Farmbest, Inc. v. NLRB

• Decision Date: 17 January 1967
• Docket Number: 18220.,No. 18180,18180
• Citation: 370 F.2d 1015
• Parties: FARMBEST, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CRAWFORD COUNTY INDUSTRIAL LABOR UNION and Crawford County Industrial Labor Union, Unit No. 1, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

370 F.2d 1015 (1967)

FARMBEST, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CRAWFORD COUNTY INDUSTRIAL LABOR UNION and Crawford County Industrial Labor Union, Unit No. 1, Respondent.

Nos. 18180, 18220.

United States Court of Appeals Eighth Circuit.

January 17, 1967.

James L. Rogers and John C. Cortesio, Jr., and Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, Iowa, for petitioner Farmbest Inc. and filed brief.

Julius Rosenbaum, Atty., N.L.R.B., Washington, D. C., for the Labor Board. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Herman M. Levy, Atty., N.L.R.B., Washington, D. C., were with him on the brief.

Before VOGEL, Chief Judge, MATTHES and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

This case is before the court upon the petition of Farmbest, Inc. to review a decision and order of the National Labor Relations Board and upon the Board's cross-petition for enforcement against Farmbest, and the Board's petition for enforcement against the Crawford County Industrial Labor Union and Crawford County Industrial Labor Union, Unit No. 1.¹

The Board found that Farmbest violated § 8(a) (3) and (1) of the National Labor Relations Act by discharging employee John Janning. The Board also found that Farmbest and the Union violated § 8(a) (1) and (2), § 8(b) (1) (A) and § 8(b) (2) of the Act by entering into and maintaining a collective bargaining agreement which provided for the automatic termination of "all policies, benefits, and provisions" of the agreement in the event of "change in the representative status for employees of the company." Additionally, the Board found that the Union violated § 8(b) (1) (A) of the Act by requesting a Farmbest employee to furnish it with a copy of his pretrial statement given to a Board agent, and by interrogating a Farmbest employee concerning the testimony he anticipated giving at a Board proceeding.

Farmbest is a cooperative corporation operating a meat plant at Denison, Iowa. The Consumers Cooperative Association is the dominant stockholder in Farmbest and provides it with working capital, and extends to Farmbest employees insurance, retirement, workmen's compensation and other such programs. It can fairly be said that Consumers controls Farmbest. The Union involved is the Crawford County Industrial Labor Union characterized by trial examiners as a capable and effective organization.²

Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, to be referred to hereafter as Amalgamated, is a union which has periodically attempted to organize Farmbest employees, making a particularly intensive effort in 1962.

Discharge of John Janning.

Without notice to Farmbest, Janning took unauthorized leave from his work on April 16, 1963, but returned on April 23, reporting that his absence was due to illness. He presented a doctor's statement that he needed dental work. Janning attempted to obtain sick pay for the time he had taken off. During Janning's absence, a fellow employee reported to a supervisor that Janning was working on a new home he had under construction. Farmbest Manager Crabb was informed by Janning's supervisor of Janning's absence. After further investigation, Manager Crabb learned from Janning's doctor that Janning need not have missed work as he required only some dental work which could be obtained on his day off. Upon ascertainment of these facts, Manager Crabb telephoned Fred Claxton, Assistant Regional Manager of Consumers, the parent company, relating the facts surrounding Janning's absence and attempt to collect sick pay. Claxton was not acquainted with Janning and knew nothing of his union activities, but advised Crabb of the company's policy of discharging employees who abused their sick pay privileges. He told Manager Crabb that other employees had been discharged for similar misconduct and recommended that Janning be discharged. Manager Crabb then ordered the discharge.

The Board found that the discharge of Janning was partially for cause but that an additional moving cause was Janning's advocacy of strong enforcement of the terms of the collective bargaining agreement.³

Specifically, by adopting the Trial Examiner's decision, the Board found that Janning was discharged for having engaged in concerted activities by lodging complaints with management on behalf of himself and other employees concerning Farmbest's failure to post and fill job vacancies in accordance with the terms of the collective bargaining agreement.⁴

Janning served as president of the Union in 1962 and in 1963 served as one of the employee members of the seniority board. Additionally, during this time he was active in assisting Amalgamated in its drive to organize Farmbest. Farmbest had knowledge of Janning's union activities. There are only two instances of asserted advocacy for strong enforcement of the agreement that form the basis of the Board's order. We will treat them separately.

A. Job Posting.

Janning testified that some of the employees had complained to him about Farmbest's laxity in posting and filling job vacancies. Janning discussed this problem with a local newspaper editor but there was never any formal grievance filed by Janning or any other employee. In March of 1963 Janning advised Manager Crabb that there was dissatisfaction among the employees stemming from Farmbest's failure to properly post and fill job vacancies. Manager Crabb immediately called a meeting of the seniority board to consider this complaint. Upon finding that there had been some laxity, Crabb immediately ordered its rectification. The following morning several job vacancies were posted on the bulletin board. At the meeting, Manager Crabb expressed the hope that any future like occurrences would be brought directly to management's attention rather than being bruited about among the employees and particularly with outsiders.

B. Janning's Job Assignment.

At the time of his discharge, Janning was a "torch operator" although he was frequently permitted to work in a higher paying "ham shaver" job. Janning had been taught by his supervisor to do ham shaving work and was permitted to substitute for one of the ham shavers when the need or occasion arose. Janning contended that he was senior over fellow employee Christensen for a ham shaving job. When his complaint got to his supervisor, Tierney, the seniority board was convened to resolve the controversy. Janning was a member of this board. The other board members present unanimously ruled in favor of Christensen. The Trial Examiner found that this was entirely justified under the evidence, and Janning made no further complaint about his job assignment.

The Trial Examiner's findings do not warrant the conclusion reached as the record as a whole is totally lacking in substantial evidence to support the conclusion that Janning's strong advocacy of strict contract enforcement was a cause for the discharge. There was no grievance filed in connection with the job posting laxity and certainly Janning, who had been president of the Union and was at the very time a member of the seniority board, had knowledge of the proper procedural steps to be taken under the contract terms. Furthermore, immediately upon Janning's bringing this complaint to the manager, a meeting was called and the situation promptly corrected. The Trial Examiner found the remarks made by the president about bringing the matters to the company's attention was occasioned by Janning's own volunteered reference to an earlier conversation with...