John Englehorn & Sons

National Labor Relations Board - Board Decisions

Jul 24, 1942

42 N.L.R.B. 866 (N.L.R.B. 1942)

In the Matter of JOHN ENGELHORN & SONS and PACKINGHOUSE WORK-
ERS ORGANIZING COMMITTEE, AFFILIATED WITH THE CONGRESS OF INDUS-
TRIAL ORGANIZATIONS and BUTCHERS UNION OF GREATER NEW YORK,
LOCAL 174, AMALGAMATED MEAT CUTTERS & BUTCIIER WORKMEN OF
NGRnH AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF
LABOR, PARTY TO TIIE CONTRACT
Case No C-2152 -Decided July 24, 194
Jurisdiction meat packing industry
Unfair Labor Practices
Intel feience, Rent?and, and Coercion threat of plant shut-down and loss of
jobs unless employees joined favored labor oigamzation, solicitation of mem-
beiship on behalf of fav pied labor organization at instance of company
executive and super isoi , electioneering by company executive on behalf of
favored labor oiganization , execution of closed-shop contract with labor
oiganization at time of pendency of representation petition filed by rival
labor organization -
Dueranrcnation discharge for non-membership i1 favored labor oganization pur-
suant to im alid closed-shop contract
Collective Baigainivq majotity established by certification-refusal to bargain
existence of imalid contract with another labor organization held no defense
Remedial Orders . abiogation of invalid contract, ieinstatement of discharged
employees with back pay, oidei to bargain collectiNely upon request
Mr Alan Perl and Mr lhzllzam T Little, for the Boaid
Osborne, Cornish ct Scheele, by Mr Harry V Osborne, Sr, and Mr.
Harry V Osborne, Jr, of Newaik, N J, for the respondent
Samuel L Rothbard, by Mr Irving Pzltch, and Mr Abraham L
Friedman, of Newaik, N J, for the C I 0
Mr. Wzllzam Karlin and Mr Leo Greenfield, of New York City, for
Local 174
Mr Eugene R Thorrens, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a fourth amended charge duly filed on February 17, 1942, by
Packinghouse Woikeis Organizing Committee, affiliated with the Con-
gress of Industrial Organizations, herein called the C. 1' 0 , the
42 N L R B, No 107
866
JOHN ENGELHORN & SONS 867
National Labor Relations Board, herein called the Board, by the
Regional Director fox the Second Region (New Yoik City), issued its
complaint, dated Februaiy 17. 1943, against John Engelhoin & Sons,
Newark, New Jersey, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3), and
(5) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat 449, hei ern called the Act Copies of the complaint and notice'
of hearing thereon we} e duly served upon the respondent, the C I 0,
and Butchers Union of Greater New Yolk, Local 174, Amalgamated
Meat Cutters & Butcher Workmen of North America, affiliated with
the American Federation of Labor, herein called Local 174,
Concerning the unfair labor practices, the complaint, as amended
at the outset of the healing, alleged in substance (1) that on or about
May 19, 1941, and thereafter, the respondent urged, persuaded, threat-
ened, and warned its employees to refiain from joining or from re-
maining members of the C I 0, and urged, persuaded, threatened,
and warned its employees to become or to remain members of Local!
174; (2) that on or about May 29, 1941, the respondent entered into a
closed-shop contract with Local 174, notwithstanding the fact that
Local 174 was not then the exclusive representative of the respondent's
employees in an appropriate unit within the meaning of the Act and
the fact that the respondent then had notice of a petition for investi-
gation and certification of representatives theretofore filed by the
C I 0 with the Board under Section 9 (c) of the Act; (3) that on
or about September 22, 1941, and at all tines thereafter, the respondent
refused to bargain collectively with the C I 0 , although the, C I 0
at all times since August 20, 1941, had been the collective bargaining
representative of a majority of the respondent's employees in an
appropriate unit, consisting of all production and shipping employees
of the respondent at its Newark, New Jersey, plant, exclusive of execu-
tives, superintendents, non-working foremen, maintenance men, sales-
men, engineers, firemen, chauffeurs, checkers, and office workers, and
had been certified as such by the Board pursuant to an election, (4)
that on or about stated dates in October 1941, the respondent discour-
aged membership in the C I 0 and encouraged membership in Local
174 by discharging four named employees,' and thereafter refusing
to reinstate them, all pursuant to the teams of the closed-shop con-
tract described above and because they joined and assisted the C I 0
and because they failed to maintain membership in Local 174, and (5)
that by the aforesaid acts, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act
1 Louis Stevenson , Charles Banks, Copley Jackson , and Alex Borys
0
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 28, 1942, Local 174 filed its answer denying the mate-
rial allegations of the complaint relating to it, and interposing afl'irina-
tive matter to the allegations of unfair labor practices On March 6,
1942, the respondent filed its answer, admitting certain allegations of
the complaint with respect to its business, but denying the alleged
unfair labor practices.
Pursuant to notice, a hearing was held at Newark, New Jersey, on
March 9 and 10, 1942, before W P Webb, the Trial Examiner duly
designated by the Chief Trial Examiner. The Boaid, the respondent,
the C 1, O , and Local 171 were iepresented by counsel aiidpartici-
pated in the hearing Full oppoitumty to be, heatd, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties At the beginning of the hearing,
counsel for the Board moved to amend the complaint to delete allega-
tions with respect to a strike and with respect to refusals to bargain
antedating the issuance of the Board's certification of representatives
mentioned above., The Trial Examiner granted the motion. Counsel
for the respondent requested permission to file a supplemental answer
with respect to the amendments The Trial Examiner granted the
request but the respondent did not file a supplemental answer. At
the hearing Local 174 orally 'denied the allegations of the complaint
as amended At the conclusion of the Board's case, counsel for the
Board moved to conform the pleadings to the proof with respect to
formal matters, including spelling of names, dates, and other minor
inaccuracies The Trial Examiner granted the motion without objec-
tion At the conclusion of the Board's case, counsel for the respond-
ent and for Local 174 moved to dismiss the complaint, inter alia,
because of absence of proof to sustain it and in view,^of an alleged
immunity afforded the respondent by the closed-shop contract The
motions were renewed at the conclusion of the hearing The Trial
Examiner reserved ruling on the' motions and denied them in his
Intermediate Report. During the course of the hearing, the Trial
Examiner made rulings on other motions and on objections to the
admission of evidence. The Board has reviewed all the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The Trial Examiner's rulings are hereby affirmed. After the close of
the hearing, on March 17 and 18, 1942, respectively, the respondent
and Local 174 submitted briefs to the Trial Examiner.
Thereafter, the Trial Examiner issued his Intermediate Report,
dated April 3, 1942, copies of which were duly served upon all the
parties, finding that the respondent had engaged in and was en-
gaging in unfair, labor practices affecting commerce, within the
meaning of Section 8 (1), (3), and (5) and Section 2 (6) and, (7) of
G
JOHN ENGELHORN & SONS 869
the Act He recommended that the respondent cease and desist from
its unfair' labor practices and, in order to effectuate the policies of
the Act, take certain affix mative action including abrogation of the
closed-shop contract and reinstatement with back pay of the employees
discharged pursuant to it.
Thereafter, on April 15 and 28, 1942, respectively, Local 174 and the
respondent filed exceptions to the Intermediate Report and submitted
briefs in support of the exceptions Pursuant to notice served upon
all parties, a hearing for the purpose of oral argument was held be-
fore the Board in Washington, D C, on May 28, 1942. The re-
spondent , Local 174, and the C I 0 were represented by' counsel and
participated in the argument. i
The Board has considered the exceptions to the Intermediate Re-
port and the briefs submitted by the parties and, save as the excep-
tions are consistent with the findings of fact, conclusions of law, and
oider set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
John Engelhorn & Sons, a New Jersey corporation , is engaged
in the processing , slaughtering , packing, sale, and distribution of
hogs, carcasses , and related products at its plant ui Newark, New
Jersey During 1941 ,' the respondent purchased raw materials, con-
sisting principally of live hogs , for use at its Newark plant valued
at more than $1,967 ,122, of which approximately 95 percent was pur-
chased and shipped to the plant from points outside the State of
New Jersey. During the same period , the respondent sold and dis-
tributed from its Newark plant, finished products valued at more
than $2,402 ,352, of which approximately 75 percent was sold and
shipped to points outside the State of New Jersey The respondent
admits that it is engaged in commerce within the meaning of the Act.
II THE ORGANIZATIONS INVOLVED
Packinghouse Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, is a labor organization ad-
mitting'to membership employees of the respondent.
Butchers Union of Greater New York, Local 174, Amalgamated
Meat Cutters ,% Butchers Workmen of North America, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the respondent
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A The background
On January 27,1938, Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 422, a labor organization affiliated with
the Ameiican Federation of Laboi, hereinafter called Local 422, which'
then had jurisdiction in the Newark area, filed under Section 9 (c)
of the Act a petition for investigation and certification of representa-
tives with respect to the respondent's employees On February 3, 1938,
the respondent and Local 422 entered into an agreement providing for
a consent election, which was thereafter conducted The election was
won by Local 422 After the election, on July 8, 1938, the respondent
and Local 422 entered into a written contract by which the respondent
recognized Local 422 as the exclusive bargaining representative of all
hourly paid employees of the respondent and which provided, inter alga,
that the "agreement shall remain in full force and effect until Novem-
ber 1, 1938, and shall be consideied to be renewed from year to year
thereafter unless at least 30 days' notice of intention to the contrary is
given by either party " 2 No notice of cancelation of the 1938 contract
described above was ever given
The C I 0 began to organize the respondent's employees on about
Apiil 30, 1941 On May 8, 1941, the C I 0 informed the respondent
by letter that the C I 0 represented a majority of the respondent's
employees and requested the respondent to set a date for a bar-
gaining conference On May 9, 1941, the respondent iefused to recog-
nize or negotiate with the C I 0 for the stated reason that the 1938
contract with Local 422 was still in effect By letter dated May 13,
1941, the Board's Regional Director notified the respondent that the
'C I 0 had filed a petition for investigation and certification of rep-
resentatives On May 19, 1941, a strike, paiticipated in by about 32
of approximately a total of 48 employees, occurred at the respond=
ent's plant in protest, among other things, against the respondent's
refusal to deal with the C I 03r Local 114, which then had jurisdic-
tion in the Newark area, furnished about 10 workers to the respondent
to keep the plant in operation' On May 27, Local 174 negotiated a
contract with the respondent which was subsequently reduced to writ-
ing and, on May 28, the strikers returned to work The contract was
signed by the respondent and-Local 174 on May 29, 1941, and was
2 The 1938 contract did not contain a closed -shop clause
3 The C I 0 claims that the strike was tilled by the employees themselves and not by
the C I 0 We do not find it necessary to determine whether the C I 0 had authorized
the strike
4 At the oral argument before the Board , counsel for Local 174 asserted that the Amalga-
mated had transferred juiisdiction from Local 422 to Local 174 because of the ineffective-
ness of Local 422 in handling problems of the respondent 's employees
JOHN ENGELHO1 N & SONS 871
unanimously-ratified by the employees in the unit hereinafter found
appropiiate on June 6, 1941 In it the respondent recognized Local
174 as the exclusive bargaining agent of all employees within such
units The ' contiact provided, inter alza, that the respondent "agrees
to retain in its employ only members of the Union in good standing,
and to employ new workmen thiough the employment office of the
Union " B
On June 9, 1941, the Board, acting pursuant to Section 9 (c) of the
Act, and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, ordered an investigation
based on the petition of the C I 0 desciibed above and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice. Puisuant to notice, a hearing on the petition
was held on June 23, 1941, before a Trial Examiner duly designated
by the Chief Trial Examiner, at which the Board, the respondent, the
C I. 0, and Local 174 appeared by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues' Thereafter, on August 6,
1941, the Boaid issued its Decision and Direction of Election,8 direct-
ing an election among the respondent's employees in the unit herein-
after found appropriate and authorizing the Regional Director for the
Second Region (New York City) to conduct it. Pursuant to the
Director of Election, an election by seciet ballot was conducted on
August 20, 1941, under the direction and supei vision of the Regional
Director 9 On September 19, 1941, the Board, acting pursuant to
Section 9 (c) of the Act, and Article III, Sections 8 and 9, of the
Boaid's Rules and Regulations-Series 2, as amended, issued its Sup- -
elemental Decision and Cei tification of Representatives,10 finding that
objections to the conduct of the election and to the Regional Director's
Election Report which had been filed by Local 174 raised no substan-
tial or material issue with respect to the conduct of the election or the
Election Report, and certifying the C I 0 as the exclusive bargain-
ing representative of all the i espondent's employees in the appropriate
unit
Thereafter, on September 22, 1941, the C I 0 notified the respond-
ent by letter that the C I 0 had ben certified by the Board and
requested a bargaining conference The iesponden-t did not reply.
' The contract coveted a unit which coincided , in general , with the unit hereinafter
found appiopiiate
811s its terms the closed -shop contiact superseded the 1938 contract and was to remain
in effect for 1 y eai from its date of execution and fiom year to year thereafter unless 30
days' notice of intention to the contrary Ni," green by either paity
7 Although served with notice , Local 422 did not appear at the hearing
8 33 N L R B 1139
0 At the election the C I 0 received 16 votes, Local 174, 14, and no ballots were
challenged
10 35 N L R B 575
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in an interchange of correspondence with the office of the
Regional' Director, counsel for the respondent in this proceeding, under
date of October 16,1941, advised that the respondent refused to bargain
with the C I 0 , although certified as the exclusive representative of
the respondent's employees by the Board, because of the existence of
the contract with Local 174 and a demand by Local 174 for adherence
to its terms.
B. Interference, restraint, and coercion
The complaint as amended alleges in substance that about May 19,
1941; and thereafter, the respondent by threats and warnings, among
other ways, discouraged its employees from affiliating with the C I 0
and induced them to affiliate with Local 174.
1. Prior to the execution of the contract
According to uncontradicted testimony of Alex Borys, an employee,
which we credit, as did the Trial Examiner, on about May 23, 1941,
Borys was warned by his foreman, Steve Kijak,11 that the employees
risked a plant shut-down and loss of then jobs unless they joined Local
174; Kijak instructed Borys to solicit membership on behalf of Local
174 among the respondent's employees; and, pursuant to Kijak's orders
and with the approval of John Engelhorn, Jr, the respondent's presi-
dent, Borys secured about a half dozen signed applications for mem-
bership in Local 174 from non-striking employees in the plant during
working hours and delivered them, as well as his own membership
application, to Kijak 12 On direct examination Borys, called as a
witness by the Board, gave the following graphic testimony which
was unimpeached
Q Now, do you know on what day you signed that card for
the AFL?
A I signed a card for the AFL on the 5th day of the strike
Q Now, who asked you to sign with the AFL 2
A Who asked me to sign with the AFL2 Steve Kijak
Q And who is Steve Kid ak 2
A Steve Kijak was my foreman and Frederick Engelhorn's
son-in'law.
* * * * * * *
11 Krnak, a son-in -law of Frederick Engelhorn, the respondent 's secretary, had authority
to hire and discharge employees under his supervision
12 Nelthei President Engelhorn nor Kijak testified and no explanation was given for
their failure to appear as witnesses
JOHN ENGELHORN & SONS 873
Q What did he say to you when he gave you the card 2
A At that time . ' I was in the shipping department and
Kijak was standing theie He called me over, he handed me some
slips . Then he told me, . . "Take those slips and go
around among the boys and ask them to sign it up, and this is up
to you boys to have those slips signed up If you don't, then you
are all going to be out ofa job you all will have to join Local
174 If you don't, Jchui Engelhoin, Jr, president of the company,
is going to close the factory and we will all be out of a fob"
A (Continuing) When Steve Kilak handed me those slips
he told me, " You take those slips and go out among the
boys and have them sign up If you don't fill them out and
sign up with 174 you aie going to have no job."
A. (Continuing) he says, "You got to do it because I
cannot do it and distribute any slips, because that is against the
laity. You take those slips and go ahead " So I was afraid that
maybe there was some kind of trap for me to make me lose my
job . . . I didn't ask him no more questions, I just took the slips,
,went upstairs with them in nay hand and I asked John Engelhorn,
Jr , . "I guess you know what that is?" He says, "Yes, I
know all about it" So then I asked him, "Is it all i ight to go
ahead with this?" He says, "Go ahead" I went downstairs, took
those slips, went into the cutting room department and had six
or seven boys sign up with Local 174, and after that I took the
slips, when they weie signed up, and one wasn't signed up and I
returned it back to Steve
2 Subsequent to the execution of the contract
Sometime after the issuance of the Board's Direction of Election
herelnabove referred to and prior to the conduct of the election on
August 20 , 1941, John Engelhorn 111, vice president of the respondent,
interrogated Copley Jackson, an employee, according to Jackson's
undenied testimony , as to the choice he planned to make in casting
his ballot in the forthcoming election , and stated . " . . . whoever
you vote for I am not going to tell you, but if you vote for the AFL
you will get along better , if you sti ing along with us 11 13 By the
word "us ," Engelhorn meant to include the respondent . We find, as
did the Trial Examiner , that John Engelhorn III made the, statements
attributed to him by Jackson
'-'John Engelhorn III did not testify and no reason Is assigned in the record for his
failure to appear as a witness I
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that by the statements and activities of John Engelhorn,
Jr, John Engelhorn III, and Steve Kijak, set forth above, as an
integral part of its unlawful course of conduct described below, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
C The refusal to bargain, the contract with, Local 174/
1 The appropriate unit
The complaint alleges, and the respondent's answer admits, that all
production and shipping employees of the respondent with the excep-
tion of executives, superintendents, non-working foiemen, mainte-
nance men, salesmen, engineers, firemen, chauffeurs, checkers, and
office workers, constitute a unit appropriate for the purposes _of col-
lective bargaining 14 At the hearing in the representation case, the
respondent, the C I 0, and Local 174 stipulated, and the Board in
its Decision and Direction of Election found, that such unit was
appropriate At the hearing in the, instant case, no evidence bearing
on this issue was introduced ,
Accordingly, we find, as did the Tiial Examiner, that all pro-
duction and shipping employees of the respondent, exclusive of execu-
tives, superintendents, non-working foremen, maintenance men,
salesmen, engineers, firemen, chauffeurs, checkers, and office workers,
,at all times mateiial herein, constituted and now constitute a unit
appropriate'for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other conditions of
employment. We further find, as did the Trial Examiner, that said
unit insures to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
Effectuates the policies of the Act
2 Representation by the C I '0 of a mad of ity in the
appropi sate unit
As indicated above, pursuant to the Board's Decision and Direction
of Election, dated August 6, 1941, an election; by secret ballot was
conducted under the direction and supervision of the Regional Director
for the Second Region on August 20, 1941, among the, employees of
the respondent in the appropriate unit. As a result of the election,
the Board issued its Supplemental Decision and Certification of Rep-
resentatives, dated September 19, 1941, certifying that the C I 0
had been designated and selected by a mad of ity of all employees
11 In its answer Local 174 does not refer to the allegation of the complaint with respect
to the approptiate unit '
JOHN ENGELHORN & SONS 875
within the appropriate unit, and that pursuant to the provisions of
Section 9 (a) of the Act, the C I 0 was the exclusive representative
' of all such employees for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other con-
ditions of employment No evidence was `introduced in the present
proceeding to rebut the presumption aiising from the certification that
the C I 0 is still such representative.
We find, as did the Trial Examiner, that on September 19, 1941, and
at all times thereafter, the C I 0 was the duly designated bargaining
representative of a majority of the employees in the aforesaid appro-
priate unit, and that pursuant to Section 9 (a) of the Act, the C I 0.
was at all such times and is now the exclusive representative of all
employees in the aforesaid unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, and
other conditions of employment S
3 Conclusions concerning the refusal to bargain and the execution of
the contract with Local 174
The complaint as amended alleges that on or about September 22,
1941, and thereafter, the' respondent refused to bargain collectively
with the C I 0 within the meaning of Section 8 (5) of the Act In
substance the respondent asserts that it refused to bargain with the
C I 0 , among other things, because of existing contractual relations
with Local 174 and because of a demand of Local 174 for observance
of its contract We have found in Section III, B, above, however,
that the respondent engaged in interference, restraint, and coercion
prior to the execution of the closed-shop contract By such conduct
the respondent was instrumental in recruiting membership on behalf
of Local 174 and thereby assisted Local 174 Since the closed-shop
contract was made with a labor organization which was assisted by
action defined in the Act as an unfair labor practice, the respondent
cannot rely upon the existence of its contract with Local 174 to excuse
its refusal to bargain with the C I 0 15 ,
The respondent and Local 174 maintain, however, that the respond-
ent did not assist Local 174 by any action defined in the Act as an
unfair labor practice since the employees unanimously approved the
contract and there is no, showing of any causal connection between
the conduct of John Engelhorn, Jar , John Engelhoi n III, and Steve
Kijak, set forth in Section III, B, above, and the employees' ratifica-
tion of the contract We reject the contention. At least six employees
15 Cf International Assocnation of Machinists v National Labor Relations Board, 311
U S 72, aff'g 110 F (2d) 29 (App D C ), enf'g 8 N L R B 621, National Labor Rela-
tions Board v Electric Vacuum Cleaner Company, 62 S Ct 846, decided March 30, 1942,
rev'g 120 F (2d) 611 (C C A 6) setting aside 18 N L R B 591
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied for membership in Local 174 following Foreman Kijak's threat
that the respondent would close its plant and lock out its employees
unless they joined Local 174 During the strike a rumor prevailed
among the respondent's employees that their failure to affiliate with
Local 174 would result in the loss of their jobs Three employees,
Copley Jackson, Alex Boi ys, and Louis Stevenson, testified that they
joined Local 174 to protect themselves against the threatened loss of
their jobs Although the membership applications mentioned above
which Borys obtained were those of non-stickers, we cannot assume,
under the circumstances, as the respondent argues, that the respond-
ent's preference for Local 174 did not become known to strikers On
the contrary, we believe that the employees generally knew of the
respondent's favoritism to Local 174 and were thereby induced to aban-
don the strike and to affiliate with Local 174 Furthermore, even if
we assume arguendo that the respondent's illegal conduct did not
influence a majority of its employees in casting their lot with Local 174,
an employer may not, in the absence of a valid existing contract requir-
ing membership in a labor organization as a condition of employment,
cooperate with a labor organization, though it represents an uncoerced
majority of the employees, to secure for it new members 16
In the representation case,17 moreover, we held, and we now hold,"'
that the contract between the respondent and Local 174 was not a
bar to an investigation and determination of representatives since it
was entered into on May 29, 1941, after the respondent had notice
of the C I O's claim to represent the respondent's employees and
after the petition was filed by the C I 0 19 For this additional
reason, the existence of the contract does not justify the respondent's
refusal to honor the Boaid's certification and its refusal to bargain
with the C I 0 The Congress has clothed the Board with the power
to investigate and determine representatives for the purposes of col-
lective bargaining When a petition for investigation and certifica-
tion is lodged with the Board, an employer with notice that another
labor organization,-claiming majority status, may be the statutory
representative of his empoyees, cannot with impunity negotiate an
exclusive bargaining contract with a rival labor organization If
an employer chooses to enter into a contract under such circumstances,
without awaiting the Board's certification, he risks the outcome of
the Board's final determination and any contract he makes is subject
18 National Labor Relations Board v Electric Vacuum Cleaner Cc , 62 S Ct 846, decided
March 30, 1942 rev g 120 F (2d) 611 (C C A 6), setting aside 1S N L R B 591
17 33 N L R B 1139
38 See, for example, Matter of Solvay Process Company mud Local 12103, Chemical Divi-
saon of District 50, United Mine Workers of America, C 1 0, 29 N L R B 24, and cases
there cited, footnote 5
19 Contrary to a statement of counsel for Local 174 at the oral argument before the
Board in the instant case, Local 174 also had notice of the filing of the petition before
the negotiation of the contract, dated May 29, 1941.
r\
JOHN ENGELHORN & SONS 877
to the final result of the Board's investigation The contract of May
29, 1941, must therefore yield, to the provisions of the Act and the
ciders of the Board issued pursuant thereto. Since the validity of
the contract was thus, in any event, subject to the Board's determina-
tion'in the representation case, it cannot take precedence over the
will of the majority of the employees as expressed in the election con-
ducted by the Board. By refusing to honor the Board's certification,
and by refusing to bargain with the C I 0 , the respondent arrogated
to itself the^privilege of overiuling the Board's determination. This
the Act does not permit A contrary holding would encourage con-
testants for representation to foisake the forum provided by the
Act and leave the resolution of the contest in the theatre of economic
rivalry with its attendant industrial strife and would provide a-
simple device to employei s who prefer to deal with a favorite union
in disregard of the free choice of their employees.
For the foregoing reasons, the contentions of the respondent and
Local 174 that, in view of the existence of the contract between them,
dated May 29, 1941, (1) the Board erred in directing the election
for the determination of representation above referred to, and (2) the
respondent was justified in refusing to bargain with the C I 0, are
found to be without merit
There remains the further contention that the respondent refused
to bargain with the C I 0 because Local 174 threatened court action
to secure performance of its contract and threatened the respondent
with boycott and other economic reprisals unless ' the respondent ad-
hered to the contract Mere threats of such action, however, do not
clothe the respondent with immunity to violate the Act 20
In the circumstances of this case,' moreover, we are of the opinion
that the execution of the contract, aside from affording the respondent
no defense to the charge that it has refused to baigain collectively,
:n itself constituted an unfair labor practice, within the meaning of
Section 8 (1) of the Act. Not only had the respondent theretofore
rendered potent assistance to Local 174 by the acts of John Engelhorn,
Jr , ,and Steve Kid ak, discussed in Section III, B, 1, supra, but it was
1 hen well apprised of the existence of a question concerning the repre-
sentation of its employees, both by the claim of the C. I 0 that it
represented a majority, and by the pendency before the Board of the
C I O's petition 21 On the other hand, the record is barren of any
2oNational Labor Relations Board v Star Publishing Co, 97 F (2d) 465 (C C A 9)
enf'g 4 N L R B 498 , Wilson d Co , Inc V National Labor Relations Board, 123 F (2d)
411 (C C A 8), enfg as mod 26 N L R B 273 and 26 N L R B 297, McQuay-Nouns
Mfg Co v National Labor Relations Board , 116 F (2d) 748 (C C A- 7 ), enf'g 21
N L R B 709 , cert denied 313 U S 565 Cf National Labor Relations Board v Hudson
Motor Car Co , decided June 3 1942 (C C A 6) enf g 34 N L R B 815
n The existence of the strike under the circumstances here present , was further notice
to the respondent that the iepiesentation of its employees was in an unsettled state
878 DECISIONS OP-NATIONAL LABOR RELATIONS BOARD
evidence the existence of which might reasonably have led the re-
spondent to the belief that Local 174 had been designated by a ma-
jority of the employees Three years had elapsed since the demon-
stration by Local 422 of its representation of a majority and, as
stressed by counsel for Local 174 at the oral argument before the
Board, Local 174 was a diffeient organization. So, far as the
record discloses, the respondent did not require, and Local 174 did not
produce, proof of designation as bargaining representative, prior to
the-execution of the contract, dated May 29, 1941. In the representa-
=tion proceeding the Regional Director reported that Local 174 sub-
mitted no evidence,in support of its claim to represent any of the
employees, relying entirely upon the contract executed on July 8,
1938, by the respondent and Local 422 and the contract between the
respondent and Local 174, dated May 29, 1941; and at the hearing,
on June 23, 1941, an organizer for Local 174 testified generally that
all employees within the unit had joined Local 174 and that all, except
three or four, were members in good standing The fact that on
June 6, 1941, the employees unanimously approved the contract of
May 29, does not, under the circumstances here present, support an
inference that Local 174 was the freely chosen representative of the
employees in the appropriate unit at the time of the execution of the
contract The outcome of the subsequent election by secret ballot
among those employees on the respondent's pay roll shortly preceding
the making of the closed-shop contract, alone, goes far to dissipate
any such inference Under all the circumstances, we find that the
ratification of June 6, 1941, is to be attributed to the respondent's
unlawful conduct in assisting Local 174.
Exclusive recognition of a labor organization is a potent form of
assistance ; 22 the more so, when such recognition is coupled with a
provision requiring membership in the organization as a condition
of employment. In its context the respondent's action in recognizing
Local 174 evidences a flagrant disregard of the provisions of the Act
We accordingly find that by entering into the contract, dated May
29, 1941, recognizing Local 174 as the exclusive representative of its
employees and requiring them to become members of Local 174, the
respondent interfered with, restrained, and coerced its employees in
their choice of representatives and thereby assisted Local 174
We find, as did the Trial Examiner, that the respondent on Sep-
, tember 22, 1941, and at all times thereafter, refused to bargain col-
lectively with the C I 0 as the exclusive representative of its em-
ployees in an appropriate unit with respect to rates' of pay, wages,
hours of employment, and other conditions of employment, and that
29 See, for'example, National Labor Relations Board v Pennsylvania Greyhound Lines,
Inc , at al , 303 ii S 261
JOHN ENGELHORN & SONS 879
by such refusal interfered with, iestrained , and coerced its employees
,,in the exercise of the rights guaranteed in Section 7 of the Act.
D. The discriminatory discharges
The complaint as amended also alleges in substance that the respond-
ent discharged four named employees, and thereafter refused to re-
instate them, because of their C I 0 activities and because they failed
to maintain membeiship in Local 174 During October 1941, in
view of defaults in payment of membership dues, Local 174 requested
the respondent to discharge Copley Jackson, Alex Borys, Louis
Stevenson, and Charles Banks, and the respondent acquiesced in the
demand of Local 174 Thus, the respondent discharged Louis
Stevenson and Charles Banks on October 20, 1941, Copley Jackson
on October 27, 1941, and Alex Borys on October 31, 1941 Theieafter
the respondent failed to reinstate them -
While admitting these facts, the respondent maintains that it dis-
charged the four named employees pursuant to the teims of its closed-
,,shop contract with Local 174, 'and because Local 174 threatened to
use pressure of the kind described above in the event that the respond-
ent refused to comply with the contract We have considered these
contentions above in connection with the iespondent's refusal to bar-
gain with the C I 0 and have found them to be without merit
For the same reasons, we reject them here The proviso to Section 8
(3) of the Act permits dischaige of an employee pursuant to the terms
of a closed-ship contiact only where the contiact was made with a
labor oigamzation which was not established, maintained, or assisted
by any unfair labor practice and which was the representative of a
majority of the employees in an appropriate unit covered by the con-
tiact when made As set foith above, the iespondent's closed-shop
contiact with Local 174 did not meet either condition of the proviso
Under the circumstances, in discharging the four named employees,
the pioviso afforded no protection to the respondent 23
Accordingly we find that the respondent dlsciiminated in regard to
the hire and tenuie of employment of Copley Jackson, Alex Borys,
Charles Banks, and Louis Stevenson, who weie discharged by the
iespondeiit because of their failuie to maintain membership in Local
174, theieby discouiaging membership in the C I 0 and encouraging
nembeiship in Local 174, and interfering with, restraining, and co-
eicing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act
18 Soe , for example , Inteinational Association of Machinists v National Labor Relations
Board, 311 U S 72, National Labor Relations Board v Electric Vacuum Cleaner Company,
62 S Ct 846
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
CO31AIERCE
The activities of the respondent set forth in Section III above, oc-
curring in connection -vi ith the operations of the respondent 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 obsti uctrng commerce and the free
flow of commerce
V THE REMEDY
Having found that the i espondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the pollcies'of the Act
We have found that the respondent has refused to bargain collec-
tively with C I 0 as tire-representative of a majority of the employees
in an appropriate unit We will therefore order that the respondent
upon request bargain collectively with the C I 0
We have also found that the respondent discharged Loins Steven-
son, Charles Banks, Copley Jackson, and Alex Borys, and thereafter
failed to reinstate them because of their union activities We shall
order that the respondent offer Stevenson, Banks, and Borys imme-
diate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges and to make them whole for any loss of pay they may
have suffered by reason of their respective discharges by payment
to each of them of a suns equal to the amount which he normally would
have earned as wages from the date of his discharge to the date of
the respondent's offer of reinstatement, less his net earnings 24 during
said period Jackson joi ned the United States Army about February
19, 1942, and was inducted into military service on the same day In
view thereof, we shall order the respondent, upon application by Jack-
son within 40 days after his discharge from the armed forces of the
United States, to offer him reinstatement to his former or a substan-
tially equivalent position, without prejudice to his seniority or other
rights and privileges We shall also order that the respondent make
Jackson whole for any loss of earnings he may have suffered, by reason
of the respondent's discrimination against lien, by payment to him
of a sum equal to the amount the normally would have earned as wages
24 By net eainings I is meant earnings less expenses such as for transportation, room,
and board incurred b3 an employee in connection with obtaining work and working else-
wlieie than for the respondent, which would not have been incurred but for his unlawful
dischaige and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Biotheihood of Carpenters and Joiners of
America, Lumber and Saiamill Workers Union, Local 2590, 8 N L R B 440.
JOHN ENGELHORN & SONS 881 1l
during the peiiocls (1) between the date of his discharge by the
respondent and the date of his induction into the United States Army,
February 19, 1942, and (2) between a date 5 days after Jackson's
timely 25 application for reinstatement, i L any, and the date of offer
of reinstatement by the 'respondent, less his net earnings 26 during
those periods 27
We have also found that the contract between the respondent and
Local 174, dated May 29, 1941, is invalid because Local 174 did not
repiesent a majoiity of the employees in'the appropriate unit at the
time of the execution of the closed-shop contract and because the
contract was made with a labor organization which had been assisted
by unfair labor practices. We shall therefore order the respondent
to cease and desist fi om giving effect to its contract, dated May 29,
1941, with Local 174, as well as to any extension, renewal, modification,
01 supplement thereof, and any superseding contract winch may now
be in force, and to any contract with a labor organization not eel tified
by the Board Nothing herein, however, shall be deemed to require
the respondent to vary those wage, hour, seniority, and other such
substantive features of its relations with the employees themselves,
if any, which the respondent established in performance of the con-
tract, dated May 29, •1941, as extended, renewed, modified, supple-
mented, or superseded, or in performance of any contract with a labor
organization not certified by the Board
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following
CONCLUSIONS OF LAW
1 Packinghouse Workers Organizing Committee, affiliated with
the Congress of Industrial Organizations, and Butchers Union of
Greater New York, Local 174, Amalgamated Meat Cutters & Butcher
Workmen of North America, affiliated with the American Federation
of Labor, are labor organizations, within the meaning of Section 2 (5)
of the Act
2 All production and shipping employees of the respondent at its
plant in Newark, New Jersey, exclusive of executives, superintendents,
non-working foremen, maintenance men, salesmen, engineers, firemen,
chauffeurs, checkers, and office workers, constitute a unit appropriate
for the purposes of collective- bargaining, within the meaning of
Section 9 (b) of the Act
23 As provided in the preceding sentence
22 See footnote 24, sup; a
27 See Matter of The Federbush Co, Inc and United Paper Workers , Local 292 , affiliated
with the United Paper, Envelope and Toy Workers' International Union , C 1 0, 34
N L R B 539, Matter of Wells-Lamont -Snnrth Co7-por ation and Amalpaniated Clothnng
Workers of America, C 1 0 , and Louisiana Glove Workers Association , party to the
contract, 41 N L R B 1474
472814-42-vol 42-56
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 Packinghouse Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, was,on September 19, 1941,
and at all times thereafter has been, the exclusive representative of all
the employees in the aforesaid unit for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the Act
4 By refusing to bargain collectively with Packinghouse Workers
Organizing Committee, affiliated with the Congress of Industrial Or-
ganizations, as the exclusive representative of its employees in the
appropriate unit, the respondent has engaged in and is engaging in
urifair labor practices, within the-meaning of Section 8 (5) ofthe Act.
5 By discriminating in regard to the hire and tenure of employment
of Louis Stevenson, Charles Banks, Copley Jackson, and Alex Borys,
thereby encouraging membership in Butchers Union of Gi eater New
York, Local 174, Amalgamated Meat Cutters & Butcher Workmen of
North America, affiliated with the American Fedei ation of Labor, and
discouraging membership in Packinghouse Workers Organizing Com-
mittee, affiliated with the Congress of Industrial Organizations, the ie-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act
6 By inteifering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the ie-
spondent has engaged m and is engaging in unfair laboi practice,
within the meaning of section 8 (1) of the Act
7 The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
John Engelhorn & Sons, Newark , New Jersey , and its officers , agent,
successors , and assigns shall.
1 Cease and desist from.
(a) Refusing to bargain collectively with Packinghouse Workers
Organizing Committee , affiliated with the Congress of Industrial Or-
ganizations, as the exclusive representative of all production and ship-
ping employees of the respondent at its plant in Newark , New Jersey,
exclusive of executives , superintendents , non-working foremen, main-
tenance men, salesmen, engineers , firemen, chauffeurs , checkers, and
office workers , -%w ith respect to rates of pay, wages, hours of employment,
and other conditions of employment,
-(b) Discouraging membership in Packinghouse Workeis Organ-
izing Committee , affiliated with the Congress of Industrial Organiza-
JOHN ENGELHORN & SONS 883
tions, or any other labor organization of its employees, or encouraging
membership in Butchers Union of. Greater New York, Local 174,
Amalgamated Meat Cutters,& Butcher Workmen of Noith America,
affiliated with the American Federation of Labor, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or by disci iininating in any other manner in
regard to their hire and tenure of employment, or any term or condition
of their employment;
(c) Giving effect to its contract, dated May 29, 1941, with Butchers
Union of Greater New York, Local 174, Amalgamated ,Meat Cutters
& Butcher Workmen of North America, affiliated with the American
Federation of Labor and to any extension, renewal, modification, or
supplement thereof, and any superseding contract which may now be
in force, and to any contract with a labor organization not certified
by the Board ;
(d) In any other manner interfering with, restraining or coercing
its employees in the exercises of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of` their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Rela-
tions Act
2 Take the following affirmative action which the Board finds will
effectuate the policies of the Act
(a) Upon request, bargain collectively with Packinghouse Workers
Organizing Committee, affiliated with the Congress of Industrial Or-
ganizations, as the 'exclusive representative of all production and ship-
ping employees of the respondent at its plant in Newark, New Jersey,
exclusive of executives, superintendents, non-working foremen, main-
tenance men, salesmen, engineers, firemen, chauffeurs, checkers, and
office workers, with respect to rates of pay, wages, hours of employment.
and other conditions of employment
(b) Offer to Louis Stevenson, Charles Banks, and Alex Borys
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights
and privileges, -
(c) Make whole Louis Stevenson, Charles Banks, and Alex Borys
for any loss of pay they may have suffered by reason of the respond-
ent's discrimination against them in regard to their hire and tenure
of employment by payment to each of them respectively of a sum
of money equal to the amount which each normally would have earned
as wages from the date of the discrimination against him to the date
of the respondent's offer of reinstatement, less his net earnings during
such period;
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Upon application by Copley Jackson within forty (40) days
after his discharge from the armed forces of the United States, offer
him immediate and full reinstatement to his foimer or a' substantially
equivalent position, without prejudice to his seniority or other rights
and privileges,
(e) Make whole Copley Jackson for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount he normally
would have earned as wages during the periods (1) between the date
of his discharge by the respondent and the date of his induction into
the United States Army, February 19, 1942; and (2) between a date
5 days after Jackson's timely 28 application for reinstatement, if any,
and the date of offer of reinstatement by the respondent, less his net
eainings during those periods;
(f) Post immediately in conspicuous places in its plant at Newark,
New Jersey, and maintain for a period of at least sixty (60) consecu-
tive days from the date of posting, notices to its employees stating (1),
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d)
of this Order, (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order;
and (3) that the respondent's employees are free to become or remain
members of Packinghouse Workers Organizing Committee, affiliated
with the Congress of Industrial Organizations, and that the respond-
ent will not discriminate against any employee because of his member-
ship in or his activity on behalf of that organization;
(g) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order, what steps the
i espondent has taken to comply herewith
?" As piovided in paiagiaph 2 (d) of this Oider