National Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1964

147 N.L.R.B. 446 (N.L.R.B. 1964)

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Packing Company , Inc. and Emil C. Anderson , Jr., as
Attorney for a Group of Employees of National Packing Com-
pany, Inc. Case No. 17-CA-92177. June 16, 1961
DECISION AND ORDER
On November 21, 1963, Trial Examiner Stanley Gilbert issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
cross-exceptions and an answering brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the en-
tire record in this case, including the Trial Examiner's Decision and
the exceptions and briefs, and hereby adopts the Trial Examiner's
findings,2 conclusions, and recommendations with the following
addition.
1. The Trial Examiner found, and we agree, that on April 19, 1963,
the Respondent, in violation of Section 8(a) (1) of the Act, dis-
charged 19 employees because they had participated in a protected
concerted activity. The employees went out on strike on April 18,
1963, when a wage increase , which they understood the Respondent
had promised them following a walkout the preceding November, was
not forthcoming. The Respondent's president, Jacobson, had warned
the employees after the earlier walkout that similar action in the fu-
ture would result in their discharge: When Jacobson returned from
a trip on April 19 and saw the men out on strike, he repeated his earlier
warning and told the strikers that if they did not return to work im-
mediately they were discharged. Subsequently, when -some of the
strikers applied for reinstatement, the Respondent told them they no
longer had jobs although the record indicates that the Respondent had
not yet hired replacements.
1 The Respondent ' s request for oral argument is hereby denied as the record, including
the exceptions and briefs , adequately presents the issues and the positions of the parties.
.awe hereby correct the Trial Examiner 's inadvertent error in referring to a conversa-
tion between Union Agent Hayes and Supervisor Barnes ; the record indicates that no such
conversation occurred , but instead , that striking employees related to Barnes details of
their earlier talks with Hayes.
147 NLRB No. 55.
. NATIONAL PACKING COMPANY, INC. 447.
The Respondent contends that the strikers forfeited the protection
of the Act because they engaged in conduct which violated Section
8 (b) (7) (B) of the Act, and which sought to compel the Respondent to
violate Section 8(a) (1) and (2). The Trial Examiner found that the
strikers had not engaged in such conduct. We are convinced, as was
the Trial Examiner, that the Respondent in fact discharged and re-
fused to reinstate the strikers because of their protected concerted ac-
tivity, and that it raised such alleged misconduct as an afterthought .3
We find it unnecessary, under these circumstances, to determine the
availability or merit of such allegations as a defense.
2. The General Counsel has excepted to the Trial Examiner's recom-
mendation that no remedy be granted to Burwell, one of the strikers,
on the ground that he had engaged in strike misconduct that rendered
him unemployable. We find merit in this exception.
Burwell was one of several strikers who blocked vehicles from
entering the plant, but the record indicates that these vehicles were
allowed to proceed after very brief conversations with the drivers.
There is no evidence'of what was said in these conversations. Burwell
also allegedly threatened physical harm to the persons and auto-
mobiles of employees who entered the plant, but, as the Trial Exam-
iner found, "there is no showing that Burwell carried out any of his
threats or engaged in violent action against person or property...."
While we are in agreement with the Trial Examiner that such conduct
is improper and not to be condoned, we do not find it so flagrant, under
all the circumstances, as to justify removal of Burwell from the
protection of the Act 4 Accordingly, we shall include Burwell in the
reinstatement and backpay provisions of the Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent, National Packing Company, Inc., Kansas City,
Kansas, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, with the fol-
lowing modifications:
1. Paragraph 2(a) of the Recommended Order and the correspond-
ing paragraph of the notice shall be amended to include the name of
S Thus, the Respondent asserts only that it "could have" discharged the strikers for
these reasons.
4 Trumbull Asphalt Company of Delaware , 139 NLRB 1221; Stewart Hog Ring Company,
Inc., 131 NLRB 310, 312; Schott Metal Products Company, 128 NLRB 415. Member
Leedom agrees with Trial Examiner Gilbert on this issue , and accordingly would not re-
instate Burwell or award him backpay.
5 The backpay period for Burwell shall begin on May 18, 1963. See A.P.W. Products
Co., Inc., 137 NLRB 25, enfd. 316 F. 2d 898 (C.A. 2).
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Priends Burwell in the list of those employees to be offered
reinstatement.
2. The.end of the first sentence in paragraph 2(b) of the Recom-
mended Order is amended to read : "'The Remedy,' as modified by the
Board's Decision and Order."
TRIAL. EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 30, 1963, as amended, June 21, 1963,1 by Emil C.
Anderson, Jr., as attorney for a group of Respondent's employees, the complaint
herein was issued on June 21, 1963, against National Packing Company, Inc.,
hereinafter referred to as the Respondent or the Company. In essence, the com-
plaint, as amended during the course of the hearing,2 alleges that Respondent violated
Section 8(a)(1) and (3) of the Act by threatening employees with reprisals for
engaging in union and other concerted activity; by suspending, locking out, and with-
holding employment from certain employees in early December 1962 because they
engaged in concerted activity; and by threatening to discharge and discharging certain
employees, on or about April 19, 1963, because they engaged in a strike protesting
Respondent's failure to grant certain economic benefits. In essence, the Respondent,
by its answer, as amended during the course of the hearing,3 denies that it engaged
in the unfair labor practices alleged; alleges that by various acts of the striking em-
ployees, including their picketing (alleged to be violative of Section 8(b) (7) (B) of
the Act), they were "barred from reinstatement and backpay," and that, since they
were economic strikers, Respondent was entitled to, and did, replace them prior
to their request to be reinstated.
Pursuant to due notice, a hearing was held in this proceeding on July 23, 24, 25,
26, 29, 30, and 31 and August 1, 1963, in Kansas City, Missouri, before Trial
Examiner Stanley Gilbert. At the close of the hearing oral argument was waived.
Within the time designated therefor, briefs were submitted by General Counsel and
Respondent. At the request of the Trial Examiner, General Counsel filed a reply
brief to a section of Respondent's brief, and, as permitted by the Trial Examiner,
Respondent filed a brief in answer thereto.
Upon the entire record herein, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is engaged in the slaughtering and processing of meat at its plant
in Kansas City, Kansas. It annually ships to points outside the State of Kansas
processed meat valued in excess of $50,000, and receives from points outside the
State of Kansas goods, products, and materials valued in excess of $50,000.
As is conceded by Respondent, it is an employer engaged in commerce within the,
meaning of Section 2(6) and (7) of the Act.
1 The charge was also amended during the course of the hearing by withdrawing those
portions which relate to the allegations in the complaint which were deleted by the
amendment thereof set forth in footnote 2
2 The complaint was amended by the deletion of paragraphs III. IV, V, VI, VII, and XV,
and the reference to Section 8 (a) (5) of the Act in paragraph XVII.
The answer was amended by deleting paragraphs 7 through 11 thereof and substituting
therefor the following:
National Packing Company, Inc. states that the picketing which took place simul-
taneously with the strike at the plant April 18, 1963, and thereafter, violates Sec-
tions 8(b) (1) and 8(b) (7) (B) of the Act, either by reason of the conspiracy of the
charging parties with the agents and representatives of the United Packinghouse,
Food and Allied Workers, A F L.-C.1 0., or independently thereof.
Although Respondent adopted, as an addition to the paragraph, certain language suggested
by the Trial Examiner to clarify the issue which he understood the Respondent sought to
raise by said paragraph, said addition does not appear to be an accurate reflection of
Respondent's contention, and, therefore, is not set forth herein.
The answer was also amended by deleting those portions relating to the allegations which
were deleted from the complaint.
NATIONAL PACKING COMPANY, INC. 449,
II. THE UNFAIR LABOR PRACTICES
The unfair labor practices alleged in the complaint , as amended , are related to,
the following two events:
1. On November 30, 1962, some of the production employees walked out in
protest against working conditions, particularly those imposed by Jerry Divin, pro-
duction supervisor , whose employment they requested the Respondent to terminate.
The walkout was precipitated by an accident to an employee on the . production line
who suffered electrical shock and bums from the tool he was using. Production
ceased at the plant on that day and was not resumed until December 11, 1962.
2. On April 17, 1963, when the paychecks were distributed , the employees dis-
covered that they had not been given a 10-cent an hour raise which they had ex-
pected to receive . The following morning , April 18, about 20 of the production
employees went out on strike. On that day there were 64 production and 10 main-
tenance workers in Respondent 's employ.
Issues Raised by the Pleadings
Whether, on November 30, 1962, John Fryer, Respondent's general manager, and
on December 10, 1962, and April 19, 1963, John Jacobson, Respondent's president,
made statements constituting threats of economic reprisals in violation of Section
8 (a) (1) of the Act .4
Whether, in violation of Section 8(a)(1) of the Act, Respondent "suspended,
locked out and withheld employment" from certain of its employees between Novem-
ber 30 and December 11, 1962, because of their concerted activity in protesting
working conditions and the continued employment of Divin.
Whether, in violation of Section 8(a)(1) of the Act, on or about April 19, 1963,
Respondent threatened to, and did, discharge certain of its employees for engaging
in concerted activity protected under the Act rand has unlawfully refused to reinstate
them.5
Whether the picketing engaged in by the striking employees was of the nature
proscribed by Section 8(b)(7)(B) of the Act and, if so, whether they should be
denied the remedy of reinstatement and backpay.
Whether certain of the striking employees (14 are named by Respondent in its
brief) should be denied the remedy of reinstatement and backpay because of their
conduct during the strike.
Although additional issues are raised with respect to replacement by Respondent
of the strikers as economic strikers, in view of the findings of fact and conclusions
of law set forth below, these , issues need not be resolved.
The Walkout on November 30, 1962
There is no dispute as to the fact that the employees who walked out on Novem-
ber 30, 1962, did so in protest against working conditions imposed by Divin. There-
fore, there is no need to set forth the evidence relating to the matters which gave rise
to the protest. The record demonstrates that, as a result of the walkout, the slaughter
of cattle on hand was discontinued and some 200 head were removed from the
Respondent's pens, since Respondent's facilities were inadequate to maintain them.
General Manager Fryer nb°t with a committee of the employees to discuss their
grievances on the first 3 days of the following week (December 3, 4, and 5). The
record discloses that at no time did the employees as a group make an unconditional
request that they be permitted to return to work,6 and there is credible testimony
which is uncontradicted that every individual employee who requested work was
given work. The General Counsel contends, nevertheless, that Respondent com-
mitted the unfair labor practice of locking out its employees.
The objective of the walkout was to put economic pressure upon Respondent by
halting its production. The walkout succeeded in forcing the Respondent to cease
production. Since there is no showing that the employees who walked out would
4It was also alleged in the complaint that Jacobson made such a threat on May 13. 1963,
but no evidence was introduced with respect to any statement made by him on or about
said date, and General Counsel made no reference in his brief to said allegation.
s Although it is alleged that said conduct was also violative of Section 8(a)(3) of the
Act, General Counsel does not so contend, and it is evident that the record would not
support such a finding.
9 The General Counsel concedes, in his brief, that there was no showing of an uncondi-
tional request to return to work.
756-236-65-vol. 147--30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have returned to work at any time.prior to December 11, 1962, without Respondent
granting their demands, it can only be concluded that Respondent was withholding
work from them, because it would not meet the demands. There is no basis for
finding that Respondent was withholding work from them in reprisal for their hav-
ing walked out. It cannot be concluded that, in such circumstances, Respondent
was withholding work from the employees in violation of Section 8(a) (1) of the Act.
Chester Wimer testified that on the day of the walkout, November 30, Fryer sug-
gested to the employees that they form a committee to discuss their grievances with
them and stated, "Why don't you go ahead and go on back to work and get a day's
kill out, but if you don't Mr. Jacobson is going to close the doors and you won't
have any work." Friends Burwell testified that Fryer said that "if we felt that way
about it [i.e., unwilling to return to work and "finish the day's kill out"], shut her
up and go home and he said they'd probably have to shut the plant down."
Fryer, in testifying with respect to his statements to employees on that day, did
not relate that he made any statement with respect to closing the plant, and was
not questioned as to whether he did so. Respondent's witness, Virgil Giles, testified
that he did not remember that Fryer made such a statement, but that "he could
have." In the circumstances, I credit the testimony of Wimer and Burwell that
Fryer stated that, if they did not go back to work and "finish the day's kill," the
plant would be closed. I do not believe that Fryer's statement could reasonably
have been understood by the employees as a mere prediction that the plant would
have to be closed down as a result of their refusal to return to work, but rather as
a threat to close the plant in reprisal for their concerted activity of withholding their
services in support of their demands with respect to working conditions.
Jacobson, who had been detained in the East because of the illness of his wife, re-
turned on December 8 or 9, and, on December 10, a Monday, held a meeting with
most of the employees,'at which he addressed them. The only substantial conflict in
the testimony as to what occurred at the meeting was with respect to whether or not
he threatened to discharge employees if they engaged in a walkout again.
Wimer, who was called by General Counsel, testified:
Mr. Jacobson came in and he looked around and said, "I am surprised.at you
fellows. What the hell is going on here." And he said, "You men cost me
$3,000 per man to train you. Now you owe me that much to just stay here and
work for me." He said, "If you ever walk out again, every dam [sic] one of
you are fired. The only reason you have a job now is because I am big-hearted."
On the other hand, Burwell, another witness called by General Counsel, testified
that Jacobson said that "these work stoppages, walkouts and sitdowns would have to
stop," 7 and that "if anything like this come up again he'd have to shut the place
down because he wasn't making no money the way things was going at the time."
Jacobson denied that he made any statement at the meeting with reference to dis-
charging employees. Witnesses called by Respondent (Divin, Clayton E. Gilbertson,
Orville Aldridge, Kenneth McGree, and Fryer) either could not recall that Jacobson
made a statement to the effect that employees would be discharged if they walked
out again, or denied that he made such a statement.
In view of the forthright denial by Jacobson,8 corroborated by five of Respondent's
witnesses, and the fact that Burwell's testimony does not corroborate Wimer's, I
cannot rely upon Wimer's testimony. On the other hand, Burwell's version of
what Jacobson said was not contradicted. Moreover, it is not inconsistent with the
tenor of Respondent's witnesses' version of what Jacobson said. Therefore, I credit
it. However, I do not consider that Jacobson's statement (Burwell's version) that
the plant would have to shut down (if it sustained further losses by. employees with-
holding their services) was a threat to take economic reprisal against them, if they
should engage in a protected, concerted activity.
7 There had been a 20-minute work stoppage on November 29 in protest of the speed at
which the men on the kill floor were required to work.
8 It would appear from testimony which I credit, as set forth hereinbelow, that on
April 19 and 22, 1903, Jacobson made statements Which could indicate that he had made
a threat of discharge at the time of the November 30 walkout. The April 19 statement
was much more damaging to Respondent's case, but, as to it, Jacobson testified that his
recollection was insufficient to permit him to deny that he had made it. Although the
testimony with respect to the April 19 and 22 statements are very persuasive that
Jacobson had made a threat of discharge on December 10, 1902, or on some other occasion,
nevertheless I do not find it sufficient to overcome the lack of persuasiveness of the testi-
mony relating directly to the December 10 episode.
NATIONAL PACKING COMPANY, INC. 451
Resolution of the . Issues Relating to the Strike
Background
As background with respect to the reasons for the strike and with respect to cer-
tain of Respondent's affirmative defenses, the following facts 9 are relevant:
1. Respondent commenced operation of its business on June 19, 1962.
2. On August 20, 1962, United Packinghouse, Food and Allied Workers, AFL-
CIO, hereinafter referred to as the Union, filed a petition for certification as the
collective-bargaining representative of a unit consisting of Respondent's production
and maintenance employees.
3. A consent election was conducted by the Board on November 1, 1962, with
the Union the only labor organization on the ballot. Thirty-six employees voted
against the Union, twenty-three for the Union, and two votes were challenged. No
objections were filed with respect to the election.
4. Felix Hayes, field representative of the Union, represented the Union in ar-
ranging for the election.
5. As set forth in more detail above, some of the production employees engaged
in a 20-minute work stoppage on November 29, 1962, and walked out on November
30, 1962, in protest against working conditions.
6. There is credible evidence that some of the employees did not, after the elec-
tion, give up their desire to get the Union to represent them, particularly Gerald
Peterson, Tony Garcia, and Jerry Dubach.
7. There were two committees formed by the employees to discuss grievances
with management. The first was formed at the suggestion of Fryer during the
November 30 walkout and met with Fryer and later Jacobson. This committee was
dissolved . Later, about the beginning of January 1963, a second committee was
formed by the employees at Jacobson 's suggestion . He met with this committee
on several occasions, but after it presented certain demands which were unacceptable
to him , he indicated that there would be no further meetings . There is no showing
that either of the committees was designated as their bargaining representative by
a majority of the production and maintenance employees.
8. On or about March 9, 1963, there was a meeting of about 15 of Respondent's
employees at the Union's hall with Felix Hayes present. From the credible testi-
mony of Teddy Phelps, I infer that during the course of the meeting Hayes typed a
statement on what has been referred to frequently in the record as "the March 9th
petition." 10 In substance , the statement was to the effect that the undersigned
employees designated the Union as its bargaining representative. Fifty-six signatures
appeared below the statement, some of which were authenticated' by witnesses. Ap-
parently those present at the meeting affixed their signatures and there is consider-
able testimony that signatures were solicited at the plant a day or so subsequent to
the meeting . However, the so-called petition was never presented to Respondent,
nor was any of its management ever notified of its existence prior to the hearing.
The Strike
As has been indicated hereinabove, at the end of the workday on April 17, 1963,
when paychecks were distributed, the employees discovered that the checks did not
include a 10-cent per hour raise which they believed had been promised to them
by Jacobson. That evening, several of the members of the second committee met,
and, according to the testimony of Matias Campos, discussed the failure to get the
raise "and other promises that Mr. Jacobson had promised." They decided they
"would tell the men there would be a walkout on April the 18th."
The next morning, April 18, word of the decision was communicated to the other
employees, and, about 9:30 a.m., after they had finished processing on the kill floor
the cattle that had already been slaughtered, about 20 employees, principally those
on the kill floor, walked out. It appears that Gerald Peterson telephoned Felix
Hayes and arranged with him to meet with the striking employees outside the gate
of the plant.
Before the strikers left the plant , Friends `Burwell , apparently acting as their
spokesman , had a conversation with Respondent's assistant general manager, Barnes.
They both testified that Barnes urged him to persuade the men not to walk out.
In addition , each testified , without contradiction , to something the other said.
Barnes testified that Burwell said the strikers were going outside to meet with Hayes.
9 These facts are undisputed unless otherwise indicated.
10 Hayes was not called as a witness. Other testimony as to the origin of the petition
was too vague to be of any probative value.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burwell testified that Barnes said, "You know, if you walk outside the gate you
are fired." I credit the testimony with respect to both statements. Hayes did meet
with the strikers that morning after they had walked out. Although I find Barnes.
did threaten discharge in violation of Section 8(a)(1) of the Act, it is evident that
he did not put the threat into effect, for he sent Divin out to persuade the strikers
to return. While this violation through Barnes was not specifically alleged in the
complaint, it is closely related to the violations that were alleged and the incident
was litigated. Divin was instructed to inform the men, and did, that they would
be given the 10-cent raise retroactively. (The raise was reflected in the next
paycheck.)
It appears from the testimony of several of the witnesses that the strikers refused
to return to work, even after the raise was offered, because they wanted other terms
and condiions of employment changed and "something in writing" setting forth the
changes. For example, Matias Campos testified without contradiction, as follows:
He [Divin] said if you come back right now we will give you that 10 cent
raise and we told him that we would not go back just for 10 cent raise, that
we wanted a standard, we wanted a better standard than they offered us,
and because we told him that we've been having nothing but promises and
we haven't received any of them. We told him that we wanted something in
writing.
There is a considerable amount of testimony with respect to incidents which oc-
curred after the strikers walked out of the plant. This testimony is relevant to the
remedy rather than to whether an unfair labor practice was committed. General
Counsel contends that the strikers were discharged on April 19, 1963, the second
day of the strike. Respondent contends that it did not discharge them, not that it
discharged them for cause. It does, however, contend that it would have been
justified in discharging them for engaging in picketing violative of Section 8(b) (7) (B)
of the Act and would have been justified in discharging 14 of the strikers for mis-
conduct. The issue raised by these contentions of Respondent and the testimony
relevant thereto will be considered after the issue of whether the strikers were,
in fact, discharged is resolved.
The Discharge
About midday of April 19, Jacobson, who had been out of town and had been
informed of the strike by telephone, arrived at the plant. The taxi in which he
was riding entered the plant grounds. Jacobson, instead of proceeding into the
plant, walked back to talk to several of the' strikers including Chester Wimer and
Victor Simmons. Wimer and Simmons testified to what was said, and, in substance,
their testimony was mutually corroborative. Wimer testified as follows:
. He walked up and said, "What is going on here?" Nobody said anything
and I spoke up, I said, "The men don't feel they are getting the proper working
conditions or the proper pay they should have." He said, "Oh. Do you re-
member what I told you the last time, if you ever walk out again, everyone
of you are fired. If you don't quit this dam [sic] picketing and get the hell
back to work, everyone is fired." Nobody went to work and he went in the
plant.
Simmons testified as follows:
He said, "What the hell's going on here?" And one of the fellows told him that
we had a walkout, they were promised a raise, they didn't receive the raise, they
were all worked up about the working conditions, and he said, "I told you damn
people before if you ever walked out the gate again you were fired, go find
other jobs, you have no right to be here."
Jacobson's testimony did not contradict that of Wimer and Simmons. While he
remembered having a conversation with some of the strikers at that time, Jacobson
could not recollect any of the conversation. When the Trial Examiner stated the
substance of what Wimer and Simmons had testified and asked him if it refreshed his
recollection, Jacobson testified that he still did not remember and that he could not
say that he did or did not make the statements. attributed to him by Wimer and
Simmons. I credit their testimony, and find that Jacobson, by his statements to
them, discharged the strikers.
There were other incidents which support this finding that the strikers were dis-
charged. In a number of instances certain strikers requested reinstatement and it is
evident from the refusals that Respondent's management considered their employ-
ment had been terminated.
NATIONAL PACKING COMPANY, INC. 453
According to the testimony of Ozzie Clayton , one of the strikers , he reported for
'work on Monday morning, April 22, but the guard would not let him enter the plant.
A short time later Jacobson arrived and Clayton told Jacobson that he wanted to
go to work . He further testified that Jacobson replied as follows:
"As far as I know, you don't work here any more ." He said, "You know, I told
you on the last walkout I was going to fire you ," he said, "You don't work here
anymore; best go find another job."
Jacobson testified that one morning in the week starting April 22, Bert Hubbard,
a striker , asked him if he could come back to work and that he told him that "as far
as I was concerned , there wasn 't any work for him." Jacobson also testified that,
about the same time, he received a similar request from Clayton and made a similar
reply. The record discloses that Respondent hired replacements for the strikers on
April 22 and continued hiring replacements for several week 's thereafter . It is ob-
vious, therefore , that Jacobson 's statements to Hubbard and Clayton ( that there was
no work for them, as far as he was concerned ), and was not predicated on the fact
that they had already been replaced. . I infer that it was because he considered their
employment had been terminated by him. I find, therefore , that Clayton and Hub-
bard were denied reinstatement on April 22 because they had participated in the
strike.
Matias Campos testified that on April 22 he called Fryer and asked to be reinstated
and that Fryer told him "as far as we are concerned you're fired ." Fryer testified
that he received a call from Matias Campos about that time but that he did not ask
about his job, "all we did was to chat ." I credit the testimony of Matias Campos.
Fryer admitted that he received a call from Matias Campos in which he asked for
his job, but that it was a second call and he placed it sometime in May. I believe
Fryer may have confused the two calls , for I find it difficult to believe that, partic-
ularly in the circumstances existing around the date of April 22, Matias Campos
would have called Fryer , a member of top management , to engage in idle conversa-
tion . I find, therefore , that Matias Campos was refused reinstatement on April 22
because he had participated in the strike.
Tony Garcia testified that on April 22 he asked Barnes about his job and Barnes
said, "As far as we are concerned, you no longer have a job." Barnes testified that
to the best of his "knowledge" Garcia did not ask about his job , but that he may have.
I credit Garcia 's testimony, not only based on Garcia 's demeanor but also in view
of the haziness of Barnes ' recollection of the incident , and find, therefore , that Garcia
was refused reinstatement on April 22 because he had participated in the strike.
John Rios testified to the following conversation with Barnes on April 22:
I said , "Good morning, Mr. Barnes ." He said, "What do you want , John." I
said, "I want my job back ." He looked at me with a silly grin, he said, "You
walked out, you quit ." I said, "I never punched out." He said , "You don't have
any job here." He said , "We don 't want you here." I don't know who he
meant by we.
Barnes and Rios testified to a conversation they had on April 19, but Barnes did
not testify about a second conversation with Rios on April 22; nor was he questioned
with respect to it. In the circumstances , I credit Rios' testimony as to the April 22
conversation and find that he was refused reinstatement on that date because he had
participated in the strike.
By letter dated May 17 , 1963, Emil C. Anderson , Jr., wrote a letter on behalf
of the 19 employees who engaged in the strike requesting (without condition) rein-
statement within 5 days from the date thereof . The letter was received, but was not
answered. In my opinion , the failure to answer was tantamount to a refusal to
reinstate the employees named in said letter.
I find that the strikers were discharged and refused reinstatement because they had
walked out in protest against their failure to receive a 10-cent raise and had refused
to return to work, after the raise was'promised to them, because they wanted "some-
thing in writing" assuring them of the raise and two further raises which they believed
had been promised and other changes in the terms and conditions of their
employment.
Therefore , I conclude that they were discharged and refused reinstatement in viola-
tion of Section 8(a) (1) of the Act for engaging in concerted activity protected under
Section 7 of the Act.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's Contention as to Section 8(b) (7) (B)
The Respondent contends that the strikers engaged in picketing in violation of
Section 8(b) (7) (B) of the Act 11 in that it had, as an object thereof, to force or
require the Respondent to recognize and bargain with an uncertified labor organiza-
tion (either the Union or the striking employees as a group) as the representative of
its employees within 12 months after a valid election. The strikers did engage in
picketing; there had been a valid election less than 12 months prior to the picket-
ing; and neither the Union nor the group of strikers was certified as the bargaining
representative of Respondent's employees. In view of the findings hereinbelow, I do
not pass upon the question of whether the group of strikers constituted a labor
organization within the meaning of the Act. Respondent does not contend the
strikers were discharged for picketing, but rather that it would have been justified in
discharging them for such conduct.
As stated above, I am convinced that they were discharged and that the discharge
and refusal of reinstatement were for their protected and concerted activity in
withholding their services, not for their picketing. Apparently no thought was given
to the possible application of Section 8(b)(7)(B) to the picketing until counsel
undertook preparation of the defense in this case. The record discloses no refer-
ence by Respondent to conduct proscribed by this section of the Act prior to the
filing of its answer. In my opinion, even if it were assumed that the picketing was
violative of Section 8(b)(7)(B), in view of the clear language of Section 13 of the
Act, the picketing would not render the conduct unprotected for which the strikers
were discharged and refused reinstatement.
Therefore, since Respondent does not contend, and it cannot be concluded, that
the picketing was the reason for the discharges and refusals to reinstate, it appears
that Respondent's contention that the picketing violated Section 8(b)(7)(B) can
only raise the issue of whether it constituted misconduct of such a nature as to
warrant withholding from the strikers the remedy usually prescribed for unlawful
discharge and refusal to reinstate. This is consistent with the position of Respond-
ent set forth in paragraph 13 of its answer, that by reason of their misconduct and
picketing the strikers are "barred from -reinstatement and backpay."
The record demonstrates that Hayes did not cease attempting to organize Re-
spondent's employees after the election. It also discloses that he gave advice to
the strikers after they had walked out of the plant as to how to conduct themselves
and that he encouraged them in their strike. It further appears that he furnished
some of the signs which the strikers carried.12 The record further discloses that the
strikers wanted Hayes to "represent" them in working out "something in writing"
which would assure them of the 10 cent per hour raises (three such raises to take
effect in April, July, and October) they believed had been promised and other
changes in the terms and conditions of their employment. Fryer, the general
manager, testified, without contradiction, to a telephone call he received from Hayes.
about 3:30 p.m. on April 18. His testimony of their conversation was as follows:
He said he represented 90 percent of the men in the plant and he said, "I hear
you are having some trouble down there, in fact," I'm not in chronological order,
he said that prior to the 90 percent, he introduced himself as Mr. Hayes. saying,.
"Section 8(b) (7) (B ) reads as follows:
(b) It shall be an unfair labor practice for a labor organization or its agents-
( • • • c a •
(7) to picket or cause to be picketed, or threaten to picket or cause to be
picketed, any employer where an object thereof is forcing or requiring an em-
ployer to recognize or bargain with a labor organization as the representative of
his employees, or forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining representative, unless
such labor organization is currently certified as ii'e representative of such
employees:
• • • • n r.
(B) where within the preceding twelve months a valid election under sec-
tion 9(c) of this Act has been conducted, or
12 Orville Aldridge, Respondent's personnel manager, testified that Hayes drove up near
the gate about 9:30 or 10 a.m. on April 18 and talked to the men; that Hayes left and re-
turned 15 or 20 minutes later ; and that the strikers then removed "on strike" signs from
the trunk of Hayes' car. None of the strikers who were questioned about the origin of
the signs was able to give testimony as to their origin which persuaded me that I should
not credit Aldridge's testimony . Hayes was not called to testify.
NATIONAL PACKING COMPANY, INC. 455
"I hear you have a little trouble down there and I represent 90 percent of the
men and they want me 'to negotiate with you for them." The plant was operat-
ing that day and I didn't think he represented 90 percent of the men because
we had a greater percentage in the plant than were outside. So I told them
on that basis I couldn't negotiate with him and I said goodby.
There is no basis for inferring that the strikers authorized, condoned, or were even
aware of this call by Hayes.
Hayes also talked to Barnes, the assistant general manager, about representing
Respondent's employees. This conversation was on the following day, April 19,
and was in the presence of some of the strikers. According to Barnes' testimony
upon cross-examination, it does not appear that Hayes indicated to him that he
was seeking recognition of the Union as the collective-bargaining agent of Respond-
ent's employees, but only that he wanted to aid the strikers in working out a settle-
ment of their grievances. The record discloses that the strikers were looking to
Hayes, as an expert in labor relations, to aid them in working out something in
writing assuring them of the future raises they believed had been promised and a
settlement of certain grievances.
With respect to Hayes' call to Fryer, I believe that Hayes was attempting to capi-
talize on the strike. In contrast, when Hayes talked to Barnes the next day in the
presence of the strikers, he made no request for recognition of the Union or claim of
majority representation. Undoubtedly, Hayes was attempting, by aiding the strikers,
to ingratiate himself with the employees and strengthen the Union's future chances.
of organizing Respondent's plant. In view of the circumstances in which the strike
was precipitated (which demonstrated that it was a spontaneous protest) and the
lack of evidence that the strikers were requesting recognition of the Union, or that
there was any dispute with respect to representation at the time, I find no basis for
inferring that the strikers had, as an object of their picketing, the purpose of forcing.
or requiring the Respondent to recognize or bargain with the Union, or of forcing
or requiring employees to accept or select the Union as their collective-bargaining
representative.13
Nor do I find that the strikers, by their strike and picketing in the course of it,.
were attempting to force or require the Respondent to recognize and bargain with
them as a committee, or the employees to accept them, to act as the collective-
bargaining representative of Respondent's employees within the meaning of Section
8(b) (7) (B) of the Act. It does not appear they were seeking a continued collective-
bargaining relationship with the Respondent, but only certain concessions with
respect to the terms and conditions of their employment. There is no basis for in-
ferring that they claimed to have been selected as the bargaining representative of
a majority of the employees, or were attempting to obtain such selection. True,
they sought to persuade the other employees to join ahem in the strike, but I can
only infer that it was for the purpose of adding further pressure upon Respondent
to grant the concessions for which they were striking.
Therefore, I conclude that the purpose of the picketing by the strikers did not
include an object proscribed by Section 8(b)(7)(B) of the Act and, consequently,
the picketing was not violative of said section.
Respondent's Contentions as to Misconduct
Respondent, in also contending that certain of the strikers engaged in misconduct,
does not take the position that they were discharged, or refused reinstatement, there-
for, but that Respondent "would have been justified" in discharging them therefor.
Since Respondent does not contend, and it cannot be concluded, that the employees
were discharged and refused reinstatement for misconduct, it appears that Re-
spondent's contention with respect to the acts of various strikers only raises the issue
of whether said acts constituted misconduct of such a nature as to warrant with-
holding from certain of the strikers the remedy usually prescribed for unlawful
discharge and refusal to reinstate.14 Essentially the issue raised by Respondent's
contentions and paragraph 13 of its answer is not whether Respondent "could have"
discharged the strikers for engaging in picketing violative of Section 8(b)(7)(B)
of the Act, or "could have" discharged certain of the strikers for their conduct on
the picket line, but whether their picketing or their conduct on the picket line made
Is The . signs apparently bore such legends as "on strike" and information that the
Respondent paid substandard wages. Neither the signs nor testimony as to representa-
tions made on the picket line indicate that the strike was for organizational purposes.
14I considered the same issue was raised with respect to the picketing. The allegations
in paragraph 13 of Respondent's answer clearly raises the issue as stated.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them "unemployable" by the Respondent, so as to excuse Respondent from the duty
of remedying the unlawful discharges. National Furniture Manufacturing Com-
pany, Inc., 134 NLRB 834, 835. The tests frequently used in determining whether
an employee is "unemployable" are whether his conduct was so "flagrant as to render
him unfit for further service," or "exceeded the animal exuberance and mutual
harassment characteristic of strike situations." 15
Before. considering ' he testimony referred to by Respondent with respect to the
conduct of 14 of the strikers, it appears appropriate to note at this point that, even
assuming it were to be found that the picketing was violative of Section 8(b) (7) (B)
,of the Act, such activity, to my mind, would not make the strikers "unemployable"
and warrant a finding that it would not effectuate the policy of the Act to order
the usual remedy of reinstatement and backpay.
In my opinion, no purpose would be served by )a necessarily lengthy analysis of
the many decisions of the Board and the courts involving the effect of various acts of
misconduct on issues relating to discharge and reinstatement, quite a few of which
.have been cited in the briefs. For the most part, the holdings in each of these cases
appear to depend on the circumstances peculiar to the particular case. Instead,
I have stated what I consider the Board has laid down as the guiding principle
.applicable to the facts and findings in this case, and consider herein below the con-
duct of the strikers in light of said principle, i.e., whether or not the strikers' con-
duct made them unemployable.
In general, the acts of misconduct of the various strikers referred to by Respond-
ent consist of statements to employees that they would be prevented from entering
the plant, standing or walking in front of cars of employees and trucks so as to stop
them from proceeding into the plant, use of obscene language, and leaving perish-
able products to spoil.
Following is a consideration of the conduct 16 relied upon by Respondent with
respect to each striker (in alphabetical order) :
Jack Boone: Boone was identified in a photograph .taken on April 19 as one of
the men in front of a truck standing in the driveway leading into the plant. With-
out more, I cannot rely on the photograph to establish whether Boone and the
others had prevented the truck from proceeding into the plant or were in the process
of getting out of its way. Also, Boone was identified as one of several strikers who,
by standing or walking in front of a car of a fellow employee, alternatively referred
to in the record as Newsome or Nusom (hereinafter referred to as Newsome),
prevented it from being driveninto the plant.
I find that it has not been established that Boone's conduct was such as to make
him unemployable by Respondent.
Gerald Bowman: On the night of April 18, Bowman told John Fotovitch, a fellow
employee, that there would be 25 or 30 pickets the next morning and that they were
not going to let anyone enter the plant. Further, in the afternoon of April 19,
Bowman was also among those who stood or walked in front of Newsome's car
in such ^a manner as to prevent the car from being driven into the plant.
I find that, Bowman did not engage in conduct of such a nature as to make him
unemployable by Respondent.
Friends Burwell: Early on the morning of April 19, 1963, a number of strikers
were standing or walking in front of the gate of the plant when employee Vernon
Giles drove up to them. The estimates of Respondent's witnesses as to the number
of these strikers varied from as many as 12 to as few as 3. It appears that they
were deployed in such a manner as to prevent Giles from continuing through the
gate. Burwell was identified as one of these strikers.
Burwell was also identified as one of the strikers who were standing or walking in
front of the gate when Art Moore, a supervisor, and Charles Finch, an employee,
approached the gate in the former's car. Moore stormed the car, Finch got out of
it, and the strikers stepped aside to permit the automobile to be driven into the plant.
Burwell said to Finch, "Ain't nobody went in yet and ain't nobody going in."
Burwell was identified as.one of several strikers who were so. standing or walking
in the street leading to the plant as to require a Missouri Pacific truck to come to a
stop and then Burwell walked over to the side of the truck and talked to the driver.
'b See, e.g ., H. N. Thayer Company, 99 NLRB 1122, 1133, and 115 NLRB 1591, 1596:
Puerto Rico Rayon Mills, Inc., 117 NLRB 1355, 1357.
11 Unless otherwise indicated , I find the conduct set forth to have been demonstrated by
the record, either because the testimony with regard thereto has not been contradicted, or,
if contradicted, should be credited.
NATIONAL PACKING COMPANY, INC. 457
In this instance the truck drove away. However, the record demonstrates that in
other similar instances after a brief conversation between the driver and one or more
of the strikers, the truck proceeded into the plant without interference. There is no
evidence of what was said to the truckdriver on any of the occasions.
Respondent cites testimony of Naspa Schultz as to an incident in which he re-
turned to the plant with his wife and children late on April 18 to get a billfold he
had left in the plant. However, no purpose would be served in going into the details
of the incident since it is not clear from his testimony that Burwell was involved to
an extent beyond being present at the scene.
Respondent relies on a photograph taken on April 19 (of a scene in front of the
plant in which Burwell is identified) as evidence that Burwell assisted in putting up a.
cord or fishing line across the road. The record discloses that another striker did
string a line across the road. I cannot rely on the photograph to determine what,
if anything, Burwell did with respect to the line.
Finch testified that, at the end of the workday on April 18 when he was leaving
the plant, Burwell said to him, "I'll whip you or you'll whip me one, but you aren't
going to get in in the morning." Finch also testified that the next day Burwell,
among others not identified, stated, after several cars went into the plant through
a side gate (referred to in the record as the west gate), "They might get in but
they won't never get out, if they do we'll knock them windshields and everything
else out of them cars when they come out."
Paul Brown, an employee 19 years of age, testified that when he left the plant at
the end of the workday on April 18, Burwell told him that if he was planning on
going into the plant the next morning, "you'd better bring your shotguns because
we are going to fight." Burwell also told him that he did not want to "hit a little
kid," but that he would.
Gary Coleman, an employee, testified that on the morning of April 18 Burwell told
him that the men were going to walk out and he said, "I better go with them be-
cause if I didn't go I was going to end up like I did last time." He further testified.
that he understood that, by the "last time," Burwell was referring to an incident
shortly after the election when he (Coleman) was beaten by two employees after
they asked him how he had voted. Burwell denied that he had threatened anybody,
when testifying during the presentation of General Counsel's case, and was not re-
called as a rebuttal witness. I do not credit this denial, and credit the above testi-
mony of Finch, Brown, and Coleman.
Although there is no showing that Burwell carried out any of his threats or en-
gaged in violent action against person or property, I am of the opinion that the em-
ployees whom he threatened could have reasonably believed the threats were serious-
ly intended. In view of the grave nature of his threats and the number of them,
I am of the opinion that he is unemployable by'Respondent. To my mind, his con-
duct exceeded the limit of "animal exuberance" and rendered him "unfit for further
service with the Respondent." There is a likelihood that his threats engendered an
antagonism which should not be brought to the kill floor of Respondent's plant.
Jose Campos: He was identified as one of the strikers who were standing or walk-
ing in front of the gate, on the morning of April 19, in such a manner as to require
a car approaching the gate to stop. He testified that, when Giles drove up to the
picket line that morning, the car struck him. Although there is conflict in the testi-
mony as to whether he was struck, I credit his testimony as to this fact, for the
record demonstrates that, at the time, he exclaimed that he had been hit and registered
his anger. This was a spontaneous reaction, not an afterthought. Although he did
go to the side door of Giles' car and say, "Let's get the son of a bitch out of there,"
he was understandably provoked. The door was locked and Campos was pulled
away by a fellow striker. Campos made no further attempt at violent action.
He was also identified by Jacobson as one of those standing or walking in front of
employee Newsome's car which was stopped in the road leading to the plant. He
admitted walking in front of the car after Jacobson arrived. Campos stated to,
Jacobson that Newsome and a fellow employee in the car would not be permitted to,
go into the plant.
I find that his conduct was not of such a nature as to make him unemployable by
Respondent.
Matias Campos: He was identified as one of the strikers who were walking or
standing in front of the gate when Giles approached it in his car. Further, although
not referred to by Respondent in its brief, Campos admitted to stringing a fishing
line across the road leading to the plant, but it only remained there a brief period,
and there is no evidence that it prevented the passage of any vehicle or person. The
line was raised to permit the passage of a truck, and he took it down when told to
do so by a fellow striker.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that his conduct was not of such a nature as to make him unemployable
by Respondent.
Ozzie Clayton: Clayton was identified as one of those who were standing or walk-
ing in the street leading to the plant in such a manner as to cause a Missouri Pacific
truck to stop while Burwell went to the side of the truck and talked to the driver.17
Also, William Watson testified, without contradiction, that, when he left the plant on
April 18, Clayton said to him and two other male employees, "You are my people
and you won't come out" and called them "a bunch of dirty, black
[an obscene phrase]." I am. certain that obscenities are not infrequently employed by
packinghouse workers and that the name calling had no significant effect on Watson
or the other two employees.
I find that Clayton's conduct was not of such a nature as to make him unem-
ployable by Respondent.
Jerry Dubach: Dubach told Raymond Harrison, a fellow employee, on April 18,
that the employees "would not be able to work the next day because they would be
on strike and they wouldn't let us [nonstrikers] pass through the picket line."
Dubach made similar statements to employees Donald Carins and Giles the same day.
Although the statements can be construed as an implied threat, it does not appear to
be of such a nature as to warrant the inference that Dubach was threatening to
inflict bodily harm upon any employee who attempted to enter the plant. In my
opinion, it is within the limit of "animal exuberance and mutual harassment charac-
teristic of strike situations."
Dubach was also identified as one of the strikers standing or walking in front of
the gate on the morning of April 19 in such a manner as would prevent a car from
proceeding through the gate.
I find that Dubach did not engage in conduct of such a nature as to make him
unemployable by Respondent.
Frank Epsom and Phillip Gomez: Epsom and Gomez were identified among the
several strikers who stood or walked in the street leading into the plant in such a
manner as to cause a Missouri Pacific truck to stop."'
I find that neither Dubach nor Gomez engaged in conduct of such a nature as to
make them unemployable by Respondent.
Bert Hubbard: On April 19 Hubbard said to Naspa Schultz that no one was going
to get into the plant that day and when Schultz said that a man could get in "if he
wanted in bad enough," Schultz answered that he "would like to see him try."
At the most, this is an implied threat which, to my mind, does not exceed the limit
,of "animal exuberance and mutual harassment characteristic of strike situations." I
find that Hubbard's conduct was not of such a nature as to make him unemployable
by Respondent.
Gerald Peterson: It was stipulated that Peterson was discharged from prison on
December 17, 1955, after serving a 3-year term for larceny, and that from 1956 to
October 19, 1962, he served 6 years of a 10-year sentence for burglary. Peterson
concealed these facts from Respondent by indicating, in his application for employ-
ment, that he lived for the preceding 12 years at the address in which he was resid-
ing at the time of application, that he was self-employed as a farmer from 1953 to
February 1961, and was employed as a maintenance worker in a dairy for 2 months
thereafter at a salary of $250 a month. In view of these circumstances, I find that
it would not be appropriate to order reinstatement and backpay as a remedy for his
unlawful discharge, since it appears reasonable to assume that Respondent would
not have hired him, or retained him in its employ, if he had given truthful informa-
tion. Southern Airways Company, 124 NLRB 749, 752-753. Respondent did not
learn about his criminal record until April 19, 1963.
In view of the above finding, no purpose would be served in setting forth in detail
the testimony as to his conduct on the picket line. It appears that, among other
things, he stated to employee James Collins on April 18 that if he worked the
next day there was no telling what would happen to his wife and children, and, on
April 19, he placed his foot near the tire of Newsome's car and told Jacobson,
who was at the wheel, that he would have to run over his foot in order to drive the
car into the plant.
Joseph Ruiz and Clarence Stansbery: Both of these men worked in the offal depart-
ment of Respondent's plant. It appears what when they walked out on the morning
of April 18 there were products (of a value of $2,000) which required processing,
work that they ordinarily did. It also appears that the products would have spoiled
14 The incident is also set forth hereinabove in the consideration of Burwell's conduct.
18 This incident was also referred to hereinabove'in the consideration of the conduct of
Burwell and Clayton.
NATIONAL PACKING COMPANY, INC. 459
if they had not been processed by other employees in the department. Respondent,
in its brief, cites cases which hold, as stated by Respondent, that "if a work stoppage
is deliberately timed to cause maximum damage, those engaging in such work stop-
page are not engaged in protected activity and are subject to discharge." It is clear
that the strike in this case was not "deliberately timed " to cause damage, but on the
contrary was a spontaneous reaction of the strikers to the failure to get a raise they
believed had been promised.19 Therefore, the principle set forth by Respondent
is not applicable to the circumstances of this case.
Further with respect to Stansbery, he was identified as one of the strikers walk-
ing or standing in front of Giles' automobile when Giles drove up to the gate on the
morning of April 19. Also, on that morning, he parked his car across the side gate
to the plant, in such a manner as to prevent cars from driving through it. The
side gate (or west gate) was normally kept locked and not used, but was used that
morning by some of the employees instead of the main gate through which they
.ordinarily entered the plant. Ostensibly Stansbery's purpose was to block the side
gate. which he succeeded in doing until required by the police to move his car.
There is no showing that Stansbery's attempt to block the side gate interfered with
the operations of Respondent's plant.
I find that neither Ruiz nor Stansbery engaged in misconduct of such a nature as
to make them unemployable by Respondent.
Chester Wiener: Wimer was identified as one of the strikers standing or walking
in front of the gate when Giles drove up to it on the morning of April 19.
I find that Wimer did not engage in conduct of such a nature as to make him un-
employable by Respondent.
The finding that the conduct in which 12 of the above strikers engaged did not
.make them unemployable should not be considered as condonation of such conduct.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
.several States, and tend to lead to labor disputes burdening and obstructing commerce
:and the free flow thereof.
IV. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I
.shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. In view of Respondent's
discriminatory discharge of 19 employees, it would appear that the issuance of a broad
order is warranted.
Having found that Respondent discriminatorily discharged 19 °mployees, I shall
recommend that it offer to all of them, except Friends Burwell and Gerald Peterson,
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their former rights and privileges. For the reasons stated here-
'inabove I arm of the opinion that it would not effectuate the policy of the Act to re
quire such a remedy with respect to Burwell and Peterson or to order backpay for
them.
It will be further recommended that Respondent make each of said employees, ex-
cept Burwell and Peterson, whole for any loss of pay suffered by reason of the dis-
,crimination against them by payment to them of a sum of money equal to the amount
of wages they would have earned, but for said discrimination, from the earliest date
found hereinabove in which said employee made a request for reinstatement 20 to the
19It is noted that, before they went on strike, the employees on the kill for finished
processing the cattle that had already been slaughtered.
20 Their names and the date applicable to each of them are as follows:
Jose Campos -------------- April 22, 1903 Tony Garcia_____________ May 18
Matias Campos ----------- April 22 Phillip Gomez ------------ May 1S
Ozzie Clayton ------------ April 22 Teley Jones______________ May IS
Bert Hubbard ------------ April 22 Joseph Ruiz______________ May 18
John Rios_______________ April 22 Victor Simmons----------- May 18
Jack Boone______________ May 18 Clarence Stansbery_--____ May 18
Gerald Bowman__________ May 18 Bob Summoner----------- May 18
Jerry Dubach_____________
Frank Epsom_____________
May 18
May 18
Chester Wimer----------- May 18
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date he is offered reinstatement, together with interest thereon, as provided below,
and that the loss of pay be computed in accordance with the formula and method
prescribed by the Board in F. W. Woolworth Company, 90.NLRB 289. General
Counsel requested that interest be allowed on the backpay award, and, as indicated,
I find that the requirement of the payment of interest would be appropriate. Isis
Plumbing & Heating Co., 138 NLRB 716. The interest payable, as stated above,
shall be computed at the rate of 6 percent per annum on the amount due in each
instance for each calendar quarter (under the Woolworth formula) beginning with
the end of the first calendar quarter and continuing for each succeeding calendar
quarter until payment of such amount is properly made.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is,an employer engaged in commerce within .the meaning of the Act.
2. Respondent, through John Fryer on November 30, 1962, and through John
Barnes on April 18, 1963, did threaten its employees with economic reprisal in
violation of Section 8(a) (1) of the Act.
3. Respondent, in violation of Section 8(a)(1) of the Act, discharged 19 of its
employees and refused to reinstate them because of their concerted activity.
4. The allegations in the complaint of violations of the Act, other than those
violations found in paragraphs 2 and 3, above, have not been sustained.
RECOMMENDED ORDER
Upon the entire record herein, and pursuant to Section 10(c) of the Act, as,
amended, it is recommended that Respondent, National Packing Company, Inc., its.
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging activities of its employees protected under Section 7 of the-
Act by discharging any of its employees, or in any other manner discriminating
against any employee or applicant for employment in regard to their hire or tenure
of employment, or any term or condition thereof, because of their protected activities.
(b) Threatening any of its employees with economic reprisal should they engage
in any activity protected under the Act.
(c) In any other manner interfering with, restraining or coercing employees or
applicants for employment in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through representatives,
of their own choosing, to engage in concerted activities for the purpose of collective-
bargaining or other mutual aid or protection, or to refrain from any or all such,
activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer immediate sand full reinstatement to their former or substantially equiv.
alent positions, without prejudice to their seniority or other rights and privileges,
to the following named individuals:
Jose Campos Gerald Bowman Teley Jones
Matias Campos Jerry Dubach Joseph Ruiz
Ozzie Clayton Chester Wimer Victor Simmons
Bert Hubbard Frank Epsom Clarence Stansbery
John Rios Tony Garcia Bob Summoner
Jack Boone Phillip Gomez
(b) Make said above-named individuals whole for losses suffered as a result of
the Respondent's discrimination against them, together with interest thereon at 6
percent per annum, as provided in the section entitled "The Remedy." It shall also
preserve, and, upon request, make available to the Board or its agents, for examina-
tion and copying., all payroll records, social security payment records, timecards, per-
sonnel records and reports, and all other records relevant to a determination of the:
amount of backpay due under the terms of this Recommended Order.
NATIONAL PACKING COMPANY, INC. 461.
(c) Post at its plant in Kansas City, Kansas, copies of the attached notice
anarked "Appendix." 21 Copies of said notice, to be furnished by the Regional
Director for the Seventeenth Region, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt thereof, and be maintained
by it for at least 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees and applicants for employment 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.
(d) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision, what steps Respondent has taken to comply herewith.22
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
,decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
= In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage our employees from engaging in any activity pro-
tected under the Act, by discriminating against them in regard to their hire or
tenure of employment, or in regard to any term or condition of employment.
WE WILL NOT threaten our employees with economic reprisal if they should
,engage in any activity protected under the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activities.
WE WILL offer to the individuals named herein below reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and we will make them whole for any loss of pay
suffered as a result of our discrimination against them.
Jose Campos Gerald Bowman Teley Jones
Matias Campos Jerry Dubach Joseph Ruiz
Ozzie Clayton Chester Wimer Victor Simmons
Bert Hubbard Frank Epsom Clarence Stansbery
John Rios Tony Garcia Bob Summoner
Jack Boone Phillip Gomez
NATIONAL PACKING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing ,and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti-
more 1-7000, Extension 731, if they have any question concerning this notice or
compliance with its provisions.