I. Oscherwitz and Sons

National Labor Relations Board - Board Decisions

Mar 2, 1961

130 N.L.R.B. 1078 (N.L.R.B. 1961)

1078 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
Max B . Oscherwitz , Bernard Oscherwitz and Millard S. Oscher-
- witz, co-partners doing business as I. Oscherwitz and Sons
and Ruth Dirr
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO , Local No. 7 and Ruth Dirr. Cases Nos.
9-CA165.2 and,9-CB-764. March 2, 1961
DECISION AND ORDER
On January 29, 1960, Trial Examiner Eugene Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except to the extent inconsistent with our
Decision herein.
1. We agree with the Trial Examiner that Respondent Employer
violated Section 8 (a) (1), (2), and (3) and Respondent Union violated
Section 8(b) (1) (A) and .(2) by maintaining an unlawful union-
security provision in their bargaining contract.
In March 1947, Respondent Employer and Local 123, Meat Cutters,
a predecessor of Respondent Union, executed a 1-year agreement
which provided for renewal annually thereafter upon renegotiation
by the parties. Article 1, section 2, of the agreement provided that
"As a condition of employment, all employees subject to and covered
by this agreement must be members and remain members in good
standing with the Amalgamated Meat Cutters and Butcher Workmen
of North America, Local 123." In 1950, Local 123 merged with
another local to form Local 7, the Respondent Union herein, which
thereupon orally adopted the 1947 agreement, as amended to that date.
Since 1950, all further modifications and supplements to the basic
agreement have also been agreed to orally.
The Respondents contend that the illegal closed-shop clause set out
above has not been included in any of their oral agreements since
1950 and that, as a matter of fact, the agreement and their practice
thereunder allows all new employees a 30-day grace period in which
to join the Union. We find, however, that by virtue of successive
130 NLRB No. 118.
I. OSCHERWITZ AND SONS 1079
renegotiations the original' agreement has never been allowed to ex-
pire. The parties have never formally rescinded or terminated the
written agreement, and their course of dealings over-the past years in
relying on unmodified provisions of the 1947 agreement for such sub-
stantive matters as arbitration-,of grievances, computation of overtime,
and the date for contract reopenings satisfy us that the parties never
intended to abandon completely their adherence to the basic document
-which' evidences their agreement. We do not believe, therefore, that
a parol modification of the illegal clause contained in that agreement,
even if fully substantiated, and without regard to whether the clause
has been enforced or not, removes the inherently coercive effect which
such a provision has upon the rights of employees guaranteed to them
by Section 7 of the Act. In so maintaining an unlawful union-
"security clause, the Respondents have continued to violate Section
'8(a) (1), (2), and (3) and Section 8(b) (1) (A) and (2) of the Act.'
As we have also found that the Respondent Union has been unlaw--
-fully assisted by the maintenance of the illegal union-security clause
-in its contract with the Employer, we shall order the Respondent Em-
-ployer to withdraw recognition from the Respondent Union until it
has been certified by the Board. However, we do not agree with the
Trial Examiner that restitution of dues to all employees is required to
.remedy the violations here, since the Union did not control the hiring
,of employees and since, despite the illegal clause, all employees were
in fact given the requisite 30-day grace period within which to join
the Union?
2. The Trial Examiner also found that the Employer had violated
Section 8(a.) (3) and (1) by discharging employee Ruth Dirr. The
Employer excepts to this finding on the ground that the Board should
honor the arbitrator's award which upheld the discharge. We find
merit in the Employer's exception.
In Spielberg Manufacturing Company,3 the Board held that it is
within its discretion to recognize an arbitration award, and to decline
to assert its jurisdiction when a dispute involving an alleged unfair
labor practice had been submitted to arbitration. The Board indi-
^cated in Spielberg that it would honor an award if the arbitration
proceeding was fair and regular, all parties agreed to be bound by the
:award, and the award was not repugnant to the purposes and policies
of the Act. We find, contrary to the Trial Examiner, that the arbi-
tration proceeding over Dirr's discharge meets these criteria.
'Imperial Wire Company, Inc., 118 NLRB 775; Carty Heating Corporation, et ai., 117
NLRB 1417; Jersey Contracting Corp., 112 NLRB 660.
2 Local 569 , United Packinghouse Workers of America, AFL-CIO (Frank Jaworaki
Sausage Company ), 126 NLRB 870.
Member Rodgers would adopt the Trial Examiner 's recommendation that the Respond-
ents reimburse the employees for the union dues collected by the Union . See Chun King
. Sales, Inc., 126 NLRB 851.
8112 NLRB 1080.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two or three days after her discharge in November 1958, and more
than a month before she filed a charge, the Employer, Union, and
Dirr voluntarily agreed to submit the issue of her discharge to the
decision of an arbitrator. The arbitrator, who testified at the hearing
in this case, stated that Dirr was represented by competent union offi-
cials and that she was not only afforded ample opportunity to testify,
but also actively participated in the proceeding.
The arbitrator's decision is not clearly repugnant to the policies of
the Act, and in view of the voluntary submission to arbitration and
the fairness with which the proceeding was conducted, we believe that
it would best serve to foster the voluntary settlement of labor disputes
by recognizing the award.' Accordingly, we do not adopt the Trial
Examiner's finding. that the Employer violated Section 8(a) (3) and
(1) by discharging Dirr.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. The Respondent Company, Max B. Oscherwitz, Bernard Oscher-
witz and Millard S. Oscherwitz, co-partners . doing 'business as
1. Oscherwitz and Sons, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Giving effect to, performing, or in any way enforcing the agree-
ment of March 12, 1947, with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local No. 7, or entering into
any extension, renewal, modification or supplement thereto, or in any
other contract, unless and until that labor organization shall be duly
certified by the National Labor Relations Board as the representative
of the employees.
(b) 'Threatening employees with discharge because of their union
activity or because they have refused to pay union dues they are not
legally required to pay.
(c) In any other manner interfering with, restraining, or coercing
employees in the right to engage in or refrain from engaging in any
or all of the activities guaranteed them by Section 7 of the National
Labor Relations Act, as amended, except to the extent that such right
might be affected by an agreement requiring membership in a labor
organization as a condition of employment executed in conformity
with Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
' In so doing, we do not decide whether we would agree with the reasons the arbitrator,
or the Trial Examiner , found were the cause of the discharge.
I. OSCHERWITZ AND SONS 1081
(a) Withdraw and withhold all recognition from Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO,
Local No. 7, or any successor thereto, as the collective-bargaining rep-
resentative of its employees unless and until said Union has been duly
certified by the National Labor Relations Board as the exclusive rep-
resentative of such employees.
(b) Post at its place of business in Cincinnati, Ohio, copies of the
notice attached hereto marked "Appendix A." 5 Copies of said notice
to be ' furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by Respondent Company, be posted by it im-
mediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable
.steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Post at the same place and under the same conditions as set
.forth in (b), above, and as soon as they are. forwarded by the Re-
gional Director, copies of Respondent Union's notice attached hereto
marked "Appendix B."
(d) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
Company has taken to comply herewith.
B. The Respondent Union, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local No. 7, Cin-
cinnati, Ohio, its officers, representatives, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Giving effect to, performing, or in any way enforcing the
agreement of March 12, 1947, with I. Oscherwitz and Sons, on enter-
ing into any extension, renewal, modification, or supplement thereto,
or in any other contract, unless and until said labor organization shall
have been duly certified by the National Labor Relations Board as
the representative of said employees.
(b) Restraining or coercing the employees of I. Oscherwitz and
Sons in the right to engage in or refrain from engaging in any or
all of the activities guaranteed them by Section 7 of the National
Labor Relations Act, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment executed in conformity with Section
8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
11 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its offices and meeting, halls in Cincinnati, Ohio, copies
of the notices attached hereto marked "Appendix A" and "Appendix
B." ° Copies of said notices, to be furnished by the Regional Director
for the Ninth Region, shall, after being duly signed by Local No. 7's
representative, be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the said Regional Director signed copies of "Appendix
B" for posting by Respondent Company at its place of business in
Cincinnati, Ohio, as provided herein. Copies of said notice, to be
furnished by the said Regional Director, shall, after being signed
by Respondent Local No. 7's representative, be forthwith returned to
the Regional Director for disposition by him.
(c) Notify said Regional Director for the Ninth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent Local No. 7 has taken to comply herewith.
MEMBER KIMBALL, concurring in part and dissenting in part :
I concur in the result- reached by the majority that the Respondents
engaged in certain unfair labor practices and in the remedy the ma-
-jority finds is necessary to remedy these practices.. I also agree, that
the Employer did not violate Section 8(a) (3) and (1) by discharg-
ing Dirr. However, :on finding that there was no discriminatory dis-
charge I rely on the record evidence and not on the basis of an arbi-
tration award outside the processes of the Board. I do not believe
that a disputed allegation- of an unfair labor practice involving the
public interest can be settled in private proceedings. .
The majority relies on the arbitrator's award that upheld the
Employer's right to discharge Dirr. The majority opinion cites as
authoritative the decision in Spielberg Manufacturing Company, 112
NLRB 1080. I am unable to agree with the decision in that case.
However great my desire to have parties adjust their, differences by
resort to arbitration in areas where such a proceeding is allowable. I
do not believe it within the province of the Board to subdelegate to
such a tribunal (an arbitrator) its exclusive jurisdiction "to prevent
any person from engaging in any unfair labor practice listed in Sec-
tion 8 affecting commerce."
In the- Spielberg case the Board held that it was within its discre-
tion to recognize an arbitration award and to decline to assert its-
jurisdiction when a dispute involving an alleged unfair labor practice
had been submitted to arbitration. In that case the Board held that
it would honor such .an award if it' were the result of a proceeding
6 See footnote 5, supra.
I. OSCHERWITZ AND SONS 1083
fair and regular in which all parties agreed to be bound thereby, and
if such an award was not repugnant to the purposes and policies of
the Act.
Section 10 (a) of the Act provides that the Board's power to pre-
vent unfair labor practices affecting commerce "shall not be affected
by any other means of adjustment or prevention that has been or
may be established by agreement, law, or otherwise."
Section 10 (a) thereafter contains the following proviso :
... Provided, That the Board is empowered by agreement with
any agency of any State or Territory to cede to such agency
jurisdiction over any cases in any industry (other than mining,
manufacturing, communications, and transportation except where
predominantly local in character) even though such cases may
involve labor disputes affecting commerce, unless the provision of
the State or Territorial statute: applicable to the determination
of such cases by such agency is inconsistent with the correspond-
ing provision of this Act or has received -a construction incon-
sistent- therewith.
As I read Section 10(a), I believe it has been clearly expressed by
the Congress that the Board, and the Board alone, has been commis-
sioned, to adjudicate and remedy unfair labor practices. As the
Supreme Court in National Licorice Company v. N.L.R.B., 309 U.S.
350, so aptly expressed it :
The'Board acts- in a public capacity to. give effect to the declared
public policy: of the Act to eliminate and prevent obstructions to
interstate commerce by encouraging collective bargaining and by
protecting the "exercise by workers of full freedom of association,
self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions
of their employment." . . . The immediate object of the proceed-
ing is to prevent unfair labor practices, which, as defined by
7, 8, are practices tending to thwart the declared policy of
.the Act. . . .
The Board asserts a public right vested in it as a public body,
charged in the public interest with the duty of preventing unfair
labor practices. . . .
Congress, having set forth as a matter of public policy the substan-
tive rights in Section 7 which it thought necessary to be protected in
order to eliminate disputes which burden and obstruct the free flow of
commerce, in my opinion, not only clearly intended to vest exclusive
jurisdiction in the Board to .adjudicate such alleged unfair labor
practices but did not intend to authorize the Board to subdelegate this
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
function by recognizing any private arrangement or agreement of the
parties, including arbitration.
If the rights so granted are public in nature and the disregard of
such rights constitutes a public wrong, it is inconceivable to me that
Congress, having set up an agency- especially designed to enforce such
rights in the public interest, nevertheless granted to that agency the
authority to subdelegate to nongovernmental private tribunals the
obligations which the. Congress imposed upon it.
Furthermore, this Board has long maintained that its overall juris-
diction is exclusive in nature so that even State governmental agen-
cies normally are without jurisdiction to entertain charges or adjudi-
cate unfair labor practices in the jurisdictional domain allotted to it
by the Congress. The propriety of this conclusion is borne out by the
fact that the amendatory legislation known as the Taft-Hartley Act,
in providing a certain limited right of delegation, restricts that right
to the specific subdelegation of jurisdiction to agencies of any State
or Territory in instances where the substantive provisions of the
applicable State statute are consistent with the corresponding provi-
sions of the National Act, and have not received a construction in-
consistent therewith.
.
It is a familiar rule of statutory construction that when the Legis-
lature has carved out of a general grant of jurisdiction a particular
right to subdelegate a portion of that jurisdiction, such right to sub-
delegate is exclusive of all other means. I am thus forced to conclude
that the measure of the Board's right to subdelegate a portion of its
jurisdiction is that contained in the cession provision of Section 10 (a).
There is a further reason which impels me to the conclusion that
the Board's subdelegation of its decisions to the procedures of arbitra-
tion is in excess of its statutory authority. In the National Licorice
case the Supreme Court cited with approval Amalgamated Utility
Workers v. Consolidated Edison, 309 U.S. 261, and held that-
The proceeding authorized to be taken by the Board under the
National Labor Relations Act is not for the adjudication of
private rights.
It is thus clear that the rights guaranteed in the Act, although they
may be asserted by an individual alleged to have been discriminated
against under the Act, do not vest in that individual any private right,
for he is but the representative of the class of employees (see Phelps
Dodge Corp. v. N.L.R.B., 313 U.S. 177) whose interests have been
offended by the statutory violation, and thus is possessed only of a
derivative right which is public in nature and not private.
Applying these principles, I am forced to the conclusion that it is
not within the province of an employee, or an applicant for employ-
ment, by waiver to submit his case to arbitration and thereby - to
I. OSCHERWITZ AND SONS 1085
authorize the Board to honor the award made in such' proceeding if
such proceeding involves the adjudication of an unfair labor practice
under the statute.
The doctrine of waiver, from its nature, applies ordinarily to all
rights or privileges to which a person is legally entitled, provided
such rights or privileges belong to the individual and are intended
solely for his benefit.
However-
Where a law seeks to protect the public as well as the individual,
such protection to the State cannot, at will be waived by. any
individual, an integral part thereof. The public good is entitled
to protection and consideration; and if, in order to effectuate that
object there must be enforced protection to the individual, such
individual must submit to such enforced protection for the public
good. (56 Am. Jur., pp. 105-106, Section 4.)
For the reasons set forth above, I am unable to concur in so much
of the Board's decision in the instant case as relies upon the doctrine
of the Spielberg case. In sum, I believe that (1) the Board is not
authorized to subdelegate to, arbitration its exclusive jurisdiction to
prevent unfair labor practices which affect commerce; (2) it is not
within the province of an individual alleged to have been discrimi-
nated against to waive his statutory right to file a charge and submit
his case exclusively to arbitration; and (3) the substantive rights
guaranteed in Section 7 were intended by Congress to carry with
them the exclusive statutory remedies which the Board, and the Board
alone, in the public interest is commissioned to apply.
Turning now to an examination of the record, I find that Dirr was
discharged in the course of a grievance proceeding over whether an
employee was entitled to overtime. During the proceeding she raised
the issue of whether the existing collective-bargaining agreement of
the Company and the Union was open for negotiations. A heated dis-
cussion ensued and Dirr was discharged for calling the Company's
president a "liar." The Trial Examiner found that the Company had
used the occasion as a "pretext" to discharge Dirr because it was dis-
pleased with her activities as shop steward, thereby violating 8 (a) (3).
I do not agree.
It appears anomalous to find, as did the Trial Examiner, that'an
employer who had a "kindly attitude toward its employees," including
Dirr, would also be one who surreptitiously waited for a pretext to
discharge her. However, assuming as did the Trial Examiner that the
Employer discharged Dirr because it was displeased with her activi-
ties as steward, it is noted that her activities stemmed, in the main,
from her agitation for a new agreement at a time when she knew, by
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her own admission, that the existing contract between the Company
and Union was not open for negotiations. Furthermore, the Federal
Mediation and Conciliation Service had even forestalled a strike
sanctioned by the union members because the Union's demands for a
new contract were at an inappropriate time.
In these circumstances, it clearly would be an anomaly to encourage
parties to enter into a collective-bargaining agreement, as the Act
does, only to reprimand an employer for discharging an importunate
employee who urges a breach of this agreement. I do not believe-that
such conduct on the part of an employee is activity which the Act pro-
tects. For these reasons, I would not find that the Employer violated
Section 8(a) (3) by discharging Ruth Dirr.
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT give effect to, perform, or in any way enforce our
agreement of March 12, 1947, with Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, Local No. 7,
or enter into any extension, renewal, modification, or supplement
thereto, or any other contract, unless and until that labor organi-
zation shall be duly . certified by the National Labor Relations
Board as the representative of our employees.
WE WILL withdraw and withhold all recognition from Amal-
gamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, Local No. 7, or any successor thereto, as the collective-
bargaining representative of our employees, unless and until said
Local No. 7'shall have been duly certified by the National Labor
Relations Board as the. representative of our employees.
WE WILL NOT threaten our employees with discharge because
of their union activity or because they have refused to pay union
dues they are not legally required to pay.
WE WILL NOT in any other manner interfere with,' restrain, or
coerce our employees in the right-to engage 'in or refrain from en=
gaging in any or all of the activities guaranteed them by Section 7
of the National Labor Relations Act, as- amended, 'except to the
extent that such right might be affected by an agreement requiring
membership in labor organization as a condition of employment
executed in. conformity with Section 8 (a) (3) of 'the-Act.
I. OSCHERWITZ AND SONS 1087
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization, except
to the extent that this right may be affected by an agreement executed
in conformity with Section 8 (a) (3) of the Act.
1. OSCHERWITZ AND SONS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL No. 7,
AND TO ALL EMPLOYEES OF I. OSCHERWITZ AND SONS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT give effect to, perform, or in any way enforce our
agreement of March 12, 1947, with I. Oscherwitz and Sons, or
enter into any extension, renewal, modification, or supplement
thereto, or any other contract, unless and until our labor organiza-
tion shall have been duly certified by the National Labor Relations
Board as the representative of said employees. '
WE WILL NOT restrain or coerce the employees of I. Oscherwitz
and Sons in the right to engage in or refrain from engaging in
any or all of the activities guaranteed .them by Section 7 of the
National Labor Relations Act, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment executed inconformity
with Section 8(a) (3) of the Act.
AMALGAMATED MEAT CUTTERS AND BUTCHER
WORKMEN OF NORTH AMERICA, AFL-CIO,
LOCAL No. 7,
Labor Organization.
Dated---------------- By-=------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat . 136), was heard at Cincinnati , Ohio, on August 11 and
1088 DECISIONS OF NATIONAL LABOR.RELATIONS BOARD
12, 1959, pursuant to due notice with all parties represented by counsel. The con-
solidated complaint issued on June 16, 1955, by the General Counsel of the Na-
tional Labor Relations "Board, herein called the General Counsel and the Board,
and based on charges duly filed and served, alleged that Respondents had engaged
in unfair labor practices proscribed by Section 8(b) (2) and (1) (A) and Section
8(a)(1), (2), and (3) of the Act.
The charges against the Company in substance were that various officials of the
Company had threatened the discharge of Ruth Dirr because of her activities as
union steward and finally discharged her for that reason; that the Company main-
tained and enforced a contract and hiring practice requiring membership in the.
Union as a condition of employment and continued employment and required all
employees to pay union dues, initiation fees, and assessments as a condition of em-
ployment and collected such union dues and threatened the employees with discharge
for their nonpayment.
The substance of the allegations pertaining to the Union's. violations were the
maintenance and enforcement of the above contract and hiring practice and the
collection of dues and initiation fees pursuant to it. In their answers both Respond-
ents deny the commission of any unfair labor practice. The Company's answer
admits that Dirr was discharged but alleges that the discharge was "because of her
abusive, indecent, and insulting language used toward the president of Respondent."
While there is some. question as to the effect of the Respondent Union's answer,
since it was filed by the Union's president and not an attorney, I shall treat it as a
general denial. .
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The Respondent Company is engaged in the business of processing and manufao-
turing sausage and other meat products at its plant in Cincinnati, Ohio. During the
12 months preceding the issuance of the complaint, which is a representative period,
the Company shipped products of a value in excess of $50,000, to points outside
the State of Ohio. During the same period, it received materials and supplies of a
value in excess of $50,000, which were shipped to it directly from points outside of
the. said State. Respondent admits and I find that at all times material herein the
Company has been engaged and is engaged in commerce as defined in Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is now and has been, at all times material herein, a labor
organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In 1957, Respondent Company entered into a collective-bargaining agreement with
Amalgamated Meat Cutters and Butcher Workmen of North America and its Local
Union 123. The agreement was effective from March 1, 1947, to March 1, 1948,
and from year to year thereafter with a 30-day modification clause. In 1950, Local
123 merged with Local 610 and Local 7 was formed which from then has been
covered by the 1947 contract provisions except as to oral wage modifications. Re-
spondents apparently contend either that this contract has been completely replaced
by subsequent oral agreements or that at least the closed-shop provision contained
therein 1 has been so replaced. Apart from the fact that the Board will not honor
a parole modification such as that (Jersey Contracting Corp., 112 NLRB 660, 662;
Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1393) the evi-
dence shows the contrary and I so find. Supporting this conclusion are the many
references of the Company to and reliance on the original written provisions of the
contract and the testimony of the Union's president, William Koester, that in Octo-
ber 1958, he told Max Oscherwitz, the Company's president, "that the contract
provided that the employees must be members of the Union. . "
In a special meeting of the Union in May .1958, Ruth Dirr, the alleged discrimi-
natee herein, was elected steward of Respondent's employees. At that time William
Koester, the Union's president, was asked if the contract "was open." He indicated
1 Article I, section 2, provides :
As a condition of employment, all employees subject to and covered by this agree-
ment must be members and remain members in good standing with Amalgamated
Meat Cutters and Butcher Workmen of North America, Local 123.
I. OSCHERWITZ AND SONS 1089
it "'definitely" was and that he was going to get started on the negotiations immedi-
ately. Apparently at this time the employees also voted to strike if necessary to
get their demands notwithstanding that the contract contained a no-strike clause.
On June 27, Koester called Dirr and told her to list the things the employees wanted
in the new contract. She sent him the list over the weekend. The following Mon-
day at work she went to the dressing room to get some aspirin. On the way, Milton'
Oscherwitz, one of the partners, encountered her. and asked her what she wanted.
When she said aspirin for a headache,. he said she did not need an aspirin, she
"needed a psychiatrist for all the things she had said in that letter." 2
In the latter part of July or the first part of August, the Company had word that
a strike was going to take place. The Company's attorney was able to have the
strike called off by his appeal to the United States Conciliation Service and his reli-
ance on the no-strike clause in the contract. As for the employees, all they knew
about it apparently was that on a Wednesday they were told they were going out
on strike on Monday. But on Friday they were told the strike was off because the
International would not authorize it.
: By early October, the employees had become skeptical of the effectiveness of the
representation they were receiving from Koester. Adding to their unhappiness
about this time was the fact that the monthly dues had been raised from $4 to $5.
There was considerable grumbling' about this increase and some indication that
payment of the dues might be resisted. Dirr called Koester and told him some
members were refusing to pay their dues because the Union did not have a new
contract. According to Koester's testimony he told Dirr they would pay or would
not work. He thereupon called Respondent's president, Max Oscherwitz, about the
matter saying "that the contract provided that the employees must be members of
the Union and that, therefore, must pay their dues." Oscherwitz told him "that he
woudl straighten the matter out." 3
According to the credited testimony of several of the employees called as wit-
nesses by the General Counsel, Max Oscherwitz told them that if they did not pay
their dues they could not continue working. As put by Simon Czerkewics, Oscher-
witz said, "You boys don't want to pay your union dues? I have a letter from the
Union to fire you because I have got an agreement with the Union." Czerkewics
said, "Here is my $5.00." Elmer Smith also proffered his dues as did another em-
ployee a few minutes later.
Oscherwitz denied asking for the dues. His testimony was that he asked the em,
ployees if they had refused to pay and was informed that they had not been asked
for payment. He further testified that the three who paid him did so voluntarily
and on their own initiative. Nevertheless, he also admitted that when one of the
employees, Kessen, told him he was not going to pay his dues he told Kessen, "Do
you know what the union will make me do? They will make me fire you if you do
not pay your dues." I believe that was the posture in which he approached all the
employees. That, of course, was tantamount to a request, and a very effective
request, notwithstanding that Kessen did not pay even then. Kessen's undenied and
credited comment is apropos at this point. He asked Oscherwitz, "Since when are
you collecting union dues?"
About 10 minutes 'after Max Oscherwitz took the dues money and had directed
that it be given to Din she came "hollering" to the employees for having paid him.
It is clear from the record that she was quite upset about the matter. She admitted
that she wept about it "because Max had collected the dues and (she) was so mad."
This' apparently occurred in the office in the presence of Max and Millard Oscher-
witz, Max's son and another partner.
According to her testimony, Millard told her at this time that she was "just being
a goat for the rest of the people" and that she "would wind up losing (her job) and
they would still have theirs." Millard testified that he recalled Dirr coming into the
office and sitting on the couch crying. He and his father were very upset. They
felt sorry for her and were trying to "calm her down." He told her "not to take
things too much to heart:" He also testified, "I possibly could have said that she
may be fired. I wouldn't deny that I did.. But I don't recall saying it." I credit
Dirr here.
2 Respondent Company apparently would cast some aspersion on Dirr's reliability as a
witness by showing 'that in an affidavit she gave the General 'Counsel she had said,
"Mr. Milton Oscherwitz was with Mr. Max Oscherwitz, and 'commented to the effect if
I expected to get everything I requested, I needed a psychiatrist."
8 Oscherwitz testified that he went to see Koester at his office and told him that he
"would look into the matter."
597254-G1-vol. 130-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to this time, according to Dirr's further testimony, on July 23, Cornelia
Ballou, one of the women employees in the, Cryovac room, had to leave her work
temporarily and Charles Rickey was assigned to take her place. Dirr and the'other
women employees began "teasing him about . working in a girl's place." He
went into the office and complained to Max 4 that the girls "were picking on him."
Direr further testified:
So, I don't know, Max came in and hollered at me and flipped my (steward's)
button and said, "Well, could I get you to take over and be boss?" And he
said he would say who was going to work in that room and who wasn't. And
Milton Oscherwitz turned around and said he didn't think I liked my job and
didn't want to work there anymore. And I said, yes, I did. And then Max
went over and pushed a chair where Margaret was working on, and twisted it
around and said, "Have I ever mistreated you in any way?" And she said,
"No."
Well, then, Max told me, asked me to go in the.office with him, and I went
in the office with him, and, then Milton stayed and talked with the two girls.
And Max and I had a nice talk in the office, and he said he could fire me any
time for being a troublemaker. And he said he had called the International and
they said to fire me, because I was a troublemaker.
On cross-examination Dirr testified that in the Cryovac room when he flipped the
steward button Max said, "That button don't mean a thing to me." She further
testified that it was not in the Cryovac room that Max told her the Internaional had
told him he could discharge her: "No sir, that was another time in the office. See,
I was in the office quite a few times." She could not recall the date it occurred but
remembered that just she and Max were present at the time and that it was not too
long before she was dismissed.
Ballou testified that she worked part of July 23, the day that Max took Dirr to
task for teasing Rickey. According to her testimony, Max "come charging in
there . . . and he run up to Ruth and he started talking to her and asking her who
gave her authority to be boss in there, that she wasn't allowed to boss anybody
around. He also "told 'her that he could let her go at any time for being a
troublemaker, she was causing an awful lot of trouble and confusion around there
among the people." This trouble, he told her, started when she became a union
steward. Ballou further testified that she had not heard Max mention anything about
the International on that occasion.
Margaret Thomas, besides corroborating Ballou as to the remark Max made about
letting Dirr go for being a troublemaker; further testified that Milton was with Max
on this occasion and told Dirr, "Well, I guess you don't like your job here." She
too testified that she did not hear Max make any. reference to -the International.
In his testimony Max denied all of the foregoing. Milton did not testify. I credit
the General Counsel's version here. There was no indication whether Max's denials
were intended to deny that the Rickey incident occurred at all. However,- the forth-
right convincing recital of the incident impressed me as' I heard it as being basically
truthful. Accordingly, corroborated as it is against Max's uncorroborated,, flat de-
nials I have no difficulty in finding that it actually happened; and having happened,
it would seem quite plausible that in his ire Max must have said substantially what.
was attributed to him in the Cryovac room .5
Dirr further testified (and was corroborated by Thomas) that before she became
steward, the bosses joked with her and teased her. Bernard Oscherwitz, another
partner, as much as asked her to dance on one occasion. After she became steward
all the joking ceased and the talk then was on business. In any event, Max seldom
engaged in any of the levity; he was usually serious and remained in the office most
of the time.
While Max Oscherwitz denied any change in attitude toward Dirr after. she be-
came steward, it appears from Bernard's testimony that he may have been "sub-
consciously" less genial with her after she became steward because of a change in-her
attitude at that time which he "definitely sensed." According to his testimony, upon
assuming the union duties, she became "very smart-alecky and disrespectful and loud
in voicing her opinion. . ." She also became very demanding in her relationship
with the employees, "bossing the personnel around."
* In view of the number of Oscherwitzes involved here I shall henceforth refer to them
by their given names.
5 Whether or not Max further told her in the office that the International had indicated
its willingness to see her discharged as a troublemaker, I deem it unnecessary to decide.
I. OSCHERWITZ AND SONS 1091
It further appears from Bernard 's testimony that his relationship with the em-
ployees was "very informal ." He had, always "been very friendly , kidded around
with the employees , and more or less ... considered ( them ) sort of a big family."
While admitting that he "told numerous .jokes around the place " that "possibly had
innuendoes" or "might have been risque ," he denied that they were ever smutty or
obscene.
Apparently the matter of the dues payment into which Max had inserted himself
in the first part of October triggered an appeal from the employees to the Interna-
tional in Chicago . Under the date of October 15 a letter (the joint effort of the
employees ) was sent to the International under the signature of Dirr . It reviewed
the unsuccessful efforts to get action out of Koester on a new contract and alluded
to his repeated refusals to answer calls made to him . It also referred to the union
dues matter and the part . played in it by Max Oscherwitz . In this connection the
letter described the conversation Dirr had with Max in his office as follows:
Mr. Oscherwitz said , "Bill told me to collect the dues." I told Mr. Oscherwitz
that collecting the dues was between myself and the Union Members , that no
paper had been signed authorizing him to collect Union Dues . Mr. Oscherwitz
said , "Mr. Koester is not with the Union Members , he understands my circum-
stances. Your Union contract is not open for negotiating and will not be open
until January 1, 1959 . I asked Bill to let you sit in on the meeting held this
morning but he refused this because he doesn 't want the members to know that
the contract is not open as he had previously (May, 1959 ) stated ." Mr. Oscher-
witz proceeded to tell me , "I could fire you anytime I want to , and without
recommendations. When there was talk of a strike, I called the International
and they told me to fire anyone who was a trouble-maker." Mr. Max said he
had liked me when I first came to work for him, but since I became Labor
Steward he could not stand the sight of me let alone talking to me . Mr. Millard
Oscherwitz, also in the room at the time, said, "Be careful what you -say about
Bill (Mr . William Koester), we are personal friends . We go out together quite
often." Mr. Max Oscherwitz again stated that he could not even go into the
Cryovac Room because I worked there and he could not stand the sight of me.
He told me that he had the authority to fire me at any time and that I had
better watch my step. Mr. M. Oscherwitz said, "Mr. Koester said our place
was too small for him to worry with. After all he only collects $120.00 from
us and he collects thousands of dollars from the larger Companies in Cincinnati."
The Union Members of this Company are paying the very same dues paid by
those members of the larger companies. We want just as much for the money
we pay as those other members receive. We may be few, but we are members.
subjected to the same rights as are other members of this Union. We feel that
if we do not get some action from this letter, surely our rights as United States
Citizens belonging to a Union can be given some kind of aid from the States-
men we voted into our government. After all we may be too small to worry
with but we do belong to a-Union and we pay our fair share. We would like our
fair share of aid from the Union that so readily collects the dues each month.
The letter also stated:
Shortly after our special meeting , Mr. Koester called me and told me there
would be a meeting with Mr. Max Oscherwitz and I was to be present at the
time, as per the agreement made at the Union Meeting held. The following day
Mr. Wm. Koester phoned me again , cancelling the meeting . I heard no further
from Mr . Koester . Since the Members were questioning me concerning what
was to be done for them , I made innumerable telephone calls to Mr . Koester's
office. Each call was answered by one of the girls in his office , and they re-
peatedly told me, no matter how many times I called each day, that he was out
of his office. Therefore , I never failed to leave a message asking him to please
call me in return. Never once did he do so . Finally, after I had done every-
thing possible to get in touch with Mr . Koester , I told one of the girls in his
ofl"ice to tell him that if he was not able to call me I would get in touch with
the International because the Union Members in my group wanted some action.
Then he telephoned me. Mr. Koester called me on July 31 , 1958 and told me
to prepare the other Union ' Members for a strike to begin on Monday; Au-
gust 4 , 1958. The members felt that at last they would receive something in
the way of help from the Union. However, the very next day, August 1, 1958,
Mr. Koester phoned me and said, "I called the International and they would
not authorize a strike. Anyway, he was going to give Mr. Oscherwitz a 30-day
extension whether the Union Members liked it or not because Mr. Oscherwitz
1092 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
is a sick man, he is mentally ill." He also said that while Max Oscherwitz was.
out of town for his health that he, Mr. Koester, would continue to negotiate
with Mr. Oscherwitz' lawyer, and would call me from time to time and let the.
people know what was happening.
On October 21 Dirr received a reply from Thomas J. Lloyd, the International's.
president, suggesting that she and a committee of the employees meet with the local's
executive board and discuss with it everything that had been alluded to in her
letter to him.
On November 5 Dirr wrote Jamison, the financial secretary of the local, as follows::
Attached for your convenience you will find a copy of a letter written to Mr.
T. J. Lloyd, International President, and a copy of his reply.
Upon receiving Mr. Lloyd's letter, I endeavored to obtain a meeting with the
Executive Board and a committee of six from our plant. This request was.
given a loud and firm refusal, by Mr. William Koester. In trying to reason
with Mr. Koester, I found I would have to shout at the top of my lungs so that
he would be able to hear me above his own yelling. Since I am a lady and
always try to conduct myself as one, I decided to let the matter drop and wait
for a more opportune moment, as in Mr. Koester's yelling he had informed me:
that a meeting of the Executive Board and a committee of six was out of the
question. He also stated that if a meeting was found to be necessary only I
could attend. A short time after my first request I again approached Mr.
Koester about a meeting of the Executive Board. He told me that if I wanted
a meeting with the Executive Board I would have to wait until it was time.
for it to meet.
Mr. Jamison, as you can see from the letter I sent to Mr. Lloyd, our situation'.
is out of hand. We need help now, the old idea of letting people stew and'.
they'll forget won't work in this case. We have waited too long already. In
fairness to the other officials in the Local #7 we decided to try the third time.
for an Executive Board meeting and a committee of six. Perhaps you can,
influence the others that this is serious, and that we are very serious about it..
We will get action someway, but we honestly would like to have help from our
own Local if we could get it.
We shall await your answer before proceeding to try elsewhere for aid.
On November 12 Koester wrote Dirr as follows:
I have been advised by Fin. Sec'y-Treas. Carroll Jamison that you are under
the impression that I should have called a special meeting of the Executive
Board for your personal appearance.
Please be advised that in accordance with the verbal conversation which
took place on Oct. 1, 1958, at the Membership meeting, you at that time were
advised that the Executive Board met every third Wednesday at 8:00 P.M. at:
Union headquarters at 31 E. 12th St.
So that you will not be mistaken, once again, please be advised that the
Executive Board meeting of Local #7 shall be held on Wednesday Nov. 19th,.
1958 at 8:00 P.M. at Union Headquarters, 31 E. 12th St.
As I told you before, you have an invitation to attend.
In Koester's testimony, which was a masterpiece of equivocation and evasion,.
he stated that it was the practice of the International to send the local officials copies.
of any communications received from rank-and-file members. He refused on the
grounds of poor recollection, however, to identify Din's letter as having been re-
ceived from the International. Later he testified in effect that he received a sum-
mary of it from the'International.6 A sifting and winnowing of his testimony as a.
whole shows that Koester showed the letter to Max Oscherwitz and also to Bernard.
Oscherwitz, and that this probably occurred on the day •Dirr was discharged, but:
certainly no more than a week earlier.?
9I do not accept this later testimony as I am convinced that the International sent no,
summary of Dirr's letter but followed the usual practice of sending either the original or-
a conformed copy.
. 7 Both Max and Bernard admitted seeing the letter but were vague as to when. Max-
testified that he could not recall if it was on the -day Dirr was discharged, the day before
or a week before, "it was around that time." -Bernard did not "believe" it was on that
day. Both, in their testimony, try to give the impression that they did not thoroughly-
peruse the letter but merely glanced at parts of it. I do not credit that testimony.
I. OSCHERWITZ AND SONS 1093
At the grievance meeting of November 17 which resulted in her discharge the
question involved was why .one man was given an assignment rather than another.
As to this Bernard testified: .
I told her because Cletus, as top man, is very efficient-he's very good in the
Cryovac Room. And Mrs. Dirr said, "He's s-h" and two letters after that.
And I said, "Well, I have always known Cletus to be an exceptionally good
worker in the Cryovac Room, and ,1 would put him up against anybody in the
place. "Cletus is as fast as anybody in the place." And again she said,
"That's a lot of And the second time she said, "I will " and
using the same word.
And at that time I said to Mr. Koester, 'Do we have to listen to this kind of
talk from this girl?" He said, "That sounds like absolute insubordination to
me." And he said, "Well, now calm down, calm down, whenever we talk and
have discussions like these, why, sometimes people get excited."
And then it went on to the point where they were discussing about the-this
contract again, and I believe she said that Max said that if Bill said "That's in
the contract," Bill wasn't • telling the truth, or something like that.
And then she-Max said, "I never said that." She said, "You are a liar,"
just like that, emphatically, and that's when I just said, "You are fired."
That was it.
There is no serious contradiction of the foregoing and I find that it substantially
describes what happened. That night Dirr called Max and asked for reinstatement.
According to his testimony he told her, "Honey, you did it all by yourself; you had
no business in using those vulgar words and calling me a liar . I will not take
you back."
Dirr agreed to go to arbitrations Judge Raymond E. Shannon of the Cincinnati
Municipal Court was decided upon as a second choice of the Company and the
Union , their first choice not being available. Dirr was represented by Koester and
The secretary-treasurer of the Union , Jamison , neither one a lawyer . The Com-
pany was represented by the same attorney who represented them in this pro-
ceeding. Judge Shannon 's decision upheld the discharge . Prior to the arbitration
hearing, however , Dirr filed her first charge with the Board.
Conclusions as to the Discharge
I find that Dirr 's discharge was discriminatory within the meaning of the Act.
I agree with the General Counsel that the reason given for her discharge , namely,
that she called Max a liar , 9 was a convenient pretext to cover Respondent's dis-
criminatory motive.
While Dirr may have been oversensitive to the reaction she received from Re-
spondent's officials after becoming steward it would appear that the sensitiveness
was not all one sided . There is plenty of evidence to show the Company's disen-
chantment with the new vigor Dirr put into the office of steward. This new vigor
presumably-first became apparent in June when Dirr drafted. the employees'. list of
demands for a new contract. This, it will be recalled, gave rise to the Company's
observation that Dirr needed a psychiatrist. Then followed the threat of a strike-
something not calculated to endear Dirr to management . 10 About this same time
the Charles Rickey incident occurred in which Max singled out Dirr (although others
were involved) to accuse her of being a troublemaker and to warn her about its
consequences. Actually, Dirr's troublemaking appears to have been synonymous
with the performance of her duties as steward 11 and is quite revealing as to Max's
8 When she left the grievance meeting that day after her discharge, she rode downtown
with Koester. During the ride it was agreed between the two that the matter would be
taken to arbitration.
9 That was the reason Max gave in his testimony. While the other crude language she
used on the same occasion may also be -relied on by Respondent, I put little stock in it
for two reasons : ( 1) Max did not mention it when asked what the reason was, and
(2) It would appear from the records as a whole that packinghouse language in general
is hardly insipid and that "profanity and crude language " is not unknown in the plant.
10 The strike vote, incidentally, was taken at the same time Dirr became steward. If
Koester followed his usual practice as exemplified by his other conduct herein , he must
have informed the Company of this strike vote as soon as it occurred.
11 See Honolulu Star-Bulletin, 123 NLRB 395: Aside from the Rickey incident (in
which several employees participated and for which there is no showing that Dirr was
responsible) there 3s no credible evidence of any ",troublemaking" by Dirr. Hardly proba-
tive are Bernard Oscherwitz ' conclusions in this connection.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state of mind at this point . Then there was the dues collection matter which gave
rise to Millard 's accurate prediction that Dirr would "wind up " losing her job while
those for whom she was striving would still have theirs. ,The climax of it all appar-
ently was Dirr 's letter to the International . Not only was she being difficult but now
she gave promise of being effective . That did it . I am convinced that the Company
at this point was definitely thinking in terms of eliminating Dirr from the scene
because of her militant and insisted union stand.
While I would not go so far as to find that the grievance matter which resulted in
Dirr's discharge was staged or that the whole thing was designed to trick her into
a faux pas for which she ostensibly could be discharged as the General Counsel
apparently contends, I do find that the situation proved to be a welcome pretext to
accomplish what was fervently desired by Respondent Company. But, as it hap-
pened, there was no need for the Company to take the initiative in implementing
that "desire. As Max in his testimony so aptly put it to Dirr, "Honey, you did it all
by yourself."
In reaching the above result I have taken into consideration the fact that on one
occasion when Dirr became ill at work after she became steward, the Company sent
her home in a cab (which it offered to pay for) and paid her for .the time she missed.
I see nothing in this to prove that the Company did not or would not act in a dis-
criminatory manner against Dirr . Indeed, if anything, it tends to support just the
opposite conclusion-particularly in view of the Company's claim that Din had
become a "smart-alecky" troublemaker. It shows that the Company had a kindly
attitude toward its employees (as is also evidenced by the obvious concern with
which Max and Millard tried to console Dirr when she became upset about the dues
matter) and that there was nothing personal in their agitation regarding Din-it
being simply her official status and conduct that upset them.
Moreover, even if I were to have accepted.the Company's contention and found
that the sole reason for the discharge here was because Din, in the discussion of a
grievance, called the president of the Company a iliar, I would have serious doubt
that it would. be a valid defense here. As stated by the Board in The Bettcher Manu-
facturing Corporation, 76 NLRB 526, 527:
The process of collective bargaining takes on many aspects of ordinary trad-
ing. The stakes are high. Negotiation is designed to set up the framework for
a long-run employer-employee relationship. A frank, and not always compli-
mentary, exchange of views must be expected and permitted the negotiators if
collective bargaining is to be natural rather than stilted. The negotiators must
be free not only to put forth demands and counterdemands, but also to debate
and challenge the statements of one another without censorship, even if, in
the course of debate, the veracity of one of the participants occasionally is
brought into question. If an employer were free to discharge an individual
employee because he resented, a statement made by that employee during a
bargaining conference, either one of two undesirable results would follow:
collective bargaining would cease to be between equals (an employee having
no parallel method of retaliation), or employees would hesitate ever to partici-
pate personally in bargaining negotiations , leaving such matters entirely to their
representatives.
See also Chronicle Publishing Company, Inc., 112 NLRB 519. N.L.R.B. v. Blue
Bell, Inc., 219 F. 2d 796 (C.A. 5), cited in this connection by the Company, is dis-
tinguishable on the facts. There the term "liar" was used not by an official of the
union in a representative capacity in the privity of negotiations but publicly by a
rank-and -file member of'the union in an organizing campaign.
I also reject as being without merit the Company's contention that if it be de-
termined that the Union is an assisted union then Dirr's status as steward is without
legal basis and thus, she "could have no legitimate status entitled to protection."
The Effect of the Arbitration
In contending that .the arbitration award is "conclusive on the validity of the
discharge" Respondent Company relies on Spielberg Manufacturing Company, 112
NLRB 1080 . In that case the Board , while pointing out "that the Board is not
bound, as a matter of law, by an arbitration award," nevertheless decided that "the
desirable objective of encouraging the voluntary settlement of labor disputes" would
best be served by recognition of the award because (1) the proceedings were fair
and regular , (2) all parties agreed to be bound , and (3 ) the award was not clearly
repugnant to the purposes and policies of the Act. The Company here contends
that all three conditions of the Spielberg case have been met and that consequently
I. OSCHERWITZ AND SONS 1095
the Board should not go behind the award . The General Counsel , on the contrary,
contends that none of the three conditions were met and that consequently the award
should have no effect here whatsoever.
-I agree substantially with the General Counsel and find that the Spielberg case
is not controlling on the facts here. As was the Board in Honolulu Star-Bulletin,
supra,12 I am not satisfied that the arbitration proceeding here met the Spielberg
standard of fairness and regularity . In this connection I first want to make it clear
that I mean no reflection on Judge Shannon 's part in the case, his decision , his im-
pressions of the kind of representation Din got , or his conduct of his hearing. But
in view of the charges made by Din to the International against Koester and the
implications of the entire record as to the relationship between Dirr and Koester
including Koester 's unethical and unexplained showing of Dirr 's letter to Respond-
ent's officials ( none of which conduct I am sure Judge Shannon was aware of) I do
not believe that Dirr's representation could have been fairly or adequately presented.
In addition to this inherent implausability there is, as the General Counsel points
out and I find below, the fact that the Union was an assisted union and thus not on
an equal footing with Respondent.
This conflict between Dirr and Koester also has a bearing on the question of
whether or not all the parties herein agreed to be bound by the award. If this con-
flict did not exist the terms of the contract would determine this question since it
provides that any arbitration award "shall be binding upon both parties." But
since there was this conflict what the Union as such had agreed to certainly would
or should not bind Dirr. As to her, there is nothing in the record to show that she
agreed to be bound and as pointed out by the General Counsel her having filed
the original charge prior to the arbitration hearing tends to negate such an intention.
As did the Board in Honolulu Star-Bulletin , supra. I also find that the award
here was "clearly repugnant to the purposes and policies of the Act." To permit an
,arbitration award to stand in the way of remedying an act of discrimination against
an employee in violation of Section 8,(a)-(3) would be to deny enforcement of the
provision of the Act that goes to the very heart of its policy. N.L.R.B. v. Entwistle
Mfg. Co., 120 F. 2d 532 (C.A. 4). Such discrimination was involved in Honolulu
Star-Bulletin , supra , and such discrimination is involved here.
- ' The 8(a)(1) Allegations
There were numerous allegations of 8 (a) (1) threats made by various Respondent
partners to the employees. In this connection the evidence shows the following
incidents : (1) On or'about October 9, Max Oscherwitz told the employees that if
they did not pay their dues they could not continue working; (2) on the same date
Millard told Dirr she would "wind up"losing her job while the rest of the employees
would still be working; (3) on or about July 23, Max told Dirr he could let her go
for being a troublemaker; and 1(4) on the same occasion Milton told her that he did
not think she liked her job or wanted to work there anymore. Of the foregoing, in
the context of the entire record, I find the first three to be in violation of Section
8(a)(1).
The Illegality of the Contract
Respondent Company contends there is nothing' illegal in the collective-bargaining
agreement existing between the Company and the Union. It claims that the "Re-
spondent Company, Respondent Union, and all employees knew and understood that
this contract and all succeeding contracts were interpreted as calling . for a union
shop in which a new employee did not have to be a member of the Union until after
30 days of employment." 13 Apparently it bases its contention in part on the fol-
lowing language in the original document: "Anybody who becomes a member of
the Union or accepts employment under the 'agreement is bound to terms set down."
12 In that case , closely analagous to the situation here , an employee who had become
"a thorn in the side of both management and the Union " was found by the Board to have
been discharged discriminatorily within the meaning of the Act for engaging in protected
union activity. In reaching this result the Board rejected a defense that the employee
had been discharged for violating a company rule and further refused to recognize or
honor an arbitration award which had upheld the discharge.
18 Respondent also claims that I made such a finding during the, hearing. My finding
was simply that there was no evidence "to show that anybody 'had to join the Union be-
fore they got a job . . . that there is no showing whatsoever that anything but a 30-day
or better leeway on joining the Union was granted to every one of the employees. I also
stated that "What the effect of the contract is, I can't say offhand ; I am not making
any finding on that."
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On its face I am not able to find] that this language negates the clear intent of the
closed-shop clause in question here. Moreover, Respondent's further position on the
matter nullifies any such contention. That position is that in 1950 when Local No.
7 was formed, negotiations between the Union and the Company resulted in the
adoption of an oral 30-day union-shop clause in addition to adopting orally at that
time all of "the valid provisions of the original contract.. ." 14 The question thus
arises, what need would there have been to adopt such a clause if it was everybody's
understanding that they were operating and had been operating since 1947 under
precisely such an agreement?
By implication, if not specifically argued, Respondent as a defense to the charge
of maintaining and enforcing the illegal clause points to the fact, which I found at
the hearing and reiterate here, that in actual practice no one was ever required to
join the Union in less than 30 days after being hired. Notwithstanding that the
closed-shop clause was never enforced, I am constrained to find that the mere exist-
ence and maintenance of it in the contract constituted violations of Section 8(a) (1),
(2), and (3) of the Act by the Company and of Section 8(b)(1)(A) and (2) by the
Union. Broderick Wood Products Company, 118 NLRB 38, 55; Carty Heating
Corp., et al., 117 NLRB 1417. The theory of the Board, as stated in the latter case
is "that the mere inclusion of discriminatory provisions in a contract, whether or
not such provisions have been enforced, is also a violation of Section 8(a)(3) and
(b) (2), as inherent in such discriminatory provisions is the tendency to encourage
membership in a union in violation of the Act." See also Masters-Lake Success, Inc.,
124 NLRB 580.
I further find that by the efforts Max Oscherwitz devoted to the matter of the pay-
ment of dues as set forth above he assisted the Union in further violation of Section
8 (a) (2) of the Act.
As for any reliance on the so-called "savings clause" 15 by Respondent to eliminate
the patently illegal closed-shop provision,16 my only observations are that even if it
were worded in a more positive manner, its general scope would probably render it
ineffectual for that purpose. See New York State Employers Association, Inc., et
al., 93 NLRB 127; Ebasco Services Incorporated, 107 NLRB 617, at 618 and 619. In
any event, Max Oscherwitz' testimony that no negotiations ever took place between
the Company and the Union as a result of the changes which occurred in the Act
renders the present wording of the clause ineffectual as a defense here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
titon with the the operations of Respondent Company described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices, I'shall
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies .of the Act.
It has been found that Respondent Company has violated Section 8(a)(1), (2),
and (3), and Respondent Union Section 8(b) (1) (A) and (2) of the Act, by main-
taining an agreement containing an unlawful union-security provision. It will there-
fore be recommended that Respondent Company withdraw recognition from Re-
spondent Union as the representative of its employees and that Respondents cease
giving effect to their agreement of March 12, 1947, or to any modification, extension,
11 Even If this were the fact the adoption of such a clause at that time would still have
been illegal unless it were based upon the desires of a majority of the employees as
shown In a Board-conducted election.
15 The contract provides that "if any clause In this contract, now or in the future, con-
flicts with any governmental regulation or if any law is passed which give [sic] the
employer or employee any -right he does not possess under existing law, any clause in this
contract which may be so affected will then become a basis for negotiations between the
Union and the officials of the Company."
18 The closed shop was outlawed in the 1947 amendments to the Act. Those amend-
ments permitted the establishment of a union shop, i.e., the requirement of joining the
union not less than 30 days after being employed but then, as already indicated, only if
such an arrangement had been the will of the majority of the establishment's employees
In a Board-conducted election.
MONSANTO CHEMICAL COMPANY 1097
supplement , or renewal thereof, or any substitute therefor, unless and until Respond-
ent Union shall have been duly certified by the Board.17
By their unlawful union -security agreement, Respondents have unlawfully required
employees to maintain membership in Respondent Union at the price of their em-
ployment , thereby inevitably coercing the payment of initiation fees and dues. I
find in accordance with established Board policy , ( United Association of Journeymen
& Apprentices of Plumbing & Pipefitting Industry of the United States and Canada,
Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115
NLRB 594; Morrison-Knudsen Company, Inc., 123 NLRB 12; Gay Engineering Cor-
poration , 124 NLRB 451 , that it will effectuate , the policies of the Act to order Re-
spondents jointly and severally to refund to employees all initiation fees and dues
paid by them for a period of 6 months prior to April 7, 1959, the date upon which
charges were filed regarding this matter.
It has also been found that Respondent Company discharged its employee, Ruth
Dirr , because of her union activity thereby discriminating against her within the
meaning of Section 8(a) (3) of the Act . It will be recommended that the Respondent
Company offer reinstatement to Dirr and make her whole for any loss of pay suf-
fered by reason of the discrimination against her. Said loss of pay shall be com-
puted in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Company, Max B . Oscherwitz , Bernard Oscherwitz and Millard S.
Oscherwitz , Co-partners doing business as I. Oscherwitz and Sons, is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union , Amalgamated Meat Cutters and Butchers Workmen of
North America, AFL-CIO, Local No. 7, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By maintaining a contract containing an unlawful union -security provision and
by collecting initiation fees and dues thereunder ; Respondent Company has engaged
in unfair labor practices within the meaning of Section 8(a) (2) of the Act.
4. By discriminating with respect to the hire and tenure of employees , thereby
discouraging membership in Respondent Union, Respondent Company has engaged
in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
5. By interfering with_ restraining , and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondent Company has engaged in uh-
fair labor practices within the meaning of Section 8(a)(1) of the Act.
6. By maintaining a contract containing an unlawful union-security provision Re-
spondent Union has engaged in unfair labor practices within the meaning of Section
8(b)(2) of the Act.
7. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, Respondent Union has engaged in unfair labor practices within
the meaning of Section 8(b) (1) (A ) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
17This is not intended to require Respondent Company to vary or abandon the sub-
stantive features of its relations with its employees , established in the performance of
the agreement , or to prejudice the assertion by employees of any rights they may have
thereunder.
Monsanto Chemical Company and International Chemical Work-
ers Union , Local 16, AFL-CIO. Case No. 14-CA-2217. March 2,
1961
DECISION AND ORDER
On June 7, 1960, Trial Examiner C. W. Whittemore issued his In-
termediate Report in the above-entitled proceeding, finding that the
130 NLRB No. 119.