Smithfield Packing Co.

National Labor Relations Board - Board Decisions

Sep 24, 1981

258 N.L.R.B. 261 (N.L.R.B. 1981)

SMITHFIELD PACKING CO.
Smithfield Packing Co. and Virginia and North
Carolina Laborers' District Council affiliated
with Laborers' International Union of North
America, AFL-CIO. Case 11-CA-9149
September 24, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 19, 1981, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Smithfield
Packing Co., Kinston, North Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I Respondent's request for oral argument is hereby denied as, in our
opinion, the record in this case, including the exceptions and brief, ade-
quately presents the issues.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
charges filed on May 15 and June 2 and 26, 1980, by
Virginia and North Carolina Laborers' District Council
affiliated with Laborers' International Union of North
America, AFL-CIO, herein referred to as the Union,
against Smithfield Packing Co., herein called Respond-
ent, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 11, issued a
complaint dated June 27, 1980, alleging violations by Re-
spondent of Section 8(a)(1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended, herein
called the Act. Respondent, by its answer, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Kinston, North Carolina, on February 23, 1981, at which
the General Counsel and Respondent were represented
by counsel and were afforded full opportunity to be
258 NLRB No. 22
heard, to examine and cross-examine witnesses, and to in-
troduce evidence. Thereafter, the parties filed briefs
which have been duly considered.
Upon the entire record in this case, and from my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Virginia corporation, operates a plant in
Kinston, North Carolina, where it is engaged in the
slaughtering and packing of pork. During the year
ending December 31, 1979, a representative period, Re-
spondent, in the course and conduct of its business oper-
ations, purchased and received at the Kinston plant
goods and materials valued in excess of $50,000 which
were sent directly from points located outside the State
of North Carolina. In that same time period, it sold and
shipped products valued in excess of $50,000 from the
Kinston, North Carolina, plant directly to points located
outside that State. I find that Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Background
On Sunday, March 9, 1980, at or about 3:30 p.m., Re-
spondent's boning department employees, Beverly
Taylor, David Powell, Lottie Mitchell, Wayne Hill,
Rufus Hodges, and Daniel Koonce, walked off the job
and left the plant before the day's work had been com-
pleted. The General Counsel contends herein that those
employees thus engaged in a concerted action to protest
the failure of Respondent to limit worktime for that day
to a period of 8 hours as previously promised. Accord-
ingly, the General Counsel urges, Respondent violated
Section 8(a)(l) of the Act when it subsequently dis-
charged the employees for having participated in the 1-
day work stoppage, an activity protected under Section
7 of the Act. Respondent contends that, in effectuating
the discharges, it lawfully applied its rule prohibiting em-
ployees from leaving work before the end of their shifts.
In Respondent's view, when the above-named six em-
ployees violated that rule on March 9, they acted indi-
vidually and not concertedly.'
Subsequently, on April 4, 1980, the Union filed a peti-
tion with the Board seeking to represent the plant em-
ployees. Following execution of a Stipulation for Certifi-
cation Upon Consent Election, an election was conduct-
ed on May 22. The Union did not receive a majority of
the valid votes counted and, thereafter, the Regional Di-
rector found that its postelection objections were with-
out merit. On July 25, 1980, the Board adopted the Re-
' On or about April 2, 1980, those employees were reinstated to their
former positions. They did not receive backpay.
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director's recommendations and issued a Certifi-
cation of Results.2 In this case, the General Counsel con-
tends, and Respondent denies, that several days before
the election Respondent, by its supervisor, Charlie High,
unlawfully interrogated a union activist, employee Cathy
Sutton.
B. Facts
On Monday and Tuesday, March 3 and 4, 1980, heavy
snowfall prevented normal operations at Respondent's
plant. In order to recover the lost production time, it de-
cided to operate the plant during the ensuing weekend.
Accordingly, on Friday, March 7, the plant superintend-
ent, Lloyd Copeland, met with the boning department
employees to announce that decision. The employees
were told that Saturday work would be mandatory while
work on Sunday was optional. According to Copeland's
testimony, he informed the employees, in response to an
inquiry, that Sunday work would be for a period of "ap-
proximately" 8 hours. Employees Taylor, Powell, and
Mitchell testified that Copeland stated that Sunday work
would be for a period "no longer than" or "no more
than" 8 hours.3
Some 52 employees, including Taylor, Powell, Mitch-
ell, Hill, Hodges, and Koonce, reported for boning de-
partment work on a voluntary basis on Sunday, March 9.
Shortly before 3:30 p.m., and after completion of more
than 8 hours of work, Taylor, according to her credited,
uncontradicted testimony, asked Powell what he was
going to do. Powell responded, stating that "the man
told him no longer than 8 hours, and he had made an ap-
pointment for 4 o'clock and he had to go." Taylor
stated, "Well, I'm going, too." They then asked Mitchell
if she would also leave and she replied, "Yes, the man
told me 8 hours and I'm going." At 3:30 p.m., Taylor
testified, she, Powell, and Mitchell, along with Hill,
Hodges, and Koonce, left their work stations and pro-
ceeded to the washup area where they encountered their
supervisor, George Rouse, 4 who asked them where they
were going. The employees stated that they "were going
home, that the man promised us no more than 8 hours
and we had already worked 9." Rouse asked Taylor, in-
dividually, where she was going and she stated that she
had been promised an 8-hour day, she had already
worked 9 hours, and she needed to go home as she was
in the process of moving her residence. As Powell left
the plant, Rouse questioned him and Powell stated that
he had to leave in order to keep an appointment. Mitch-
ell told Rouse that she had to leave as she had to pick up
her daughter. Rouse told each employee, "Go ahead,
I've got your name."
When the above-named six employees reported for
work on the next day, Monday, March 10, they were in-
structed by Rouse to leave the plant and go home. The
2 Case I I-RC-4864 (not reported in volumes of Board Decisions).
a On any given workday at Respondent's plant, there is no certain
quitting time. Rather, work hours vary from day to day, depending upon
the size, quality, and temperature of the meat to be cut, as well as the
amount of time needed for clean up.
4 The complaint alleges, and the answer admits, that Rouse, Copeland
Personnel Manager Donald Kintz, and Supervisor Charlie High are su-
pervisors within the meaning of Sec. 2(1 ) of the Act.
supervisor stated that he would later inform them as to
whether or not they were still employed. When by
Wednesday, March 12, the employees had not been con-
tacted, they, as a group, went to the plant to see Person-
nel Manager Kintz. Kintz, along with Copeland and
Plant Manager John Oliver, agreed to see the employees
individually. Kintz testified that, during the ensuing in-
terviews, Taylor, Mitchell, Hill, and Koonce stated that
Copeland had promised an 8-hour day for the Sunday in
question; Hodges stated that Copeland had said "approxi-
mately" 8 hours; and Powell agreed that Copeland had
said "approximately" 8 hours or "something like that." 5
As to their reasons for leaving their work stations and
going home, Kintz testified that Taylor informed Re-
spondent's officials that "I left because I had to move";
Mitchell stated, "I don't know why the rest of them left.
I had a babysitter problem and the babysitter had to be
somewhere at 4 o'clock and I had to pick up the baby";
Powell said, "I don't know why the other people left. I
had to see a man about buying something"; Hill and
Koonce each stated that they had worked 8 hours as
specified by Copeland; and Hodges said that, when he
saw the other employees leave, he left too.
Kintz further testified that he, Copeland, and Oliver
decided to discharge the six employees pursuant to Re-
spondent's attendance rule which prohibits employees
from leaving work before the end of their shifts. The em-
ployees were so informed during the March 12 inter-
views. At the time, according to Kintz, Respondent did
not have information indicating that, in leaving work on
March 9, the six employees had acted together. As
noted, some 3 weeks later Respondent reinstated the six
employees with full rights and privileges, but without
backpay. 6
Employee Cathy Sutton 7 testified that several days
before the election she was called to the office of her im-
mediate supervisor, Charlie High, where she received a
written warning from High for absenteeism. 8 Sutton fur-
ther testified that, at that point, "I got mad. I said that I
thought this was a stupid thing to be doing right before
an election . . . and Mr. High said 'How do you think
the vote will go?' I said, 'I don't know."' High, in his
testimony, denied asking Sutton how she thought the
vote would go. He testified that when he gave Sutton
the written warning she became excited and said, "You
shouldn't be doing this this close to an election," and
High responded, "We do have company rules that we all
have to live by."
' Kintz' testimony in this regard was corroborated by Copeland.
Powell testified that he informed Kintz. Copeland, and Oliver that he did
not hear Copeland use the word "approximately.
' The General Counsel is presently unable to locate Hill, Hodges. and
Koonlce. Thus, they did not testify at the hearing.
7 During the course of the campaign. Sutton solicited employee signa-
tures on union authorization cards. At the election she served as observer
for the Unlion.
8 The General Counsel concedes that Respondent issued the warning
for lawful reasons.
262
SMITHFIELD PACKING CO.
C. Conclusions
1. The 8(a)(l) allegation
Inasmuch as, concededly, when Sutton received the
written warning notice, for lawful reasons, she became
excited or irate, I think it likely that High's recollection
of the preelection conversation is the more accurate ac-
count. In any event, even were I to accept Sutton's ver-
sion of that discourse, I would find no violation of the
Act. Thus, it was during a conversation in which the em-
ployee was being lawfully disciplined-by a first-line su-
pervisor-that the subject of the election was intro-
duced-by the employee. High's alleged question con-
cerning the outcome of the election occurred in this con-
text and against a background free of hostility by Re-
spondent toward the Union. I conclude that the particu-
lar question allegedly asked by High would not, in such
circumstances, have had a coercive impact. I find and
conclude that Respondent did not violate the Act in this
regard.
2. The discharges
In N.L.R.B. v. Washington Aluminum Co.,9 the Su-
preme Court held that employees who reported to their
jobs and then spontaneously ceased work because of un-
satisfactory conditions in the plant were engaged in a
protected concerted activity. In that case, the work stop-
page occurred without advance notice to the employer
and without prior demand for a change in working con-
ditions. Subsequently, in First National Bank of
Omaha,'° the Board held that a previously unannounced
concerted refusal to work overtime, by a group of unre-
presented employees, prompted by dissatisfaction with
the employer's overtime policies was "a presumptively
concerted activity." The work stoppage did not lose its
protected status because it was limited in duration to the
overtime hours and was "unaccompanied by any affirma-
tive indication as to what the employees intended to do
in the future if the employer continued to maintain the
existing overtime policies.""
In my view, the cited cases are dispositive of the in-
stant matter. In so concluding, I reject Respondent's con-
tention that the employees in this case were not engaged
in a concerted action since some or all of them main-
tained and expressed individual reasons for participating
in the work stoppage. That the employees may have had
individual reasons for desiring to leave the plant at 3:30
p.m. on Sunday, March 9, 1980, is beside the point. What
is crucial is that they made common cause to protest
their employer's refusal to honor what was, in the pro-
testing employees' view, a commitment to limit work-
time for that day to 8 hours. In leaving the plant in
tandem and on that basis the subject employees engaged
in the clearest form of concerted activity. While three of
the employees who were discharged for having taken
part in that action did not testify at the hearing, the
record evidence makes it clear that their discharges did
not differ from those of the other employees who en-
9 370 U.S. 9 (1962).
'° 171 NLRB 1145 (1968), enfd. 413 F.2d 921 (81h Cir. 1969)
~ See Polyrech. Incorporated, 195 NLRBI 695 (1972)
gaged in the concerted walkout. Accordingly, the testi-
mony of the three employees was not essential in order
to prove that they were unlawfully terminated. 2 I find
and conclude that, in discharging the six employees who
participated in the walkout, Respondent violated Section
8(a)( 1) of the Act.
iV. THrl EFI:FEC I 01 F H UNI FAIR AROR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. TH RMED)Y
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent Smithfield Packing Co. is an employer
engaged in commerce, and in operations affecting com-
merce, within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Virginia and North Carolina Laborers' District
Council affiliated with Laborers' International Union of
North America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Beverly Taylor, David Powell,
Lottie Mitchell, Wayne Hill, Rufus Hodges, and Daniel
Koonce because those employees had engaged in pro-
tected concerted activities, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not otherwise violated the Act as
alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER"l
The Respondent, Smithfield Packing Co., Kinston,
North Carolina, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
[ See .lmcriratt Grinding & .lhime Co., 150 NLRB 1357 (1965)
Ill the eent no exceptions are filed a pros ided h Sec. 102 46 of
the Rule, and Regulations of the National Iahbor Relationl Board, the
finding,, conclu.,ion,. and recommended Order herein ,ihall. as prov ided
il Sec 102 48 of the Rule, and Regulations. he adopted h the Board and
hecome its findings cnclusions. and Order. and all ohjections thereto
shall he entid ,halis ed for lll purpo se,
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discharging employees because they have engaged
in protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Beverly Taylor, David Powell, Lottie
Mitchell, Wayne Hill, Rufus Hodges, and Daniel Koonce
immediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges.
(b) Make the above-listed employees whole for any
loss of pay they may have suffered by reason of Re-
spondent's discrimination against them by payment to
each of them of a sum of money equal to that which that
employee normally would have earned as wages from
the date of the discrimination to the date of Respondent's
offer of reinstatement, less net earnings during such
period, with backpay to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon as set forth in Florida Steel
Corporation, 231 NLRB 651 (1977) (see, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its plant in Kinston, North Carolina, copies
of the attached notice marked "Appendix."' 4 Copies of
41n the event that 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."
said notice, on forms provided by the Regional Director
for Region I1, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NoincE To EMPLOYEES
POSTED BY ORDER OE THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WI.LL NOT discharge employees because they
have engaged in protected concerted activities.
WE Wll.I. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed by Section 7
of the National Labor Relations Act, as amended.
WE WILL offer Beverly Taylor, David Powell,
Lottie Mitchell, Wayne Hill, Rufus Hodges, and
Daniel Koonce immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights
and privileges.
WE WiI.. make the above-listed employees whole
for any loss of earnings they may have suffered be-
cause of the discrimination against them, plus inter-
est.
SMITHFIELD PACKING Co.
264