Local 575, Meat Cutters, AFL-CIO

National Labor Relations Board - Board DecisionsOct 24, 1973

206 N.L.R.B. 576 (N.L.R.B. 1973)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 575, Packinghouse Division, Amalgamated Meat Cutters and Butcher Workmen , (UPWA), AFL-CIO (Omaha Packing Company) and Evangelos Langadi- nos. Case 1 -CB-2165 Upon the entire record in the case and from my observa- tion of the witnesses , I make the following: FINDINGS OF FACT October 24, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 22, 1973, Administrative 'Law Judge Art- hur Leff issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an an- swering 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 briefs 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE ARTHUR LEFF, Administrative Law Judge: Upon a charge filed November 24, 1972, by Evangelos Langadinos, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 1, issued a complaint, dat- ed March 6, 1973, against the above-named labor organiza- tion, herein the Respondent, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act, as amended. The Respondent filed an answer denying the commission of the alleged unfair labor practices. A hearing was held at Boston, Massachusetts, on April 9, 1973. Briefs were filed by the General Counsel and the Respondent on May 21, 1973.' 1 On June 1, 1973, after the submission of briefs , the General Counsel I THE BUSINESS OF THE COMPANY Omaha Packing Company, Inc. (Omaha), a Massachu- setts corporation, is engaged at Boston, Massachusetts, in the processing, sale, and distribution of meat and related products. Omaha annually receives at its Boston plant meats valued in excess of $50,000 from points,located out- side the Commonwealth of Massachusetts; it also annually ships meats valued in excess of $50,000 directly from its Boston plant to points located outside the Commonwealth of Massachusetts. The Respondent admits that Omaha is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is so found. II THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Question Presented The Respondent is, and at all times material herein has been, the exclusive bargaining representative of Omaha's production and maintenance employees at Omaha's Boston plant. As will more fully appear below, Evangelos Langadi- nos, an employee in the bargaining unit and also a member of the Respondent, was laid off by Omaha on November 10, 1972. Langadinos complained to the Respondent that he had been selected for layoff out of seniority. Although the Respondent took up Langadinos' grievance with Omaha, it did not press his grievance to arbitration. The only issue represented in this case is whether as alleged in the com- plaint, the Respondent in connection with that grievance refused properly to represent Langadinos in violation of Section 8(b)(1)(A) of the Act. B. Facts The bargaining unit represented by the Respondent at Omaha contains approximately 25 employees. Under the governing collective-bargaining contract, the employees are divided for, the purposes of work assignment and seniority into four general classifications-"Grade A" and "Grade B" cutters; "Grade A" and "Grade B" boners; Boxmen; and "General Help." The "General Help" classification is considered an unskilled one and covers all employees, re- gardless of the specific work to which they may be assigned, who do not fit into any of the three higher-rated classifica- tions. With respect to layoffs and recalls, the collective- bargaining contract, in pertinent part, provides: issued a complaint in Case 1-CA-9035, alleging that Omaha violated Section filed a motion with me to reopen the hearing in the instant case to consolidate 8(a)(1) of the Act by its layoff of Langadmos. The General Counsel thereafter it with Case I-CA-9035. The Respondent's motion was denied. 206 NLRB No. 67 LOCAL 575, MEAT CUTTERS, AFL-CIO 577 Layoffs and recalls of full-time employees, as the case may be shall be made on the basis of seniority [as separately applicable to each of the four aforemen- tioned classifications], provided the employee retained or recalled as the case may be, shall have sufficient ability, skill and experience to perform the work avail- able.... In the event of a proposed layoff or recall out of senior- ity, the employer shall consult with the Shop Steward. If the employer proceeds to make the layoff or recall out of seniority, he shall be entitled to do so, and if the Union still feels that the employer was not justified in the layoff or recall out of seniority, a grievance may be submitted for arbitration by the Union. Langadinos was hired by Omaha on January 5, 1970, as a "General Help" employee, and joined the Respondent about a month later. A Greek immigrant, Langadinos can- not read or write English, and his ability to communicate verbally in English is minimal at best .2 Following his hire, Langadinos, although occasionally being given other duties, was assigned primarily to work tasks as a helper in the box room. His principal duties required him to move carcasses, which were suspended from the ceiling on overhead tracks, to the box room where they were broken down into smaller sections by box men (a skilled job) and to hang the broken down sections on other hooks, called trees, which were then moved to other areas of the plant either for shipment to customers or for further processing. The type of work performed by Langadinos at that time did not require any detailed knowledge of the various cuts of meat or an ability to communicate with fellow employees or with customers in the English language. About a month after he was first hired, Langadinos was assigned for a period of a week or so to a general helper's job at the far end of a conveyor belt, about 40-feet long, which passes between two rows of meatcutters who cut larger sections of meat into specific cuts that have been ordered by customers. It is the function of the general helper at the far end of the belt to segregate the various cuts as they come off the belt and to place them in receptacles according to the customers' orders being worked on. This job requires a knowledge of the various cuts of beef in order to avoid confusion in filling customers' orders. As appears from the credited testimony of Sylvester Byrne, Omaha's plant man- ager, Langadinos, after being tried out for about a week in that job, was found incapable of performing it largely be- cause of his inability to distinguish among the various cuts of beef. He was then transferred back to the box room where he remained until August 1970. On August 12, 1970, Langadinos suffered an industrial accident, and began receiving benefits under the Massachu- setts Workmen's Compensation Act. Following his acci- dent,, Langadinos was absent from work for over a year. About the end of October or early November 1971, Langa- dinos, after obtaining his doctor's approval, requested Oma- ha to reinstate him in his job. The collective-bargaining 2 Langadinos testified through an interpreter contract contains no specific provisions relating to the rein- statement rights of employees in such circumstances. When Omaha declared its unwillingness to reinstate him, Langadi- nos called on the Respondent for assistance in getting his job back, and the Respondent submitted a grievance on his behalf. Omaha rejected the grievance, contending that Lan- gadinos had waited too long after recovering from his acci- dent before applying for reinstatement and also contending that Langadinos had waived any right he might otherwise have had to reinstatement by entering into a lump sum settlement of his workmen's compensation claim. After some delay, which the Respondent attributes in part to its unsuccessful effort to have Omaha document its claim that Langadinos had waived reinstatement in the workmen's compensation settlement, the Respondent, on July 19, 1972, noted the grievance for arbitration before the permanent arbitrator under the collective-bargaining contract. The ar- bitration hearing was, however, delayed for several months more because of the unavailability of the arbitrator. At the arbitration hearing held on October 5, 1972, a settlement agreement was reached, apparently after evi- dence was presented by both sides, under which it was agreed that Langadinos would be reinstated, effective Octo- ber 11, 1972, in his classification of "General Help," with his original seniority date of January 5, 1970, but with no backpay. An award to that effect was issued by the arbitra- tor on October 6, 1972. Langadinos was accompanied at the arbitration hearing by a Dr. Bebis whom he had brought to the hearing to serve as his personal interpreter and adviser. Langadinos and Dr. Bebis were consulted with regard to the settlement agreement, and approved its terms before the agreement was consummated. No claim is made in this case that the Respondent violated the Act by failing to represent Langadinos fairly in the prosecution or settlement of that grievance. As noted above, the alleged unfair labor practice in this case is addressed to events that came later. Upon his return to work on October 11, 1972, Langadinos was again assigned to the box room to perform the work tasks he had been mainly performing prior to his injury. It appears that for some time before Langadinos' reinstate- ment, no employee classified as "General Help" had been performing the work duties in the box room to which Lan- gadinos was reassigned. This may suggest that Omaha re- created this "General Help" job specifically to meet 'its reinstatement obligation under the October 6 arbitration award. Omaha's manager, Byrne, denied, however, that Omaha's purpose was to subvert the arbitration award by creating for Langadinos an unnecessary job that it might soon dispense with. But even if that was Omaha's purpose, there is no evidence that this was done with the Respondent's foreknowledge or pursuant to a sub rosa ar- rangement made by it with the Respondent when the arbi- tration settlement was agreed upon. Langadinos was laid off by the Respondent on Friday, November 10, 1972 , some 4 weeks after his reinstatement. Omaha attributed the,layoff to a falling off of business and a consequent need to reduce operating expenses . Byrne tes- tified that Omaha had initially decided to lay off three employees at that time, two in the "General Help " classifi- cation and one skilled employee; that in fact it did notify two employees besides Langadinos that they were to be laid 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off at the same time ; but that almost immediately thereafter it was compelled to cancel the layoffs of these two because it had learned that two other employees would be lost to it because of illness, one temporary and the other perma- nently. Thus, Langadinos was the only employee actually laid off on November 10. Omaha has hired no employee to replace Langadinos and, indeed , since Langadinos ' layoff has further reduced by one its complement of employees in the "General Help" classification . Byrne stated at the hear- ing that he then regarded Langadinos as still an employee of Omaha in layoff status , and expressed Omaha's intention to recall Langadinos to work in accordance with the contract's seniority provisions as soon as business picked up and before hiring anyone else from the outside. Omaha had six employees besides Langadinos in the "General Help" classification at the time of Langadinos' layoff. Two of them, Robert Fasulo and Pasquale Bicchieri, had been continuously in the Respondent's employ since 1969 and had seniority over Langadinos . The other four- Robert Slowe, Joseph Como, Giovanni Cateno , and Deme - tris Demeraukas-had been hired by Omaha in late 1970 or early 1971, while Langadinos was receiving workmen's compensation benefits . Although all of them had more actu- al on-the-job experience than Langadinos , they were junior to Langadinos in terms of contract seniority. Byrne testified in substance that notwithstanding Langa- dinos' greater paper seniority , he selected him for layoff ahead of thejunior "General Help" employees, as permitted by the collective-bargaining contract 's provisions, quoted above, because , unlike the junior employees who were re- tained, Langadinos did not have the ability, skill, and expe- rience to perform the work that remained available. With reference to the specific individuals involved , Byrne in his testimony elaborated on this as follows: Slowe was perform- ing quality evaluation work required by a Government con- tract. This work required, inter alga, the filling out of inspection reports, and an ability to read and write English which Langadinos did not possess. Como was assigned to the shipping area; he was required to wrap the various cuts of meat, place them in boxes, weigh the boxes, write the name of the customer and the weight on each box , and, on occasions , converse with customers when complaints were made about shipments . An ability to read and write and communicate in the English language is essential to that job. Cateno was assigned to work at the front end of the conve- yor belt. Langadinos had no experience in thatjob. The job required the "General Helper" occupying it, not only to have a familiarity with the different cuts of beef, but also the ability to communicate to the meatcutters on the bench what cuts were to be made for given orders and what cus- tomers they were for . Byrne considered Langadinos unqual- ified for that job, because of his inability to communicate in English to the butchers on the bench the necessary cut- ting or boning instructions called for by a customer 's order. Demeraukas was assigned to the job at the other end of the bench, previously described, for which, as found above, Langadinos had been tried out during the first period of his employment and found wanting because of his inability to distinguish among the various cuts of meat that had to be segregated on that job. Moreover, that job at the time of the g p g p p layoff required an even greater familiarity with meat cuts of Craig, Langadinos, and Byrne , to the extent credited. than had-been the case when Langadinos had been tempo- rarily assigned to it, for there had been a change in the nature of Omaha 's operations while Langadinos was away, and the Company was now cutting meat in more detailed fashion. Further, although a knowledge of English may not have been indispensable, it facilitated the performance of this job, as the general helper occupying it was required to notify the shipping employee of the name of the customer for whom a segregated order was destined and also at times, under the new method of operation , to speak to customers. Demeraukas , although also a Greek immigrant and not pro- ficient in English , was, in Byrne 's view, better able than Langadinos to communicate in that language. On the Monday or Tuesday following his layoff, Langa- dinos complained to John R. Craig, the Respondent's presi- dent, about the action taken against him by Omaha, asserting , inter alia, that he had been laid off out of seniori- ty. Craig telephoned the Company and spoke to Bryne about Langadinos ' grievance . Byrne told Craig that the lay- off was necessitated by a falling off in business ; that there were going to be more layoffs; and that Langadinos had been laid off out of seniority, as permitted by the, contract, because he was not able, as were those retained in his classi- fication, to perform the work that remained available. Craig told Byrne that he wanted to come to the plant to look at the records , and Byrne agreed to meet with him for that purpose and to discuss the matter with him further. Follow- ing the telephone conversation , Craig reported to Langadi- nos what Byrne had told him, mentioning specifically Byrne's assertion that Langadinos was unable to perform the job tasks of the junior "General Help" employees who were being retained . Langadinos, in response, declared that he was able to do the work.3 After meeting with Langadinos, Craig visited Omaha's plant to further investigate the circumstances of the layoff. Before taking up the matter with the company representa- tive , Craig discussed Langadinos' grievance with Plant Steward Buddy Fredericks. Fredericks informed Craig that the Company had consulted with him concerning the layoff and had given him the reasons for it in timely fashion as required by the contract. Fredericks, either at that time or in an earlier telephone conversation, also informed Craig as to where in the plant Langadinos had previously worked and where he had not. Fredericks indicated to Craig his personal agreement with the Company's position, as it had been stated to him, that although Langadinos was able to perform the "General Helpers" job, now being eliminated, in the particular area of the box to which he had been assigned, he was not qualified to take over the regular job assignments of any of the other "General Help" employees whom the Company was retaining . Following his prelimi- nary conversation with Fredericks, Craig, accompanied by Fredericks and Robert Fasulo, the assistant steward repre- senting "General Help" employees , met with Company rep- resentatives to discuss Langadinos ' layoff. At this meeting, Byrne justified the Company's need for a layoff. He also justified as in conformity with the contract Omaha' s selec- tion of Langadinos for layoff out of seniority, on the ground 3 The findin s in this ara ra h are based on a com osite of the testimony LOCAL 575, MEAT CUTTERS, AFL-CIO 579 that Langadinos was not qualified to perform the work being done by the less senior employees, detailing in support of that position the reasons stated by him in his testimony, as reported above. After the meeting was over, Craig cau- cused with the stewards and also, according to his testimo- ny, checked out Byrne's explanation with other plant employees. Craig testified that as a result of his conversa- tions with the company representatives, the plant stewards, and other employees, he was satisfied, notwithstanding Langadinos' earlier protestation to the contrary, that Lan- gadinos did not have the ability to perform any of the "Gen- eral Help" jobs that were still available, and on that basis concluded that Langadinos did not have a sufficiently meri- torious case to take to arbitration. The Respondent did not proceed further with Langadi- nos' grievance, leading Langadinos to file the charge upon which the complaint in this case is based. c. Analysis and Concluding Findings The principles of law that must guide decision on the issue in this case are well settled. A union occupying an exclusive bargaining status must serve the interests of all bargaining unit employees fairly and in good faith, and without hostile discrimination against any of them on the basis of arbitrary, irrelevant, or invidious distinctions. See, e.g., Vaca v. Sipes, 386 U.S. 171; Local Union No. 12, United Rubber Cork, Linoleum & Plastic Workers [Goodyear Tire & Rubber Co.] v. N.L.R.B., 368 F.2d 12 (C.A. 5, 1966), cert. denied 389 U.S. 837; Miranda Fuel Co., 140 NLRB 181. The Supreme Court has recognized, however, that in the interest of effectively administering a contract's grievance-arbitra- tion machinery a union must be allowed a considerable range of discretion in screening out, settling, or abandoning, short of arbitration, those grievances which the union in good faith believes do not justify that costly and time-con- suming final step. Vaca v. Sipes, supra at 191-192. Accord- ingly, the Supreme Court has held that an individual grievant has no absolute right to have his grievance taken to arbitration. No inference of unfair representation may, therefore, be drawn simply from a bargaining agent's failure or refusal to press a grievant' s case through the ultimate stage of a contract's grievance-arbitration procedures, or, for that matter, through any intermediate stage . And this, it has been held, is so even though it appears that the union may have acted negligently or exercised poor judgment in its handling of a grievance. Bazarte v. United Transportation Union, 429 F.2d 868, 872 (C.A. 3). "A breach of the statuto- ry duty of unfair representation," the Supreme Court has made clear, "occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discri- minatory, or in bad faith." Vaca v. Sipes, supra at 190. Applying that test to the facts established by the record in this proceeding, I think it clear that the General Counsel has not made out a case of unfair representation. Thus, there is no substantial evidence in this record to support a finding that either Craig or any of the Respondent's stewards whom he consulted concerning Lan- gadinos' grievance were motivated in their consideration of that grievance by any personal hostility toward Langadinos, by any favoritism toward other members of the bargaining unit who night have been affected by the outcome of the grievance, or by any other consideration of a discriminatory or invidious nature. Nor does the record made in this case fairly support a finding either of bad faith or of arbitrary conduct on the part of the Respondent in its handling and disposition of Langadinos' grievance. To begin with, that grievance may scarcely be viewed as one of unquestionable merit as the General Counsel insists, since its validity depended not so much on Langadinos' relative seniority standing, which of course was clear, as it did on whether he satisfied the contract's requirements relating to ability, skill and experi- ence that also governed his right to retention in a layoff situation. Further, contrary to the General Counsel's coin- tention that the Respondent merely went through the per- functory motions of processing Langadinos' grievance, which he asserts was the practical equivalent'of ignoring it entirely, the credited evidence demonstrates that actually the Respondent conducted a reasonably full investigation of Langadinos' grievance, consulting not only with Langa- dinos and with company representatives, but also with stew- ards and others at the plant who were likely to be familiar with Langadinos work history and with his qualifications for the work that remained available. The justification the Respondent gave for Langadinos' layoff out of seniority was consistent with the layoff provisions of the contract, and the reasons it gave to support its claim that Langadinos was not qualified for the work available were substantially corroborated by the plant stewards. Langadinos , it is true, disputed the Company's assertion that he could not do the available work. But the Respondent, in fulfillment of its duty of fair representation, was not obliged for that reason alone to continue to support Langadinos' grievance or to submit the question in dispute for resolution at an arbitra- tion hearing. See Sarnelli v. Meat Cutters, 457 F.2d 807 (C.A. 1). Under the applicable law, the Respondent re- mained free, subject only to the requirement that it act honestly and in good faith, to make its own evaluation of the grievance and to exercise its own discretion in determin- ing whether Langadinos' grievance justified arbitration. In the light of all the foregoing circumstances, I find no ade- quate basis for inferring bad faith or arbitrary conduct on the Respondent's part in its handling of Langadinos' griev- ance, or for rejecting Craig's testimony that the decision he made on behalf of the Respondent not to carry Langadinos' grievance to arbitration was grounded on his genuine belief that to do so would be fruitless. ' Concluding as I do that General Counsel has failed to establish that the Respondent breached its obligation of fair representation, as alleged, I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. Omaha is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Respondent has not , as alleged in the complaint, engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. RECOMMENDED ORDER It is recommended that the complaint herein be dismissed in its entirety.