Aristo Foods, Inc.

KANSAS MEAT PACKERS 543 Kansas Meat Packers, a Division of Aristo Foods, Inc. and Frank O. Lundin. Case 17-CA-4690 July 31, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 20, 1971, Trial Examiner Lowell Goerlich issued the attached Decision in this pro- ceeding. Thereafter, 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 Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm, as modified herein, the Trial Examiner's rulings, findings,' and conclu- sions and to adopt his recommended Order.2 During the course of the hearing before the Trial Examiner, Respondent moved that further proceed- ings in this matter "be deferred and that the parties be allowed to determine their difference by arbitra- tion rather than by the method of unfair labor practice hearing." The Trial Examiner denied this motion on the ground that-under the terms of the grievance and arbitration provisions of the collective- bargaining contract between Respondent and the Union-an arbitrator would not have the remedial power to award backpay to employees found to have been wrongfully discharged. The Trial Examiner further reasoned that as the remedy which an arbitrator could thus afford-limited to reinstate- ment with full seniority-does not satisfy the remedial requirements of the Act, deference to arbitration would not effectuate the policies encom- passed therein. In its exceptions, Respondent asserts that-under its contract with the Union-an arbitrator would, in fact, have the authority to award backpay and, with reliance on Collyer Insulated Wire Corp., 192 NLRB No. 150, further contends that there should, there- fore, be a deferral to arbitration herein. In agreement with Respondent, we find the record evidence i We hereby correct the inadvertent error-in the "Statement of the Case" section of the Trial Examiner's Decision-wherein March 12, 1971, rather than May 12, 1971, is given as the date on which Respondent issued warning notices to employees Clark and Lundin Elsewhere in the Decision, the date of these notices is correctly set forth The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear prepon- derance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for insufficient to support the Trial Examiner's conclu- sions with respect to the existence of contractual restrictions on an arbitrator's remedial powers. Nevertheless, for the reasons set forth below, we affirm the Trial Examiner's ruling on the motion and find that Respondent's exception based on Collyer is without merit. In our opinion, it would not be consonant with statutory policy to defer to arbitra- tion in this instance as the interest of the Charging Parties-the alleged discriminatees-are in apparent conflict with the interests of the Union and certain of its officials, as well as with the interests of Respon- dent. As more fully set forth in the Trial Examiner's Decision, employees Carrol Clark and Frank O. Lundin were discharged by Respondent on May 21, 1971. In the 1 to 2 months immediately preceding that date, both had made numerous complaints to Respondent's supervisors and to the Union's busi- ness agent concerning alleged work safety hazards, on-the-job injuries, and the failure of Respondent to post job vacancies.3 Their complaints on these issues eventually resulted in friction between them and the business agent, as well as with the supervisors. During the 2 days prior to the discharges, Clark and the business agent had an angry exchange concern- ing some of the above-mentioned issues, Lundin resigned his position as the Union's steward, and both men gave Respondent written notice to termi- nate the withholding of union dues from their wages. Further, as found by the Trial Examiner from credited testimony, on the day the discharges were effectuated, Clark and Lundin were told by their immediate supervisor that he had nothing to do with the decision to discharge them; that Clark's dis- charge was requested by the Union's business agent because of the argument the two of them had the previous day; and that Lundin's discharge was the idea of the Union's business agent, Respondent's president, and the assistant general manager. The Union, concededly, never investigated the circum- stances of these discharges, never filed a grievance with respect thereto, and did not file unfair labor practice charges.4 Clark and Lundin, 4 days after their discharge, filed unfair labor practice charges with the Regional Director for Region 17, but-un- derstandably, in our view-did not elect to file reversing his findings 2 In the absence of exceptions thereto, we adopt , pro forma, the Trial Examiner's recommendation that the complaint be dismissed insofar as it alleges violations of the Act other than those found in his Decision 3 Lundin's complaints-often on a daily basis-were largely made in his dual capacity as union steward and safety committeeman for the "kill floor" department. 4 Business Agent La Rue Moore testified that when Respondent informed him of the discharges, he replied, "If you want to fire them, you fire them " 198 NLRB No. 2 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievances under the contract between Respondent and the Union. Under all the facts and circumstances set forth above-particularly the apparent antagonism be- tween the interests of the discriminatees, on the one hand, and both parties to the collective-bargaining contract herein, on the other, and the discriminatees' resultant election to refrain from seeking redress through that contract's grievance procedures-we conclude that it would be repugnant to the purposes of the Act to defer to arbitration in this case as to do so would relegate the Charging Parties to an arbitral process authored, administered, and invoked entirely by parties hostile to their interests .5 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 Trial Examiner and hereby orders that Respondent, Kansas Meat Packers, a Division of Aristo Foods, Inc., Holton, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. to as the Act, by unlawfully discharging employees Carrol Clark and Frank O. Lundin on or about May 21, 1971. In addition, in the complaint it was alleged that the Respondent violated Section 8(a)(1) of the Act by issuing written disciplinary notices to employees Carrol Clark and Frank O. Lundin on March 12, 1971,1 that the Respondent had told an employee that a fellow employee had been discharged because he resigned from his position as steward and member of the Union, and that the Respon- dent told an employee that he had been discharged for having argued with a representative of the Union. ° The Respondent filed a timely answer denying that it had engaged in or was engaging in the unfair labor practices alleged. The case came on for hearing on October 5 and 6, 1971, at Topeka, Kansas. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record , to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered by the Trial Examiner. Upon the whole record2 and upon his observations of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT S Cf National Radio Company, Inc, 198 NLRB No 1, issued this day, wherein we withheld our processes and deferred to contractual arbitration, inter aim, an allegation that the employer therein violated Section 8(a)(3) of the Act when it suspended an employee from his job. However, this deferral to arbitration in National Radio was predicated on our finding that the interests of the union and employee therein were in "substantial harmony" and that there was, therefore, no ground for assuming that the employee's interests would be inadequately represented under contractual procedures. In the instant case, conversely, the interest of the union and employees involved are in substantial conflict and, as a result thereof, reasonable ground exists for assuming that the latter's interests may not be adequately represented in the arbitral process Member Jenkins would not defer to arbitration for the reasons set forth in the text, for the reasons given by the Trial Examiner, and for the reasons set forth in his dissents in Collyer Insulated Wire, 192 NLRB No 150, Terminal Transport Co., Inc, 185 NLRB No 196, and National Radio, supra TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH , Trial Examiner : A charge filed by Frank O. Lundin on May 24, 1971, was served by registered mail on Kansas Meat Packers, a Division of Aristo Foods, Inc., herein referred to as the Respondent, on May 25 , 1971. A complaint and notice of hearing was issued on July 22, 1971, wherein it was alleged that the Respondent had violated Section 8 (a)(1) and (3) of the National Labor Relations Act, as amended , herein referred i Herinafter the year 1971 is referred to unless otherwise indicated. 2 General Counsel's motion to correct the transcript as follows is Respondent is a division of Aristo Foods, Inc., a Missouri corporation. It operates a meatpacking facility in Holton, Kansas, where it is engaged in the slaughtering and meatpacking industry. In the course of its business operations the Respondent annually sells and ships products valued in excess of $50,000 directly to customers located outside the State of Kansas. Respondent is now, and at all material times herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Teamsters Union Local 696 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is now, and at all material times herein has been , a labor organization within the meaning of Section 2(5) and (6) of the Act. III. THE UNFAIR LABOR PRACTICES A. Statement of Pertinent Facts The Respondent commenced its slaughterhouse and meatpacking operations at its Holton, Kansas, plant around August 3, 1970, and thereafter negotiated and granted . p 84, 1. 18, strike the word "stipulates" and insert the words "does not stipulate." KANSAS MEAT PACKERS 545 executed with the Truck Drivers and Helpers Local Union No. 696, Topeka, Kansas, the Union herein, a labor agreement effective November 1, 1970, which was to remain in effect until and including October 31, 1974. The labor agreement in article IX provided that "The Employer shall not discharge nor suspend any employee without just cause but in respect to discharge or suspension shall give at least one (1) warning notice of the complaint against such employee to the employees, in writing and a copy of the same to the Union affected, except that no warning notice need be given to employee before he is discharged if the cause of such discharge is dishonesty, or drunkenness, while on duty, or the carrying of unauthor- ized passengers. . . . Discharge must be by proper written notice to the employee and the Union affected. Any employee may request an investigation as to his discharge or suspension. Should such investigation prove that an injustice has been done an employee shall be reinstated with full seniority."3 In article X of the agreement it is provided, "In the event a dispute or grievance is not satisfactorily adjusted by the said business representative and Company within three (3) days from the date presented by said business representative to the Company, either party may request a Board of Arbitration. This board shall be composed of one representative selected by the Union and one representative selected by the Compa- ny. . . . Said Board shall have power to adjust any difference that may apse regarding the application or interpretation of this grievance but shall have no authority to modify or amend this Agreement."4 It is further provided that the parties agree that the decision of the board of arbitration "shall be final and binding upon the parties" and "shall immediately thereupon be followed and placed in full force and effect, provided, however, upon failure to comply to Arbitration Board's decision, both parties shall be granted all legal and economic recourse." "Each party shall bear the expense for the arbitrators chosen by him and the expense of the third shall be borne equally between the parties. Pending the decision of the Board of Arbitration, there shall be no strikes, lock-outs, or any cessation of work by either party on account of such dispute." The two alleged discriminatees, Lundin and Clark, worked in an area referred to as the kill floor. Here employees occupied the several stations along a chain conveyor line or rail from which beef cattle were suspended. The line transported beefs from station to station at time intervals of between 1 and 2 minutes. The slaughtering process commenced with the "knocking" of the cattle and ended with the slaughtered beef ready for the cooler. About 27 or 28 employees worked on the kill floor. About 40 or 50 cattle were processed each hour. Theador A. Peterson was the foreman on the kill floor. Alleged discriminatee Lundin was the union steward and safety mans for the kill floor at the time the events herein related occurred. It was his second tour in such capacity. He had been hired in August 1970 for employment on the kill floor, but was later transferred to maintenance at which time he relinquished his union assignments. He became dissatisfied with his maintenance job and request- ed a transfer to the kill floor. In the face of his threat to quit the Employer returned him to the kill floor sometime in late April or early May 1971. Here he again became a union steward and safety man. Lundin, as a steward and safety man, was an activist. During the second period of his stewardship he brought to Peterson's attention such things as "dollies falling and hitting people on the head," "the hide puller, the hooks were coming down the rail, they [were] hitting people," the air knives (they were being dulled by emery cloth), "the blood rail, the blood would get deep," and there was a blood buildup, sometimes "over [the] shoe tops." Lundin also complained that the beefs were coming through alive6 and that the stickers were not only having difficulty trying to stick them, but "they couldn't stand up in this blood, they would slip." Lundin also avidly pressed his objection to the use of emery cloth on air knives which he believed dulled their blades causing hazard to the air knife operator. Assistant Foreman Jimmy Allen Reed who used emery cloth on the knives was a frequent target for his comments. Job bidding on the kill floor also concerned Lundin. During this period Lundin attended a union meeting at which Assistant Union Representative James Glenn was present. Lundin raised the subjects of job bidding and safety. Glenn opined that it was the employees' "privilege to bid on a job when it was open." On the subject of safety Glenn told Lundin to raise the matter with the foreman.? The next morning Glenn asked Assistant Manager Dale Taylor about posting jobs for men on the kill floor and also mentioned that "the safety was bad." Peterson was present. Lundin was informed that the Respondent "didn't have to post these jobs." Lundin responded that Glenn had told him "at the union meeting that [the Respondent had] to post these jobs." Lundin's persistence apparently gained little. After several weeks of almost daily mention of the hide puller, Peterson's response was that he would get the matter taken care of as soon as possible. On one occasion Lundin asked Peterson why they could not get a man to "squeeze that blood off the floor and also have the cattle knocked .. . 3 There appears to be no specific stipulation in the contract providing for the restoration of backpay 4 The agreement also provides Within twenty-four (24) hours of the time any dispute is referred to it by either party, said Board shall meet to consider such dispute If the Board, within twenty-four (24) hours after such meeting, cannot agree on any matter referred to it, the members thereof shall choose a third member, having no business or financial connections with either party. In the event the member chosen between the Company and the Union shall fail to agree upon the selection of a third member of said Board within the said three (3) days, then the nearest Federal Judge shall be requested to appoint the third member When so constituted, said Board of Arbitration shall immediately proceed to consider said dispute or grievance and shall, within five (5) days, render its decision, thereon in writing. 5 The agreement provides- A joint Company-Union safety committee shall be established in each department. This committee shall convene once each week for the purpose of reviewing accidents and arriving at suggestions for accident prevention 6 As detailed hereinafter alleged discriminatee Clark was injured through the kick of a live beef. 7 Lundin testified, "He said it was the safety men on the floor should go to the boss and tell him, that is what he told me I was to do, to go to the foreman first and talk to him about safety. To explain what was wrong and like that." 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were stunned, they were coming through alive, they [were not] dead." Peterson said that he would see about it, but he did not. According to Lundin the beefs "kept right on coming through alive." Reed continued to use emery cloth on the air knives. Some time after Lundin was transferred to the kill floor (Peterson fixed the date at approximately a month before May 21) Lundin was injured on the hide puller. During the hide pulling process the front legs of the beef are shackled by chains while the hide is being pulled in an upward direction. As the hide moves upward, an employee uses an air knife to separate the hide from the flesh. As the hide puller ascends, an elevator follows on which the employee stands, thus maintaining the employee on the same level where he is cutting the hide from the flesh. The elevator is activated to lift or lower by separate buttons which are engaged by the employee. At the time of Lundin's injury a leg chain disengaged. The beef, swinging free, struck Lundin knocking him from the elevator against the gut table where he injured his back and arm. He picked himself up and retrieved one of the chains which was lying on the platform and threw it toward a bucket wherein chains were stored. He missed the bucket. He again hooked the chains and as the hide was being pulled the elevator failed to lift. Lundin "stomped" the button to get it in a position so that it would activate the elevator.8 By the time the elevator lifted "the cow kicked it off and went on around." 9 Peterson at first denied that Lundin had been injured but later admitted that he was "hurt but he said he could keep on working." 10 Peterson also agreed that Lundin went to a doctor "sometime there" and missed a day's work. When Lundin returned to work he was excused from hide pulling since his injury would not permit him to handle an air knife. A few days later Lundin was taken to Assistant General Manager Dale Taylor's office by Foreman Peterson where he told Taylor that "this man throwed a chain, kicked the elevator." A warning letter dated May 12 was given to him allowing him until May 22 to improve his performance. According to Taylor, Peterson reported to him that "Lundin was running the hide pullers, he was running the hides on it. He has two buttons on it. He said he was stepping on the wrong button and got angry and was kicking the button and fell off the hide puller and threw a hide chain across the floor." 11 Peterson said that he was prompted to recommend the warning letter because of Lundin's "attitude toward his work and the mistreatment of equipment." Some time during the 6-day work period 12 between May 12, the date of the warning letter, and May 21, the date of Lundin's discharge, Business Agent LaRue Moore, Taylor, Peterson, and Lundin, prompted by a call from Lundin concerning working conditions, convened in Taylor's office. Moore listed as some of the topics discussed: "insufficient water pressure at the water fountain at the water cooler out on the kill floor; the problem of the drain in the blood pit; the fact that they needed grates in the blood pit to keep the men from slipping; the switch on the light that blinded the cattle when they come in before they knock them was broken and they couldn't use those lights; the question of sharpening knives was brought up." Job posting was also discussed. Moore stated that jobs need not be posted. Lundin responded that Union Representative Glenn had said that the jobs "had to be posted." On the subject of air knives Lundin charged that Assistant Foreman Reed was using emery cloth on the knives and ruining them.13 Moore said, "There is nobody supposed to touch them knives except the boys in the basement [maintenance employees]" and told Lundin to have it stopped. Thereafter Lundin reminded Peterson that the "union man" had told them that "nobody should touch them [the knives] but the boys in the basement"; Peterson retorted, "You can go to hell and get off that union safety kick or you will be fired, or you will be looking for another job." On the same day Lundin had a run-in with Reed about the knives. Lundin said to Reed in reference to the use of emery cloth, "Jim, that is not right, you have caused boys to get letters for that dulling these knives." Reed replied "It doesn't hurt them, you can go to hell. . . . I will do anything I damn please on this floor." 14 Following this incident an employee who worked in the basement on sharpening knives asked Lundin to meet with him there. When Lundin finished what he was doing (trimming meat from heads) he went to the basement where he "ran into" Assistant Maintenance Foreman Forest Lethcoe. Lundin told Lethcoe not to give Reed any more emery cloth. Lethcoe "kind of got upset"; Lundin then turned to the employee who informed him that four sets of blades had been ruined that morning. Lundin observed that Reed was using emery cloth because he had "caught him." Lundin returned to his job. He was absent about 5 minutes.15 On March 19, Lundin called Moore's office and talked B Peterson agreed that what Lundin did on the elevator was "to [stomp ] or [step ] on it to get the elevator to go " 9 Lundin explained as follows "There is a button that the maintenance man would never fix on it and there is a little screw that goes in there and that button turns and you have to stomp it several times to get it to turn around to go up . That is what I had done " 10 Reed testified that it was reported to him that Lundin hit his elbow on the gut table. 11 Peterson testified that he told Taylor "just told him the way it was That I thought he ought to have a warning letter so he could control his temper a little bit" Peterson described the incident "he was on the hide puller and the hide was on the chain and he was on the hoist and the hoist wouldn't go up when he wanted it to so he kicked the button, then he fell off the hide puller and threw the hide puller chain across the floor, but the point was the abuse of the hide puller, not the chain It didn't have anything to do with that " In regard to Lundin's fall Peterson testified , "!just saw him fall, I didn't see how he fell or when he fell I just saw him fall." 12 The labor agreement provides "The basic work day will be eight (8) hours. The basic work week will be forty (40) hours " 13 Lundin had received complaints from employees concerning Reed's use of emery cloth on the knives Lundin had also observed the same thing. 14 Lundin's uncontroverted and credited testimony 15 Since his job was not directly related to the line Lundrn s absence caused no interruption to the line . Nor was there any proved interference with the Employer's business other than the exercise of a steward's prerogatives In this regard the agreement provides The Employer recognizes the right of the Union to designate job stewards and alternates from the Employer's seniority list. Stewards should continue in their regular employment The authority of job stewards and alternates so designated by the Union shall be limited to and shall not exceed, the following duties and activities. KANSAS MEAT PACKERS 547 to "some lady down there." Lundin told her that he was resigning from "the union's affairs" because he "couldn't get anything done." He said that he was "tired of being drug to the office and getting nothing settled." Before the telephone call was completed, Lundin's wife, Patricia Lundin, spoke to the lady. Patricia Lundin told the lady that she "should send someone to the plant that evening or that day after working hours that there was a lot of trouble in the plant with employees." She informed the lady that the employees were ready to resign from the Union and that "someone should come down and talk to them and explain things to them." On the same date Lundin had delivered a note to the Respondent's office advising it not to withhold union dues from his check. Moore appeared at the plant the next day, May 20, where he talked to Patricia Lundin. While talking to her, he called to Franklin Lundin and inquired of him what the problem was. Lundin responded, "You'll just have to ask the men on the kill floor, I done resigned." When Lundin returned to work after his injury he helped another employee hide trim meat. Thereafter until May 21, the day of his discharge, he worked on various jobs filling in for absent employees. During this period he made no complaints about his assignments nor was his work performance criticized. On the day he was discharged he was scaling cattle. On May 21 Peterson handed Lundin a discharge letter in which it was indicated that his attitude had not changed toward his job or the Company. Peterson commented, "This is not my idea . . . it was Taylor, Bud Moore, and Van Allen.'6 . . . Jim [Reed] or I had nothing to do with it." 17 Peterson denied the remarks attributed to him and maintained that he had recommended Lundin's dis- charge.18 Carrol Clark commenced working for the Respondent on September 23, 1970. He was an inexperienced employee. Clark and another employee, Daniel J. Perry, were cattle headers. This job consisted of sticking or slashing the (1) The investigation and presentation of grievances to his Employer or the designated company representative in accordance with the provisions of the collective bargaining Agreement. 16 Van Allen is the president of the Respondent i7 Larry Stephen Hefty heard Peterson remark, "I am sorry to do this, Jack, but I want you to know that I and Jimmy Reed didn 't have anything to do with it." Employee Gerald Gordon testified that he was told by Peterson that "Van Allen had passed the word down to fire him, that he didn't want to but he had to " 18 The Trial Examiner views Peterson as a totally unreliable witness Both the nature of his testimony and his demeanor have convinced the Trial Examiner that he is not a person to be believed Where his testimony is in conflict with other credible witnesses he has been discredited In his affidavit to the Board Peterson deposed- About May 17, 1971, Lundin told Reed and Forrest Leftco [sic], assistant foreman and maintenance engineer, respectively, they could not use emery cloth to sharpen knives Upon being told about the matter by Reed and Leftco, I recommended to Taylor that Lundin be discharged In his testimony Peterson first said that he recommended Lundin's discharge "on the basis of his performance." Later he testified that he recommended Lundin's discharge because Well, mostly complaints of one man couldn't do that or one man couldn't do this, the jobs that he was doing that he couldn't handle And the other reason was telling me that I couldn't do this and told the throat of a beef, skinning the head out, and dropping the head on a blood table.19 It was important to "stick" the beef correctly for otherwise the sweetbreads would be spoiled. The sticking and skinning of heads was the first operation performed after the cattle had been stunned by the knocker. The stunned cattle were suspended by their hind legs from what is called a dead rail where they were stuck by headers Clark and Perry. They then passed to the blood rail where Clark and Perry skinned the heads out and dropped them on the blood table. Sometimes, the beefs hanging in diverse directions were jammed so closely together on the dead rail that it was difficult for Clark and Perry to perfectly stick them. Other times the cattle were not fully stunned. On one of these occasions, around the middle of March 1971, such a beef kicked Clark's knife out of his hand. The knife struck Clark in the chest. When Clark reached for the knife the beef kicked again hitting the knife which then stuck in Clark's hand. Clark's injuries required seven stitches. On prior occasions, as on this occasion, Clark, in the company of Lundin, complained to Peterson about the danger of live cattle coming down the line. Peterson responded that "it wasn't nothing of his doing and there wasn't nothing he could do about these beef coming down there alive. Every time a beef comes down there alive that the chain couldn't be shut off, to go ahead and stick them and do the best we could do." Lundin and Clark had requested that the line be stopped and a knocker called to complete the job. Clark occasionally performed other tasks. He had been injured previously while working on the hide puller in the latter part of February or early part of March 1971. Clark slipped on an accumulation of blood on the cement floor and fell on his back. Clark and Lundin repeated their complaints to Peterson about the slickness of the floor and asked whether water could be used to remove the blood. Peterson responded that he would see what he could do about it, but they should continue with their work. Some time during the middle of April while Reed was filling in at the gutting table Reed told Clark that he "was maintenance foreman that he couldn't do so and so Later he testified that another thing he relied on for his recommendation was that "when the incident occurred where one man didn 't come to work and they told me that I couldn' t take one man from another place to fill the other position in order to operate the kill floor. He said the union-in other words, the job that a man was assigned to, that you couldn't change him from thatjob to someplace else in order to operate " According to Taylor he told Union Business Agent Moore that the discharge of Lundin was because of a "direct violation of leaving his appointed place of duty." In its brief the Respondent contends that Lundin was discharged for "poor job performance." Except for the matter of job performance (which is irrelevant in that during the 6 workdays after the warning there is no credible evidence that Lundin was deficient in his job performance), all reasons given for Lundin's discharge are directly related to his activities as a union steward or safety man Nothing in the contract offered in evidence stamps his alleged objectionable conduct as a violation of its terms. 19 Clark described the function as follows: "I worked on one [beef] .. one dropped off here, I would take this one and skin it out and then go back and stick some and as the next one dropped out he (Perry I would skin it off, and then when I came back from sticking, he would go back and stick. I would work one and he got the next one, and so forth , or maybe one of us would take three or four beefs right in a row and the other one would stay back and stick them." 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sticking the skin in the head" and that he should "go over on the gut table and do this job and we would do [his] job." Clark went to the gut table and commenced gutting. At lunchtime Clark took the matter up with the union steward and discussed with him whether or not Reed could assign him to the gutting table. Clark considered gutting to be a particularly distasteful job. John Arnures, the steward, went to the office and returned with the message that "the assistant foreman did not have to get up on the gut table if he did not want to." Armires told Clark to continue the work on the gut table and that he would settle the matter later. Clark also attended union meetings at which Lundin and Assistant Union Representative Glenn were present and at which the questions of safety and job bidding were discussed. On May 12, 1971, Clark was informed by letter that unless his performance improved by May 22, 1971, he would be discharged. Perry received a similar letter. According to Perry, Peterson told Clark and him at the time that "he was having trouble with the veterinarian on the performance of [their] work in not having the cattle stuck, automatically keeping up and the neck open to the stick on your handle, that they had to be open, and the cattle had to be stuck at the time of dropoff." During the intervening period from May 12 to 22, Perry indicated that he had tried harder but was still having trouble. He was not discharged.20 When Moore appeared at the Employer's plant on May 20, he also talked to Clark. Clark asked Moore about withdrawal cards from the Union and Moore replied that the employees "would not get withdrawal cards." Clark also asked him about the posting of jobs and the various safety hazards at the plant, including "the sticking of these live beeves; shackles coming down and falling down on the blood pit." The question of bidding was also raised to which Moore responded that "as far as the people on the kill floor could not bid on these jobs because if they did so. they wouldn't have enough on the chain and therefore they could not have this." Clark also asked him why he and "Mr. Glenn couldn't get their stories straight on what they told" the employees. Moore became angry and "walked off." During the conversation Clark also asked Moore why it was that, when Lundin called him at Topeka and wanted him to come to the plant, he would not come, Moore 20 Reed testified that Perry improved, but Clark "got a little bit worse " It was Perry's observation that Clark's performance was "about the same" as his performance It was Reed's opinion that Clark was a good header if he wanted to be According to Assistant Foreman Armires he observed Clark slowing down "just one time" after he had received the warning letter 21 Clark testified, "we decided beings the union and the company wouldn't get together and do things that they should be doing, and different safety deals and nothing could be done about them, we could see no future of belonging to the union any more, so we decided that we might Just as well drop out of it " 22 Employee Steve Whiteman remembered that Peterson said to Clark, 'I tried to talk the office out of the letter but that Jim Glenn and 'Bud' Moore had Kansas Meat Packers make out a discharge letter because Clark had argued with the union man " Employee Perry remembered that Peterson said "that he was sorry that it was a letter of discharge, that it was over his head, that the letter had been issued from Mr 'Bud' Moore and Jim Glenn, and the letter was on company stationery " Peterson denied making the foregoing statement His denial is not credited 21 Taylor described his conversation with Moore as follows "I told him I responded that "he couldn't take the time to run up to Ansto every day because there was some little complaint made." During the noon luncheon period Clark discussed with other employees of the kill floor whether they should withdraw from the Union.21 Clark later delivered a revocation of checkoff to the Employer's office as did a number of other employees. On May 21 Clark was handed a discharge letter by Peterson who said that "he didn't have nothing to do with it, he didn't want to see [Clark] go, but that they had told him in the office that it was because [he] had had an argument with `Bud' Moore and `Bud' Moore had called Mr. Van Allen, the company president, and had him call down at the office, down at the plant, and have him write up [his] discharge papers."22 Taylor, although he admitted that he conversed by telephone with Moore on May 21, denied that the Union had requested the Employer to discharge either Lundin or Clark. Taylor admitted that he knew the union revocations had been submitted to the Employer's office, and in the telephone conversation with Moore he had informed him that nine employees had submitted withdrawals. Moore denied that at the time of the telephone conversation he knew that there had been any union withdrawals, or revocations of checkoff. Moore's denial is not credited. Taylor also testified that it was not the Employer's practice to call the Union and advise them of intended discharges, but that such information was given to the Union in the instant case because Lundin was a steward.23 B. Conclusions and Reasons Therefor A finding of misconduct by the Respondent as alleged by the General Counsel depends to a great extent on the credibility of the various witnesses. If the General Counsel witnesses are to be believed the discharges of Lundin and Clark were unlawful. In this regard the Trial Examiner has generally discredited the Respondent's witnesses and credited the General Counsel witnesses. Such a finding is based both on the demeanor of the witnesses and the natural logic of probability. In this latter aspect these factors convinced the Trial Examiner that the Respon- dent's motives were unlawful and that the discharges of Lundin and Clark violated the provisions; of the Act: (1). The discharge of Lundin and Clark followed closely upon was firing Frank Lundin and that he was the union steward and of course, he wasn't a 100 percent in favor of this and he wanted to know why I gave him the reasons, he was already aware of the reasons on the warning letters, I am sure, and I stated the reasons that I was firing him and he said, well, under those circumstances, he couldn't do much about it, and then also in the same conversation as long as I had him on the phone, I also said, I am firing Carrol Clark At that time I don't think that I gave him a reason except it was his workmanship, that was it " Taylor also testified that Moore had asked him why he was firing Lundin and on cross-examination stated, "when I told him it was a direct violation of leaving his appointed place of duty, he said, 'well, under the circumstances of that nature, a violation of the contract, I can't protect him ' " Moore on the other hand testified that Taylor said to him that "he was going to fire Frank Lundin and Carroll Clark because they weren't keeping up with the work " Moore replied "if you want to fire them, you fire them " Moore testified that, at the time of the discharges, he had not known that any of the employees had transmitted revocation slips to the Company He said that some time later he heard about it "through [his] son who was working there." KANSAS MEAT PACKERS 549 the heels of Clark's complaint to Moore and knowledge that certain employees, including Clark and Lundin, were defecting from the Union. (2). Credible evidence fails to establish that, during the 6 workdays allowed Clark and Lundin to shape up, these employees did not perform satisfactorily on a comparative basis.24 (3). Lundin and Clark were the only employees on the kill floor who aggressively pressed employee grievances against the Respondent or the Union. (4). The 6 workdays allotted to Clark and Lundin to shape up appeared insufficient for that purpose, and is suggestive that the warnings specifying such a brief shapeup period were given to comply with that part of the contract which required at least one warning before discharge, and particularly in Lundin's case to set him up: for later discharge. ;(5). The Respondent valued Lundin's work performance to the extent that it retained him and transferred him to the kill floor when he threatened to quit unless transferred out of maintenance. (6). The reasons tendered by employer representativesfor the disciplinary action. taken lacked consistency. (7). The'fact that Perry was not discharged although there was little difference between his work performance and that of Clark indicates that something other than work performance triggered Clark's discharge. (8). Taylor's conversation with Moore, which was not his usual practice in respect to discharges, creates the inference that unusual circum- stances other than explained by Taylor surrounded the discharges of Clark and Lundin. (9). Peterson's threat to Lundin, which was uncontroverted, that, if Lundin didn't "get off that union safety kick" he would be fired, anticipated the Respondent's real motive for the discharges of Clark and Lundin for pressing employee grievances against the Employer. (10). There is no credible evidence that Lundin's discharge was for lack of satisfactory performance in his job assignments during the shapeup period. Accordingly the Trial Examiner finds that the real reason for the discharges of Clark and Lundin was bottomed on their vigorous pursuance of grievances involving alleged unsatisfactory working conditions and their attempts to enforce safety demands at the Respon- dent's plant,25 protected concerted activities. Hence the Trial Examiner finds that by its discharges of Lundin and Clark on May 21, 1971, for engaging in protected concerted activities as herein detailed, the Respondent violated Section 8(a)(1) of the Act. Red Line Transfer and Storage Company, Inc., 194 NLRB No. 25; C & I Air Conditioning, Inc., 193 NLRB No. 132; Knitweave Finishing Co., Inc., 183 NLRB No. 122. 24 In this respect it is significant that on the basis of the credible record Clark's performance was about the same as Perry's performance Perry was warned but not discharged at the end of the 6 workdays As to Lundin it was admitted that he was sometimes assigned to work on which he had no experience Moreover, his alleged lack of satisfactory performance wanted specificity 25 The agreement provides Employer agrees to furnish and maintain sanitary and adequate rest rooms, lockers and showers Hooks will be provided on each employee's locker and the Company will provide for clean clothing to be hung on each employee's locker The employee will cooperate by seeing that clothing is properly marked and that soiled clothing is placed in the containers provided Employees shall wear clean and sanitary clothing at all times Employees agree to help keep premises clean by disposing of paper, The General Counsel also claims that the warning letters given to Lundin and Clark were unlawful. As to Clark's warning letter the Trial Examiner is of the opinion that the General Counsel has not sustained his burden in this respect. At the time the warning letter was given neither Perry nor Clark was meeting performance standards, and they were causing the line to be stopped by the vetennan- an. While there is a strong suspicion that Clark received his letter because of his prior protests and that Perry was included to gloss the disciplinary action taken against Clark and Lundin, nevertheless, the Trial Examiner is unable to find that Clark's warning was not for cause.26 In regard to Lundin the Trial Examiner is convinced that his warning letter stemmed from the antagonism which he had created in management because of his resolute pursuit of grievances. The incident on which the warning letter was allegedly based was one on which an employer would normally have expressed sympathy rather than to have administered discipline. Lundin was injured through no fault of his own. Moreover the credible evidence is that he abused no equipment but was a victim of certain deficiencies in such equipment. Under the circumstances, to justify its action the Respondent would have to be ruled inhumane. Rather, the Trial Examiner finds that the Respondent seized upon the incident as a pretext to support its intent to discipline Lundin for his activism as a union steward and safety man and to set him up for a later discharge. Accordingly, the Trial Examiner finds that by issuing the disciplinary warning in the Respondent's letter of May 12, 1971, the Respondent violated Section 8(a)(1) ,of the Act. The Trial Examiner further finds that the 8(a)(1) misconduct of the Respondent also included its statement to an employee that an employee was being discharged because he argued with the representative of the Union. Such misconduct interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- iployees in the exercise of their rights guaranteed them by trash, etc., in containers made available by the Employer A joint Company-Union safety committee shall be established in each department This committee shall convene once each week for the purpose of reviewing accidents and arriving at suggestions for accident prevention The Company agrees to maintain adequate first-aid equipment at both plants Employees agree to practice safe working methods and report all injuries to their supervisor immediately upon receiving them. The Company will furnish the following safety equipment, one set only, of mesh gloves, leather aprons, safety helmets, rubber gloves, goggles and any other safety equipment that, in the opinion of the Company, is necessary The Company will list safety equipment by jobs 26 As noted above the picture changed as to Clark whose protests became more vociferous and were carried to the Union with a suggestion of withdrawl therefrom . Perry made no protest 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Franklin Lundin and Carrol Clark on May 21, 1971, because they engaged in protected concerted activities the Respondent has engaged 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. THE RECOMMENDED REMEDY The Respondent moved that this matter be "deferred and that the parties be allowed to determine their difference by arbitration rather than by the method of unfair labor practice hearing." In support of its motion the Respondent offered the entire transcript of the evidence submitted to the arbitrator which was admitted as an exhibit in this case. In the arbitration hearing Respondent's counsel stated the issue before the arbitrator to be "one of whether basically the discharge of Carrol Clark and Frank Lundin was a discharge for proper cause as is provided for in Article 2 of the agreement." Counsel for the Union stated "it's the position of the union very clearly that in this case Frank Lundin and Carrol Clark were both discharged for engaging in protected union activity as well as engaging in protected antiunion activity." Thus similar factual issues before the arbitrator are before the Trial Examiner.27 However, the germane question is whether by deference to the arbitrator, the policies of the Act will be effectuated in this case for, where an unfair labor practice is found to have been committed, the statute binds the Board "to take such affirmative action . . . as will effectuate the policies of the Act." Thus one must look to the Remedy. In its brief the General Counsel requests the following remedy: Find that the Respondent's conduct violated Section 8(a)(1) and (3) of the Act, as alleged in the Complaint. Require the Respondent to rescind the disciplinary notices it issued to Lundin and Clark and expunge these notices from their personnel records. Direct the Respondent to post an appropriate Notice. Require the Respondent to offer Lundin and Clark full and immediate reinstatement without prejudice to their seniority or other rights. Require the Respondent to make Lundin and Clark whole for any loss of wages they may have suffered as a result of Respondent's unfair labor practices. Except for the General Counsel's request for the rescinding and expunging of Clark's disciplinary notice from his personnel record and for a finding of an 8(a)(3) violation, the Trial Examiner is of the opinion that the 27 The transcript submitted to the arbitrator, which incorporates the testimony of certain witnesses taken in this case , has been reviewed in its entirety by the Trial Examiner. The decision of the arbitrator has not been received. 28 The arbitrator "shall have no authority to modify or amend this agreement " 29 See Rushton Company, 158 NLRB 1730, 1740 General Counsel's requests are well taken. Since the labor agreement provides that if an "injustice has been done an employee he shall be reinstated with full seniority" and does not provide specifically for backpay, it would appear that the arbitrator's remedial power is limited28 to reinstatement only. In that the arbitrator's remedial power is limited by the agreement and is not coextensive with that of the Board the remedy which the arbitrator may afford will not satisfy the remedial requirements of the Act. Thus deference to the arbitrator in this case cannot effectuate the policies of the Act as therein envisioned. Accordingly the Trial Examiner denies Respondent's motion. It having been found that the Respondent unlawfully discharged Franklin Lundin and Carrol Clark, it is recommended that the Respondent remedy such unlawful conduct. It is recommended in accordance with the Board's policy29 that the Respondent offer Franklin Lundin and Carrol Clark immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to each of them a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It is further recommended that the Respondent be ordered to rescind and expunge Lundin's disciplinary notice dated May 12, 1971, from its personnel records. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended: ORDER30 The Respondent, Kansas Meat Packers, a Division of Aristo Foods, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating in regard to their hire, tenure of employment, or any term or condition of employment, because they have engaged in protected concerted activities for the purposes of collective bargaining or other mutual aid or protection. (b) Relating to an employee that he was being discharged for having argued with a representative of the Union. 2. Take the following affirmative action which will effectuate the policies of the Act: 30 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. KANSAS MEAT PACKERS (a) Offer Franklin Lundin and Carrol Clark immediate and full reinstatement to their former jobs or, if their former jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and make each whole for any loss of pay that he may have suffered by reason of the Respondent's discrimination against him in accordance with the recom- mendations set forth in the section of this Decision entitled "The Recommended Remedy." (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 amount of backpay due under the terms of this recommended Order. (c) Rescind and expunge from its personnel records Franklin Lundin's disciplinary notice dated May 12, 1971. (d) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (e) Post at its Holton, Kansas, plant copies of the attached notice marked "Appendix."31 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are 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. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.32 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this decision. 31 In the event that 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 32 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read. "Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 551 A Trial Examiner for the National Labor Relations Board after a hearing in which all parties were permitted to introduce evidence found that we wrongfully discharged Franklin Lundin and Carrol Clark because they engaged in protected concerted activities consisting of their presenta- tion of grievances concerning unsatisfactory working conditions and safety and that their discharges violated the National Labor Relations Act. WE WILL give Franklin Lundin and Carrol Clark back their jobs or, if their jobs no longer exist, substantially equivalentjobs. WE WILL restore their seniority and pay them the backpay they lost because we discharged them. WE WILL NOT discharge any employee for the reasons for which the Trial Examiner found that we discharged these employees. WE WILL NOT unlawfully discharge an employee for submitting grievances to us about working conditions or safety. WE WILL NOT tell employees that we discharged an employee for arguing with a representative of the Union. All of you are free to become or remain, or refrain from becoming or remaining, members of any labor organiza- tion. KANSAS MEAT PACKERS, A DIVISION OF ARISTO FOODS, INC. (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.