John Morrell & Co.

National Labor Relations Board - Board Decisions

Apr 26, 1984

270 N.L.R.B. 1 (N.L.R.B. 1984)

JOHN MORRELL & CO.
John Morrell & Co. and Jimmy W. Smith. Case 26-
CA-9638
26 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 29 September 1983 Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief, cross-exceptions, and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings,' and conclusions and to adopt the
recommended Order.
On 7 June 1983 the Respondent filed with the
Board a Motion for Summary Judgment requesting
that the Board defer to an arbitrator's decision
dated 26 February 1982 upholding the discharge of
discriminatee Jimmy W. Smith. By order dated 10
June 1983 the Board denied the Respondent's
motion without comment. As indicated at fn. 1 in
the judge's decision, the Respondent's argument for
deferral was not renewed before the judge. The
Respondent excepted to the Board's denial of its
Motion for Summary Judgment and again requests
that the Board defer to the arbitrator's award. We
decline to defer to the arbitrator's decision as we
find it is not consistent with the standards for de-
ferral set forth in Spielberg Mfg. Co.'
The 1979-1982 collective-bargaining agreement
between the parties contained only a general no-
strike/no-lockout clause without additional refer-
ence to duties of union officials in such circum-
stances.s On 21 October 1981 an unauthorized
I The Respondent has excepted to some of the judge's credibility find-
ingp. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall P'oducts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d CU. 1931).
We have carefully examined the record and find no basis for reversing
the findings.
· 112 NLRB 1080 (1955).
Art. 11, sec. 5 of the contract provided:
Provisions having been made by this Agreement and local agree-
ments for the peaceful and orderly settlement of any disputes which
may arise between Company and the Union or local Unions or any
Employee or Employees, it is agreed that during the term of this
Agreement there shall be no strike, stoppage, slowdown, or suspen-
sion of work on the part of the union or any local union or any
Union member or lockout on the part of the Company on account of
such disputes until after an earnest effort shall be made to settle all
such matters in the manner provided in the respective agreements.
270 NLRB No. 1
work stoppage occurred at the Respondent's Chel-
sea Street facility during which acting steward
Smith refused to comply with the Respondent's in-
structions that he direct his coworkers to return to
work. Smith was terminated as a result of the work
stoppage and his termination was arbitrated. The
arbitrator did not interpret the parties' collective-
bargaining agreement to find that it imposed an ex-
plicit duty on union officials to make efforts to end
unlawful work stoppages. Rather the arbitrator
relied solely on the published decisions of labor ar-
bitrators to conclude that a union official, by virtue
of his status and office alone, has an affirmative
duty to "actively and unequivocably attempt to
bring an end" to unauthorized work stoppages.
The arbitrator found that "Mr. Smith did not dis-
charge his obligation to see to it that the reasonable
efforts were made to stop the strike."
We find that the arbitrator's award is clearly re-
pugnant to the purposes and policies of the Act' as
interpreted by the Supreme Court in its recent de-
cision in Metropolitan Edison Ca v. NLRB, 460
U.S. 693 (1983). The Supreme Court held that an
employer may impose greater discipline on union
officials only when the collective-bargaining agree-
ment or circumstances surrounding the collective-
bargaining relationship indicate the union has
waived its officials' Section 7 rights by imposing on
them a duty to take affirmative steps to end unlaw-
ful work stoppages.5 The collective-bargaining
agreement involved in Metropolitan Edison con-
tained a general no-strike/no-lockout clause which,
like the one in the instant case, did not include any
explicit language imposing a higher duty on union
officials than on rank-and-file employees. We there-
fore decline to defer to the arbitrator's award as
we find it is not susceptible to any interpretation
consistent with the Supreme Court's opinion in
Metropolitan Edison.6
' The remainig Spielberg criteria re not in issue. No party contends
that the parties had not agreed to be bound by arbitration or that the pro-
ceedings were not fair and regular.
* In Member Hunter's view the Supreme Court in Metropolitan Edison,
supra, clearly held that a waiver may be established by looking beyond
the four corners of the parties' collective-rgaining agreement. Thus, an
explicit and higher duty on the part of union officials to enforce a no-
strike clause may be established by past practice, including an arbitrator's
award covering similar facts and interpreting the contract or a pattern of
arbitration awards rendered under the parties' contract which do not nec-
essarily address the contract language explicitly, at least where such prior
awards are not nullified by the existing agreement as they were in Metro-
politan Edlion. (See Metropolitan Edison, aupra at fn. 13.) Inasmuch as nei-
ther of these conditions are met by the arbitral award here, Member
Hunter agrees with his colleagues that deferral is inappropriate.
e Compare Olin Corp., 268 NLRB 573 (1984), wherein the Board de-
ferred to an arbitration award which interpreted a collective-bargaming
agreement's no-strike claue which contained additional language so u to
require that union officers take affirmative actions in the face of unpro-
tected work stoppages. Member Zimmerman dissented from the articula-
tion and application of a new standard for deferral in Olin, but he agreed
Continued
1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, John Mor-
rell & Co., Memphis, Tennessee, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
CHAIRMAN DOTSON, concurring.
I concur in the decision reached by my col-
leagues. In my view the Supreme Court's recent
decision in Metropolitan Edison Co. v. NLRB, 1
which we follow here, is contrary to a long line of
persuasive arbitral authority permitting precisely
the sort of greater steward discipline involved
here.
The Board has frequently stressed, most recently
in Olin Corp.,2 that national labor policy strongly
favors the peaceful settlement of labor-management
problems through the voluntary arbitration of dis-
putes. The importance of deferring to the "industri-
al common law ... of the industry and the shop"3
created through the arbitration process cannot be
overemphasized. In their many years of creating
that "common law of the shop" arbitrators have
recognized almost unanimously that stewards and
other union officials have a higher duty than rank-
and-file employees to adhere to the terms of a col-
lective-bargaining agreement. Specifically, arbitra-
tors have characterized the duty of a union stew-
ard to prevent or terminate illegal work stoppages
in the following manner:
If there is one principle that is universally
recognized in the field of industrial relations, it
is that shop stewards have the highest duty to
faithfully adhere to all of the provisions of the
Collective Bargaining Agreement and to ac-
tively instruct each employee to do so as well.
While it is improper for an ordinary employee
to deliberately breach the Agreement, a similar
act by a shop steward is untenable and
grounds for his discharge. It is the obligation
of the steward to set an example for all Union
members within his jurisdiction by demonstrat-
ing his loyalty to the terms and conditions of
the contract negotiated by his Union with the
Employer.... Indeed, a shop steward's duty
in the face of an unauthorized work stoppage
that deferral there was appropriate for reasons set forth in his separate
opinion.
1 460 U.S. 693 (1983).
a 268 NLRB 573 (1984).
' Steelworkers v. Warrior a Gulf Co., 363 U.S. 574, 581-582 (1960).
is well settled. Not only should he make a de-
termined effort to prevent the stoppage before
it begins, but upon its development must ac-
tively and unequivocally attempt to bring an
end of the stoppage at the earliest possible
moment. 4
Historically, arbitrators further recognized the
principle that the higher responsibility of union of-
ficials justified disciplining them more severely
than rank-and-file employees for participating in
wildcat strikes.5 In the words of one eminent arbi-
trator:
By virtue of his office, further, a Union
steward or committeeman is a leader; indeed,
it is reasonable to assume that it is because he
is a leader that he acquires his Union office. It
follows inescapably that when a Union stew-
ard or committeeman participates in a work
stoppage-making no effort to prevent it or
bring it to a close-he is setting an example
for the other employees and indicating by his
action that the stoppage has his tacit approval
and sanction. This is a graver offense than par-
ticipation by an ordinary employee and justi-
fies a more serious penalty.6
The arbitrator's award in this case was fully con-
sistent with the arbitral decisions referred to above.
I agree with that award and with the arbitral au-
thority on which it was based and maintain that
duties which have been consistently recognized by
arbitrators, as those entrusted with the task of in-
terpreting collective-bargaining agreements, should
also be recognized by the Board and the courts in
their interpretation of the National Labor Relations
Act. However, the Supreme Court has chosen to
disregard this well-established "common law of the
shop" in a decision which will have great impact
on the balance previously reached in this area.
Were I not bound by the Supreme Court's Metro-
politan Edison decision, I would not find the arbi-
trator's award issued in this case to be clearly re-
pugnant to the purposes and policies of the Act.
4 United Parcel Service, 47 LA 1100, 1100-1101 (1966) (Schmertz, Arb.)
See, e.g., United Parcel Service, supra; New Jersey Bell Telephone Co.,
77 LA 1038, 1041 (1981) (Wolff, Arb.); Mack Trucks, 41 LA 1240, 1243
(1964) (Wallen, Arb.), and cases cited therein.
6 International Harvester Co., 14 LA 986, 988 (1950) (Seward, Arb.). I
note that prior to its decisions in Precision Castings Co.., 233 NLRB 183
(1977), and Gould Corp., 237 NLRB 881 (1978), enf. denied 612 F.2d 728
(3d Cir. 1979), the Board also recognized that the higher responsibility of
union officials justified their more severe discipline for engaging in un-
protected activity. See, e.g., Riviera Mfg. Co., 167 NLRB 772 (1967); Uni-
versity Overland Express, 129 NLRB 82 (1960); and Stockham Pipe Fittings
Co., 84 NLRB 629 (1949).
2
JOHN MORRELL & CO.
III. THE UNFAIR LABOR PRACTICES
STATEMENT OF THE CASE
PHILIP P. McLEOD, Administrative Law Judge. This
case was heard by me on June 13 and 14, 1983, in Mem-
phis, Tennessee. It originated from a charge filed on
April 6, 1982, Jimmy W. Smith, an Individual, herein
called J. W. Smith or Smith, against John Morrell & Co.,
herein called the Respondent.
On May 18, 1982, a complaint and notice of hearing
issued alleging, inter alia, that the Respondent violated
Section 8(aXl) and (3) of the National Labor Relations
Act, as amended, herein called the Act, by discharging
Smith. In its answer to the complaint, the Respondent
admitted certain allegations, including the filing and
serving of the charge, its status as an employer within
the meaning of the Act, the status of various individuals
as supervisors and agents of the Respondent within the
meaning of the Act, and the status of United Food and
Commercial Workers, Local No. 242, as a labor organi-
zation within the meaning of Section 2(5) of the Act.
The Respondent admitted having discharged Smith on or
about October 21, 1981. The Respondent denies that
Smith's discharge was in violation of the Act and denied
having engaged in any conduct which would constitute
an unfair labor practice.
At the trial herein, all parties were represented and
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.
Following the close of the trial, both the Respondent
and counsel for the General Counsel filed timely briefs
with me which have been duly considered.
On the entire record in this case, and from my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
John Morrell & Co., during all times relevant to this
proceeding, was engaged in business in Memphis, Ten-
nessee, in the processing and distributing of beef, pork,
and other food products.
In the course and conduct of its business, the Respond-
ent annually sold and shipped from its Memphis, Tennes-
see facility products, goods, and materials valued in
excess of $50,000 directly to points outside the State of
Tennessee. Similarly, the Respondent purchased and re-
ceived at its Memphis facility products, goods, and mate-
rials valued in excess of S50,000 directly from points out-
side the State of Tennessee.
The Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATION
United Food and Commercial Workers, Local No.
242, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
A. Allegations and Issues
On October 21, 1981, employees at the Respondent's
Memphis facilities engaged in a work stoppage in viola-
tion of the no-strike clause in the collective-bargaining
agreement between the Respondent and the Union. J.W.
Smith participated in that work stoppage. Smith, the
acting union steward, was discharged. Other employees
at the facility where Smith worked were issued written
warning letters.
Counsel for the General Counsel alleges that Smith
was discharged rather than issued a written warning be-
cause of Smith's status as union steward and his failure to
take affirmative action to halt the strike as was requested
of him by the Respondent's representatives.
The Respondent denies that Smith was accorded
harsher discipline than was accorded other employees
who participated in the work stoppage because of his
status as a union steward. Rather, the Respondent alleges
that Smith was an instigator and leader of the work stop-
page, and that it was for this reason, in addition to
Smith's failure as a union steward to take affirmative
action to halt the work stoppage that he was dis-
charged. '
B. Background
The Respondent operated a meat proceessing and
packing plant in Memphis, Tennessee, from February
1963 until it closed in June 1982. J. W. Smith worked for
Respondent from the time it began operations in Febru-
ary 1963 until discharged on October 21, 1981.
The Respondent began its Memphis operation in a
single facility located on Warford Street. In 1979, the
Respondent moved several departments to a Chelsea
Street annex. Among the departments moved were the
beef department, conversion department, and shipping
dock. J. W. Smith worked in the conversion department,
the primary function of which was to bone pork loins
and butts. The conversion department consisted of ap-
proximately 70 employees, including Foreman Phillip
Reeves, Assistant Supervisor John Payne, 18 individuals
working on the butt table, 45 individuals working on the
loin line, and 7 individuals working in a salt meat area.
During October 1981, the conversion department was
responsible for a Japanese loin contract requiring 80,000
pounds of finished boneless loins per week. These loins
were transported from the "cutting floor" at the War-
ford facility to the conversion department of the Chelsea
facility for boning. During the normal workweek, there
were times when the conversion area ran out of loins to
be bone, and the entire loin line changed to another
product, usually butts. This required a 10- to 15-minute
' On June 7, 1983, the Respondent filed with the Board a Motion for
Summary Judgment requesting that the Board defer to an arbitrator's de-
cision upholding Smith's discharge and dismiss the complaint herein. By
Order dated June 10, 1983, the Board denied the Respondent's Motion
for Summary Judgment without comment. The Respondent's argument
for deferral was not renewed before me and is not addressed in the Re-
spondent's post-trial brief. Accordingly, I find that issue is not before me
and do not discuss it further herein.
DECISION
3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changeover process during which most of the employees
took a short break. During October 1981, J. W. Smith
was serving as acting union steward in the conversion
department. Smith was substituting for Billy Yates, the
elected steward who had been off work sick for approxi-
mately 3 months.
On October 20, 1981, there was an incident on the
"cutting floor" at the Warford facility, as a result of
which employee Johnny "Cowboy" Ward was indefi-
nitely suspended, pending investigation, for walking off
the line without permission. On the following day, Octo-
ber 21, the majority of employees of the pork cut depart-
ment at the Warford facility refused to return to work
after the 7:30 a.m. break. At approximately 7:50 a.m.
Terry Van Dyke, an industrial engineer at the Warford
facility, advised Lynn Iverson, labor relations manager,
that the pork cut employees would not return to work.
At approximately 8 a.m., Iverson called Union Vice
President James Hunt, told Hunt the walkout was illegal,
and directed Hunt to tell the employees to return to
work. Hunt did so, but advised Iverson that the employ-
ees refused to return to work.
C. Events of October 21 at the Chelsea Facility
On October 21, employees at the Chelsea facility were
scheduled to report to work at 8 a.m. On that morning,
Smith arrived for work as he normally did at approxi-
mately 7:30 a.m. After punching in his timecard, Smith
prepared for work and then sat down to drink a cup of
coffee in the breakroom. I credit Smith that, before ar-
riving at work that day, he had no knowledge of any
problem occurring at the Wardford facility. At 8 a.m.,
Smith and other employees on the loin line began work
as usual. After working 5 or 10 minutes, employee
Roland Hayes, who worked next to Smith, asked Smith
if he had heard about Ward being fired the previous day.
Hayes also told employee Willie Golden and other em-
ployees at the pork-loin table about the incident and told
them that the conversion department was going to walk
out if employees at the Warford facility walked out.
Smith told Hayes that he had not heard anything about
the incident and told them that the conversion depart-
ment was going to walk out if employees at the Warford
facility walked out. Smith told Hayes that he had not
heard anything about the incident involving Ward and
not to pay attention to the rumor. I credit Smith that this
was the first time he heard anything about the incident at
the Warford facility involving Ward. Loin line employ-
ees continued to bone pork loins for approximately 30
minutes, until they ran out of available loins. Because
cutting floor employees at the Warford facility had
walked out, there were no loins available at the Chelsea
facility for work on the Japanese pork-loin contract.
At approximately 8:30 a.m., about the same time that
employees ran out of available loins, Supervisor Reeves
received a telephone call from the Warford facility in
which he was advised that the cutting floor had walked
out. Reeves was instructed to keep employees at the
Chelsea facility working and not to say anything to them
about the walkout. Reeves then advised Assistant Super-
visor Payne about the call he had received and told
Payne that since they had run out of available loins, in
order to keep employees working, they would switch the
loin line from loins to butts. Reeves told Payne to keep
his "eyes open" and to carefully watch the butt table,
while he would station himself at a particular point on
the loin line. The necessary changeover was then made.
Smith and most of the other loin line employees went to
the breakroom as they normally did during such change-
overs, which lasted approximately 15 minutes.
At approximately 8:10 or 8:15 on that same morning,
Reeves sent for a mechanic from the Warford facility to
make repairs at the Chelsea facility. The mechanic,
Charles Garrison, arrived at the Chelsea facility around 9
a.m. Garrison told Reeves that employees at the Warford
facility had walked out. Reeves told Garrison not to say
anything about it to employees at the Chelsea facility
and just to do his work, Reeves and Payne both testified
they saw Garrison in the breakroom, and did not see him
again after that. There is no direct evidence, only specu-
lation, whether Garrison mentioned the walkout to any
employees at the Chelsea facility while he was there.
The changeover from loins to butts was completed
and employees returned from the breakroom to work at
approximately 9 a.m. Loin line employees changed job
stations when they began to work on butts. Smith moved
to the front of the line next to employee Sidney Yates,
who operated the dumper and whose job it was to make
sure the table was supplied with butts. Smith, Sidney
Yates, and Payne all testified that switching to butts this
early in the morning was unusual, as the normal practice
was to work on loins all morning for the Japanese con-
tract. Yates commented on this fact to Smith. Smith
called Foreman Reeves over to his work station and
asked Reeves, "What was going on?" because it was
strange to be working on butts that early in the day.
Reeves advised Smith that there was a problem on the
cutting floor at the Warford facility. Reeves, however,
did not specify what the problem was, and Smith did not
ask. Smith continued working. A few minutes later, an
employee in the salt meat area called Smith over to his
work station.2 Smith left his work station and went to
the salt meat area to talk to the employee. 3 The employ-
ee, Tony Dorcey, told Smith that he had heard a rumor
from a mechanic that the Warford facility was on strike.
Dorcey asked Smith what was going on. Smith told
Dorcey that he did not know what was going on and
that he would make some phone calls to try to find out.
Smith and Sidney Yates, who I credit, testified that em-
ployees in the salt meat area were working when Smith
went to that area and continued to work when Smith left
I Yates corroborated Smith that someone in the salt meat area called
Smith over and Smith went to that area. I credit that testimony.
S Smith admitted he did not ask permission before leaving his work
station to go to the salt meat area. Smith testified that it was past practice
for a steward to leave his work station without permission to talk to an
employee with a problem. Reeves testified that it was a practice for stew-
ards to tell him that they were going to talk to an employee. Billy Yates,
who had been the elected steward of the conversion department for ap-
proximately 5 years, testified that stewards could leave the work line
without permission when called over by an employee, that he had done
so regularly, and that Reeves knew he had done so, and never repri-
manded him. I credit Smith and Yates with regard to the actual practice
of stewards leaving their work station without permission and without
notifying the foreman when they were called by an employee.
4
JOHN MORRELL & CO.
the area. Smith then used the telephone in Reeves' office
and called the "bacon area" at the Warford facility to at-
tempt to contact Union Vice President James Hunt.
Smith was unable to reach Hunt and returned to his
work station.
A short time after returning to his work station, Smith
was called by employee Doug Rich, who worked near
the loin table. Smith went to Rich. Rich asked Smith
what was going on, and Smith replied that he did not
know, but was making telephone calls to try to find out.
According to Smith, who I credit, Rich was working
when Smith went over to him and continued to work
when he left. Smith was then called by Nathaniel Perry,
who worked directly behind Rich. Perry also asked
Smith what was going on. Smith again replied he did not
know and was making telephone calls to try to find out.
I credit Smith that he told Perry and other employees to
keep working while he was making the calls. Perry con-
tinued working when Smith left. Smith returned to
Reeves' office and telephoned the shipping dock at the
Warford facility. Smith asked to speak to one of the
union stewards, but was told they were out. Smith testi-
fied credibly that when he returned from using the tele-
phone, he observed that some of the men stationed at the
end of the line were standing in a group talking to one
another. Employees at the front of the table were still
working. Reeves approached Smith and told Smith he
had better get the men back to work. Smith replied that
he needed time to use the telephone in order to find out
what was going on at the Warford facility. Smith went
to the public telephone in the breakroom several times
and attempted to contact James Yates, the elected union
steward at home. Smith was unsuccessful and reported
back to the employees that he still did not have any in-
formation. On the last occasion that Smith was using the
telephone in the breakroom, he was interrupted and told
that company officials wanted to see him. Smith returned
to the work area where he saw Vice President/General
Manager Ken Miller and Labor Relations Manager Lynn
Iverson. Miller was standing on a platform in front of
the assembled employees, and Smith walked over to that
area.
Several employees corroborate Smith's testimony that
he told employees to continue working while he used the
telephone to try to find out what was going on at the
Warford facility. Employee Sidney Yates testified credi-
bly that, before Smith left to use the telephone in the
breakroom he overheard Smith tell the other employees
to keep working until he found out something. Employee
Roland Hayes also testified he heard Smith tell employ-
ees not to stop work and to stay at their job stations.
Employee Willie Golden testified Smith told him and
other employees to keep working until he found out
something. Golden testified that some employees contin-
ued to work and some did not. Employee Ernest Taylor
also corroborated Smith. According to Taylor, when
Smith attempted to telephone the Warford facility and
was unable to reach anyone, Smith returned on occasion
to the work area and told employees standing around to
go back to work. Hayes, Golden, Taylor, John Taylor,
and Sidney Yates all testified that they did not hear or
see Smith say or do anything to any employee to encour-
age them to stop work or walk out.
I credit Yates that, while Smith was in the breakroom
using the telephone, employees started chanting, "Walk
out. Walk out." One of the employees said in a loud
voice, "We can't stay here and they're out." According
to Yates, this chanting started at the other end of the line
from where Yates worked and in the opposite direction
from where Smith went to use the telephone. During this
chanting, some employees continued to work and some
stopped. As the chanting increased, more employees
stopped work. While this was going on, Smith was still
in the breakroom using the telephone. Some of the em-
ployees, including Yates, walked out. When they got
outside, an employee approached Yates and the others
and told them that only the "cutting floor" had walked
out at the Warford facility. Yates then said that they had
better go back inside and return to work until they found
out what was going on. When they went back inside,
Reeves told Yates and the other employees that if they
were going back to work, do so, and, if they were not,
to get off company property. It was then that Iverson
and Miller arrived.
Testimony of Supervisor Reeves is directly contradic-
tory to that of Smith and other employee witnesses.
Reeves' testimony is corroborated in part by Assistant
Supervisor Payne. Reeves testified that at approximately
9:20 a.m. he noticed the vat holding meat was full, and
meat on the table was getting low. According to Reeves,
he walked over to Smith, who was working next to
dumper operator Sidney Yates and said, "What's going
on, we've got some kind of problem." Reeves then told
Yates to raise the dumper and dump the next vat of meat
onto the table. According to Reeves, Yates looked at
Smith, but said nothing. Reeves then said, "What are you
fixin' to do? Are you fixin' to walk out?" Reeves testified
that Smith said, "Yes, we are, they have already walked
out at the other plant." Reeves testified he responded
that there were no labor problems at the Chelsea facility
so there was no reason to walk out. Payne testified he
saw Reeves talk to Yates and Smith, but did not hear
what was said. According to Reeves, Smith then turned
and walked away from his work area. Payne testified
that when Smith left his work station, Reeves came over
to him and said, "They are going to walt out." Payne
later altered his testimony, adding that Reeves told him,
"J. W. said they are going to walk out." According to
Payne, Reeves told him to call Miller at the Warford fa-
cility. Payne immediately went to use the telephone in
Reeves' office.
Reeves testified that, when Smith left his work station,
Smith went to the saltmeat area, the trim area, and in be-
tween the loin and butt lines talking to employees.
Reeves and Payne both admit that they could not hear
what Smith said to employees, but both testified that the
employees immediately stopped working as soon as
Smith talked to them.
Testimony regarding the telephone conversation be-
tween Payne and Miller is revealing. Payne testified that,
when Reeves told him to call Miller, Payne went imme-
diately and called Miller from the telephone in Reeves'
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office. According to Payne, this call lasted no longer
than 2 minutes. Payne testified that in the call he told
Miller, "Kenny, they have stopped working over here."
Miller asked if Payne had told employees to go back to
work, and Payne replied, "Yes we did but they refused."
Miller then told Payne to try again to get the men to
return to work and informed Payne that he would come
immediately to the Chelsea facility. Miller testified that
when Payne called him, Payne said, "They're out at the
annex." On cross-examination, Payne testified that while
he was on the telephone talking to Miller, employees
were still working and that, although loin line employees
were out of meat, they were in the plant standing by
their work stations. After this call, Payne returned to the
work area. Reeves was then at the head of the loin line,
confronting employees, including Smith as a group.
Reeves testified he again asked Yates to raise the
dumper. Yates walked away. According to Reeves, he
then told Smith that this was an illegal work stoppage
and directed Smith to tell the employees to return to
work. Reeves testified that Smith responded, "I won't do
it." Reeves then testified:
I think at that time I told him [Smith] that if he
didn't tell the people to go back to work because he
was shop steward, then he would be held solely re-
sponsible for this wild cat strike, or this illegal work
stoppage, was my exact words.
Reeves testified Smith said he was going to use the tele-
phone and proceeded toward the breakroom. According
to Reeves, no employees had left the plant as yet.
Reeves testified employees were "milling around" and
that he "repeated" telling them to go back to work.
Payne's testimony tends to corrborate that of Reeves.
According to Payne, Reeves told Smith to ask the em-
ployees to go back to work. Smith replied, "I can't do
that, I need to talk to someone at the plant." Smith then
went to use the breakroom telephone. According to
Payne, Smith later returned and said he could not get in
touch with anyone. A short time later, Smith went to use
the telephone again. Payne testified that while Smith
went to use the telephone on these occasions, employees
were standing around in groups in various areas of the
department.
Testimony of the various witnesses is not substantially
different regarding what took place after Miller and
Iverson arrived. Reeves testified Miller walked into the
plant and told employees to go back to work but that no
one responded. Miller asked to see Smith, and someone
went to get Smith who was on the telephone. Smith
came to the work area. According to Reeves, Miller told
Smith if the employees did not go back to work the
plant would lose the Japanese loin contract. Every wit-
ness agrees that Miller directed Smith to tell the employ-
ees to return to work. According to Reeves, Smith re-
plied, "I can't do that." Payne corroborated Reeves that
Smith replied he could not do that. Miller told Smith he
had 5 minutes to get out of the building if the employees
were not going to back to work. Smith then walked back
to the breakroom, and employees started walking out.
Miller and Iverson then left, and the rest of the employ-
ees, except for three who stayed to clean up, walked out
behind them. When asked if Smith left at the same time
as the other employees, Reeves responded, "No, I think
he went back in the back again ... He may have been
there 5 minutes longer, but he left just like everybody
else did."
Miller testified that when he and Iverson arrived at
the Chelsea facility, employees were "milling all over"
and "there was a lot of noise." Miller stood on a plat-
form addressing Smith who stood with the employees
below him. Miller told Smith as the steward that he
wanted Smith to get the men back to work. Smith said
he could not. Miller told Smith that the plant could lose
the Japanese loin contract if Smith did not get the men
back to work. According to Miller, he and Iverson
waited about 5 minutes and, when employees started
walking out, he and Iverson left. Miller provides partial
corroboration to the testimony of Sidney Yates, de-
scribed below, regarding a conversation between Miller
and employees at the Chelsea facility. Miller testified
that employees asked what was going on at the Warford
facility, and that Miller responded that it did not concern
the Chelsea facility. Miller testified that he could not
recall what Smith did or where Smith went after the
conversation between them described above. Miller said
he did not see Smith walk out.
Smith testified that after he was summoned from the
telephone by Miller, Smith returned to the work area.
When he approached Miller, Miller told Smith, "Make
these guys go back to work. If you don't, there will
never be another pork loin boned in this plant." Smith
admits that he did not comply with Miller's instruction
to tell the men to go back to work. Smith testified that
he responded to Miller that he had already asked the
men to keep working. Smith told Miller, "If anybody
can make those men go back to work, you can." Smith
then asked Miller what the problem was at the Warford
facility. Miller replied that whatever was going on did
not concern employees at the Chelsea facility. Smith told
Miller he wanted to make some telephone calls, and
Smith returned to the telephone to again call the War-
ford facility. Smith was able to contact no one and re-
turned to the work area. Smith observed employees
walking out and leaving the plant. Smith testified he then
went outside and asked the employees who were leaving
to go back to work. They did not do so, and Smith went
back inside the plant. Approximately five employees
were still inside the plant, and Smith told them to be cer-
tain everything was cleaned up before they left. Smith
testified he helped other employees clean up and that he
and the other men then dressed and left the plant.
Employee Sidney Yates, corroborated by Miller and
Smith, testified that during the conversation between
Miller and Smith, some employee asked what was going
on at the Warford facility. Miller replied that what was
going on at the Warford plant did not concern them.
Miller told the employees that if they did not go back to
work, they would never bone another loin. Yates testi-
fied that, during this conversation, Miller told Smith,
"Get these men back to work because if you don't get
them back to work, it is going to be on your head."
6
JOHN MORRELL & CO.
Yates corroborated Smith that Smith told Miller he had
already asked the men to return to work, that Miller was
the boss, and that Smith could not make them work but
that Miller could make them go back to work. Yates tes-
tified that after the conversation between Miller and
Smith, Yates went to the dressing room, changed
clothes, and left the plant along with most of the em-
ployees. Yates corroborates Smith that Smith was still
inside the plant when he and the other employees left.
Iverson and Miller made the decision to discharge
Smith. Though Iverson testified the decision to terminate
Smith was made on October 21 or, more probably, Octo-
ber 22, I note that the discharge notice to Smith is dated
October 21. Iverson testified that before he and Miller
made the decision to discharge Smith, Iverson conducted
an investigation regarding the walkout at the Chelsea fa-
cility. Iverson admits, however, that he spoke only to
Reeves and Payne. When asked if there was anything
other than his discussions with Reeves and Payne that he
relied on in making his decision to discharge Smith, Iver-
son replied, "and his actions that day," which Iverson
himself witnessed. Asked if this was action he learned of
from Reeves and Payne, Iverson replied, "No, I was
there." Asked what action he was referring to, Iverson
replied, "When he said, 'I can't do that' and he was in-
subordinate to Mr. Miller." When asked what insubordi-
nation he was referring to, Iverson replied, "He didn't
tell them to go back to work like Mr. Miller told him
to." Iverson was then asked if he relied on that inaction
by Smith in making his decision to terminate Smith. Iver-
son replied, "Just like your boss telling you something to
do and you didn't do it." Miller, too, cited as a reason
for Smith's discharge his refusal to direct other employ-
ees to return to work. Miller testified:
J.W., on my direct order, refused to even turn
around and even acknowledge that I had told any-
thing. .... He was discharged for leading and par-
ticipating in the strike and insubordination.
Analysis and Conclusions
There is no evidence Smith was aware of a planned
walkout or the contemplation of a walkout at the War-
ford facility before Smith arrived at work on the morn-
ing of October 21. The Respondent's argument to the
contrary is based on pure conjecture and is rejected. De-
partment Supervisor Reeves was notified of the walkout
when he received a telephone call from the Warford fa-
cility at approximately 8:30 a.m. on October 21. Reeves
was told not to say anything to anyone about the walk-
out. Because loins boned at the Chelsea facility are trans-
ported from the cutting floor of the Warford facility, the
work stoppage at the Warford facility caused the Chel-
sea facility to run out of loins. Reeves made the decision
to switch from loins to butts in order to keep employees
working. During the changeover, most of the loin line
employees, including Smith, went to the breakroom from
10 to 15 minutes. The testimony of Smith, Sidney Yates,
and Assistant Supervisor Payne shows, contrary to the
assertion of Reeves, that switching from butts to loins
this early in the work day was unusual. Therefore, I do
not find it surprising, as the testimony of Smith, Sidney
Yates, and Reeves shows, that soon after the switch was
made to butts, Smith asked Reeves why the switch had
been made. Reeves, contrary to instructions from higher
management, told Smith there was a problem at the
Warford facility. Smith, corroborated by Sidney Yates
and other employees, testified credibly that employees in
different areas called Smith over to ask him what was
going on. I credit Smith that he informed employees he
did not know what was going on, that he would make
telephone calls to try to find out, and that he instructed
employees to keep working. I credit the testimony of
Smith, Sidney Yates, and other employees that employ-
ees who called Smith over to them continued to work
after Smith left their area. Smith, Sidney Yates, Roland
Hayes, Willie Golden, Ernest Taylor, and John Taylor
all testified that Smith never told employees to stop
work or walk out and never did or said anything to en-
courage employees to do so. I credit this testimony. It is
undisputed that Smith made several telephone calls
throughout the morning in an attempt to determine what
was happening at the Warford facility. The initial walk-
out of Sidney Yates and some other employees occurred
while Smith was not even present, but was in the break-
room using the telephone. Due to rumors, such as that
disseminated to employees by Roland Hayes, and the
lack of meat which prompted the switch from loins to
butts, the initial walkout by Yates and other employees
occurred. I was particularly impressed by Sidney Yates'
demeanor when he explained what changed his mind and
caused him to walk out for good once he had decided to
return to work and reentered the plant. Yates, Smith,
and even Miller testified that employees asked Miller
what was going on at the Warford facility and that
Miller told employees it did not concern them. Yates' de-
meanor was entirely forthright and convincing that his
and other employees' reaction to this statement was hos-
tile and that it prompted them to walk out for the last
time on the morning of October 21.
The account given by Reeves and Payne of the events
on the morning of October 21 contains certain significant
inconsistencies and provides an illogical explanation for a
spontaneous walkout of employees. The Respondent
argues that Smith came to work on the morning of Octo-
ber 21 knowing there was to be a walkout. The Re-
spondent's argument would have one believe that instead
of walking out during the break period when the switch
was being made from loins to butts and there was no
work to do, Smith had the employees wait until just
after they began to work on butts before they quit.
Reeves alleges that he approached dumper operator
Sidney Yates and told Yates to dump the next vat of
meat on the table, that Yates looked to Smith as if for a
signal, that Reeves asked smith, "What are you fixin' to
do .... Are you going to walk out?"; and that Smith
replied, "Yes." I was not impressed by Reeves' demean-
or, and I am convinced that he made this up in order to
bolster his other testimony. Reeves, corroborated on this
point by Payne, testified that Smith walked from work
station to work station talking to employees, and that as
he did so they stopped work. I would discredit Reeves
on demeanor, while Payne I would not. Payne's testimo-
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny, however, contains certain unsettling inconsistencies.
Payne testified that at Reeves' directions, he went to the
telephone in Reeves' office and called Miller. According
to Miller's version of that call, Payne told Miller that
employees had walked out. This suggests corroboration
of Sidney Yates' testimony that indeed there was an ini-
tial walkout which was aborted. Payne testified that
while he was on the telephone to Miller, most employees
were still in fact working except for some who had run
out of meat and were standing around by their work sta-
tions inside the plant. Payne also testified that in the tele-
phone conversation with Miller he told Miller that he
had tried to ask the employees to return to work. There
is, however, no such testimony to that effect by Payne.
Rather, Payne testified that as soon as the work stoppage
began, he was directed by Reeves to call Miller and did
so. Payne also admitted later that it was not until after
the telephone call to Miller that he went over to the area
where Reeves was talking to employees and heard
Reeves direct Smith to tell the men to return to work.
The Respondent's version of how the work stoppage
was initiated, propounded by Reeves and Payne, is illogi-
cal for yet another reason. Smith admittedly made sever-
al telephone calls throughout the morning to attempt to
find out what was going on at the Warford facility. The
Respondent's version would have one believe that even
though he had not been able to find out what was going
on because employees had already walked out and Smith
was therefore not able to speak to any of the stewards,
Smith nevertheless in full view of supervisors circulated
around the department directing employees to stop
work. Further, that version would have me conclude
that from approximately 9:20 or 9:25 a.m., when Smith
first left his work station to talk to an employee, until ap-
proximately 9:50 a.m., when Miller and Iverson arrived,
employees stood idly by inside the plant. I find this ver-
sion illogical. Rather, I credit the version of Sidney
Yates and other employees reflecting that there was a
gradual work stoppage resulting from rumors and talk
among employees which resulted in them initially walk-
ing out while Smith was on the telephone attempting to
determine what was happening at the Warford facility.
Further, I find that not only did Smith not instigate the
initial work stoppage, but also that he played no leader-
ship role in the ultimate walkout of employees that
morning. Smith, Sidney Yates, Reeves, and Payne all tes-
tified that Smith was not in the work area when Miller
and Iverson arrived from the Warford facility, but rather
that Smith was called to the work area from the break-
room. It is unequivocally clear that Miller directed
Smith to tell the employees to return to work and that
Smith refused to do so. Smith, Yates, and Miller all testi-
fied that in response to a question about what was going
on at the Warford facility, Miller told employees that
what was going on did not concern the Chelsea facility
employees. As indicated above, I credit Yates that it was
this statement which irritated and angered him and other
employees and caused them to walk out. It is clear that
Smith did not walk out at the same time that other em-
ployees left, trailed by Miller and Iverson. Rather, Smith
remained in the building for about 5 minutes, and it is
undisputed that he helped clean up the work area before
leaving. Smith and a few remaining employees who
helped clean up were the last employees from the depart-
ment to leave.
The Respondent's real reason for discharging Smith is
only superficially masked by its claim that Smith actively
initiated the work stoppage. This real reason is reflected
several different times in this record. Reeves himself tes-
tified that when the work stoppage was first beginning
he directed Smith to tell the employees to go back to
work. Reeves testified that when Smith declined:
I think at that time I told him that if he didn't tell
the people to go back to work because he was shop
stewards then he would be held solely responsible for
this wild cat strike, or this illegal work stoppage,
was my exact words. [Emphasis added.]
Sidney Yates testified without contradiction from Miller
that when Miller and Iverson came to the Chelsea facili-
ty, Miller told Smith in the presence of employees to get
the men back to work and that if he did not, "It is going
to be on your head." While the words may not be exact,
the message is both clear and uncontradicted. Miller in
fact testified on cross-examination when asked what
Smith did after Miller gave Smith 5 minutes to get the
men back to work, "I know one thing he didn't do, was
he didn't turn around and tell them to go back to work."
Iverson too pointed to the fact that, in his view, Smith
was "insubordinate" when he refused a direct order from
Miller to tell the employees to return to work. Iverson,
when asked if this inaction by Smith was relied on to dis-
charge Smith, testified, "Just like your boss telling you
something to do and you didn't do it." I find that this
was the real and sole reason for Smith's discharge. An
employer is free to discipline particular employees rather
than all employees who participate in an unprotected
work stoppage provided that the criteria used in select-
ing employees for discipline is not related to their union
activities. In the absence of an express contractual obli-
gation on union officials, the imposition of more severe
sanctions on union officials than on other employees for
participating in an unlawful work stoppage violates Sec-
tion 8(a)(3) of the Act. Metropolitan Edison Co. v. NLRB,
103 S.Ct. 1467 (1983); Consolidation Coal Co., 263 NLRB
1306 (1982); Miller Brewing Co., 254 NLRB 266 (1981),
enfd. 686 F.2d 962 (D.C. Cir. 1982); Precision Castings
Co., 233 NLRB 183 (1977). Accordingly, I find that the
Respondent discharged Smith in violation of Section
8(a)(l) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, John Morrell & Co., is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers, Local No.
242, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent discharged Jimmy W. Smith for
participating in a walkout on October 21, 1982, solely on
the basis of his position as acting union steward, and the
Respondent thereby violated Section 8(aX1) and (3) of
the Act.
8
JOHN MORRELL & CO.
4. The unfair labor practices which the Respondent
has been found to have engaged in, as described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to labor disputes burdening and obstructing
commerce and the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(aXl)
and (3) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Accordingly, on the foregoing findings of fact and
conclusions of law I issue the following recommended4
ORDER
The Respondent, John Morrell & Co., Memphis, Ten-
nessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees who participate in a walk-
out solely because they hold positions as union stewards.
(b) In any other like or related manner interfering
with, restraining, or coercing employees in the exercise
of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) Offer Jimmy W. Smith immediate and full rein-
statement to his former position, or, if that position no
longer exists, to a substantially equivalent position with-
out prejudice to his seniority and other rights and privi-
leges. 5
(b) Make whole Jimmy W. Smith for any loss of earn-
ings or benefits he may have suffered by reason of the
discrimination against him by payment to him of a sum
of money equal to the amount he normally would have
earned from the date of said discrimination to the date of
the Respondent's offer of reinstatement, less net interim
earnings, with backpay to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977); see
generally Isis Plumbing Co., 138 NLRB 716 (1962).
(c) Expunge from its files any reference to the dis-
charge of Jimmy W. Smith and notify him in writing
that this has been done and that evidence of the unlawful
disch-ge wiTf not be used as a basis for future personnel
actions against him.
4If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
s At the time of the trial herein, the Respondent's Chelsea Street facili-
ty was closed. Accordingly, this order contemplates that the Respondent
offer Smith reinstatement to his former position if it exists and, if not,
then to a substantially equivalent position, if one exists, at another facility
operated by the Respondent in Memphis, Tennessee. If such does not
exist, the Respondent is directed to offer Smith reinstatement to a sub-
stantially equivalent position at another facility pursuant to any transfer
rights he may have in accordance with the provisions of the collective-
bargaining agreement between the Respondent and the Union.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Chelsea Street and Warford Street facili-
ties located in Memphis, Tennessee, copies of the at-
tached notice marked "Appendix." 6 Copies of said no-
tices, on forms provided by the Regional Director for
Region 26, after being signed by the Respondent's au-
thorized representative, shall be posted immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
* It is hereby ordered that in the event the Respondent's Memphis fa-
cilities are not in operation, then the attached notice shall be mailed by
the Respondent to all employees who were on the Respondent's payroll
at those facilities at the time they closed and, in addition, the notice shall
be posted at whatever facility Smith is reemployed pursuant to this
Order. Further, if this 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 Pursu-
ant 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge employees who participate in
a walkout solely because they hold positions as union
stewards.
WE WILL NOT in any other like or related manner
interfere with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of the
Act.
WE WILL offer Jimmy W. Smith immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges.
WE WILL make whole Jimmy W. Smith for any loss of
earnings or benefits he may have suffered by reason of
the discrimination against him by paying him a sum of
money equal to the amount he normally would have
earned from the date of his discharge to the date of the
offer of reinstatement, with appropriate interest.
WE WILL expunge from our files any reference to the
discharge of Jimmy W. Smith and notify him in writing
9
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this has been done and that evidence of the unlawful
discharge will not be used as a basis for future personnel
actions against him.
JOHN MORRELL & CO.