Sioux City Dressed Beef

National Labor Relations Board - Board Decisions

Jan 30, 1970

180 N.L.R.B. 1030 (N.L.R.B. 1970)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Needham Packing Co. Inc., d/b/a Sioux City
Dressed Beef and Local 721, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO ( formerly United Packinghouse and
Allied Workers, AFL-CIO). Case 18-CA-2618
January 30, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 30, 1969, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
case, finding that Respondent had not engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that the complaint be dismissed, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting brief
and Respondent filed cross exceptions and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the National Labor Relations
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the
cross-exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings,'
conclusions , and recommendations of the Trial
Examiner.
ORDER
28, 1968, and January 23, 1969, by Local 721,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO (formerly United
Packinghouse and Allied Workers, AFL-CIO), herein
called the Union, a complaint, dated March 7, 1969, was
issued alleging that the Respondent, Needham Packing
Co., Inc., d/b/a Sioux City Dressed Beef, herein
sometimes called the Company, has engaged in and is
engaging in unfair labor practices within the meaning of
Sections 8(a)(l) and (3) and 2(6) and (7) of the National
Labor Relations Act, as amended. The complaint, as
amended at the hearing, in substance, alleges that
Respondent: (a) discharged employee Robert LeRoy
Morgan on June 8, 1968, because he joined the Union;
and (b) on May 20, 1968, unlawfully reduced the seniority
of employees who on May 11, 1961, had engaged in a
strike in violation of a no-strike provision in the subsisting
collective-bargaining agreement covering the terms and
conditions of their employment and who on May 16,
1961, were discharged for having engaged in such strike,
but who were later reinstated to their former positions
with seniority dating from their respective dates of initial
employment pursuant to the terms of an award by a
Board of Arbitrators issued in a grievance proceeding
instituted by the Union, which award, however, was
vacated on June 6, 1967. The theory of the complaint is
that, although Respondent lawfully discharged said
employees on May 16, 1961, because of their participation
in an unprotected strike, when Respondent later rehired
them, in 1965 and 1966, although under the compulsion of
the arbitration award, it "condoned" the unprotected
aspects of the strike and, having thus forgiven the breach
of contract, the subsequent reduction of the strikers'
seniority following the vacatur of the arbitration award
constituted an unlawful reprisal against them for their
1961 strike activity. Respondent's answer, as amended at
the hearing, denies that it violated the Act. A hearing in
this proceeding was held in Sioux City, Iowa, on June 3,
4, and 5, 1969. Thereafter, briefs were filed with me by
General Counsel and Respondent.'
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
dismissed in its entirety.
'We agree with the Trial Examiner 's conclusion that Respondent did not
condone the unprotected activities of the striking employees by offering
them reemployment . As the Board has stated in cases of this kind,
"Condonation necessarily contains the elements of forgiveness and an
intention of treating employees as if their misconduct had not occurred "
IDubo Manufacturing Corporation, 148 NLRB 1114, 1119.) Under this
standard , we are not persuaded that Respondent 's offer of reemployment,
tendered as it was 4 1 /2 years after the discharges and then , only under
legal compulsion of the arbitration award, warrants a finding of employer
condonation.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner: Upon a charge
filed on May 28, 1968, and amended charges filed on June
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a Delaware corporation, is engaged in the
slaughter of livestock and the processing of meat and
animal products and byproducts at various plant locations
including a plant located in Sioux City, Iowa. During the
calendar year 1968, which period is representative of
'No opposition having been filed, the following motions to correct the
transcript of record are hereby granted . Respondent ' s motion, dated June
26, 1969; Respondent 's motion , dated July 1, 1969; Respondent 's motion,
dated July 11, 1969, and General Counsel's motion, dated June 13, 1969.
Pursuant to permission granted at the hearing Respondent has filed with
the Trial Examiner a copy of a letter, dated May 17, 1968, from Ralph
Helstem to Frank Mandicino , Jr., together with an attestation by the clerk
of the Iowa Supreme Court. Said letter and attestation are herby received
in evidence as an exhibit in this proceeding and are assigned as an exhibit
number , "Respondent 's Exhibit I1."
Respondent on August 7, 1969, filed with the Trial Examiner a motion
requesting that an affidavit of Stuart Rothman , dated July 1, 1969, and an
affidavit of Jesse E . Marshall , dated July 29, 1969, be received as an
exhibit in these proceedings General Counsel filed an opposition to said
motion on August 18, 1969. Said motion is hereby denied.
180 NLRB No. 159
SIOUX CITY DRESSED BEEF 1031
Respondent's operations, the Company sold and shipped
from its Sioux City, Iowa, plant directly to points outside
the State of Iowa products valued in excess of $50,000,
and purchased directly from sources outside the State of
Iowa goods and supplies valued in excess of $50,000.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of Robert LeRoy Morgan
General Counsel contends that Robert LeRoy Morgan
was discharged on June 8, 1968, because 3 days earlier he
was observed signing a union authorization card by
Company Foreman Lester Frye.
Morgan was hired on April 3, 1968, as a beef lugger
which involves heavy manual work. The luggers who work
in gangs of from four to six employees carry beef quarters
from the plant's cooler to trucks. Morgan previously had
worked for the Company for about l year from the fall of
1966 until he quit his job in the fall of 1967. His
supervisor then was Lester Frye. Morgan testified that he
does not recall that Frye during his first period of
employment with the Company criticized him about his
work habits, or about "horsing around," or about
absenteeism. Morgan was hired by the Company a second
time on April 3, 1968, after he had appeared at the plant
on several successive days seeking employment. According
to Morgan, on April 3, Plant Superintendent Lawrence
Carpenter "said he would call up Les Frye and see if there
was anyone needed, so he did and Les come up and told
me.that he needed somebody. He said he already has one
guy that misses too much time. 'You can't have a lot of
days off, but if you want the job you can go to work.' "
Nothing else was said during the interview and Morgan
also denied that either Carpenter or Frye spoke to him
about his previous work record with the Company.
Morgan further testified that during his employment from
April 3 to June 8, 1968, he was not warned about
engaging in too much horseplay and was absent from
work only 2 days. However, on cross-examination,
Morgan testified that about I month before his discharge
he struck another employee - apparently with a side of
beef while engaged in "horseplay" - but his supervisor,
Vincent St. Onge, did not reprimand him because of the
incident. According to Morgan, St. Onge "came to our
gang and was talking about it and we just all ended up
laughing about it. I don't know, that was about all was
said about it."'
Morgan also testified that a few days before his
discharge he asked his foreman, Vincent St. Onge, for a
break. When St. Onge told him he could not have a break
until after the truck was loaded Morgan remarked,
"Things will be different when the Union gets in here ...."3
'St Onge testified that he warned Morgan that such conduct was to
cease and that he meant it . Morgan laughed and referring to the employee
who was hurt said , " He is just a big baby, that 's all." St. Onge repeated,
"Well, I want this to stop ." St. Onge denied that he laughed about the
incident.
The only evidence of union activity on the part of
Morgan is the fact that he signed an authorization card on
June 5.4 According to Morgan, he and three or four other
members of the lugging gang, including Gary Ross,
Warren Hall, and Lee Wahl, between 3 and 4 p.m. were
standing at the automobile of another employee, John
Yager, from whom they had obtained union authorization
cards. The car was parked off the road directly across
from the Company's parking lot. Morgan testified that
because there was only one pencil among the group he ran
across the street to get another pencil and while in the
parking lot he saw Foreman Lester Frye to whom he
nodded. Morgan returned to the group and signed an
authorization card using the fender of Yager's car as a
writing surface. As Morgan finished signing his card he
observed Frye driving out of the parking lot. Frye's car
headed towards the group until it made a turn onto the
road. According to Morgan, Frye's car passed within 3 or
4 feet of him.'
Morgan was discharged at the close of the workday on
June 8, 1968, by his foreman, Vincent St. Onge.
According to Morgan, St. Onge said, " 'You have been
missing too many days,' I said, 'What?' and he said
something else. I said, 'Do you mean I am fired?' He said,
'Yes.' I said, 'What for?' and he said, 'You have been
missing too many days.' I said 'Jesus, I've only missed
one or two days since I've been here.' He said, 'Well,
you've been doing too much horsing around.' I said that I
didn't know how you could pick one guy, probably out of
ten, twelve guys in the lugging guys and fire him. He said,
'Well, it ain't me, it's Carpenter and Monk. They have
been down there and watched you. If you want your job
you'll have to talk to them.' "
The following week when Morgan returned to the plant
to pick up his check he went to Carpenter's office and
told Carpenter he had been discharged. According to
Morgan, Carpenter acted as if he was surprised. Morgan
said he wanted to find out why he had been discharged.
Carpenter asked who had discharged him and Morgan
responded that St. Onge had. Carpenter asked what did
St. Onge tell you and Morgan replied, "That I'm doing
too much horsing around. Vince said that I missed too
many days." Carpenter responded that he was sorry but
St. Onge had used his best judgment.
Morgan's testimony in substantial part is disputed by
witnesses called on behalf of Respondent. Concerning the
interview with Morgan on the day he was hired, Carpenter
testified that Frye had reported he needed luggers and
Morgan was waiting in the hallway seeking employment.
Morgan was -called into the office and Carpenter
explained to him that his past record was "damn poor."
Carpenter said that "if he would straighten up and do his
work and be like a man we would put him on. He said he
would, and he did for about three or four weeks. 116
'According to St Onge , when he told Morgan that he could not take a
break Morgan said , "It will be different when the union gets in here." St.
Onge replied , "You ain' t working for the union now."
'The authorization card in evidence appears to be dated June 3 rather
than June 5.
'None of the employees whom Morgan identified as having been in the
group with him on the occasion in question was called as a witness
Morgan 's testimony concerning the event therefore is without
corroboration
'Frye testified that on April 3 because he needed luggers and there were
none then available he suggested to Carpenter that they should "try to
straighten [Morgan] out " Morgan was called to the office. He told them
that he needed a job. Carpenter asked Morgan if he could stay on the job
and do better work without horseplay Morgan said he thought he could
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About May 1, 1968, Vincent St. Onge replaced Frye as
foreman of the cooler. Carpenter testified that several
times thereafter St Onge complained to him about
Morgan, about Morgan's attitude, about Morgan sluffing
off and about Morgan engaging in horseplay, "throwing
meat and what not " On June 8, Carpenter approved St.
Onge's request to discharge Morgan.
According to St Onge, about the time he became
foreman, Morgan started slacking off and engaging in
horseplay. St. Onge testified that he tried shifting Morgan
from one gang to another but "it seemed like whatever
gang he went on there was this horseplay. He couldn't
settle down." Finally, St. Onge discharged Morgan on
June 8 after first obtaining Carpenter's approval.
Concerning the incident on June 5 Lester Frye denied
that he was present at the time Morgan testified that Frye
observed him signing a union card. Morgan's timecard
shows that on June 5 he punched out at 4:08 p.m.' Frye
testified that in June 1968 he was foreman of boning
department and that it was his practice from which he
rarely departed to leave the plant when the boning
department finished its work. Although Frye did not
remember what hour he left on June 5 the timecards for
the boning department show that the empioyee in the
department who punched out last punched out at 2:55
p.m.' Thus, the tenor of Frye's testimony is that he left
the plant about I hour before Morgan did on the day that
he was supposed to have observed Morgan signing the
authorization card
General Counsel's proof that Morgan was
discriminatorily terminated amounts to little more than
suspicion based upon inferences derived from
unassimilated congeries of fact. Thus, General Counsel
argues in his brief, "Lester V. F rye, Foreman, saw
[Morgan] when he was on his way to the car to get the
pencil, and that after he returned to where the employees
were gathered signing the cards, Frye passed directly by
them in his car. Based on the above series of events, it is
only reasonable to conclude that when Frye observed
Morgan going to the car parked on Respondent's lot and
then returning to the group of men gathered nearby, that
his (Frye's) curiosity was aroused. When Frye drove past
the men in his car he was close enough to them to see that
they were writing on something. Knowing that a union
organizing drive was under way (the matter of knowledge
will be dealt with later herein) Frye in all likelihood knew,
or at least suspected, that the men were filling out union
authorization cards Morgan further testified that when
Frye drove past the group of men in his car that he
(Morgan) was standing watching the other men sign the
cards. It is submitted that Frye, having seen Morgan go
to the parked car and return to the group of men, and
then observing Morgan standing by while the others
signed the cards, concluded that Morgan had gone to the
parked car to get the union cards and that he had solicited
the other men to sign the cards. This explains why
Morgan was singled out of the group of men gathered by
the car and discharged."
Not only do I find this argument unconvincing, but I
do not credit Morgan's testimony that Frye observed him
signing a union authorization card. Furthermore, I credit
the testimony of Respondent's witnesses, particularly
Morgan was told he would be given another chance and they would see
how he worked out
'On June 3 Morgan punched out at 5.19 p in
'On June 3 the last employee in the boning department who punched out
,punched out at 1 59 p.m
Carpenter and St . Onge, that from about May 1, 1968,
until his discharge Morgan's behavior in the plant was
unacceptable and that he was discharged for such reason
and not for any reason related to Morgan ' s union activity.
Accordingly , I shall recommend that the complaint be
dismissed insofar as it alleges that the Respondent has
violated the Act by discharging Morgan on June 8, 1968.
B. The Reduction in Seniority
1. Delineation of the issue
The material facts upon which General Counsel relies
to support his claim that Respondent unlawfully
discriminated against former striking employees by
reducing their seniority on May 20, 1968, are not in
dispute.
On May 11, 1961, approximately 185 employees in the
bargaining unit represented by the Union went on strike in
breach of a no-strike clause in the subsisting
collective-bargaining agreement, and the Company, on
May 16, 1961, discharged all the striking employees. Such
breach of contract strike is not an activity protected by
the Act and the Company committed no unfair labor
practice by discharging the strikers.' However, the Union
filed a grievance with respect to the discharges and, after
protracted litigation, an arbitration proceeding was held.
On July 23, 1965, more than 4 years after the discharges,
the Arbitration Board issued an award directing the
Company to reinstate the former strikers with full
seniority and with all other contractual rights restored and
also with backpay computed in accordance with a formula
set forth in the award. On September 9, 1965, the
Company commenced an action to vacate the award
However, pending the outcome of the action and in order
to minimize the accrual of backpay under the terms of the
arbitration award, the Company offered strikers their
former jobs with seniority dating from the initial dates of
their hire, but withheld payment to them of any backpay.
Approximately 80 former strikers accepted the Company's
offer, but only about 65 remained at work with the
Company for more than a very short period of time
Because the Company had ceased recognizing the Union
as the collective-bargaining representative of its
employees, it did not restore to the employees who
returned to work the "other contractual rights" referred
to in the arbitration award. Ultimately, the Company was
successful in setting aside the award. Thereafter, on May
20, 1968, the Company posted a new seniority list
reducing the seniority of the former strikers who were still
in its employ, who then numbered 34, to the respective
dates on which they were rehired General Counsel's
position is that by reinstating the former strikers the
Company "condoned" the unprotected aspects of the 1961
strike and therefore when it reduced the seniority of the
34 former strikers on May 20, 1968, it discriminated
against them in violation of Section 8(a)(1) and (3) of the
Act for having participated in the 1961 strike.
2. Chronology of events
Voluminous exhibits were introduced in evidence at the
hearing in this case and following the close of the hearing
extensive briefs were filed with the Trial Examiner by
counsel for General Counsel and counsel for Respondent.
In the chronology of events set forth below no attempt has
'McLean Trucking Company, 175 NLRB No 66
SIOUX CITY DRESSED BEEF
been made to summarize every document in evidence or to
summarize all the oral testimony adduced at the hearing
I have omitted from the summary evidence which, while
not irrelevant, I do not consider necessary to the
explication of my Decision. The fact that I have not in
this Decision summarized such evidence does not mean
that I have overlooked or have failed to give consideration
or "weight" to such evidence. Similarly, the fact that I do
not discuss all the many and varied arguments advanced
by counsel in their briefs and at the hearing does not
mean that I have failed to give thorough consideration to
such arguments.
The significant events relating to the issue being
discussed herein in approximate chronological order
occurred as follows:
1. May 11, 1961 - Respondent's employees engaged in
a strike in violation of a no-strike clause in the contract
then in effect between the Company and the Union.'"
2. May 16, 1961 Respondent discharged all the
striking employees.
3. July 5, 1961 Union filed a grievance naming 185
striking employees whom it contended had been
wrongfully discharged. Respondent refused to arbitrate the
grievance on the ground that the employees, by striking in
violation of the collective-bargaining agreement, had
repudiated and terminated the contract.
4. March 9, 1964 - following a series of appeals in a
suit by the Union under Section 301(a) of the Labor
Management Relations Act to compel arbitration of its
grievance, the Supreme Court of the United States,
reversing a decision of the Iowa Supreme Court, held that
the Company was obligated to arbitrate the grievance
relating to the discharge of the striking employees."
5. July 23, 1965 - the Arbitration Board issued its
decision which provided, among other things, that the
striking employees be reinstated by Respondent with full
seniority and all other contractual rights restored. The
decision also provided for backpay for the striking
employees which was to be computed in accordance with a
formula set forth in the decision and which was to
continue running until each employee's reinstatement.
Additionally, the decision set forth the following
procedural guidelines to be followed in effectuating the
award
1. Each grievant . . . shall be notified by the
Company at his last known address by registered mail,
return receipt requested, of the terms of the Award and
his rights thereunder. Such notification to grievants
shall be made as quickly as possible but in no event
later than September 1, 1965.
2. Grievants so notified shall inform the Company,
with a copy to the Union, as to whether they wish to be
reinstated. Grievant shall signify his intent as quickly as
possible and in no event later than fifteen (15) days
after receipt of the Company's letter.
3. All grievants signifying their desire to be
reinstated under the terms of this Award shall be
reinstated by the Company pursuant thereto as quickly
as possible and in no event later than January 1, 1966.
6. July 30, 1965 - the Company mailed to the
approximately 185 persons affected by the arbitration
"The contract was executed on October I, 1960, for an. initial term of I
year. It was stipulated at the hearing that there was no
collective-bargaining agreement in effect between the Company and the
Union after October I, 1961.
"Local Union No. 72!, United Packinghouse, Food do Allied Workers,
AFL-CIO v Needham Packing Co. d/b/a Sioux City Dressed Beef, 376
U S 247
1033
award the following letter:
You are hereby advised that the arbitrator has issued
his decision in the above entitled matter. The attached
pages of the decision, pages 94 through 98, are
enclosed. These pages set forth the rights of grievants
as determined by the arbitrator
Please advise us in writing, as required in the
decision, as to whether or not you desire to be
reinstated.
We are sure that you will realize that in view of the
length and vagueness of the decision there may be some
difficulties in arriving at the terms and the meaning of
the decision.
Approximately 140 employees responded, all of whom
mailed to the Company the following letter:
This is to inform you that I do wish to be reinstated
under the terms and conditions and with the rights as
set forth in the decision of the Arbitration Board in the
above case.
7. Pending the outcome of an action that the Company
contemplated bringing to vacate the arbitration award and
in order to minimize the accrual of additional backpay
under the terms of the award, the Company decided to
offer strikers their former jobs with seniority from the
respective dates on which they were originally hired but
not then to make any payments of backpay
8. Between August 7, 1965, and August 30, 1966, the
Company sent a series of telegrams to former strikers
offering them employment with the Company. The first
group of telegrams read as follows:
YOU ARE HEREBY OFFERED YOUR FORMER POSITION
OF EMPLOYMENT STARTING ... WITHOUT PREJUDICE TO
SENIORITY OR OTHER RIGHTS OR PRIVILEGES.
IF WE DO NOT HEAR FROM YOU BY . . . WE WILL
UNDERSTAND THAT YOU REJECT THIS OFFER AND DO
NOT WISH TO WORK AT THIS PLANT. PLEASE LET US
HEAR AS QUICKLY AS YOU CAN BUT NO LATER THAN... .
WHETHER YOU RETURN OR NOT WILL NOT AFFECT
ANY RIGHT TO ACCRUED BACK PAY, IF ANY, WHICH MAY
BE FOUND PROPERLY DUE YOU.
THE ARBITRATION BOARD DECISION IS UNDER STUDY
AND WE MAY BE REQUIRED TO DISAGREE WITH IT AND
TEST IT. IN THE EVENT OF A TEST THE COMPANY WILL
COMPLY WITH ANY FINAL COURT ORDERS.
Beginning September 10, 1965, after the Company had
commenced an action to vacate the Arbitration Board's
award, the last paragraph appearing in the above-quoted
telegram was omitted from the telegrams. The reason for
the omission was to save expense because the Company
was of the opinion that everybody concerned then knew
that it had begun an action to vacate the award.
Telegrams offering former strikers employment were
sent to approximately 150 persons. The responses to the
telegrams, for the most part, followed one of several
forms which are quoted in the footnote below. 11 The only
'One such form is as follows
IN ACCEPTING YOUR OFFER OF JOB, IT IS MY UNDERSTANDING THAT
THIS OFFER IS MADE BY THE COMPANY INDEPENDENTLY OF THE
ARBITRATION AWARD , AND NOT PURSUANT TO THE AWARD.
CONSEQUENTLY, IN RETURNING TO WORK , I AMACTING IN RELIANCE
UPON YOUR ASSURANCE TO THE COURT THAT YOU ARE
ACTING ONLY TO MINIMIZE POSSIBLE BACK PAY LIABILITY
MY ACCEPTANCE OF COMPANY OFFER IS WITHOUT PREJUDICE TO ANY OF MY
RIGHTS UNDER THE AWARD , ALL OF WHICH I EXPRESSLY RESERVE . (Emphasis
supplied )
IF I AM EXPECTED TO TAKE A PHYSICAL EXAMINATION , I REQUEST AN,
OPPORTUNITY TO TAKE IT PRIOR TO DATE FOR REPORTING.
Another form is as follows
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relevant communications between the Company and the
strikers concerning their rehire are the telegraphic offers
of employment by the Company and the written
responses. There, however, is a single exception. Joseph
Tracy testified that before he returned to work he
questioned the then Plant Superintendent Harley Matney
as to what was meant by the wording of the telegram he
had received and Matney replied, "You will go back to
your job the same as if you had never left." However,
Tracy explained that he did not remember the precise
words that Matney used in their conversation and that his
testimony merely reflects the impression that remains with
him of his conversation with Matney. Matney, on the
other hand, does not have any specific recollection of the
conversation with Tracy, but testified that he was
instructed by his superior, James L. Needham, that if any
questions were asked by returning employees concerning
the nature of their employment or the meaning of the
telegrams sent to them offering them employment that he
was to say nothing inconsistent with the telegrams.
Matney further testified that in all cases he followed these
instructions. Upon consideration of the testimony of both
Tracy and Matney and the other related evidence in this
case I find that the nature of the offers of employment to
former strikers by the Company is reflected in the
telegrams which the Company sent to such strikers and
was not varied by any oral conversations between such
former strikers and any responsible representative of the
Company.
9. September 9, 1965 - Respondent instituted an
action to set aside the Arbitration Board award.
10. June 6, 1967 - the Iowa Supreme Court issued a
decision vacating the Arbitration Board award in its
entirety." On October 9, 1967, the Supreme Court of the
United States rejected the Union's petition for certiorari
to the Supreme Court of the State of Iowa, and on
December 4, 1967, the United States Supreme Court
denied the Union's motion to reconsider its denial of
certiorari."
11. December 5, 1967 - the Union filed an application
with the District Court of Woodbury County, Iowa, for
an order directing that the matter be resubmitted to the
Board of Arbitrators. On April 19, 1968, the court denied
IN RESPONSE TO YOUR TELEGRAM, I HEREBY ACCEPT YOUR OFFER OF
REINSTATEMENT TO MY FORMER POSITION OF EMPLOYMENT.
UNFORTUNATELY , AS YOU MAY BE AWARE , I WILL BE UNABLE TO
RETURN TO WORK BY ... FOR MEDICAL REASONS . I SHALL RETURN TO
WORK AS SOON AS MY DOCTOR RELEASES ME FOR WORK . SHOULD YOU
DESIRE MEDICAL CONFIRMATION OF MY PRESENT CONDITION , PLEASE LET
ME KNOW AND I WILL FURNISH SUCH CONFIRMATION
Another such form is as follows:
REASON FOR NOT COMING BACK TO WORK COMPANY OFFER WAS NOT
MADE IN GOOD FAITH . THE COMPANY HAS FILED SUIT IN WOODBURY
DISTRICT COURT TO SET ASIDE ARBITRATION AWARD I WILL RETURN TO
WORK WHEN THE COMPANY DECIDES TO COMPLY WITH THE AWARD OR
WHEN THE COURT ORDERS THE COMPANY TO COMPLY AND A GOOD FAITH
OFFER IS MADE TO ME.
Another such form is as follows:
I AM NOT ACCEPTING YOUR OFFER OF JOB BECAUSE THE COMPANY IS
CONTESTING THE ARBITRATION AWARD IN COURT, AND BECAUSE IT IS MY
UNDERSTANDING THAT THE OFFER IS MADE BY THE COMPANY
INDEPENDENTLY OF THE ARBITRATION AWARD AND NOT PURSUANT TO IT.
MY DECLINING THIS OFFER IS WITHOUT PREJUDICE TO ANY OF MY RIGHTS
UNDER THE AWARD, ALL OF WHICH I EXPRESSLY RESERVE . WHEN THE
COMPANY UNDERTAKES TO ABIDE BY THE AWARD, I WILL BE GLAD TO
RECEIVE OFFER OF REINSTATEMENT AND ALL OTHER RIGHTS PROVIDED IN
THE AWARD.
"Local Union No 721. etc. v Needham Packing Co., Inc., d/ b/a Sioux
City Dressed Beef, 151 N.W.2d 540
11389 U.S. 998.
the application. This decision was affirmed by the Iowa
Supreme Court on December 22, 1968.
12. May 20, 1968 - Respondent posted a new seniority
list at its plant which reduced the seniority of 34 former
strikers who had been reemployed by the Company
pursuant to the arbitration award from the dates of their
initial hires to the dates on which they were rehired
following the issuance of the arbitration award.
3. General Counsel's argument
In his brief, "[t]he General Counsel takes the position
that the Respondent by its communications to the
employees, particularly its telegrams offering the
employees 'your former position of employment . .
without prejudice to seniority or other rights or privileges,'
condoned the unprotected aspect of the strike activities of
the employees, which occurred in May 1961, and that the
subsequent reduction of their seniority was, in
consequence, unprivileged." However, General Counsel
does not define the term "condone" as he uses it in his
statement of position and does not explicate any rationale
to explain his assertion that the Respondent by its
communications to the former striking employees
(offering them their "former position[s] of employment .. .
without prejudice to seniority or other rights or
privileges ," which offers were made under the compulsive
direction of the arbitration award more than 4 1 /2 years
after the strikers had been discharged) "waived or
condoned" the "unprotected aspects (breach of the
no-strike provision in the 1960 contract) of otherwise
protected activity (the May 1961 strike).""
The undisputed evidence shows that there was one and
only one reason why the grievants16 were rehired by the
Company and that reason was to limit its potential
monetary damages under the terms of the arbitration
award. The validity of the award depended upon the terms
of the 1960 contract between the Company and the Union
- not upon any provision of the Act -- and the
enforceability of the award rested in the civil courts - not
with the National Labor Relations Board. Thus, the rehire
of the grievants pursuant to the award bore no proximate
relationship to any of their rights under the Act or to any
of the Company's obligations under the Act. In this
respect the instant case is readily distinguished from the
cases General Counsel cites in his brief." I, therefore, do
"Relying upon language quoted from American River Constructors, 163
NLRB 551, 552, General Counsel asserts that the "unprotected aspects of
an otherwise protected activity can be waived or condoned by an
employer" and "an employer, having once condoned the unprotected
aspects of otherwise protected activity, cannot assert that unprotected
activity as justification for some course of action he subsequently chooses
to follow." The validity of this principle is not in question . However, the
issue is whether the principle is applicable to the facts in the instant
proceeding.
"As hereafter used in this Decision the word "grievants" refers to the 34
persons whom General Counsel complains of in this case as having been
discriminated against when their seniority was reduced by the Respondent
on May 20, 1968.
"M Eskin & Son, 135 NLRB 666, enfd. sub nom . Confectionery &
Tobacco Drivers and Warehousemen 's Union, Local 805, IBTCWHA v
N.L R B.. 312 F.2d 108 (C A. 2); Southland Manufacturing Corp., 157
NLRB 1356, 1390-91, enfd . sub nom , United Hatters. Cap and Millinery
Workers International Union. 375 F 2d 325 (C A.D.C.); Quality Limestone
Products. Inc, 153 NLRB 1009, Union Twist Drill Co., 124 NLRB 1143.
The Dow Chemical Company, 152 NLRB 1150, 1151, 1160.63; California
Cotton Cooperative Association Lid, 110 NLRB 1494, 1500 ; Alabama
Marble Company, 83 NLRB 1047, enfd. 185 F.2d 1022 (C A. 5), cert.
denied 342 U.S. 823.
SIOUX CITY DRESSED BEEF 1035
not agree with General Counsel's argument "that the
instant case is analogous to those cases where an employer
has been held to have condoned the illegal picket line
activities of striking employees.""
General Counsel vigorously argues that Respondent's
offers of reemployment to the grievants without prejudice
to their seniority was not subject to any conditions and
the employees did not understand that "the Respondent's
offer of reinstatement 'without prejudice to seniority or
privileges' was conditioned upon the final outcome of
Respondent's appeal." I do not disagree with this
argument. However, except that it rebuts a contrary
contention by Respondent, General Counsel does not
explain how this circumstance is relevant to, or supports,
the unfair labor practice theory he expounds in this
proceeding. As pointed out above, the offers of
reemployment were made under the compulsion of the
arbitration award and the grievants were well aware of
such fact. Thus, while such offers were not hedged by any
conditions, because they were involuntarily made - in the
sense that the offers would not have been made but for
the issuance of the arbitration award - the grievants
could have anticipated that if and when the award should
be vacated the Company might then reverse the actions it
had taken under the force of the award. In any event,
although the grievants were reemployed unconditionally, it
was not in order to remedy any violation of the Act and
their hire did not affect any activity protected by the Act. 19
Upon their rehire they were given greater seniority than
newly hired employees because of the arbitration award.
But the arbitration award and the grievants' rights, if any
deriving therefrom are not within the direct scope of the
Act's protection. When the pressure upon Respondent to
comply with the terms of the award was removed with its
judicial nullification, the benefits theretofore given because
of such compulsion could lawfully be withdrawn. The
reduction of the grievants' seniority upon the vacatur of
the arbitration award was therefore not an infringement
upon any right protected by the Act. The Respondent
merely withdrew a benefit conferred upon the grievants by
the terms of the arbitration award.
Finally, General Counsel asserts that six employees who
participated in the strike were voluntarily rehired by
Respondent between May 16, 1961, and July 23, 1965,
when the arbitration award was issued, and that the six
employees "so rehired did not have their seniority reduced
on May 20, 1968, as did the employees who were
reinstated after the Arbitrator's decision issued." General
Counsel argues that this fact "demonstrates that the
Respondent did not use purely objective,
nondiscriminatory considerations in determining which
employees' seniority would be reduced on May 20, 1968,
but that Respondent instead discriminated against those
employees who had stood by Local 721 throughout the
litigation and rewarded those who had abandoned Local
721." There are two faults with General Counsel's
argument. First, General Counsel's assertion of fact is not
"in each of the cases cited by General Counsel, i.e., Southland
Manufacturing Corp, Quality Limestone Products, Inc., and Union Twist
Drill Co , supra, there was a strike in progress and in settlement thereof
the employer reinstated , or indicated a willingness to reinstate, strikers
who initially or during the course of the strike had placed themselves
outside the protection of the Act. Thus, unlike the instant case , the reason
for reinstatement in the cited cases was proximately related to an activity
covered by the Act; namely , a strike.
"For instance , persuading strikers to abandon a strike and return to
work affects the right of employees to engage in a strike which is a subject
of the Act' s special concern . In this case the strike had long been at an end
when the grievants were offered reemployment.
supported by the record.2° Second, assuming that the six
employees were treated differently than the grievants, such
difference does not demonstrate that Respondent
discriminated against the employees who stood by the
Union and rewarded those who abandoned the Union, but
merely shows that Respondent was seeking, after the
vacatur of the arbitration award, to undo some of the
actions it had taken under the compulsion of the award."
Conclusions
Condonation is normally understood to mean a "tacit
forgiveness of an offense by treating the offender as if it
had not been committed." As so defined the term has
been readily and plausibly applied by the Board to explain
its decisions in certain cases. Thus, where an employer
reinstates strikers who had engaged in picket line
misconduct, he is deemed to have "condoned" or forgiven
such misconduct and cannot thereafter rely upon the
misconduct to justify the discharge of the strikers. And if
the earlier misconduct is the only reason advanced by the
employer for the subsequent discharge of these employees,
the employer will be deemed to have discharged them not
for their picket line misconduct but for their strike activity
(with the picket line misconduct removed from
consideration) and will be found to have committed an
unfair labor practice." Stated otherwise, the assertion of
the picket line misconduct as the reason for the discharges
"The six employees referred to by General Counsel are: Theodore
Lichty , Ernest Jones, James Tracy, Wayne Monk, Benjamin Guthmiller,
and Darwin Solomon . Respondent in its reply brief points out
The General Counsel simply misstates the fact when he says that the
discharged men hired prior to July 23, 1965 did not have their seniority
reduced on May 20, 1968. On May 18, 1968 Darwin Solomon rehired
June 18 , 1962 was number 24. On May 20, 1968 he was number 67 Ben
Guthmiller, rehired March 8, 1962 was number 14 on May 18 and
number 66 on May 20, 1968. Wayne Monk rehired March 5, 1962 was
number 48 on May 18, 1968 and went to number 65 on May 20, 1968
James Tracy rehired December 18, 1961 went from number 6 on \lay
18, 1968 to number 62 on May 20, 1968. All four men had their initial
hiring date changed . Theodore Lichty whose priority rating was number
I I on May 18 went up to number 5 on May 20, 1968 and Ernest Jones
who was number 30 on May 18 went up to number 8 These two were
treated the same as the men who returned prior to May 16, 1961.. .
The men who came in after the strike and things settled down; James
Tracy, Wayne Monk , Benjamin Guthmiller and Darwin Solomon, were
treated first as new hires and just the same as the other rehired men
after the Arbitrator 's illegal award , (GC Ex. 4 and 5). Theodore Lichty
and Ernest Jones were strikers who returned to work May 29, 1961
before things had settled down in the plant They were treated the same
as Roland Frye , Gabriel Reyes , Tarqum Cameron, Darryl Frye and
Darwin Frye who returned to work May 15 or 16, 1961. These men were
treated the same as though they had never gone out. There is a break in
approximately six to seven months between the time Lichty and Jones
came in and the time James Tracy, Wayne Monk, Benjamin Guthmiller
and Darwin Solomon were rehired as new hires , See Tr. pg. 232, 233
"In his argument General Counsel makes the mistake of equating the
concept of "discrimination" as used in Section 8(a)(3) with the concept of
disparate treatment Disparity in the treatment of employees does not
embrace any substantive concept under the Act It is merely an evidentiary
factor In cases arising under the Act, disparity in the treatment of
employees becomes material only as a matter of proof. Evidence of
disparate treatment is frequently a factual element relied upon to support a
finding of discrimination . However , every disparity in the treatment of
employees does not necessarily result in an unfair labor practice and the
absence of disparity of treatment does not preclude the existence of an
unfair labor practice. In this case , if the employees who had abandoned the
strike were treated differently in regard to seniority than the grievants who
were reinstated pursuant to the arbitration award , such difference is
attributable to the vacatur of the arbitration award rather than to any
discriminatory motive related to the grievants ' union membership or union
activity.
"Union Twist Drill Co, 124 NLRB 1143.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was merely pretextual and was made to conceal the true,
but statutorily offensive, reason for the discharges. This
illustrative case and similar cases have in common the fact
that the employees' underlying activity was within the
protective scope of the Act 23
However, the term "condonation" poorly fits some
situations to which it has been applied. For instance, the
case where an employer later discharges or otherwise
disciplines employees who were reinstated after
participating in a strike in breach of a no-strike clause in
an applicable contract or after engaging in other
unprotected concerted activity. Such case cannot be
explained by the ordinary definition of the term
"condonation" because the employees engaged in no
protected activity separable from the unprotected activity 24
If the employees' unprotected activity is deemed
"condoned," and therefore removed from consideration,
there remains no other statutory right which the employer
can have violated." Trial Examiner Summers in his recent
Decision in Ohio Stove Company, Case 9-CA-4915, seeks
to explain such case by formulating a definition for
"condonation" which is completely at variance with the
ordinary meaning of the term. He states in his Decision
that:
The concept of condonation, as it applies to
contractual strike prohibitions, involves a
"double-waiver": first, although the right to strike is
(under ordinary circumstances) one protected under the
Act, a bargaining representative, on behalf of
employees, can waive such protection in advance by
contracting that there be no strikes, under penalty of
discharge for instigation or participation; likewise, the
no-strike provision having been breached, an employer
can waive his right under the contract to discharge or
otherwise discipline by evincing a desire to forgive and
forget, to "wipe the slate clean." Thus, the protection
originally afforded by the Act can be forgone; and,
thus, it may be reinstated.
I find this reasoning unacceptably constrained and
artificial In Poloron Products of Indiana, Inc, 177
NLRB No. 54, Trial Examiner Reel points out that "the
doctrine of those cases is easier to state than to
rationalize. . . . The policy of the cases appears to be that
strike settlements are to be favored, and that employers
must therefore be held to promises made as part of such
settlements." Nevertheless, he appears to be of the
opinion that such policy consideration alone is not
sufficient to justify an unfair labor practice finding. He,
therefore, further states that "to establish violations of the
Act it has been necessary to couch the matter in terms of
activity protected by the statute. This has been achieved
by declaring that once 'condoned' the originally
unprotected concerted activity lost its 'unprotected'
character so that only 'concerted activity' remained, or by
2' In his brief, Respondent 's counsel offers an acceptable definition of the
term "condonation" as applied to the cases such as illustrated above
"condonation is basically the same as a waiver or an estoppel against
resurrecting a past grievance or complaint on which to ground a legal act
once the parties agreed that the past grievance or complaint would be
forgotten "
"But see M Eskin & Son, supra
"A strike in contravention of a no-strike clause , if unprotected at its
inception , does not retroactively become protected because the employer
later may have reinstated the strikers . A contrary rule would mean that
employees would gain rights under the Act not because of any provision of
the statute but because of their employer 's response to their concerted
activities
arguing that by 'condoning' the employer demonstrated
that he 'forgave' the 'unprotected' character, so that the
real reason for his subsequent reprisal was his dislike for
the 'concerted' aspect." This reasoning would appear to
revert to the so-called pretext approach
I think the cases to which the term "condonation" has
been applied to describe the violation arising from the
reprisals visited upon employees who were reinstated
following their participation in an unprotected concerted
activity can be explained by a theory somewhat different
from those advanced above. The term "condonation" was
used in such cases to reach reasonable, commonsense
results which the Board in the application of its expertise
in the field of labor relations deemed necessary and just.
The term "condonation" has been used as loosely as the
expression "balancing of conflicting rights " What is
meant is that the operative facts of a situation call for a
particular result in order to accommodate the spirit and
purposes of the Act if not its specific language. In the case
where an employer in order to settle a breach of contract
strike invites the strikers to return to work, it would
frustrate a fundamental object of the Act, namely,
"friendly adjustment of industrial disputes," if the
employer thereafter may discharge or visit other reprisals
upon the employees for their previous strike activity. Such
conduct would contravene the basis of the strike
settlement and would tend to promote another strike or
other form of industrial unrest. Two wrongs seldom make
a right. The violation of a strike settlement agreement by
an employer is not fairly justified by the fact that the
strike in the first place had been called in breach of a
contract. 26
Regardless of what rationale is used to explain the
Board's Decisions in cases involving subsequent reprisals
against employees who were reinstated after engaging in
unprotected concerted activities, the precedent established
by those cases are not applicable to the instant
proceeding The significant differences between those cases
and this case are. (1) The strike was at an end long before
any of the grievants were offered reinstatement, and (2)
most importantly, the intervention of a supervening factor,
to wit, the arbitration award between the discharges of the
grievants and their reinstatement.
In order to spell out an unfair labor practice in this
case a right protected by the Act must have been infringed
upon. General Counsel contends that the reduction in the
seniority of the grievants on May 20, 1968, was a
punishment for their strike activity in 1961 (the
unprotected aspect thereof having been "condoned") and
therefore a violation of the Act. Respondent, on the other
hand, contends in effect that as the grievants were given
seniority credit for prior employment upon their rehire
only because of the terms of the arbitration award, which
purported to determine and enforce a contractual -- but
not a statutory right, upon vacatur of the award and
removal of its compulsive pressure, the Company might
lawfully alleviate the detriment suffered by the issuance of
the wrongful award. As the award was not based upon the
"The Board in other situations has refused to apply the ordinary
definitions of particular terms if to do so would call for a result which
would conflict with the spirit and purposes of the Act Thus, although an
employer is not obliged to reinstate unfair labor practice strikers unless an
unconditional application by such strikers for reinstatement has been
made, nevertheless , the Board holds that unfair labor practice strikers are
entitled to impose as a condition to their application that they shall be
reinstated as a group and shall not be required to return on a piecemeal
basis National Business Forms, 176 NLRB No 122, and cases cited in fn
37
SIOUX CITY DRESSED BEEF
Act, the reversal of its effect was not a violation of the
Act.
When the Company discharged the striking employees
on May 16, 1961, the employees had no recourse against
the Respondent under the Act. The Union, however, did
seek redress for the striking employees under the
provisions of the collective-bargaining agreement which
was in existence when the strike began. This resulted in
extensive litigation in the civil courts and in an arbitration
proceeding. Some 4 years after the discharges the
Arbitration Board issued a decision directing the strikers'
reinstatement with backpay. Had the Company refused to
comply with this decision there would have been no
violation of the Act. The validity of the award rested upon
the terms of the relevant collective-bargaining agreement
and not upon the provisions of the Act and its
enforcement was lodged in the courts and not in the
Board.
When the Company in compliance with the arbitration
award reinstated the former striking employees it was
seeking to mitigate its liabilities under the award. The
Company thereby was not purporting to comply with or
to give effect to any provision of the Act. Thus, the
Company's refusal to give the grievants the backpay
awarded to them when the Company offered them
reinstatement is not contended by General Counsel to
have been a violation of the Act and, for reasons
expressed above, was not a violation of the Act. If the
arbitration award had not ultimately been set aside, the
Union and/or the employees probably would have had an
enforceable right in the civil courts to collect the backpay,
but no such remedy would have been available to them
under the Act or pursuant to any Board process.
Similarly, had the Company initially failed to give the
employees seniority when it reinstated them, although
directed to do so by the arbitration award, there still
would have been no violation of the Act.
Thus, in this case, the Company's compliance with or
failure to comply with the arbitration award did not
impinge upon any rights or obligations under the Act.
However, General Counsel's thesis is that the Company's
later withdrawal of a benefit (seniority) conferred upon
the striking employees by reason of the arbitration award
now comes within the cognizance of the Act. In substance,
his theory is that after the striking employees had been
reinstated, for the purposes of the application of the Act,
we must ignore entirely the arbitration proceeding and
when, thereafter, the Company reduced the seniority of
the grievants we attribute to the Company as its reason
for so doing their participation in the May 1961 strike.
Such attribution is unrealistic. The grievants were
reinstated, not because of any reason related to the Act,
but only because of the Arbitration Board's award. The
modification in seniority made by the Respondent was
merely a recoupment by the Company of some of the
detriment it suffered from the issuance of the arbitration
award which later was vacated. It is unnecessary and
1037
unrealistic to return to 1961 to seek a motive for the
change in the seniority roster made in 1968 when the
vacatur of the arbitration award in 1967 furnishes a
complete and sufficient explanation for the Company's
action
Furthermore, when the Company rehired the grievants
the Company then was not seeking to settle any strike -
there was no strike in progress. Also, the Company was
not then seeking to dispose of any problem with the
Union or its former striking employees -- it merely was
seeking to minimize its potential damages under the
arbitration award. In fixing seniority for the rehired
employees the Company acted under the compulsion of
the arbitration award. When some 2 years later the
Company reduced the seniority of the grievants, its
decision to do so can only be related to the factor which
impelled the Company to rehire the employees and to give
them their seniority in the first place namely, the
arbitration award.
The arbitration award, including all peripheral
proceedings such as the initial grievance and the
subsequent litigation, related to the contract in existence
when the strike began in 1961 and was not related to any
rights of employees or obligations of the Company under
the Act. The Company's refusal in the first instance to
comply fully with the arbitration award was not an unfair
labor practice and the Company's later withdrawal of
seniority conferred upon the former striking employees by
reason of the arbitration award did not impinge upon any
of their statutory rights. The action of reducing seniority
was not taken because of the employees' union
membership, union activities, or other concerted activities,
but only because the Company ultimately was successful
in vacating the arbitration award. Respondent had
complied in part with the award in order to mitigate its
damages thereunder. Such effort to reduce a potentially
disastrous economic burden does not constitute
condonation within any definition of the term with which
I am aware or within any application of the term at all
pertinent to this proceeding. Contrary to General Counsel,
I find no condonation here nor any unfair labor practice
by reason of the reduction in seniority of the grievants on
May 20, 1968. Accordingly, I shall recommend that the
complaint be dismissed in this respect
CONCLUSION OF LAW
Respondent has not violated Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
Conclusion of Law and upon the entire record, I
recommend that the complaint in this case be dismissed in
its entirety.