On Application for Enforcement of an Order of the National Labor Relations Board.
Before Cummings, Sprecher and Bauer, Circuit Judges.
The essential question upon this application for enforcement of an N.L.R.B. order is whether numerous unilateral attempts by an employee outside a bargaining unit to promote himself into the unit and into a higher-paying position constitute protected concerted activity. Under the facts of this case we hold that such activity is not protected concerted activity.
Inasmuch as the Administrative Law Judge found the employee to be a credible witness and the Company's witnesses to be unworthy of belief, wherever there is any conflict in the facts as hereafter narrated, only the employee's version and documentary evidence are relied upon.
Slotkowski Sausage Company maintains its place of business in Chicago, Illinois, where it is engaged in the processing and packing of sausage and related meat products. Its 79 to 80 employees include about 55 members of two labor unions which have contractual relations with the Company. Highway Drivers, Dockmen, Spotters, Rampmen, Meat, Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees, Chicago and Vicinity, Local 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters) represents four of the Company's truck drivers. The 51 remaining union members belong to Amalgamated Butchers and Meat Cutters of North America, Local 100 (Meat Cutters).
The Company has maintained contractual relations with the Teamsters and the Meat Cutters for over 25 years. Prior to this proceeding the Company had never been charged with an unfair labor practice, as the Board noted in its order here under review.
Bernard Jeczalik applied for employment with the Company after seeing a newspaper advertisement. He testified before the Administrative Law Judge (Tr. 49-50):
Q. And do you remember the nature of the advertisement in the Back of the Yards Journal ?
Q. It was for a truck driver?
A. It said Slotkowski Sausage.
Q. It just said Slotkowski Sausage, period?
A. There were a lot, I didn't read them. The place was hiring so I went there for a job.
Q. You went there for what kind of a job?
A. I didn't know what they had available.
Q. You went there for any job they had available?
Q. Okay. What job did they tell you they had available when they took you for employment?
A. They said we will move you around for a little while until we find out the department that you're best suited for.
Q. And what did you understand that position entailed?
Q. So, you were willing to do whatever it is they asked you to do?
Jeczalik was 27 years old, had a high school education, and listed in his application three previous employments, each lasting about two years. The first was in a shipping position, the second, with City Foods, Inc., was as a driver and meat packer, and the most recent was an all-around employee ("shipping, receiving, driver, frozen food chef"). Co. Ex. 2.*fn1 The interviewer for the Company noted on the application that "I feel this man would be capable of doing more than one job." Id.
Jeczalik further testified (Tr. 21-22):
A. Leonard (Slotkowski, the Company's president) reviewed my application and then he asked me if I was a member of any union, and I told him no; and he said when you worked at City Foods were you in the union, and I said no; and then he asked me if I had if I could be to work on Monday, and I said yes. He said because most (of) the people go out Sunday and don't come in on Monday to work, and I said I'll be here; and he said I can't start you off that much, and I said well how much, and he said $3.75 and a substantial ...