Packers Hide Association, Inc.

PACKERS HIDE ASSOCIATION, INC. 655 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor oragnization. MALONE KNITTING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston , Massachusetts, Tele- phone No. 523-8100, if they have any questions concerning this notice or compliance with its provisions. Packers Hide Association, Inc. and United Packinghouse, Food and Allied Workers, AFL-CIO. Case No. 17-CA-3568. May 17, 1965 DECISION AND ORDER Upon a charge duly filed and served on November 12,1964, by United Packinghouse, Food and Allied Workers, AFL-CIO (hereinafter called the Union), the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 17, issued a complaint and notice of hearing, dated December 22, 1964, alleging that Packers Hide Association, Inc. (hereinafter called the Respond- ent), had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the complaint were duly served upon the Respond- ent and the Union. The complaint alleged in substance that, on or about October 8, 1964, the Respondent discharged Walter Mason, an employee, and has since failed and refused to reinstate him because of his activity on behalf of the Union. The Respondent filed an answer denying commission of the alleged unfair labor practices. Thereafter, on February 15, 1965, all parties to this proceeding filed with the Board a motion to transfer proceeding to the Board and stipu- lation of parties. Therein, the parties agreed upon a stipulation of facts. They also agreed that the charge, the complaint, the answer, and the stipulation, together with certain disciplinary notices incor- porated by reference therein, shall constitute the entire record in the case, and that no oral testimony would be necessary or desired by any 152 NLRB No. 67. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the parties. They further waived a hearing before a Trial Examiner and agreed to submit this case directly to the Board for findings of fact, conclusions of law, and Order. By order, dated February 18, 1965, the Board granted the motion, approved the stipulation and made it part of the record herein, and transferred the case to itself. Thereafter, the General Counsel and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. Upon the basis of the stipulation, the briefs, and the entire record in the case, the Board makes the following: FINDINGS OF FACTS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Nebraska corporation with its principal place of business in Omaha, Nebraska, is engaged in processing hides. On an annual basis, the Respondent ships more than $50,000 worth of prod- ucts to destinations outside the State of Nebraska. We find that the Respondent is now, and at all times material hereto has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, the exclu- sive bargaining agent for an "all employee" unit of the Respondent's employees, having been certified as such representative in November 1963. The Union has a collective-bargaining agreement with the Respondent effective from May 22, 1964, to May 22, 1966. At all times material hereto, Robert Christiansen, Walter Mason, and Levester Hooks, as employees of the Respondent, have served on the Union's bargaining committee. We find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts On the morning of October 7, 1964, Ralph L. Bates, the Respondent's manager and agent, discharged employee Robert Christiansen. Chris- tiansen's discharge, which is not in issue here, occurred when he, believing that his seniority rights would be infringed, refused to accept a temporary assignment to another job. Upon his discharge, he refused to leave plant premises until arrival of police. Following Christiansen's departure from the plant premises, according to Bates' PACKERS HIDE ASSOCIATION, INC. 657 uncontradicted stipulated testimony, which we credit, Walter Mason, a union steward, who was working nearby, said: "Come on fellows, we're walking out until he comes back to work." Mason removed his apron, raised his hands, and repeated the above-mentioned statement so that many employees in the plant could hear him. Of the approxi- mately 28 employees, 8 left the plant about 10:30 a.m. that day, admittedly in violation of a no-strike provision in the existing collec- tive-bargaining contract.' At approximately noon on October 7, pick- eting ensued in front of the plant. None of the employees who walked oft' the job returned to work on October 7. About 2 p.m. on the day of the walkout, Bates went out- side the plant and told the strikers that they could come back to work, but that Christiansen was "fired." So far as appears, Bates did not inform the strikers that the Respondent intended to investigate the matter of the strike or to consider disciplining any of the strikers or any employee responsible for instigating their concerted refusal to work. At approximately 4 p.m. on the day of the walkout, Emerson Dap- pen, Sr., the Union's field representative, appeared at the plant and picketing was discontinued. Accompanied by Mason and Hooks, Dappen went into Bates' office and talked to Bates. In substance, Dappen told Bates that the employees who had walked out had made a mistake and wanted to come back to work. Dappen stated that he wanted the men to report and go to work the following day and asked for Bates' approval. Bates replied that "it would be okay," but that lie would not take Christiansen back; and that "all of them" could report and go to work in the morning, except Christiansen. Bates, who was then "very busy ... filling in on one of the production jobs in order to complete the day's production," stated that he was "too busy" to hold a meeting that afternoon, but would meet with Dappen the following day. Dappen then agreed to set up a meeting on the next day. Finally, Dappen stated that the men would be back at work the following day and that "they would have a meeting and talk about it." 2 On October 8, 1964, all the employees who had walked off the job, but not Christiansen, returned to work at 7 a.m. Mason's timecard was in the rack along with those of other employees. Mason worked all day on October 8, 1964, and punched out at 2:30 p.m., when the 'Just immediately preceding the walkout, employee Levester Hooks, another union steward, went to a pay phone in the plant to call the union field representative Rates approached Hooks at the phone and stated that Hooks did not have to walk out; that if Hooks did walk out "it was over" and Hooks "would not be coming back " Hook replied that he would have to join any union men who walked out since he was a union steward. Hooks was one of the eight employees who walked out 8 The findings in this paragraph of the text, above, constitute a synthe,is of stipulated testimony of Bates, Dappen , Mason, and Hooks. 7 8 9-7 30-6 6-v o f 15 2-4 3 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work was finished. During the period from 7 a.m. to 2:30 p.m. that day, the Respondent's supervisors saw Mason performing his normal work duties throughout the day, but nothing was said by any super- visor about the walkout. About noon, on October 8, 1964, Bates met with the owners of the Company and their attorney to discuss the events of October 7 and possible disciplinary action, and it was decided to terminate Mason for instigating the strike and to give disciplinary layoffs to the rest of the employees who had walked off. During the afternoon of October 8, 1964, there was a meeting in Bates' office attended by Dappen, Christiansen, Mason, Hooks, Bates, and the Respondent's attorney, Frederick S. Cassman. Christiansen's case was discussed, but, before his grievance was resolved, Cassman handed Mason a discharge notice, explaining that he was being dis- charged because he had instigated the strike. Bates then reminded Mason that he had raised his arms and said at the top of his voice, "Come on fellows, let's go." As a result of the meeting, Mason was discharged and has not to date been reinstated .3 B. The, contentions of the parties Generally, it is unlawful to discharge or otherwise discriminate against an employee for strike activities. But such activities are ordi- narily not protected under the Act where, as here, they violate a valid no-strike agreement. However, the General Counsel asserts that by permitting the strikers, including Mason, to return to work and remain at their duties for the rest of the day, the Respondent has condoned the unprotected nature of the strike and may not rely upon this con- tract breach as a defense to Mason's discharge. The Respondent, on the other hand, contends that its conduct did not constitute condona- tion of the contract breach. C. Concluding findings More specifically, the Respondent argues that it was "implicit that the strikers were allowed to report for work pending the results of the meeting set for the afternoon of October 8th," and that "If the Com- pany had unconditionally forgiven the strikers there would have been no purpose in holding a meeting." We do not agree. There was no understanding, express or implied, that the strikers were to return to work pending the outcome of a future meeting of the parties. When, about 2 p.m. on the day of the walkout, Bates invited the strikers to 3 Also, at the same meeting, the Respondent determined that the strikers other than 'Mason would not be disciplined , and gave Christiansen a 20-day suspension for not following orders. PACKERS HIDE ASSOCIATION, INC. 659 return to work, he said nothing about any meeting and made no reser- vation whatsoever, actual or potential, limiting the status of the strikers in any respect upon their return to work. When, about 4 p.m. on the same day, the Union notified the Respondent that the strikers were willing to return to work the next morning, and the Respondent agreed thereto, no issue remained unresolved as to the strikers. At that time, as well as about 2 p.m. that day, Bates knew of Mason's leadership in the strike. Nevertheless, in agreeing to the meeting to be held the next day, Respondent made no reservation that it intended to consider the matter of the strike further or to discipline any striker for participation in, or leadership of, the concerted refusal to work on October 7. It is apparent to us that the meeting of October 8 was for the purpose of considering the matter of Christiansen's discharge and was not intended by the parties to leave open any question per- taining to discipline of any of the strikers. The Respondent's deci- sion, on October 7, in short, was to forgive and forget all aspects of the strike, including both leadership and participation. We find that, by inviting the strikers to return to work and permitting them to work, under the circumstances here, the Respondent condoned the breach of contract. The Respondent, therefore, cannot rely on the breach of the contract as a defense to Mason's discharge. Having once con- doned the otherwise unprotected aspect of the strike, the Respondent's subsequent change of heart and determination to punish Mason for his instigation of the strike of union employees was in reprisal for his protected engagement in such activity .4 Accordingly, we find that the Respondent, by discharging Walter Mason on October 8, 1964, and thereafter failing to reinstate him, dis- criminated with respect to his hire or tenure of employment, thereby discouraging membership in the Union, within the meaning of Section 8 (a) (3) of the Act, as amended." We further find that the Respond- ent discharged Mason and failed to reinstate him because of his con- certed activities, thereby interfering with, coercing, and restraining the employees in the exercise of the rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) thereof. Whether the Respondent's discriminatory conduct be viewed as violative of Section 8(a) (3) or Section 8(a) (1), effectuation of the purposes of the Act requires that Mason be reinstated with backpay. 4 See, for example, Alabama Marble Company, 83 NLRB 1047, enfd. 185 F. 2d 1022 W.A. 5) ; Confectionary & Tobacco Drivers and Warehousemen's Union, Local 805, IBTCWHA (M. Eskin & Son) v. N.L.R.B., 312 F. 2d 108 (C.A. 2), enfd. as modified 135 NLRB 666. The cases cited in the Respondent's brief are distinguishable on their facts or otherwise inapposite. a We find that the conduct of Mason as a union representative in instigating or sponsor- ing the work stoppage of October 7 constituted union as well as concerted activity within the meaning of the Act. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, -occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent violated Section 8(a) (3) and (1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act, in accordance with the Board's normal remedies in such cases.6 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire or tenure of employment of Walter Mason, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By such discrimination, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Packers Hide Association, Inc., Omaha, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organization of its employees, by laying off, discharging, or refusing to reinstate any of 9 See Alabama Marble Company, supra; Crossett Lumber Company, 8 NLRB 440, 497-498, The Chase National Bank of the City of New York, San Juan, Pee, to Rico, Branch, 65 NLRB 827, F W Woolworth Company, 90 NLRB 289 , Isis Plumbing d Heat- ing Co., 138 NLRB 716; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 , 536 (C.A. 4). PACKERS HIDE ASSOCIATION, INC. 661 its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to --elf-organization, to form labor organizations, to join or assist the said Union, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain therefrom, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Offer to Walter Mason immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Notify Walter Mason if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Mili- tary Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Make whole Walter Mason for any loss of pay he may have suf- fered by reason of the Respondent's discrimination against him by payment to him of a sum of money which he normally would have earned as -ages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period, with interest thereon at the rate of 6 per cent per annum. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay clue. (e) Post at its plant in Omaha, Nebraska, copies of the attached notice marked "Appendix A.'' 7 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by the Respondent's representative, be posted by said Respondent immediately -upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material, In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals, Enforcing an Order." '662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of mutual aid or protection, or to refrain from any of the foregoing. WE WILL offer to Walter Mason immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain members of the above-named Union or any labor organization. We will not discrimi- nate in regard to hire or tenure or employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization or because of any protected concerted activity. PACKERS HIDE ASSOCIATION, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NoTr.-If Walter Mason is presently serving in the Armed Forces of the United States he will be offered full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after dis- charge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. SEWANEE COAL OPERATORS' ASSOCIATION, INC. 663 Employees may communicate with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore, 1-7000, if they have any questions concerning this notice or compliance with its provisions. Sewanee Coal Operators' Association, Inc. and United Mine Work- ers of America, Petitioner Grundy Mining Company and Local No. 139, Southern Labor Union, Petitioner M. A. Payne, Inc. and Local No. 139, Southern Labor Union, Petitioner Stephenson Bros. Coal Co., Inc. and Local No. 139, Southern Labor Union, Petitioner. Cases Nos. 10-RC-5497,10-RC-5593, 10-RC- 5604, and 10-RC-5605. May 17,1965 DECISION AND DIRECTION Pursuant to the Board's Supplemental Decision and Order dated April 28, 1964,1 and Order dated June 11, 1964,2 Trial Examiner Fan- nie Boyls issued her attached Report on Challenged Ballots and Events Affecting Composition of Unit, recommending that the Board certify the United Mine Workers of America as the collective-bargaining rep- resentative of all production and maintenance employees of coal min- ing operators who were formerly members of Sewanee Coal Operators Association, including those not now operating but who resume oper- ating old mines either before or after the conclusion of the strike, and including also those individuals who had sole or controlling interest in a corporation which was a member of Sewanee Coal Operators Association who form another corporation and operate a new or differ- ent mine in the geographic area here involved. Thereafter, Grundy Mining Company and Southern Labor Union filed exceptions to the report and supporting briefs. The Petitioner filed a brief in support of the Trial Examiner's report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 1146 NLRB 1145. On October 10, 1963, an election was held among the employees of Sewanee Coal Operators' Association. At the conclusion of the election, a tally of ballots showed that 108 votes were cast for the Petitioner , 50 for the Southern Labor Union, and 421 ballots were challenged . The Board's Decision directed that a hearing be held to resolve the Issue raised by the challenged ballots. 21n this Order, the Board broadened its order to permit the introduction of evidence of events since the election which might affect the propriety of the unit. 152 NLRB No. 71.