Packerland Packing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 198 (N.L.R.B. 1973)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Packerland Packing Company , Inc. and Ted R. Rock-
well. Case 30-CA-1635
April 25, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 1, 1972, Administrative Law Judge' Lo-
well Goerlich issued the attached Decision in this pro-
ceeding. Thereafter, 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 to the extent consis-
tent herewith.
The complaint herein alleged that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by discrimina-
torily transferring employees Ted R. Rockwell,
Charles Petty, and Ronald Whiting to more physical-
ly exacting jobs because these employees respected a
picket line set up by the Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO,
Local 248 2 on June 1 and 2, 1971, and by construc-
tively discharging Rockwell and Whiting because the
newly assigned work aggravated job-related injuries
causing them to cease work on or about June 7.
The Administrative Law Judge found that
Respondent's president, Frankenthal, read a letter to
the three employees, at the time of their transfer,
which he had received from their truckdriving super-
visor, Hagemeir. This letter related that due to the fact
that the three employees did not report to work (on
the days of the strike), they were no longer considered
reliable, and he (Hagemeir) did not want them driving
for the Company any longer. Finding that the reading
of the letter by Respondent was coercive and inter-
fered with the Section 7 rights of the employees, the
Administrative Law Judge found that Respondent
violated Section 8(a)(1) of the Act. No exceptions
were filed to this finding, and we agree with it.
In his further findings, however, the Administrative
Law Judge found that Respondent's motive in trans-
ferring the three employees was not discriminatory
1 The title of "Trial Examiner " was changed to "Administrative Law
Judge" effective August 19, 1972
2 Herein called Amalgamated
and that it did not violate Section 8(a)(3).
Also, although there was no allegation that Respon-
dent refused to bargain in violation of Section 8(a)(5),
the Administrative Law Judge found that Respondent
arguably had violated the contracts it had with Amal-
gamated Meat Cutters and with the Independent Em-
ployees Union of Packerland Packing Company' by
transferring the three employees, and he recom-
mended that the matter be deferred to arbitration.
The General Counsel excepts to the dismissal of the
8(a)(3) allegation or any deferral to arbitration. We
find merit in these exceptions.
The facts, as more fully detailed in the Administra-
tive Law Judge's Decision, show that prior to Septem-
ber 18, 1970, the Independent represented
Respondent's production and maintenance employ-
ees, including all truckdrivers. On September 18,
Amalgamated was certified as the representative of
Respondent's production and maintenance employ-
ees, excluding, among others, "truckdrivers." There-
after, in negotiations between Amalgamated and
Respondent, Amalgamated took the position that
"city truckdrivers" (as contrasted to the over-the-road
drivers), were part of the Amalgamated unit and Re-
spondent took the position that those drivers were
excluded from such unit. The matter was not resolved,
nor was there specific mention of the city truckdrivers
in the contract which was finally executed. (The
names of Whiting and Petty, who were "city truckdri-
vers," appeared on the eligibility list for the election
in which Amalgamated was chosen as the bargaining
representative, as were the names of other "rendering
drivers," and Whiting and Petty had voted without
challenge.)
On June 1 and 2, 1971, Amalgamated set up a pick-
et line outside Respondent's plant and city truckdri-
vers Whiting, Petty, and Rockwell joined in the picket
line.
On June 2, Respondent's representatives, including
its president, Frankenthal, met with Amalgamated's
representatives, including its chief spokesman and
vice president, Wentz, in order to work out a contract
and make arrangements for the orderly recall of the
strikers. After several hours of meetings on that day,
including private meetings between Frankenthal and
Wentz, the parties reached a memorandum of under-
standing whereby all of the strikers were to be called
back as soon as possible by seniority, as qualified.
Respondent's president, Frankenthal, testified that
he had also made an agreement with Wentz during a
private meeting that all the strikers returned were to
be put in the Amalgamated unit. Wentz denied
knowledge of any such private agreement.
After the strike, the alleged discriminatees returned
3 Herein called Independent
203 NLRB No. 39
PACKERLAND PACKING CO., INC.
to their jobs as city truckdrivers and worked at these
jobs on June 4 and 5. On June 5, Whiting, Petty, and
Rockwell were called to Frankenthal's office where
they were told by Frankenthal that they were "not in
the trucking unit and they would be placed into the
bargaining unit which now represents them." At this
time, Frankenthal also read to them the letter from
the truckdrivers' supervisor, Hagemeir, which stated
that these employees were unreliable because they
had not worked on June 1 and 2 and he did not want
them driving for the Company. Frankenthal then as-
signed Whiting and Petty to work in the boning room,
and Rockwell was assigned to the loading dock.
Rockwell had received a compensable injury to his
knee sometime prior to June 7, the day he started
work on the loading dock. On June 7, he was assigned
to work lugging beef and "lifting fronts on the saw";
work which he had not done for Respondent before
and which the evidence showed are two of the most
exacting jobs in Respondent's operation. At the end
of that day, Rockwell reported to his doctor, who
found that Rockwell had aggravated his old injury,
and gave him a statement for Respondent requesting
light work. When Respondent indicated that there
was no light work, Rockwell was forced to go on
workmen's compensation. It was later found that
Rockwell had also suffered a hernia which was attrib-
uted to his job of "lifting fronts." He remained on
compensation until September 28.
Similarly, Whiting had received a compensable leg
injury in 1965. After much trouble with the leg, in-
cluding the need for surgery, he went back to work as
a city truckdriver. On June 7, he was assigned to work
in the "boning room," which required his working in
a standing position, and he aggravated the past injury.
He visited his doctor the following day, and thereafter
was on workmen's compensation for 2 months.
In dismissing the 8(a)(3) allegation, the Administra-
tive Law Judge evidently credited Frankenthal's ver-
sion of the negotiations over that of Wentz, and found
that Respondent's motive for the transfers of the three
alleged discriminatees lies in Frankenthal's effort to
fulfill his understanding of the commitment he had
with Wentz to return all the strikers to the Amalgam-
ated unit. We disagree with this finding.
The facts of this case show that at the time of trans-
fer, Frankenthal, by reading Hagemeir's letter to the
employees, indicated that he was transferring them
because they had honored the picket line. This finding
is buttressed by the fact that the matter of whether the
city truckdrivers were in the Amalgamated unit or not
was never resolved, and Amalgamated had not aban-
doned its claim over these employees. For these rea-
sons, we find that Frankenthal did transfer Petty,
Whiting, and Rockwell because of their participation
199
in the strike, in violation of Section 8(a)(3).
Further, even if we were to agree with the Adminis-
trative Law Judge that Frankenthal transferred the
three employees in order to fulfill its commitment as
it understood it, the transfer to the more physically
exacting jobs did interfere with the rights of the em-
ployees by discouraging their participation in strike
activity and would be in violation of Section 8(a)(1).
We also disavow the Administrative Law Judge's
deferral of the transfer issue to arbitration. First of all,
there was no 8(a)(5) allegation that Respondent had
refused to bargain with either of the two Unions over
the transfer. With regard to deferring the 8(a)(3) alle-
gations, although the Independent now claims that it
will grieve the matter for the employees who were
transferred if they request it, and Amalgamated
claims that it will grieve the matter if it is found that
the city truckdrivers belong in the Amalgamated unit,
it is not clear whether the city truckdrivers belonged
in either unit at the time of the transfers. Also, the
Independent refused shortly after the transfers to rep-
resent the employees in a grievance procedure. We
therefore do not believe that deferral to the grievance
procedures is appropriate in this case .4
Rockwell and Whiting were both transferred from
their jobs as city truckdrivers to more physically ex-
acting jobs in the plant on June 7, although both had
suffered compensable injuries in the past, and Re-
spondent was aware of their physical difficulties. As
a result of these transfers, found herein to be discrim-
inatory, both employees suffered aggravation of these
old injuries, and Rockwell also suffered a hernia, and
they were both required to be out of work for some
time thereafter.
As Respondent's discriminatory transfer of these
employees placed them in a situation where the risk
of aggravating these past injuries was markedly in-
creased, it is therefore responsible for the aggravation
of the injuries, and for Rockwell's and Whiting's ina-
bility to work because of the injuries . Accordingly, in
order to make these employees whole for any losses
suffered due to their inability to work, we shall award
them backpay from the date of their transfers.
REMEDY
Having found that Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1) and
(3) of the Act, we shall order it to cease and desist
therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As we have found that Respondent transferred Ted
° For reasons stated in his dissenting opinions in Collyer, 192 NLRB 837,
and subsequent cases, Member Fanning would not, in any event , defer to
arbitration in this case
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. Rockwell, Charles Petty, and Ronald Whiting in
violation of Section 8(a)(3) and (1) of the Act, we shall
order it to offer Petty and Rockwell S immediate and
full reinstatement to their formerjobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and we shall order it to make Rockwell and
Whiting 6 whole for any loss of earnings they may
have suffered by reason of their unlawful transfers,
and resultant loss of work due to injuries. Added to
the award of wages lost to Rockwell and Whiting shall
be interest at the rate of 6 percent per annum in ac-
cordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
As Respondent's unfair labor practices violated
fundamental employee rights guaranteed by the Act,
we deem it appropriate to add to our Order a provi-
sion requiring Respondent to cease and desist from
infringing upon employee rights guaranteed by the
Act in any manner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent, Pack-
erland Packing Company, Inc., Green Bay,
Wisconsin , its officers , agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activity on be-
half of, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, Local 248,
or any other labor organization, by transferring em-
ployees or discriminating against them in any other
manner in regard to their hire or tenure of employ-
ment or any term or condition of employment be-
cause they engaged in concerted and union activities.
(b) Telling employees that due to the fact that they
did not report to work during the occurrence of a
lawful strike they were no longer considered reliable
and were not wanted as truckdrivers.
(c) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
their rights to self -organization , to form , join , or assist
labor organizations , to bargain collectively through
representatives of their own choosing , and to engage
in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act , or to refrain from
any and all such activities , except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Charles Petty and Ted R. Rockwell im-
mediate reinstatement to their former city truckdriv-
ing jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges.
(b) Make Ted R. Rockwell and Ronald Whiting
whole in the manner set forth in the Remedy section
hereof for any loss of earnings they may have suffered
by reason of the discrimination against them.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all oth-
er records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Post at its Green Bay, Wisconsin, plant copies
of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by
Respondent representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
5 Ronald Whiting was returned to his job as city truckdriver prior to the
issuance of the Administrative Law Judge 's Decision in this case.
6 The record shows that Petty suffered no loss of earnings
7 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading " Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice.
WE WILL NOT transfer any employee or other-
PACKERLAND PACKING CO., INC.
wise discriminate against him because of his
membership in, or activities on behalf of, Amal-
gamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, Local 248, or any
other labor organizations.
WE WILL NOT tell our employees that due to the
fact that they did not report to work during the
occurrence of a strike they are not considered
reliable and are not wanted as truckdrivers.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of their right to self-organization , to form, join,
or assist labor organizations , to bargain collec-
tively through representatives of their own
choosing , to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any
and all such activities.
WE WILL offer Charles Petty and Ted R. Rock-
well immediate reinstatement to their former city
truckdriving jobs or to substantially equivalent
positions , without prejudice to their seniority or
other rights and privileges.
WE WILL make Ted R. Rockwell and Ronald
Whiting whole for any loss of earnings suffered
by reason of the discrimination against them.
PACKERLAND PACKING
COMPANY, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: A charge was filed by
Ted R. Rockwell, an individual, on June 22, 1971,' and
upon the same date the charge was served by registered mail
upon Packerland Packing Company, Inc., the Respondent
i All dates refer to 1971 unless otherwise noted
201
herein . A complaint and notice of hearing was issued on
August 4, in which it was alleged that the Respondent had
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended , by discriminatorily transferring Ted
R. Rockwell, Charles Petty, and Ronald Whiting to more
physically exhausting jobs because said employees re-
spected a picket line at Respondent 's premises on June 1
and 2 and by constructively discharging Rockwell and
Whiting because the assigned work aggravated preexisting
job-related injuries causing them to cease work on or about
June 7.
The Respondent filed timely answer in which it denied
that it had engaged in any of the unfair labor practices
alleged.
The case came on for hearing on September 22, 1971, at
Green Bay, Wisconsin . The Respondent moved that the
complaint be dismissed "because of failure of the Board to
include as parties herein the Amalgamated Meat Cutters
and the Independent Packerland Employees Union and for
the further reason that the Company's position is that the-
this matter currently brought before the Board should be
deferred to arbitration under the terms of one or the other
of the two contracts."2
In view of the Respondent 's motion to defer the matter
to arbitration the Trial Examiner ruled that the Amalgam-
ated and the Independent , being parties to contracts with
the Respondent which arguably covered the arbitration
process were necessary parties to the proceeding . Pursuant
to this ruling the Trial Examiner allowed the General Coun-
sel time in which to serve the Amalgamated and Indepen-
dent . Each was subsequently served and appeared at the
hearing which reconvened on the next day. Upon the entry
of appearance of the two Unions the Trial Examiner over-
ruled the motion of the Respondent to dismiss the com-
plaint and reserved ruling on its motion to defer the matter
to arbitration.3
During the proceedings on September 23, 1971, counsel
for the Independent raised a question in respect to the settle-
2 At this point the General Counsel had offered to stipulate that: there
were two bargaining units of the Respondent 's employees ; the Amalgamated
Meat Cutters and Butcher Workmen of North America , AFL-CIO, herein
referred to as the Amalgamated , was certified by the Board in Case 30-
RC-1224 on September 18, 1970, in a unit consisting of "all production and
maintenance employees of the employer at its Green Bay, Wisconsin , plant.
Excluding office clerical employees, truckdrivers , professional employees,
guards and supervisors as defined in the Act "; at the beginning of October
1970, Respondent and the Amalgamated commenced collective -bargaining
negotiations ; that on June 1 and 2 , 1971, the Amalgamated called an eco-
nomic strike among the employees in its bargaining unit; during the af-
ternoon of June 2 , 1971, the parties agreed on the terms of a
collective-bargaining agreement which was signed the following day, June 3,
1971; the effective date of that agreement is from June I, 1971, to February
28, 1975: the Independent Employees Union of Packerland Packing herein
referred to as the Independent , is the recognized collective-bargaining repre-
sentative in a contractually described unit of "all truckdrivers"; the current
contract between the Independent and Respondent is effective from January
23. 1971. until January 24, 1974.
I The attorney for the Independent stated , " I would like to make the
motion that the proceedings be dismissed and that we represent the three
people under our contract And that we will process a written grievance if
they present us with a written grievance which I feel that they probably will.
And we will take the grievance to the grievance procedure , and then if it is
not satisfactorily handled through the grievance procedure , we take the posi-
tion that we will take it to its final stage which is arbitration under our
agreement " Ruling on this motion was also reserved.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the issues before the Trial Examiner and stated
among other things, "I think the parties are here and it's
pertinent. And there is nothing we have to hide here. Let's
dispose of this matter. The people are here. They want their
jobs back immediately, and they are not interested in any
prolonged litigation. Company has offered them their jobs
back. If those parties are satisfied, why shouldn't the Gov-
ernment be satisfied?" The Respondent proposed the fol-
lowing settlement: As to reinstatement, Ted Rockwell and
Charles Petty were offered jobs to be agreeable to them in
the offal department and on the boning line in the boning
room, respectively, and Whiting was offered his old job
back subject to medical testimony and subject to the further
condition that he must understand that if he could not
measure up there would have to be a reassignment; as to
backpay (which involved only Rockwell and Whiting), the
Respondent offered to first discuss backpay with the parties
involved and if it was not resolved through discussion the
backpay issue would be referred to final and binding arbi-
tration; as to the posting of a notice, the Respondent offered
to post a notice which would make clear that it would not
discriminate against employees for appearing on picket
lines or respecting picket lines at its premises . The offer
conditioned upon the incorporation of a disclaimer clause
in the settlement agreement and a stipulation that the fact
the Respondent had entered into a settlement agreement
would not be used by the arbitrator in drawing any infer-
ence of misconduct.
Thereupon, the Trial Examiner proceeded to hear the
position of all parties in respect to the proposed settlement
agreement. The General Counsel moved "to discontinue
any further discussion of the settlement proposal that has
been offered and immediately permit the General Counsel
to proceed with the presentation of evidence and testimony
on the merits of its case." The Trial Examiner denied such
motion and commented, "What you would have me do at
this point is simply to deny the Respondent an opportunity
to propose a settlement which may or may not be agreeable
to the parties and have the Trial Examiner consider it. Now,
is that due process of law? . . . I certainly shall evaluate
your point of view as I evaluate the points of view of each
person who wants to address the Trial Examiner. But be-
cause that is your point of view, that doesn't foreclose my
listening to another party's point of view and that's what
you would have me do. You would have me . . . [f]oreclose
the right of the Independent to speak on the subject, the
right of the three discriminatees who are represented by
themselves to speak on the subject, and the right of the
Respondent to speak on the subject, and the right of Amal-
gamated to speak on the subject because you have already
prejudged that the settlement which has been proposed does
not fall in line with what you think is the precedence (sic)
of the Board." Thereupon, the General Counsel stated: "I
am asking for an adjournment so I can make an interim
appeal to the Board by the denial of General Counsel's
motion to suspend further discussion of the settlement pro-
posal and to proceed with the presentation of testimony on
the merits of the case." This request was denied and the
Trial Examiner proceeded to hear the position of the parties
upon the proposed settlement. The General Counsel re-
quested a recess in order that he could make a direct appeal
to the Board from the Trial Examiner's "refusal to discon-
tinue the consideration of the settlement offer and proceed
with the hearing." Such recess was granted. General Coun-
sel again moved for an adjournment for the purpose of
perfecting an appeal to the Board from the Trial Examiner's
denial of the General Counsel's motion that "the Trial Ex-
aminer should defer from the consideration of proposed
settlement and immediately proceed to the trial of issues in
this case ." The Trial Examiner being of the opinion that the
motion of General Counsel raised important questions rela-
ting to the substantial rights of the parties and the Board's
procedures which ought to be resolved granted the General
Counsel's motion for an adjournment. The Trial Examiner
commented in part ". . . [the] Trial Examiner is prone to
grant the motion at this time for continuance of this matter
on representation of the General Counsel that the ruling of
the Trial Examiner on the specific motion stated is being
presented to the Board for review. . . . Trial Examiner
thinks it's important to have determined in this case whether
Trial Examiner has exercised appropriate power in allowing
the Respondent to present a proposed settlement agreement
and in permitting the parties to state their positions on the
record as to whether he should approve it as effectuating the
policies of the Act. It strikes the Trial Examiner that this is
important in the administration of the Act . It is important
because as the Trial Examiner understands it, the Board is
interested that cases com[ing] before it be settled if possible
by agreement between the parties since in this [manner] the
controversy is removed from causing interference with in-
terstate commerce . Moreover , that is a step toward effecting
the policy of the Act, that [is], the procedures and practices
of collective bargaining be encouraged."
In due course, the Board entered an order on January 20,
1972. The Board granted the General Counsel 's request for
permission to appeal certain rulings of the Trial Examiner
but did not directly pass on the Trial Examiner's denial of
the General Counsel's motion to discontinue the considera-
tion of the Respondent's settlement proposal and proceed
with the hearing. Although the record does not disclose that
the Trial Examiner had ruled on the question of whether or
not the settlement agreement ought to be approved or disap-
proved, the Board further ordered "that the General
Counsel's motion to vacate the proposed settlement agree-
ment and to remand the case for hearing before a Trial
Examiner upon the issues framed by the pleadings be, and
it hereby is, granted." In conformity with the Board's order,
the hearing reconvened on February 15 and 16, 1972. At the
close of the hearing on the latter date, the General Counsel
moved for a continuance in order to enforce certain subpe-
nas. The continuance was granted. The hearing was recon-
vened on May 11 and then again on June 5, 1972.
During the trial each party was afforded a full opportuni-
ty to be heard , to call , examine , and cross-examine witness-
es, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All briefs
have been carefully considered by the Trial Examiner.
Upon the whole record and upon his observation of the
witnesses , the Trial Examiner makes the following:
PACKERLAND PACKING CO, INC. 203
FINDINGS OF FACT, CONCLUSIONS,
AND REASONS THEREFOR
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation, is engaged in
the processing, packing, and transportation of meat prod-
ucts with its office and facilities located in Green Bay, Wis-
consin. During the past calendar year, a representative
period, the Respondent sold and shipped in interstate com-
merce products valued in excess of $50,000 to points located
outside the State of Wisconsin.
The Trial Examiner finds that at all times material herein
Respondent is and has been an employer as defined in
Section 2(2) of the Act, engaged in commerce and in opera-
tions affecting commerce as defined in Section 2(6) and (7)
of the Act.
11 THE LABOR ORGANIZATIONS INVOLVED
The Amalgamated and the Independent are and have
been at all times material herein labor organizations within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Pertinent Facts
For some time prior to September 18, 1970, the Indepen-
dent was the collective-bargaining agent of all production
and maintenance employees of the Employer including
truckdrivers, excluding office clerical employees, profes-
sional employees, guards and supervisors, as defined in the
Act. On September 18, 1970, the Amalgamated Meatcutters
and Butcher Workmen of North America, AFL-CIO, was
certified by the Board in Case 30-RC- 1224 in a unit consist-
ing of "all production and maintenance employees of the
Employer at its Green Bay, Wisconsin, plant. Excluding
office clerical employees, truckdrivers, professional employ-
ees, guards, and supervisors as defined in the Act," herein
referred to as the Amalgamated unit. Thereafter negotia-
tions were commenced between Amalgamated and the Re-
spondent. A strike ensued on June 1, which was resolved on
June 2, by the agreement on terms of a contract. During the
strike a picket line was established at the Employer's prem-
ises. In addition to those employees conceded to fall within
Amalgamated's unit, joining such picket line were the alleg-
ed discriminatees, Ted R. Rockwell, Ron Whiting, and
Charles Petty, who were employed as city truckdrivers, and
C. Peterson, a rendering plant truckdriver. Around 250 em-
ployees participated in the strike; about 125 replacements
were hired during the strike.
During negotiations the parties had not been in agree-
ment as to the unit placement of the three city truckdrivers.
The Respondent maintained that the city truckdrivers
should be excluded from the Amalgamated unit whereas
Amalgamated claimed their inclusion. This matter was not
resolved nor was there specific mention of the city truckdri-
vers in the executed contract. Prior to the strike the three
city truckdrivers operated semitrailer trucks (six-wheelers)
between the Company's plant and Atlas Cold Storage, a
distance of about 2-1/2 miles. Their cargo consisted of meat
products obtained from the boning room, the fabricating
room, and the offal department,4 all a part of the Amalgam-
ated unit. A round trip between the Company's plant and
Atlas Cold Storage consumed about 1-1/2 hours. Actual
driving time was about an hour. The number of trips varied
per day depending on the amount of products ready for
hauling. The drivers unloaded the trucks at Atlas Cold Stor-
age with a tow motor. When the trailers were not loaded for
them they also loaded the trailers with a tow motor. When
the drivers were not employed in truckdriving or loading
and unloading they sometimes spotted trailers,5 or per-
formed other tasks such as loading over-the-road trailers, or
stacking boxes from the packing line on skids.
These trailers were regularly assigned for hauling meat
products to Atlas Cold Storage. Tractors were obtained by
the drivers each morning from those which were unassigned
to other employer vehicles. The drivers were under the su-
pervision of the dock foremen and the supervisors attached
to the departments for which they hauled products. Each
driver was an hourly paid employee. Petty was paid the top
rate for the offal department. Rockwell and Whiting were
paid the rates of a truck spotter.
In addition to the 3 city truckdrivers the Respondent
employed 16 truckdrivers in the rendering division and 18
or 20 over-the-road truckdrivers. The rendering division
was housed in a separate building. A separate seniority list
was maintained for the over-the-road truckdrivers.
The names of Whiting and Petty and the truckdrivers in
the rendering division 6 appeared on the Excelsior list and
the voter's eligibility list for the election in which Amalgam-
ated was chosen as the bargaining agent. Whiting and Petty
voted in the election without challenge.
On June 2 representatives of the Amalgamated and the
Respondent met in the offices of Federal Mediation and
Conciliation Service in Green Bay. During that day there
were private meetings between Respondent's president,
S. W. Frankenthal, Respondent's attorney, James A. Gilk-
er, and Amalgamated's vice president and chief spokesman,
Ray F. Wentz. At one of these meetings between Franken-
thal and Wentz, Frankenthal said, "Ray, now are we all
settled?" Wentz answered, "Yes, except for one thing. I
want you to take back all the people who are now out. I have
to get them off the concrete." Frankenthal replied, "Ray,
there is a few people that I don't think are in your union that
are out." Wentz said, "You take them back in my union."
At the time of the strike Petty regularly hauled from the offal department
and Whiting and Rockwell regularly hauled from the boning room
5 Whiting testified that other than truckdnvmg he did only spotting
6 At the first negotiation meeting between the Respondent and the Amal-
gamated on October 12, 1970, the Amalgamated proposed a negotiating
committee including one of the Respondent's rendering drivers, Dennis Sur-
prise The Respondent maintained that truckdrivers were not a part of the
Amalgamated 's unit Surprise did not thereafter sit on the committee On
October 23, 1970, a committee representing over-the-road drivers, rendering
drivers , and city drivers , "representing themselves as the independent union,"
among whom were Surprise and Rockwell , met with Respondent 's president,
S W Frankenthal , and Respondent's secretary-treasurer , Wobkin No
agreement was reached because the Respondent "felt that until the issue of
which union represented them, it would be best not to discuss the issues"
As to the rendering drivers Wentz testified that "we weren't too much con-
cerned about them, very frankly "
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During these discussions Frankenthal also told Wentz that
he "could not promise that each person would have their
own kind of job that they had previous to the strike; but that
we would put them to work-some kind of work. . . ." I On
the same day Frankenthal told Wentz and Mat Pinter, an
Amalgamated representative , "I'll take these people back.
How soon I just can't tell you, but I'll take them back, and
they'll go in the unit." Thereafter a memorandum of under-
standing was reached whereunder the parties agreed that:
All employees who participated in the strike on June 1
and June 2, 1971, will be called back to the employment
of the employer as the needs of the business require. It
is understood and agreed that such callbacks will be
made as expeditiously as possible in seniority, as qual-
ified , but nothing in the agreement between the parties
shall require the employer to displace any current em-
ployees from employment to effect such call back... .
However , the parties have agreed in good faith that a
reasonable effort will be made to call back employees
as soon as possible in accordance with the require-
ments of the business.
All strikers ultimately returned to work.
After the strike was terminated the three truckdrivers
returned to the truckdriving jobs they had performed imme-
diately prior to the strike and worked as city truckdrivers on
June 4 and 5.
On June 4 Plant Superintendent Robert J . Rotter was
called by Frankenthal "to account for all the people who
had been recalled ." During the accounting the names of
Whiting, Rockwell , Petty, and Peterson were mentioned.
Upon learning that these employees had not been returned
to Amalgamated's unit as he defined it, Frankenthal, com-
menting that the Respondent might be "at fault for calling
them back into an area where they're not in the unit,"
instructed Rotter that "if [he] couldn't do the job, he would
reassign them himself." Thereafter Rotter offered Peterson
a job in the "bargaining unit which he chose to belong to."
Peterson declined and is now employed elsewhere.
On June 5 Whiting, Petty, and Rockwell were called to
the office of Frankenthal where, in the presence of Rotter,
Frankenthal told them that they were "not in the trucking
unit and they would be placed in to the plant . . . into the
bargaining unit which now represented them ." Whiting and
Petty were assigned to the boning room and Rockwell was
assigned to the loading dock. During the conversation
Frankenthal read from a letter of truck dispatcher Harlan
Hagemeir that "due to the fact that [ the alleged discrimina-
tees] did not report to work on Tuesday and Wednesday of
that week, that [they] were no longer considered reliable,
and he [Hagemeir] did not want [them] driving for the Com-
pany no more." 8
r Wentz admitted engaging in private meetings and quoted Frankenthal as
saying " it would be only a short time-we will have them all back to
work . I'll cooperate as much as I possibly can to see they are taken care
of. . .
8 The Trial Examiner considers neither Frankenthal nor Rockwell to be
wholly reliable witnesses . Rotter was more truthworthy . The Trial Examiner
believes that the part quoted above from the Hagemeir letter was read by
Frankenthal for the following reasons ( 1) Reluctant witness Petty who testi-
fied only by court order testified , " It was in there , the unreliable truckdriver,
.. " (2) Whiting , another reluctant witness who testified by court order, by
Some time prior to June 7, Rockwell had received a com-
pensable injury to his knee. On June 7, when Rockwell
reported to the loading dock he informed Foreman Larry
Denamer that he had a doctor's appointment at 11:30 a.m.
Denamer assigned him to lugging beef on the loading dock
which required carrying quarters of beef averaging between
150 and 210 pounds on the shoulder from the loading dock
into a trailer. The distance traveled varied from 10 to 50
feet. Rockwell worked at this job for about 1-1/2 hours at
which time Denamer directed him to cancel his doctor's
appointment and accompany him to the fabricating room
to "lift fronts onto the saw." The fronts weighed about 200
pounds. After working at this job for about an hour and a
half he returned to lugging beef . Later he returned again to
the fabricating room for about 2 hours after which he re-
turned to lugging beef . During the period he lugged between
300 and 350 quarters on the dock and lifted between 275
and 300 fronts in the fabricating room. Prior to June 7 he
had not performed any of these tasks for the Respondent.
Lugging beef and lifting quarters are two of the most phys-
ically exacting tasks in the Respondent's operation.
Later that day when Rockwell appeared for his doctor's
appointment his doctor found that his knee was badly swol-
len. He gave him a shot of cortisone . He also gave Rockwell
a written statement to be given to the Respondent in which
light work was requested.
Rockwell arrived at work on June 8 with the doctor's
statement . Rotter told him the Respondent had no light
work and that the only thing that could be done was to put
him on workmen's compensation. Thereafter Rockwell re-
ceived workmen's compensation until he returned to work
on September 28, at which time he took a job loading bone-
less beef on over-the-road trailers . The wage scale was the
same as that which he had received as a city truckdriver. In
the interim he was discovered to have suffered a hernia in
his right groin which was attributed to slipping while lifting
fronts on June 7.
Whiting had also received a compensable injury which
occurred to his leg in September 1965. Thereafter his foot
"kept bothering" him and he "had to go back for surgery
again ." When he returned to work he was given a job as city
truckdriver.
On June 7, after the Frankenthal meeting of June 5, he
commenced work in the boning room, boning "out navels"
which weigh an average of 8 to 12 pounds. The work was
performed in a standing position. At the end of the day
Whiting "hardly could walk." The next day Whiting visited
Dr. McGuire and thereafter received compensation for 2
months . He has since returned to the Respondent's employ-
ment as a city truckdriver.
Petty, on June 7, was assigned to boning rounds in the
boning room. The rounds weighed from 40 to 80 pounds.
his lapse of memory in regard to the Frankenthal meeting of June 5 and his
demeanor while testifying, created a strong inference that he was deliberately
avoiding the disclosure of facts prejudicial to his employer. (3) Rotter was
unsure whether Frankenthal read from a letter (4) Hagemeir was not called
by the Respondent to testify as to whether he had or had not submitted the
alleged letter to Frankenthal . The failure to call an available witness who is
an agent of a party and has knowledge of controverted facts warrants an
inference , that, if called , the witness ' testimony would have been adverse
Interstate Circuit, Inc, 306 U S. 208, 226; N L R B v Ohio Calcium Co, 133
F.2d 721, 726 (C A. 6)
PACKERLAND PACKING CO., INC.
Rotter described the process: "He stands at the table, the
conveyor belt goes down the center of this table, he takes
a meathook, pulls the meat towards him; and when it is in
front of him in position, then, he bones."
The average temperature in the boning room is between
35 and 45 degrees. In comparison to a truckdriver's job
Petty testified that "there's a strain on your arms boning
meat . . . compared to truckdriving"; "it was harder . . .
you'd be using more muscles. . .
Petty boned rounds for about 2-1/2 months after which
he was assigned to the offal department where he now works
by choice.
B. Conclusions and Reasons Therefor
The General Counsel maintains that "the Respondent
discriminatorily transferred employees Rockwell, Whiting,
and Petty off the city trucks, and/or to more onerous Jobs
in violation of Section 8(a)(3) and (1) of the Act because
they supported and participated in the strike called by the
Meat Cutters." The Supreme Court has said, "We have
determined that the `real motive' of the Employer in an
alleged 8(a)(3) violation is decisive." N.L.R.B. v. Brown, 380
U.S. 278, 287. Thus we must look to the Respondent's "real
motive" for the transfers to ascertain whether there is a
violation of Section 8(a)(3). The Trial Examiner is con-
vinced that Frankenthal's sole motive in transferring Petty,
Whiting, and Rockwell was to fulfill his understanding of
the commitment to Wentz to return the employees who had
ceased work during the strike to the Amalgamated unit and
that the transfers of Whiting, Petty, and Rockwell were not
discriminatory.9 This conclusion is buttressed by the fact
that rendering plant truckdriver Peterson who was the only
other driver who observed the picket line was likewise or-
dered to transfer into the Amalgamated unit. "Discrimina-
tion consists of treating like cases differently." Frosty Morn
Meats, Inc. v. N.L.R.B., 296 F.2d 617, 621 (C.A. 5, 1961).
Accordingly, the Trial Examiner finds that by the transfers
of Whiting, Petty, and Rockwell the Respondent did not
violate Section 8(a)(3) or (1) of the Act as claimed by the
General Counsel. Nevertheless, the Trial Examiner further
finds that the Respondent did violate Section 8(a)(1) of the
Act by Frankenthal's reading of Hagemeir's letter to Whit-
ing, Rockwell, and Petty to wit: "due to the fact that [Whit-
ing, Rockwell, and Petty] did not report to work on Tuesday
and Wednesday of that week [they] were no longer consid-
ered reliable, and he [Hagemeir] did not want [them] driving
for the Company no more." Such statement had a tendency
9 The Trial Examiner makes no finding as to whether or not Frankenthal
in effecting the transfers complied with the contractual obligations which
bound the Respondent
205
to deter employees from honoring picket lines or picketing
in the future, was coercive in character, and interfered with
.employees' Section 7 rights.
While the General Counsel did not allege the violation of
Section 8(a)(5) and (d) of the Act, material evidence intro-
duced and the matters put in litigation indicate that the
Respondent arguably violated the contracts of the Indepen-
dent and the Amalgamated by the transfers of Whiting,
Petty, and Rockwell from city truckdriver jobs to other jobs
after the strike. In view of the motions of the Independent
and the Respondent, the Trial Examiner recommends that
such matter be deferred to arbitration. See Collyer Insulated
Wire, 192 NLRB 837. Deferral to arbitration will be in
accordance with the Board's policy as expressed in Norfolk,
Portsmouth Wholesale Beer Distributors Association, 196
NLRB 68. "Since we believe it to be consistent with the
Federal labor policy to promote peaceful resolutions of con-
tractual controversies through the methods agreed upon by
the parties, we shall not decide the merits of this controver-
sy, but rather shall defer the matter to be resolved in accord-
ance with the agreed-upon grievance procedure." See also
Urban N. Patman, Inc., 197 NLRB 1222.
CONCLUSIONS OF LAW
1. The Amalgamated and the Independent are labor or-
ganizations within the meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act forjurisdiction to be exercised
herein.
3. By transferring Ted R. Rockwell, Ron Whiting, and
Charles Petty on June 7, 1971, the Respondent did not
engage in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
4. By telling employees Rockwell, Petty, and Whiting
that "due to the fact that [they] did not report to work on
Tuesday and Wednesday of that week [during the occur-
rence of a strike] [they] were no longer considered reliable,
and [the dispatcher] did not want [them] driving for its
company no more," the Respondent violated Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices it is recommended that it cease
and desist therefrom and take affirmative action designed
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]