man.
3. Discussion and conclusion
The record shows that employees Arden Vestal and Dale
Albee had seniority over Richard Thomas at all times up to
and including June 14, 1976. Thus, had the job been
posted, assuming that the job remained vital, it would
appear that employees Arden Vestal and Dale Albee would
have first call on the job rather than Thomas. In short, the
evidence shows that (a) the job was never posted and
I Moreover, even if Respondent denied Richard Thomas the position of
kill floor leadman because of union animus, I would conclude such denial
did not violate the Act. For the evidence showed, contrary to Respondent,
that Kesl, as kill floor leadman, was not merely a supervisor "trainee" or a
"managenal employee," N.L.R.B. v. Bell Aerospace Company, Div. of
Textron, Inc., 416 U.S. 267 (1974), who would advance into management,
Curtis Industries, Division of Curtis Noll Corporation, 218 NLRB 1447 (1975).
Kesl's consistent exercise of the power to transfer employees on the
production line from one job to another, in his own judgment, based on the
necessities of keeping the production line in operation, makes him a
"supervisor" within the meaning of Sec. 2(5) of the Act even though he did
not wear a supervisor's hat. Respondent, of course, may select its
supervisors, its agents to direct the operation of the production line, without
regard to their union activity, seniority, or other criteria. 1 conclude that
Respondent, in promoting Kesl to a supervisory position, could lawfully pass
therefore Thomas' bid was never rejected; (b) the job as
utility man was abolished by exclusion from the new
classification published June 9, 1976, and there is no proof
that it was abolished for discriminatory reasons; (c) in any
event, had the job been posted, Thomas was not the most
senior of the employees and, on this record, would not have
gotten the job anyway. Then, as counsel for Respondent
points out, the problem with Thomas' position-apart from
abolition of the job-is that his claim would be hypotheti-
cal since he was not the most eligible and, indeed, never
signed up. I agree.
I conclude, as above noted, that Thomas' conversations
with his supervisors were at best inconclusive on the
question of discriminatory motivation and at worst showed
that Kesl had already been assigned to the job of kill floor
leadman.
In passing, it must be noted that Thomas testified that,
after June 14, he observed Kesl on the job and that Kesl's
functions as a lead man were no different from the
functions he observed when Jacobi had the job as utility
man. Thomas' observations might well be correct. But he in
no way contradicted Respondent's witnesses' testimony
that the leadman had the additional responsibility of
recordkeeping on downtime, the ability to direct the
employees in their work, attending supervisor's meetings,
and the other indicia of a changed job.
Even assuming the existence of widespread animus and
unlawful conduct by Respondent, as noted by Administra-
tive Law Judge Josephine Klein in her prior Decision
involving these parties, and in view of my own decision
regarding Respondent's further unlawful activities, I
conclude that the General Counsel's burden to prove the
unlawful denial of transfer, in June or July 1976, with
regard to violation of Section 8(aX3) and (4) to the position
of utility man has not been met and I shall therefore
recommend that the allegation in paragraph 5(a) of the
complaint be dismissed.4
4. The failure to transfer Thomas to the position
of "back saw operator"
Paragraph 5(b) of the complaint alleges that, in July
1976, Respondent denied Richard Thomas a transfer to the
position of backsaw operator in violation of Section 8(aX I),
(3), and (4) of the Act.
The schedule of rate classifications (Resp. Exh. 1) which
Respondent issued on June 9, 1976, shows that the position
of back saw operator is in skill level number 6, Respon-
dent's highest paid classification.
over the more senior Richard Thomas even for discriminatory reasons. In so
concluding, I am mindful that, as General Counsel observes, on one hand,
no posting of a leadman job occurred after the new June 14, 1976,
classifications, and yet, on the other, that the posted pay rate for kill floor
leadman (skill level six) is no higher than for unit jobs: backsaw operator
and electrician (Resp. Exh. I). Bristol, however, testified without contradic-
tion that Kesl was earning more than the posted rate and, in fact, was not
paid the posted rate of $5.75 per hour but rather was immediately paid $6.40
per hour. As noted in the text, I conclude that the utility job was abolished
and that the kill floor leadman job was established thereafter; that the
evidence failed to show an unlawful motive in that arrangement; but that,
even if Respondent passed over Thomas for discriminatory reasons, it was
privileged to do so. No evidence relating to an unlawful 8(aX4) motivation
was adduced so as to show retribution for Thomas' participation in prior
Board proceedings.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The backsaw operation requires (and it is Respondent's
practice) the use of two backsaw operators operating each
hour alternately. Until the beginning of July 1976, the two
backsaw operators were Roger Fisher and Norman Jacobs.
Employee Darrel Davis, who had been informally trained
in the operation of the backsaw by his father-in-law (a
former employee of Respondent) filled in for both Jacobs
and Fisher when either of them was absent because of
vacation, illness, or otherwise. On July 1, 1976, Roger
Fisher gave notice that he was quitting his employment the
next day to take another job. On that same day, July 1,
Respondent, according to its practice, posted the job as
open for bidding and placed the notice on the bulletin
board (Resp. Exh. 3). Almost a dozen employees signed up,
including Arden Vestal, Dale Albee, and Richard Thomas.
At that time Vestal was most senior, Albee was second, and
Thomas third. The fourth employee in seniority who had
signed the list was Darrel Davis. The evidence is uncon-
tradicted that Vestal was chosen to try out for the job and
given a reasonable amount of time to decide whether he
wanted it.
Thomas testified that he saw Darrel Davis perform the
job as early as Friday, July 16, or Monday, July 19, 1976.
Davis denied that he worked the backsaw until July 26 and
particularly denied working the backsaw in the week
beginning July 19. I do not credit Davis. 5 Sasker directly
contradicted Davis and testified that Davis worked the
backsaw until Vestal declined on July 26. Sasker did not
offer the job to Thomas because he had no replacement for
Thomas. I do not credit Sasker.
There is no dispute that Davis commenced the backsaw
job on a permanent basis sometime after July 26. The
evidence shows that Davis got the job in the following
manner. Vestal, the most senior employee who had signed
up for the job, actually started the backsaw job, on or
about July 5, on a part-time basis, and then was on the
backsaw, on and off, as he was released from time to time
from his regular job in the "cooler" by his supervisor, Earl
Rutledge. The evidence also shows that Vestal executed a
document for Respondent on July 26, 1976, in which he
declared his desire not to have the backsaw job. Moreover,
he testified that I week earlier, on July 19, 1976, he told his
supervisor, Rutledge, that he did not want the job as
backsaw operator. 6 It was on July 26 that Rutledge called
Vestal into his office and told Vestal that if he did not want
s I credit Thomas in that he saw Davis doing backsaw work on July 16
and 19. Davis testified that he worked the backsaw for an hour at a time
immediately after Vestal got thejob on or about July 5.
6 Vestal's timecards (Resp. Exh. 8) showed he worked on the kill floor on
Friday. July 19, 1976, therefore as a hacksaw operator, since hisjob in the
cooler was not on the kill floor.
I The next most senior employee after Vestal was Dale Albee. Albee was
frozen out of competition for the backsaw operator job because he had bid
on a lower job in the past year.
I Vestal testified that (a) for about I week prior to his written declination
of July 26 he did not work the backsaw, and (b) it was about I week before
he signed the declination that he told his supervisor, Rutledge, that he did
not want the job. Vestal was a witness called by Respondent. Respondent
asserts that this testimony is contradicted by the testimony of three other of
Respondent's witnesses: Davis, Sasker, and Rutledge.
Rutledge testified that he did not know Vestal did not want the job until
Vestal signed the written declination on July 26. I reject this testimony.
While there may be some room in Vestal's testimony concerning how long
before he signed the declination that he told Rutledge of his declination,
there is no room for Rutledge's testimony that "suddenly he [Vestal ] didn't
want the job."
the job he had to fill out a written rejection slip. It was on
July 26 that Vestal did so. However, even after that, Vestal
worked on the backsaw on July 27 to help out because the
Respondent was shorthanded.
Discussion and Conclusions
Respondent takes the position that Arden Vestal had the
first seniority opportunity on the job and, since the job was
not formally rejected by Vestal? until July 26, 1976, and
since Richard Thomas was already discharged on July 22,
1976, it was clear that Richard Thomas could not be
considered for the backsaw job because he was no longer
an employee.
General Counsel points to the fact that, as soon as
Respondent knew that Roger Fisher was quitting, by virtue
of the notice thereof he gave on July 1, 1976, it posted the
backsaw job for bid. By analogy, according to the General
Counsel, Supervisor Rutledge was told as early as July 19,
according to the uncontradicted testimony of Vestal, that
Vestal did not want the job. General Counsel then states
that, had Respondent followed its normal routine, as
indicated by the previous posting of July 1, for the same
job, when it knew that Roger Fisher did not want the job, it
should have posted the job as being open on July 19.
Rather than do that, it waited until July 26 to give the job
to Davis upon Arden Vestal's formal written declination.
In short, the General Counsel argues that Respondent, for
discriminatory reasons, did not post the job on July 19
because Thomas would have gotten the job since Albee
had been frozen out.
Unlike the case of the alleged unlawful transfer to the
"utility man" job, above, Respondent offered no explana-
tion of why it failed to post the backsaw job when it first
learned that Arden Vestal did not want the job on July 19.8
Certainly its immediate posting of the job on July 1, when
Roger Fisher first gave notice of his leaving and even
before he actually left the job, indicates that Respondent
manifested an eagerness to insure that no hiatus would
exist in filling the job. This is particularly true on the
uncontradicted evidence that Respondent, at all times, was
shorthanded on its production floor. An unfilled job on the
production line might well mean interference with produc-
tion, a situation which Respondent reasonably had found
intolerable and which was a prominent reason for action
Sasker's lack of recollection regarding these events was demonstrated at
the hearing. Moreover, I regard his estimate that Vestal worked on the
backsaw for 2-1/2 to 3 weeks as probative of the fact that Vestal's last day
on the job as an applicant was July 19 since Vestal started on July 6.
Davis is the incumbent in the job and has an obvious interest in the
testimony that he was not given the job prior to Thomas' suspension. Thus,
while I agree with counsel for Respondent that Davis had a "strong interest
in the backsaw job," that interest does not redound in favor of Davis'
credibility. Moreover, I find that Sasker, far from corroborating Davis, as
Respondent avers, contradicts him, for Sasker, contrary to Davis, testified
that Davis was on the backsaw from July 6 to 26.
Thomas had testified that Vestal was in the backsaw job only about I
week before Davis succeeded him. Thomas said that by Friday, July 16, or
Monday, July 19, Davis was already in the job. This supports Sasker and
contradicts Davis.
In this conflict, I credit Thomas as corroborated by Respondent's witness
Vestal, and discredit the mutually inconsistent testimony of Sasker and
Davis.
120
TAMA MEAT PACKING CORP.
taken with regard to its employees. The backsaw operation
is a production line job. While Davis was experienced as a
backsaw operator, that would not explain the failure to
post the job especially since Sasker did not know and did
not seek to discover if Thomas could operate the backsaw.
I regard Respondent's failure to post the job on July 19
as more than a suspicious coincidental circumstance. While
there is no direct evidence to suggest that the job was not
posted on July 19 because Thomas would get the job, the
circumstances convince me that this motive guided
Respondent's conduct. Thus (1) Respondent's particular
animus against Richard Thomas based upon his union
activities and its more general union animus have been
fully demonstrated before Administrative Law Judge Klein
and in the hearing before me; (2) Respondent, in failing to
post the open backsaw position, departed from its past
practice of doing so, a practice which it had performed for
the same position as recently as 18 days before when Roger
Fisher gave notice; (3) Richard Thomas, by virtue of his
seniority following Vestal and Albee, would have gotten
the job. This raises a prima facie case of Respondent
unlawfully preventing Thomas from getting the job on July
19 when Vestal told Supervisor Earl Rutledge that he did
not want the job. When such a primafacie case is joined
with complete failure by Respondent to explain why, being
shorthanded,9 it did not at once post the job as open,' 0 the
inference should be drawn, it seems to me, that Respon-
dent failed to post because Richard Thomas would then be
in line for the job. Such conduct, I conclude, was based on
discriminatory considerations and violates Section 8(a)(3)
and (I) of the Act." No evidence exists on this record that
Respondent's motivation related to Thomas' having given
testimony at Board proceedings or otherwise participated
in Board proceedings as alleged.
Therefore I find, that Respondent, in denying to Thomas
the opportunity of employment as a backsaw operator, was
motivated by animus concerning his union activities and
violated Section 8(a)(1) and (3) of the Act. Having found
no evidence in this record that the motivation also included
Thomas' prior Board testimony or activities at the prior
Board proceedings, I shall recommend that the 8(aX4)
allegation be dismissed.
The suspension of Richard Thomas on Monday,
July 19, 1976
On July 19, 1976 (Monday), after the end of the
workday, at or about 3 o'clock, Supervisors Sasker and
Jacobi (the foreman and assistant foreman on the kill floor)
told Richard Thomas to go to Plant Superintendent
Derham's office. Thomas said he was in a hurry but they
escorted him to the plant superintendent's office. After a
few minutes of waiting, in which Thomas asked them to do
whatever they were going to do the next day, Sasker,
Jacobi, and Thomas entered the office where they found
9 The evidence is uncontradicted that Respondent forced Vestal, on July
27, 1 day after he had rejected the job in writing, to perform the backsaw
job.
'o Immediate posting would have been on July 19, 1976.
i Respondent failed to argue-perhaps wisely-that it would not in any
case have offered the job to Thomas on July 19 because Respondent, after
work that day, decided to suspend Thomas. The hurried suspension without
giving Thomas the reason therefor is discussed infra.
Derham and Robert Bristol, Respondent's director of
industrial relations. Thomas said to Derham: "Another
one of those deals, huh?" Derham replied: "Yes, I guess so,
sit down." Thomas said: "Let's have it." Derham then
nodded towards Bristol and Bristol, reading from a sheet of
paper, answered: "Rich, we are authorized to inform you,
at this time, that you have been placed on indefinite
suspension." Thomas then asked for the reasons for his
suspension and Bristol responded: "We have not been
authorized to give you a reason at this time." There was no
further conversation and Thomas left the plant. On the
next day, Tuesday, July 20, Bristol sought out 12 Thomas'
supervisor, Stanley Sasker, and his leadman, Kesl, regard-
ing the incident. They told him of another incident: that
Thomas, in the previous week, told employee Roger Boldt
to go home because Boldt was ill even though Boldt told
Kesl he would remain on the job in spite of the illness.'3
The evidence is also uncontradicted that on or about
June 14, 1976, employee Kenneth Dahlman was promoted
into the supervisory ranks. Both before and after that date,
Dahlman had told Bristol that Richard Thomas called him
derogatory names on a consistent basis. Bristol testified
that he made a note of the complaint.
The discharge of July 22, 1976
Following the July 19 indefinite suspension, Respondent
sent the following certified letter, dated July 22, 1976, to
Thomas (G.C. Exh. 6):
Dear Mr. Thomas:
On monday [sic] July 19, 1976 you were indefinitely
suspended pending an investigation into your behavior
as an employee of Tama Meat Packing Corp.
The investigation has now been completed by
management.
During the past week of July 12-16, 1976 you told a
fellow employee not to move the cattle ahead to fill the
chain, causing a slow down in production. You also
convinced another employee to go home sick after he
had indicated to his supervisor he would work out the
day. You also have been guilty of disruptive conduct by
addressing derogatory remarks to other employees.
This behavior cannot be condoned. You are hereby
discharged immediately.
Signed
/s/ Stan Sasker
Stan Sasker
Kill Floor Supervisor
It is undisputed that Thomas was never told by
management which fellow employee he told not to move
the cattle head on the chain which caused the slowdown in
12 Bristol testified in substance that Respondent was having a great many
problems and he wanted to see what other problems Thomas may have
caused.
13 Neither Sasker nor Kesl reported the incident to Bristol or to other
high supervisory authority.
121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production. Thomas specifically denied all testimony
relating to his telling an employee not to move cattle
ahead, including the testimony of employee Mark Rut-
ledge, which was to the contrary. With regard to the
assertion concerning Thomas' convincing another employ-
ee to go home sick after the employee told the supervisor
that he would work out the day, Thomas testified that no
supervisor ever identified the employee or requested his
version of the matter; but he identified employee Roger
Boldt as the employee who went home sick in the week of
July 12, 1976, sometime before Thomas was suspended.
With regard to the third reason advanced by Respondent
for the discharge, addressing derogatory remarks to other
employees, Thomas specifically denied making such
remarks to employee Kenneth Dahlman. It might be
recalled that it was the September 12 warning notice
regarding alleged physical threats to Kenneth Dahlman
which Administrative Law Judge Klein found to have been
unlawfully inspired (G.C. Exh. 4) and which she directed
be expunged from Thomas' record. Notwithstanding
Thomas' specific denial of calling Dahlman names, I credit
Dahlman's contrary testimony to the effect that before and
after Dahlman was promoted to a management position on
June 14, 1976, Thomas called him "suck ass" and "brown
nose." A history of such name-calling was allegedly
reduced to memorandum by Bristol but it was never
produced at the hearing. According to Respondent's
director of industrial relations, Robert Bristol, this name-
calling however would not have independently caused the
discharge of Thomas but was merely an additional reason
supporting the discharge. Name-calling was never the basis
of any warning to Thomas. In view of Bristol's testimony,
in view of the admitted banter going on in the plant, some
of which was not apparently in good nature, and the
overall lack of seriousness in which Respondent evidently
viewed the matter, I do not regard this name-calling as
significant notwithstanding that, in other circumstances,
Respondent might be within its rights in freeing itself of an
employee who called such names to its employee. In view,
however, of the above state of the record, I conclude that
neither by itself nor in conjunction with Thomas' other
conduct would it have caused Respondent to discharge
Thomas.
The two principal incidents which, according to Respon-
dent, caused the discharge were an incident involving
Thomas' telling a fellow employee not to move the cattle
ahead on the chain, thereby slowing down production,
hereinafter referred to as the Mark Rutledge incident; and
his telling another employee (Roger Boldt) to go home sick
after the employee allegedly told the employee's supervisor
that he would work out the day, hereinafter called the
Roger Boldt incident.
The Mark Rutledge incident; Friday, July 16,
1976:14
The first of the three reasons advanced by Respondent in
its discharge letter (G.C. Exh. 6) is that in the week of July
14 It was this incident, alone, which caused Thomas to be suspended,
without reference to any other misconduct. As will be seen, infra, Supervisor
Earl Rutledge reported the Mark Rutledge incident to Respondent's
director of industrial relations on Saturday, July 18. By further investigation
12-16, 1976, Thomas "told a fellow employee not to move
the cattle ahead to fill the chain, causing a slow down in
production."
The production process in Respondent's Tama, Iowa,
plant, as adduced by evidence in this record, shows that
cattle are first "killed" and then hoisted on chains by the
rear feet. Their throats are cut to allow bleeding. Progres-
sive dismemberment follows as the carcasses travel along
past employees at two physical levels: employees working
on elevated platforms dismembering the raised hindquar-
ters; employees on the floor dismember the lower forequar-
ters. Ostensibly, the dead bled out (cold) cattle, on chains,
then follow an overhead track (feeder line) to an overhead
switch which automatically interrupts the flow of carcasses
to the employees working further down on the cattle on the
"main line." When this automated feeder switch fails (the
failure sometimes caused by the weight of too many new
carcasses bunched up against the arms of the switch), the
carcasses do not approach the waiting employees one at a
time at preset intervals as would be the case if the switch
were in working order. Until the switch is repaired (freed),
the carcasses back up behind the switch. In order to
maintain a flow of carcasses to the waiting production
employees, the carcasses must therefore be pulled manually
past the broken switch and down the production line. All
employees on the floor are obliged 15 to pull cattle through
manually, otherwise production beyond the switch would
be brought to a halt (i.e., there would be a "hole" in the
line).
Sometimes the cattle, even upon reaching the main line,
are not actually dead. These are called "hot" cattle. To
work on them even as far down as the main line may
involve physical danger to the employees since the "hot"
carcass, attacked by cutting devices, reacts by kicking.
Injury to the knife-wielding employee may result. Hot
cattle as well as cold cattle are pulled through a broken
switch, although it is relatively uncommon for hot cattle to
be encountered beyond the switching point.
On July 16, 1976, the automatic switch broke on three
occasions. Employee Mark Rutledge was employed in the
blood pit on the main level of the production line. The cow,
having been "knocked in the head" and presumed dead,
was hoisted on the chains, headed for the blood pit for
bleeding out. Mark Rutledge's job, performed on the work
floor, i.e., the lower level, was to slit the throat, permit the
carcass to bleed off, and also to cut off the ears. The blood
pit is immediately under the automatic switch. The next
employee position down the line from Rutledge on July 16
was the "Cap bung" position which was occupied up on the
platform by employee John Hoffa.
Leadman Kesl testified that, on one of the occasions on
that day when the switch broke, he noticed that no cattle
were going along the main line. He said he then went over
to employee Mark Rutledge and asked him why he wasn't
pulling the carcasses through manually. Rutledge allegedly
said, pointing up to Thomas on the level above him:
"Because Rich Thomas told me to not to". On his part,
into Thomas' misconduct, Bristol learned of the Boldt incident, supra, on
July 20, 1976.
is There is no written rule; it is a matter of plant practice.
122
TAMA MEAT PACKING CORP.
Rutledge could not remember any such conversations with
Kesl and particularly recalled that, when the switch broke
on the third occasion, no one asked him to pull cattle
through. Kesl then pulled the cattle manually through the
switch to fill the production line. Kesl testified that the
carcasses he pulled through were "cold."
Kesl testified that about 3:30 p.m., after the end of the
workday, he told Supervisor Stanley Sasker of what
Rutledge told him. Sasker, called by Respondent, failed to
testify on this point. Sasker did not mention the matter to
Thomas or to higher supervisory authority.
Richard Thomas, in rebuttal, denied ever telling Rut-
ledge not to move cattle ahead on a production line. And
in direct examination and rebuttal, without contradiction,
he testified that he did not know what incident formed the
basis of the assertion in the discharge letter; that no one
from management ever identified the employee or asked
for his version of the incident.' The discharge letter is
silent on the matter.
The director of industrial relations, Bristol, testified that
he did not ask Thomas for his version of the incident
because: (1) Thomas had already been suspended and was
not on the premises; (2) "I just didn't feel like anywheres
[sic] asking him about the incident." 17 Similarly, when
Bristol learned, from leadman Kesl or Supervisor Stanley
Sasker, on Tuesday, July 20, of Thomas telling employee
Roger Boldt to go home because of Boldt's illness, he did
not question Boldt because he already had leadman Kesl's
statement of the event.
Mark Rutledge, brother of Supervisor Earl Rutledge,
testified that, after the switch broke the second time in the
afternoon,' 8 he pushed two or three dead cattle past the
broken switch when Richard Thomas, up on the ledge said
to him:
Why push the beef down? We're not getting paid by
beef. We're getting paid by the hour. Let the foremans
[sic ] do it. It's not going to help you.
Rutledge did not answer Thomas.
The evidence is undisputed that, prior to President
Whittington's announcement of June 9, 1976 (Resp. Exh.
1), production employees were paid "gang time." Whitting-
iL Kesl at first placed the Rutledge incident of July 16 as before the
incident involving the illness of Roger Boldt, infra Although neither
General Counsel nor Respondent introduced Boldt's timecard or other
evidence on the point, it appears from all the evidence that the Boldt
incident occurred before the Mark Rutledge incident. Kesl thereafter said he
was not sure which incident occurred first.
IT A full explanation of why Bristol did not ask Richard Thomas for his
version of this incident, which was the root cause of the July 19 suspension,
appears in Bristol's cross-examination:
Q. Did you learn about the incident prior to his suspension?
A. Yes I did.
Q. And you had Rich Thomas right in your office at the time you
suspended him, why didn't you ask him then?
A. The investigation was not completed at that point.
Q. What I am saying why wasn't he a part of the investigation?
A. All right [it was] reasonable to assume that there was offense
ton's announcement effective June 14, 1976, eliminated
gang time and the 40-hour guaranteed workweek. "Gang
time" was a speedup production procedure whereby
employees, ordinarily paid at the rate of processing 100
carcasses per hour, had the carcass processing rate, for
instance, speeded up to 144 carcasses per hour. Respon-
dent paid the employees for approximately 12 hours' work
because of such a speedup rather than for 8 hours' work.' 9
It appears, therefore, that the reference in the above
statement by Thomas to Rutledge relating to "not getting
paid by the beef' refers to the elimination of the "gang
time."
Mark Rutledge, later that Friday evening, told his
brother, Supervisor Earl Rutledge, of the incident and his
brother told him not to pay attention to Thomas but to his
supervisor.
On cross-examination, Mark Rutledge testified that no
delay in the production line occurred on the occasion of
the second breakdown of the switch because of what
Thomas yelled down to him. As above noted, Kesl testified
that, when the switch broke down the third time, he
"grabbed the cattle and filled in the holes in the line to get
caught up." Rutledge could not say that he saw Kesl
manually pulling cattle through at any time that day.
Contrary to Kesl, Rutledge testified specifically that he
could not recall any conversation with Kesl that day in
which Kesl asked: "Why don't you push them through?" to
which Rutledge would have responded, "Thomas told me
not to."
On the basis of the above conflicting testimony, I credit
Mark Rutledge and discredit Richard Thomas, and find
that Thomas did yell down to Rutledge what Rutledge
testified to regarding pulling the carcasses through manual-
ly. I also discredit Kesl insofar as his testimony conflicts
with Rutledge's recollection: that Rutledge could not recall
any conversation with Kesl in which Kesl asked him why
he had not pulled the cattle through. I am particularly
mindful that Sasker's testimony did not corroborate Kesl's
assertions that Kesl told Sasker of the incident. Rather, I
conclude that Kesl pulled the cattle through upon seeing
the cattle were not being pulled through. Thus, I conclude
that Rutledge was not asked by, and did not tell, Kesl the
version which Kesl alluded to.
serious enough here to warrant a discharge, but we didn't know that for
a fact at that point. So, until the investigation was concluded we weren't
going to tip our hat as to just which way we were going to pursue this
thing. It could have been such a thing that it turns out completely
groundless and he would have been reinstated and no problems.
It therefore appears that Bristol did not question Thomas when Thomas
was in his office in the act of being suspended because investigation had not
been completed. And Bristol didn't question him after the investigation was
completed because Thomas was "not on the premises". Thus, Thomas could
not be questioned at all on that logic, a "Catch-22" rationale. Actually, as
Bristol testified, he "just didn't feel like" asking Thomas about the incident,
because, as Bristol later said, it might "tip our hand." To put it mildly, this is
the language not of investigation, but of predisposition.
is Rutledge testified that the switch also broke in the morning and that
another employee pulled the carcasses past the switch on that occasion.
19 Counsel for Respondent argued, and unsuccessfully sought from
Thomas on cross-examination the admission, that the elimination of "gang
time" and the 40-hour guaranteed workweek so angered Thomas that he
caused the instant charges to be filed by the Union. There is no evidence
linking Thomas' loss of earnings to the filing of the charge herein. I reject
Respondent's argument.
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In rejecting Thomas' denial and crediting Mark Rut-
ledge's testimony, I have noted that Rutledge, although the
younger brother to Supervisor Earl Rutledge, hardly knew
Thomas. The undisputed testimony shows that there was
no "bad blood" between Thomas and Mark Rutledge and
Thomas could think of no reason why Rutledge would
invent such a story involving Thomas.
On the record before me, therefore, there is evidence that
there was a potential hole in the production line which
resulted from a broken switch. I also find that Thomas told
Rutledge not to manually pull the cattle through the
switch. Whether Rutledge did not thereafter, on the third
breakdown, pull carcasses through because of Thomas'
admonition or because no one told him to do so (as he
testified) or because he returned to his own job (as he
testified) is not controlling. The record is not clear whether
any loss of production would have been substantial
because of what Thomas said to Rutledge, but I conclude
that, contrary to the allegation in Respondent's discharge
letter, Kesl's pulling the cattle through manually prevented
any actual loss of production attributable to any statement
or action of Richard Thomas.
In any case, I do not regard as material any discrepancies
between the assertion in Respondent's letter that a
slowdown was in fact caused by Thomas and a finding that
there was either no such slowdown or that it was de
minimis. For I conclude that Thomas' statement to Mark
Rutledge had a tendency to interfere with production and
thus was a most serious matter under any interpretation,
and notwithstanding any union animus which Respondent
may have directed toward Thomas. I conclude that
Respondent need not accept conduct from an employee
which merely tends to interfere with the production line
regardless of whether it has that actual effect. Thus I see no
material difference, for the purposes of reasonably invok-
ing the strictest discipline, between an act of Richard
Thomas which actually interfered with production and
one, like the present, which may merely have tended to
interfere with such production.
Rebuttal testimony of Richard Thomas and Roger
Boldt; disparity of treatment
In rebuttal, however, Richard Thomas and Roger Boldt
testified that employees John Hoffa and Roger Boldt, on a
day during the week of July 12-16, 1976, yelled down from
their work stations for two supervisors, Jacobi and Kesl,
not to pull the cattle through so fast. Kesl could not
remember if it occurred around the same time as Thomas'
yelling down to Rutledge. Neither Boldt nor Hoffa suffered
discipline for such statements.
Leadman Kesl testified that John Hoffa had yelled at
him for "bringing hot cattle" through the broken switch in
such large numbers that the carcasses were being brought
to positions out of the working reach of Hoffa and Boldt.
He recalled Hoffa saying that, if Kesl was going to bring
the cattle through into those positions, he could come up
on the balcony and do the work himself. The evidence
20 Hoffa did not testify. Boldt said Hoffa yelled to Kesl who was pulling
through the hot cattle too far, that Kesl "should come up there and help
him." Boldt yelled the same things to Supervisor Jacobi. Under such
conditions, the employees could not keep up with the volume of work.
adduced on this point shows that so many carcasses were
being brought through into the area where Hoffa and Boldt
were dismembering the cattle that the carcasses were not in
their proper position and Boldt and Hoffa had to reach far
over the ledge in order to work on them.
Counsel for Respondent would distinguish between the
Hoffa-Boldt incidents on one hand and the Thomas
incident on the other, on the ground that Hoffa and Boldt
did not tell anybody not to pull through the cattle, but
merely that if they were going to pull through so many hot
cattle, the employees (Boldt and Hoffa) could not keep up
production. As I understand the statements, of Hoffa and
Boldt, they were admonishing Respondent's supervisors
because they were continuing to bring through cattle at
such a high rate and because hot cattle were dangerous to
work on.20 Supervisor Jerry Jacobi testified that Boldt had
called down to him because carcasses were going by so fast
that they could not be worked on. Jacobi testified that he
did not remonstrate against Boldt for his statement because
it did not appear to him that Boldt was angry in making the
statement. There is no evidence that Thomas was angry or
even that the question of Thomas' emotional state in
admonishing Mark Rutledge was deemed material.
I do not see an essential difference between Thomas
telling Mark Rutledge not to pull through the cattle past
the broken switch on a manual basis and Boldt and Hoffa,
on the other hand, telling Jacobi and Kesl not to pull so
many cattle past. In both cases, there was a statement
whereby employees were manifesting an intent to others to
slow down production and in neither case was there an
actual slowdown. The fact of the matter is, however, as
Kesl admitted, that he never reported the Hoffa-Boldt
incidents to Sasker, as he allegedly reported the Thomas
incident,2 ' or to Robert Bristol after Bristol heard about
the Mark Rutledge incident from Earl Rutledge. He told
Bristol only about Richard Thomas, but not about Hoffa
and Boldt, because Bristol was seeking evidence regarding
Thomas' conduct. It is clear, therefore, that, in the two
incidents relating to Boldt in which Richard Thomas was
involved, James Kesl, at least according to his own
testimony and the testimony of Sasker and Bristol,
allegedly failed to inform his superiors and Respondent
that other employees had done more or less the same thing
as Thomas. As will be seen hereafter, in the incident
involving the illness of Roger Boldt, Kesl failed to tell his
superiors (allegedly because he had not heard) that
employee Steve Halverson and other employees, as well as
Richard Thomas, had counseled Roger Boldt to go home
because of Boldt's sickness; and in the case of Thomas
calling down to Rutledge, Kesl (and Jacobi) failed to tell
Bristol, who was corroborating the Mark Rutledge incident
which he had heard from Earl Rutledge, that employees
Boldt and Hoffa had called down similar things to that
which Thomas yelled down to Mark Rutledge.
21 As above noted, I have not credited Kesl's testimony that he told
Sasker of the Thomas-Rutledge incident. Had he actually done so, and
Sasker failed to act, Sasker's conduct would indicate how unimportant
Thomas' statement to Mark Rutledge was in Sasker's eyes.
124
TAMA MEAT PACKING CORP.
The Roger Boldt sickness incident; disparate
treatment
Boldt works as a "rumper" about 5 to 10 feet from
Thomas' work station on the elevated balcony above the
work floor. During the week of July 12-16, but before
Thomas yelled to Mark Rutledge concerning pulling
carcasses through the broken switch manually, supra, about
8:30 a.m. before the first workbreak, Boldt told Thomas
and other employees he did not feel well. Boldt asked
leadman Kesl for a replacement because of illness but Kesl
said he had no one to fill in for him. Boldt testified he then
told Kesl that he would "stick it out as best I could." Kesl
testified that Boldt told him he "would try to stick the
day." Kesl testified that Boldt appeared sick and asked to
be replaced. Kesl told him that he could not replace him
because the only replacement available would be Kesl
himself and then there wouldn't be "anybody to watch the
floor." At various times thereafter, until 10:30 a.m. when
Boldt left to go home, Boldt became ill at his workplace.
Thomas and other employees tried to help fill in for Boldt
but were not successful. Thus Thomas and Boldt testified
that Kesl, on two occasions, relieved Boldt at his job at the
upper level. Sometime in midmorning, the overhead chain
which carries carcasses past Boldt and Thomas stopped.
The evidence shows that employee Steve Halverson
stopped the chain and pushed the buzzer, thereby sum-
moning leadman James Kesl. Thomas then saw Boldt
sitting on the guardrail with his head in his hands, his face
white. This was the first occasion on which Kesl relieved
Boldt. Thereafter Halverson pushed the button again to
stop the chain and Kesl came up for the second time to
take Boldt's place. Thomas testified without contradiction
that Boldt could not keep up with the job and that the
carcasses were going by without being "rumped out." On a
third occasion, with Boldt being sick, Halverson buzzed for
Kesl again but Kesl did not come up. Boldt walked away
and said nothing. Thomas, in all three episodes, said
nothing to Boldt except, according to Thomas, on the
second occasion, in Kesl's presence: "If I felt that bad I
would go home." Thomas, corroborated by Boldt, testified
that employee Steve Halverson and other employees told
Boldt the same thing at the same time in front of Kesl. Kesl
denied hearing any other employee say anything to Boldt
regarding Boldt's "illness." Kesl testified that he heard
Thomas tell Boldt, "Go on home, Roger. They got all kinds
of help breaking down the door to work here."
Boldt testified that, after he became repeatedly ill before
II a.m., he told Kesl that he could not stick it out any
longer and that Thomas told him: "If I were feeling that
bad, I'd go home. They surely can find someone to replace
you." Boldt said that Kesl was present and said nothing.
Boldt also testified, without contradiction, that he told Kesl
he was going home even before Thomas suggested that
Boldt go home. Kesl reported the incident to Foreman
Sasker and said he did not think Boldt would have gone
had Thomas not suggested it.
In spite of Boldt's corroboration of Thomas' version, my
observation of Thomas, Kesl, and Boldt (a clearly friendly
22 Again, Sasker also failed to advise higher management or take other
action when Kesl allegedly told him of the Mark Rutledge incident on the
previous Friday, July 16.
witness to Thomas) leads me to conclude that Kesl's latter
idiomatic version was correct. Kesl admitted never having
asked Boldt why he left that day. Boldt did not return to
work for 2 days and was under a doctor's care. Kesl knew
of no investigation by other supervisors into Boldt's illness.
Kesl told his supervisor, Stanley Sasker, of this incident,
but the record fails to disclose that Sasker took any
affirmative action on the basis of this information.22
Sasker, however, did tell Bristol of the incident on the
following Monday or Tuesday, prior to the time that
Thomas was discharged during the time that Bristol was
investigating Thomas' misconduct in the Mark Rutledge
incident, supra.
It is unnecessary to resolve the credibility question as to
whether, as Thomas and Boldt testified, Thomas said to
Boldt that: "If I felt as bad as you, I would go home," or
whether, as Kesl testified, that Thomas said that Boldt
should go home and that there were "employees breaking
down the door to come in." Both versions amount to the
same thing. I conclude that Thomas did tell Boldt that he
should go home because he looked too ill to continue to
work. On the question of whether Boldt told Kesl that he
was going home even before Thomas made the remark to
Boldt in Kesl's presence, and even though the testimony
was not contradicted by Kesl, I severely doubt whether
Boldt made this statement to Kesl. In short, I do not credit
the uncontradicted testimony of Boldt that he told Kesl
that he intended to go home even before Thomas made the
remark. On the other hand, I credit Boldt and Thomas and
discredit Kesl in finding that Halverson told Boldt
essentially the same thing that Thomas did, and, moreover,
said it to Boldt at the same time as Thomas told Boldt to go
home, in Kesl's presence. I conclude that Kesl heard
Halverson make the same or similar remarks to Boldt as
Thomas' remarks in the same conversation.
Discussion and Conclusions
The evidence shows that Respondent, on the basis of
proven unfair labor practices, has a history of union
animus directed against the Charging Party in general and
against Thomas in particular commencing in 1975. I have
already found, above, that Respondent acted unlawfully, in
violation of Section 8(aX3) and (1) of the Act, in failing to
offer Thomas the opportunity to bid on the backsaw
operator job. In the present instance, regarding his
suspension and discharge, Respondent asserts that it
discharged Thomas for cause for engaging in misconduct
in the above three incidents: the Mark Rutledge incident,
the Roger Boldt incident, and the Kenneth Dahlman
incident.
(I) With regard to the Kenneth Dahlman incident, I have
already taken into account the remark of Respondent's
director of industrial relations that that incident would not,
of itself, have been a cause to discharge and was merely an
aggravating circumstance. In view of Respondent's own
evaluation of the lack of seriousness of the name-calling
against Dahlman, longstanding and widespread name-
calling throughout the plant as admitted by Kesl, the
125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existence of the memorandum on the name-calling without
action taken thereon, I see no reason to give it any greater
probative weight than the Respondent itself has given it. I
conclude that Thomas' remarks to Dahlman and other
employees did not constitute so serious a breach of
discipline as would lead Respondent to discharge Thomas
even in conjunction with other breaches of discipline.
Furthermore, the interposing of such a reason in the
discharge of the chief union steward, already the subject of
Respondent's unlawful attention, seems to me to also cast
doubt on other apparently more formidable reasons.
(2) The Board may not substitute mere suspicion or
surmise for credible evidence. Ashland Oil Company of
California, 201 NLRB 524 (1973), N.LR.B. v. Garver Tool
and Die Manufacturing, Inc., 493 F.2d 263 (C.A. 8, 1974). It
may be assumed for purposes of this Decision, and I do
assume, that Richard Thomas' suggestion or admonition
which I find, under all the circumstances and in spite of his
denial, to have been made to Mark Rutledge, that Rutledge
should not move the cattle through manually, was
substantial enough to be a cause to discharge; or, in the
alternative, was not so insubstantial as to not warrant an
inference that another reason was the true cause for the
discharge. Big Three Industries, Inc., 192 NLRB 370, 375
(1971). Indeed, the Board has repeatedly held that, if an
employee provides an employer with sufficient cause for
discharge by engaging in conduct for which he would have
been terminated in any event, the Board cannot find the
discharge unlawful by merely showing that the employee
engaged in union activity. Klate Holt Company, 161 NLRB
1606 (1966); Golden Nugget, Inc., 215 NLRB 50 (1974). The
mere fact that the employee is or was participating in union
activities does not insulate him from discharge. N.L R.B. v.
Ayer Lar Sanitarium, 436 F.2d 45, 49 (C.A. 9, 1970). In
short, an employer has the right to discharge an employee
for any reason, whether it is just or not, and whether it is
reasonable or not, as long as the discharge is not, in part, in
retaliation for union activities or support. The question of
proper discipline of an employee is a matter left to the
discretion of the employer. An employer's stated or avowed
oppostion to a labor union is not sufficient evidence to
sustain a finding that its employee was discharged because
of discrimination against the Union. The Board is limited
to determining whether there was a discriminative motive
behind an employee's discharge and not whether the Board
agrees with an employer's reasons or even finds them
reasonable. See The Consolidated Diesel Electric Co.,
Division of Condee Corp., 469 F.2d 1016, 1024 (C.A. 4,
1972); N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d
497, 505-506 (C.A. 6, 1967), cert. denied 389 U.S. 843.
While the employer must be permitted to discharge the
inefficient, the irresponsible, the disobedient, and the
immoral, Martel Mills Corporation v. N.LR.B., 114 F.2d
624 (C.A. 4, 1940), an employer may not discharge an
employee where the real motivating purpose is to do that
which Section 8(a)(3) forbids, Lawson-United Feldspar &
Mineral Co., 189 NLRB 350, 357 (1971). The determination
of the employer's actual motivation where, as here, a union
leader has broken a shop rule and has been discharged, is a
"delicate task," American Ship Building Co. v. N.L.R.B.,
380 U.S. 300, 311 (1965).
There is no disagreement with Respondent's contention
that, because Richard Thomas was the chief umon steward,
the Board and the courts had not given him a "license" to
violate company rules or to be immune from discharge. To
the contrary, the position of shop steward does not
immunize the holder of that position from discharge even
in the presence of outbursts of union animus by the
employer. See San-Tul Hotel Company and Simon Zunai-
non, doing business as Fairmont Mayo Hotel, 198 NLRB 462
(1972).
If a discharge is motivated by antiunion design, such
discharge is violative of the Act even though the employee
had performed misdeeds which would warrant his dismis-
sal. Frosty Morn Meats, Inc. v. N.LR.B., 296 F.2d 617, 620
(C.A. 5, 1961). Direct evidence of discriminatory motiva-
tion is not necessary to support a finding of discrimination
since such intent may be inferred to the record as a whole.
Heath International, Inc., 196 NLRB 318 (1972); Florida
Steel Corporation, 224 NLRB 587 (1976). Even a finding
that Richard Thomas was not properly discharged for
cause would not, in itself, establish that the discharge was
violative of Section 8(aX3) of the Act as alleged in the
complaint. The real motivation must be found on the basis
of inferences. Big Three Industries, Inc., 201 NLRB 700
(1973), citing N.LRB. v. Melrose Processing Co., 351 F.2d
693, 698 (C.A. 8, 1965). Illegal motive has been held
supported by a combination of factors such as coincidence
in union activity and discharge, disparity of treatment,
general bias and hostility toward the Union, variance from
the employer's normal routine, and implausible explana-
tion by the employer for its actions. W. T. Grant Company,
d/b/a Grant City, 210 NLRB 622 (1974).
Applying the above principles to the case at hand, the
evidence of record, including my observation of the
witnesses, shows: (a) Richard Thomas, as counsel for
Respondent points out, was a cocky individual and
perhaps sometimes exuberant in his dealings with Respon-
dent's supervisors. Counsel for Respondent states that
Thomas was "arrogant." I did not see that in my
observation of Thomas. (b) Thomas testified extensively at
the prior Board hearing before Administrative Law Judge
Klein as late as May 1976 and was a prominent supporter
of the Union who did not hide his union sympathies. I was
particularly impressed with the fact that, even after the
election in which the Union was defeated on December 5,
1975, Thomas wore prominent union identification on his
helmet unlike other union stewards and supporters who
apparently no longer sought to remain prominently
identified with the Union. (c) There is nothing in this
record which indicates any manifestation of Respondent's
displeasure with Thomas' work record or conduct over the
5 years of his employment prior to the two unlawful
warnings which appear in his records commencing Septem-
ber 12, 1975, which warnings were found to have been
unlawfully motivated and were directed by Administrative
Law Judge Klein to be expunged from his record. (d) In
balancing the underlying evidence upon which inferences
regarding Respondent's motivation of discharge are based,
Carbide Tools, Incorporated, 205 NLRB 318, 328 (1973),
there must be taken into account Respondent's unfair
labor practices against and general hostility towards the
126
TAMA MEAT PACKING CORP.
Union and particular hostility toward Richard Thomas
based upon his union activities. While such evidence by no
means is dispositive, as counsel for Respondent emphasizes
in his brief, I would be naive to ignore such evidence. And
I am not required to be naive, Shattuck Denn Mining
Corporation (Iron King Branch) v. N.LRB., 362 F.2d 466
(C.A. 9, 1966). (e) Regardless of the exact language used, I
have concluded that Thomas did tell Roger Boldt that he
looked so ill that he should go home. I have also
concluded, contrary to the testimony of Kesl, that
employees Halverson and other employees said the same
thing to Boldt in front of Kesl at the same time and
received no discipline whatsoever from Respondent be-
cause of such suggestions, much less discharge as was the
case with Thomas. I view Respondent's treatment of
Thomas, in this regard, as disparate.2 3 (f) The most
significant reason advanced by Respondent for the dis-
charge of Thomas, and indeed the misconduct which alone
was the basis for Thomas' suspension on July 19 (Monday)
was that his statement to Mark Rutledge caused a
slowdown in production. While there was no actual
slowdown in production, Rutledge having already pulled
through the carcasses on a manual basis after the
breakdown of the switch, the remark, contrary to Thomas'
denial, tended to dissuade Rutledge from again performing
the manual pullthrough of the carcasses. What we are
dealing here with, therefore, is not that Thomas' remarks
caused an immediate breakdown in production, but that
they tended to cause an interference with an employee's
future conduct. It was Kesl's shouldering of that burden
which thereafter prevented an actual loss of production. I
regard Thomas' remark to have been a serious matter
indeed, and I would perhaps find that statement, by an
employee of Thomas' persuasiveness, sufficient cause to
conclude that the discharge, although eminently suspicious,
was caused by Thomas stepping over the line and
attempting to interfere with production, especially at a time
when, according to the evidence at hand, Respondent was
fearful of its economic position. This genuine fear of
competitive position was demonstrated by Respondent's
notice to all employees (Resp. Exh. I, dated June 9, 1976)
in which it eliminated the commission based on production
(gang time) and also lowered the guarantee of hourly work
from 40 to 36 hours. Thus, I conclude that Respondent's
concern, particularly in the summer of 1976, was for
production and elimination of excess costs. The record,
however, does not close on this point. For the circumstanc-
es of this case, including the testimony of Robert Bristol,
Roger Boldt, and Respondent Supervisor Jerry Jacobi,
shed extensive light on Respondent's response which
Thomas' admonition to Rutledge brought about; and
which causes me to conclude that such response (Thomas'
suspension and discharge) was derived from pretextual
unlawful motives.
There is no doubt in my mind, on the basis of Board
decision, as above noted, that Respondent's reaction to an
employee's interference with production may be swift and
unconditional without its being unlawful, notwithstanding
that the employee was an active union member and the
23 It is only arguable which is more disparate: Kesl having heard
Halverson and not reporting him to Sasker as he reported Thomas; or
object of unlawful conduct on a prior occasion. Thus,
interference with or deficiencies in production, or the
harassment of other employees relating to production, is
itself reason for discharge which cannot be undermined by
concomitant and open engagement in union activity.
Sweetheart Plastics, Inc., Div. of Maryland Cup Corp., 209
NLRB 776 (1974). Here, the evidence is that employees
Boldt and Hoffa called down to Supervisor Jacobi and
leadman Kesl not to pull through "hot" cattle so quickly
because the employees were not able to keep up with the
production line. The awkward position of the cattle, pulled
through so far and so fast by these two supervisors,
required Hoffa and Boldt to lean out from the ledge to do
their cutting work. Jacobi testified that had he and Kesl
listened to Boldt and Hoffa and had not pulled the cattle
through, there would have been a "hole in the line," and an
interruption in production. Neither Kesl or Jacobi reported
to higher supervision the statements by Boldt and Hoffa.
The admonitions of Boldt and Hoffa, like that of Thomas,
would have caused an interference in production. I regard
the apparent failure by Kesl and Jacobi to report Boldt's
and Hoffa's admonition to be disparate compared to
reporting Thomas' statement to both Boldt (regarding his
sickness) and to Rutledge, (regarding production) to
Supervisor Sasker. This disparity in treatment, I find
significant. Thomas was discharged. Boldt and Hoffa were
apparently not reported. As Jacobi testified, he did not
remonstrate against Boldt because Boldt did not seem
"mad" when he spoke to Jacobi. This had no bearing on
the question of whether Boldt's and Hoffa's conduct would
interfere with production. (g) Of even greater significance, I
find two aspects of Respondent's conduct demonstrating
the pretextual nature of its disciplining Thomas, hiding its
union animus as the motive for the discharge: (1) I1 find
Respondent's failure to investigate both the Roger Boldt
illness matter and the Mark Rutledge report of the Thomas
admonition, beyond speaking to their own supervisors,
peculiarly unsatisfactory and (2) I regard Supervisor
Sasker's failure to act or react significantly, after being
informed of both the Roger Boldt sickness incident and the
Mark Rutledge production incident (1 have specifically
discredited Kesl's contrary testimony on this point,
however), to be inconsistent with its view that the
misconduct was substantial enough to form the basis of
suspension and later discharge.
The record herein shows that Stanley Sasker is Richard
Thomas' supervisor. The record also shows that Sasker was
one of the two supervisors who warned Richard Thomas,
in writing, of prior misconduct with regard to "threaten-
ing" Kenneth Dahlman on a physical basis. It was this
threat, along with another one, that was ordered expunged
from Thomas' work record.
With regard to (1), above, Respondent's alleged good-
faith belief that it was Thomas' suggestion to Boldt to go
home that caused him to leave because of illness I find
unconvincing in view of the fact that there was no
investigation. This is totally apart from the fact that Kesl
never reported-as Boldt credibly testified-that it was not
Respondent, having heard of the incident, failing to discipline Halverson as
it disciplined Thomas.
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas alone who made the suggestion that Boldt go
home but other employees including Halverson.
With regard to the Rutledge incident, while it is true that
Respondent spoke not only to supervisors, but also spoke
with Mark Rutledge, I find that the lack of a further
investigation, including obtaining Thomas' version of the
facts, indicates that Respondent, having heard of Thomas
engaging in conduct which would specifically give rise to a
basis for getting rid of him, seized upon the matters as
reported to it with an unshakable tenacity from which they
would not be deflected. Had the investigation widened,
Respondent would have had to take into account Boldt's
statements, whether true or not true, that Boldt (I) would
have gone home because of illness regardless of anything
Thomas said; (2) denied that Thomas told him that he
should go home and let the foreman do his job, and that
applicants for employment were breaking down the doors
to work for Respondent; (3) was told by employee Steve
Halverson to go home in the same conversation that
Richard Thomas told him to go home; and that both
statements were made in Kesl's presence at the same time.
As I have said, above, it is clear to me that Boldt was a
witness friendly to Thomas. On the other hand, Boldt, still
employed by Respondent, was giving testimony directly
contrary to Respondent's interests and facing Respon-
dent's supervisors in the hearing room. See Georgia Rug
Mill, 131 NLRB 1304 (1961). There is no suggestion in this
record that Halverson was ever the subject of discipline for
saying substantially the same thing to Boldt that Thomas
said.
I conclude that the decision in Firestone Textile Compa-
ny, a Division of Firestone Tire & Rubber Company, 203
NLRB 89, 95 (1973), is particularly applicable here:
The Board has consistently held that an employer's
failure to conduct a full and fair investigation of an
employee's alleged misconduct is evidence of discrimi-
natory intent, especially when viewed in the light of the
employer's union hostility. Norfolk Tallow Co., Inc., 154
NLRB 1052, 1059; Shell Oil Company v. N.L.R.B., 128
F.2d 206, 207 (C.A. 5, 1942); J. W. Mortell Company,
168 NLRB 435, 452, enfd. with modifications 440 F.2d
455, 458 (C.A. 7, 1971).
With regard to (2), above, it will be recalled that the
Thomas admonition to the sick Roger Boldt occurred prior
to the Mark Rutledge incident and thus occurred sometime
prior to July 16, 1976. The Mark Rutledge incident, the
admonition not to pull the carcasses through manually past
the broken switch, occurred in the midafternoon of July 16,
1976. Leadman Kesl testified that he told Sasker of the
Boldt incident at the time of the occurrence and that he
told Sasker of the Mark Rutledge incident after work on
that day: 24 Although Sasker was called as a witness by
Respondent, there is no testimony by Sasker or any other
Respondent witness to show that Sasker told Bristol or any
other of Respondent's supervisors of either of these
incidents at any time after they happened, much less
immediately upon their occurrences. Earl Rutledge heard
of the incident regarding his brother on Friday night, July
16, and reported it to Bristol on the next morning. Bristol
investigated the Mark Rutledge incident the next working
day. In view of the Boldt admonition and the Mark
Rutledge incident forming the basis for the discharge, and
particularly the Mark Rutledge incident forming the basis
for the July 19 suspension, I find it particularly noteworthy
that Sasker did not take action against Thomas or even tell
Bristol of either of the incidents. Sasker, apparently no
friend of Thomas, was one of the signers of the written
warnings against it, thought so little of the both of these
incidents that he never reported either of them to Bristol.
This is not altogether different from Sasker's conduct upon
first learning of the alleged threat by Thomas to inflict
physical harm on employee Kenneth Dahlman which
Administrative Law Judge Klein discussed in her decision.
She found that Sasker thought so little of the threat in that
case that he made no comment. Here, in the face of both of
these alleged important elements of misconduct, Sasker
took no action. Indeed, when Kesl told Sasker of the Mark
Rutledge incident regarding the admonition which would
interfere with production, Kesl could not even recall
Sasker's response. (h) Lastly, I am particularly mindful of
Director of Industrial Relations Bristol's testimony regard-
ing why he did not tell Thomas, at the time of the
suspension on July 19, when Thomas was in Bristol's office,
of the reasons why Thomas was being suspended. Bristol's
testimony that he did not want to reveal the nature of the
reason of the suspension because it might involve Respon-
dent "tipping" his hand and that Bristol "just didn't want
to talk to Thomas," indicates to me a position of such an
adversary nature that it no longer could be regarded as
investigatory but was merely eliminating any opportunity
for Thomas to extricate himself from an apparently
difficult situation. As I said before, it was a matter more of
predisposition to corner Thomas rather than to investigate
the facts of alleged misconduct. In this regard I also note
that Bristol testified that he did not believe that a mere
warning would suffice with regard to Thomas' misconduct
in the Mark Rutledge matter because he had already
warned Thomas twice and such warnings did not improve
Thomas' conduct. The two warnings that he admitted he
had in mind were the two illegal warnings which were
issued based upon Thomas' union activities.
Such testimony by Bristol bolsters my conclusion that
the reasons for suspension and discharge were pretextual
and that Respondent's actual motivation was based upon
union animus.
In the instant case, therefore, I have found that
Respondent has engaged in disparate conduct in its
punishment of Thomas with regard to both the Mark
Rutledge and Roger Boldt matters; failed to investigate the
alleged misconduct in a reasonably fair and open matter;
and in light of the aforementioned union animus and
unlawful conduct by the Respondent, I draw the inference,
from the entire record, that there is a preponderance of
evidence of an unlawful discriminatory basis in the
suspension and discharge of Thomas. I therefore conclude
that the suspension and discharge of Thomas on July 19
24 Again, I have not credited Kesl on this point.
128
TAMA MEAT PACKING CORP.
and 22, respectively, violated Section 8(a)(1) and (3) of the
Act.
I have found no evidence that Respondent's desire to
discharge Thomas was based in any way on his having
testified in prior Board proceedings or because he other-
wise cooperated with the Board. I shall therefore recom-
mend that the complaint be dismissed insofar as it alleges
that any of Respondent's conduct toward Thomas violated
Section 8(a)(1) and (4) of the National Labor Relations
Act, as amended.
In sum, the fact that Respondent, as counsel for
Respondent argued, did not also discharge other known
union advocates who continued to remain on Respondent's
payroll does not negative any discriminatory unfair labor
practice directed against Thomas. The Great Atlantic &
Pacific Tea Company, Inc., 210 NLRB 593 (1974). In any
event, however, the fact that other union advocates remain
in Respondent's employ can be distinguished from the case
involving Richard Thomas, for Thomas, the chief steward,
as the record abundantly shows, was not merely a union
advocate, but a union sore thumb.
CONCLUSIONS OF LAW
1. By failing and refusing to transfer or offer the
opportunity to transfer to the position of backsaw operator
to Richard Thomas, during July 1976; by suspending
Richard Thomas on July 19, 1976; and by discharging
Richard Thomas on July 22, 1976, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
2. The General Counsel failed to prove, as alleged, by a
preponderance of the evidence that during late June or
early July 1976, Respondent denied employee Richard
Thomas a transfer to the position of utility man in violation
of Section 8(aX)(1), (3), and (4) of the Act, or that Thomas
was discharged in violation of Section 8(aX4) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act and 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 commerce and the free flow of commerce.
THE REMEDY
Having found that Respondent has committed various
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act, in the manner
customary in such cases.
Having found that Respondent improperly suspended
and discharged Richard L. Thomas, I shall recommend
that he be offered reinstatement with backpay at 6-percent
25 Employee Arden Vestal enjoyed a 3-week period (July 6-26) to decide
if he wanted the backsaw job.
26 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
interest per annum in conformity with the rules announced
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Having found that Respondent unlawfully failed to offer
to Richard L. Thomas the position of backsaw operator, I
shall recommend that Respondent be ordered to offer him
both said position and his old position in its offer of
reinstatement, and that any employee employed in either
position be replaced if necessary. As is customary in
Respondent's plant, Thomas shall have a reasonable period
of time, but not less than 3 consecutive weeks, to decide
whether to accept the job of backsaw operator.2 5 Since
there is no assurance that Thomas would have refused the
backsaw operator job, backpay will be computed on the
basis of what Thomas would have received absent
Respondent's discrimination against him, i.e., on the basis
of the backsaw operator rate of pay, commencing July 19,
1976, when employee Vestal refused to continue in the job.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 26
The Respondent, Tama Meat Packing Corp., Tama,
Iowa, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in a labor organization by
failing or refusing to offer to its employees transfers to
other employment positions or suspending or discharging
any of its employees or otherwise discriminating against
them because of their membership in, sympathies for, or
activities on behalf of Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local P-
46, herein called the Union, or any other labor organiza-
tion.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the Union, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Richard L. Thomas immediate and full
reinstatement to his former job and to the position of
backsaw operator or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to his
seniority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the unlawful discrimination against him in the
manner set forth in the section of this Decision entitled
"The Remedy."
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(c) Post at their offices copies of the attached notice
marked "Appendix." 2 7 Copies of said notice, on forms
provided by the Regional Director for Region I, after
being duly signed by Respondent's representatives, shall be
posted by them immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that any alleged unfair labor
,practice not specifically found herein shall be dismissed.
27 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in a labor
organization by failing or refusing to offer to our
employees transfers to other employment positions, or
suspending or discharging any of our employees, or
otherwise discriminating against them because of their
membership in, sympathies for, or activities on behalf
of Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Local P-46, herein
called the Union, or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer to Richard L. Thomas reinstatement
to his former position and to the position of backsaw
operator or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
his seniority or other rights and privileges, and WE WILL
make him whole for any loss of earnings he may have
suffered by reason of our unlawful discrimination
against him, together with interest at the rate of 6
percent per annum.
TAMA MEAT PACKING
CORP.
130