Petition for Review and Cross-Application for Enforcement of Order of National Labor Relations Board.
Pell, Stevens and Sprecher, Circuit Judges. Pell, Circuit Judge, dissenting.
The petitioner Company has sought review of, and the Board has applied for enforcement of, a Board order finding that the Company violated Sections 8(a) (3) and (1) of the Act by transferring employees Ted R. Rockwell, Charles Petty and Ronald Whiting because of their union activity. 203 NLRB No. 39.
The employees were city truckdrivers who joined the picket line during a June 1-2, 1971 strike by the certified representative of the Company's production and maintenance employees. The strike was settled and the employees returned to work as city truckdrivers on June 4. The Board found that "the matter of whether the city truckdrivers were in the . . . . unit or not was never resolved, and [the union] . . . . had not abandoned its claims over these employees." 203 NLRB No. 39, p. 5.
On June 5, the three employees were told that "they would be placed into the bargaining unit which now represents them."*fn1 Whiting and Petty were assigned to the boning room and Rockwell to the loading dock. On June 7 while performing one of the most exacting jobs in the Company's operation, Rockwell aggravated an old injury. On June 8, Whiting, who was required to stand all day in his new assignment, also aggravated an old injury.
In addition to cease and desist requirements, the Board ordered the three employees reinstated to their city truckdriving jobs and made whole for any loss of earnings suffered as a result of the discrimination.
Substantial evidence on the record as a whole supports the Board's finding and order.
PETITION FOR REVIEW DENIED AND ORDER ENFORCED.
PELL, Circuit Judge, dissenting.
I fail to find this case as free of complexities as apparently the majority opinion does, and therefore I respectfully dissent.
This appears to be a case in which the National Labor Relations Board has accepted the Administrative Law Judge's decision based upon credibility findings to the extent that the decision conformed to the Board's determination of the proper disposition of the case, but ignored those credibility findings when the converse was true and in effect substituted its own credibility findings for those of the Administrative Law Judge.
For some time prior to September 18, 1970, the Independent Packerland Employees Union (Independent) was the collective bargaining agent for all production and maintenance employees of Packerland, including inter alia, truckdrivers. On September 18, 1970, the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (Amalgamated) was certified by the Board, in a unit consisting of all production and maintenance employees of Packerland at its Green Bay, Wisconsin plant, excluding inter alia, truckdrivers.
Packerland employed 16 truckdrivers in its rendering division, 18 or 20 over-the-road truckdrivers, and 3 city truckdrivers. The alleged discriminatees involved in the present case, Rockwell, Whiting, and Petty, were the 3 city truckdrivers.
A point of controversy between Packerland and Amalgamated was whether the 3 city truckdrivers were within the unit represented by Amalgamated. That point of dispute remained unresolved after the Administrative Law Judge's decision, after the Board's decision, and will still remain unresolved after this court's order of enforcement. It remains a festering source of labor disharmony, which apparently would have lent itself to ...