John Minder and Son, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1938

6 N.L.R.B. 764 (N.L.R.B. 1938)

In the Matter Of JOHN MINDER AND SON , INC. and BuTCHERs UNION,
LOCAL No. 174
Case No. C-303.-Decided April 22, 1938
Meat Products Industry-Interference , Restraint or Coercion-Unit Appro-
priate for Collective Bargaining : employees engaged in manufacture of meat prod-
ucts, excluding supervisory employees ; eligibility for membership in only organ-
ization among employees ; occupational differences-Representatives : proof of
choice: stipulation that union represents a majority of employees in appropriate
unit-Collective Bargaining : charges of refusal to bargain collectively not sus-
tained-Discrimination : discharge : for union membership and activity ; to dis-
courage membership in union ; lay-offs : charges of not sustained-Back Pay:
awarded.
Mr. John T. McCann, for the Board.
Evarts, Choate, Curtin, & Leon, by Mr. Michael Ryan, of New York
City, for the respondent.
Mr. William Karlin and Mr. Leo Greenfield, of New York City, for
the Union.
Mr. S. G. Lippman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Butchers Union,
Local No. 174, herein called the Union, the National Labor Relations
Board, by Elinore Morehouse Herrick, Regional Director for the Sec-
ond Region (New York City), issued its complaint, dated July 20,
1937, against John Minder and Son, Inc., New York City, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint and an accompanying notice of hearing were duly
served upon the respondent and the Union. Upon the respondent's
request, the hearing was postponed from August 12, 1937, to August
25, 1937. On August 16, 1937, the respondent filed an answer which
764
DECISIONS AND ORDERS 765
in substance admitted the allegations concerning the nature of its busi-
ness, but denied that it had committed any of. the unfair labor prac-
tices alleged in the complaint.
Pursuant to notice, a hearing was held in New York City on August
25 through August 31, 1937, before Alvin J. Rockwell, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent,
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to produce evidence bearing upon the issues was afforded
all the parties.
On November 17, 1937, the Trial Examiner filed his Intermediate
Report in which he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1), (3), and (5) of the Act and recommended that
the respondent cease and desist from its unfair labor practices and
bargain collectively with the tUnion upon its request. Thereafter, the
respondent filed exceptions to the rulings of the Trial Examiner as
well as to the findings and conclusions of the Intermediate Report.
The respondent also filed a brief in support of its exceptions.
The Board has reviewed the rulings of the Trial Examiner on mo-
tions and objections to the admission of evidence and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
The Board has considered the exceptions to the Intermediate Report
and the brief filed in support thereof and finds the exceptions without
merit except as hereinafter indicated.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a New York corporation, has its office and place of
business in New York City and is engaged in the manufacture and dis-
tribution of meat products, employing from 30 to 40 employees.
The respondent's chief raw materials are meats of various kinds.
During the period from April 1, 1937, to August 25, 1937, the respond-
ent received 1,542,523 pounds of meat for use in its business. Of this
amount 841,893 pounds were received from sources outside of the State
of New York and 700,630 pounds of meat from points within the
State of New York. From April 1, 1937, to August 25, 1937, the
respondent delivered 2,741,029 pounds of meat to its purchasers. Of
this amount 884,151 pounds were delivered to purchasers outside the
State of New York and 1,856,878 pounds to purchasers located within
the State of New York. The respondent has applied for and received
the meat-inspection service of the Department of Agriculture. This
service is supplied only to firms engaged in interstate commerce.
766 NATIONAL LABOR RELATIONS BOARD
II. THE UNION
Butchers Union, Local No. 174 is a labor organization affiliated
with Amalgamated Meat Cutters & Butcher Workmen of North
America, an affiliate of the American Federation of Labor. Butchers
Union, Local No. 174, admits into membership all the respondent's
employees who are engaged in the manufacture of meat products,
with the exception of supervisory employees.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
The Union contends that the respondent's employees principally
engaged in the manufacture of -meat products, excluding supervisory,
employees, constitute'an appropriate unit for the purpose of collec-
tive bargaining. This unit would exclude all the shippers, truck
drivers, and clerical employees. The respondent insists that all of
its employees together constitute an appropriate bargaining unit.
The record is clear that the employees in the unit advocated by the
Union, being primarily engaged in the manufacture of meat products,
are differentiated in skill and experience from the balance of the
respondent's employees who are primarily engaged in tasks unrelated
to the manufacturing ' process and who are, therefore, not eligible
for membership in the Union.
We find that the respondent's employees engaged principally in the
manufacture of meat products constitute an .appropriate unit for
the purposes of collective bargaining in the respondent's plant. This
unit includes the two girl assistants and the three-men employed in
the curing department.
2. Representation by the Union of a majority
There are between 15 and 18 employees in the unit found to be
appropriate. It was stipulated by the respondent that on April 15,
1937, the Union represented a majority of its employees in the manu-
facturing department and curing room. In accordance with this
stipulation we find that on April 15, 1937, and at all times there-
after, the Union was the representative of the majority of the re-
spondent's employees in the appropriate bargaining unit and by
virtue of Section 9 (a) of the Act was the exclusive representative
of the employees in the unit for purposes of collective bargaining
in respect to rates of pay, wages, hours of'employment, and other
conditions of employment.
DECISIONS AND ORDERS 767
3. The alleged failure to bargain
On April 15, 1937, William B. Minder, Sr., the respondent's presi-
dent, was not present when Alex Drefke, business agent for they
Union, and Joseph Belski, vice president of the International Union,
called at the respondent's plant. They stated to William Minder, Jr.,
an officer of the corporation, that the Union represented a majority
of the respondent's employees and submitted a copy of the Union's
usual form of contract. About April 21, 1937, Drefke arranged
,with Minder, Sr., for a bargaining conference, which was held a few
days later, attended by Drefke, Belski and Minder, Sr. At this con-
ference there was discussion of the respondent's business, and Minder,
Sr., declared that the respondent was unable to meet the Union's
standard of wages and hours because of the nature of its business.
Belski replied that the Union would not insist upon immediate com-
pliance with the terms and conditions of the contract but would give
the respondent an opportunity to make the necessary adjustments.
Although Minder, Sr., was firm in his refusal to sign the form
contract, he indicated that he was willing to meet with the Union
at any future date.
At a second conference held on April 27, 1937, attended by Drefke
and Minder, Sr., the parties maintained the same positions and re-
iterated the same arguments advanced at the first conference. On
June 2, 1937, representatives of the Union and the respondent met
in the office of the Regional Director for the Second Region and
made arrangements for a bargaining conference to be held on June
7, 1937, at the office of the attorney for the Union.' Drefke testified
that at this conference Minder, Sr., stated that in order to compete
successfully for business contracts, he was unable to accept the terms
of the Union contract. Neither party was willing to compromise,
and the conference terminated after 15 minutes. Thereafter, the
Union made no further attempt to bargain with the respondent.
The respondent is a relatively small concern in the meat-producing
industry. It appears to us from the record that the respondent was
sincere in its belief that it could not conform to the Union scale of
wages and hours and continue to operate successfully on a competi-
tive basis in the industry. The Union, on the other hand, insisted
that the respondent sign the particular contract containing the Union
wage scale and hours, maintaining that the respondent's business
was no different from that of others in the industry. The differences
which developed between the parties concerned real and substantial,
issues. Although the respondent's position apparently precluded
the particular collective agreement sought by the Union, the re-
1 Karlin , the attorney for the Union , failed to appear at this conference The negotia-
tions were carried on by Drefke , Karlin's assistant , and Minder, Sr.
768 NATIONAL LABOR RELATIONS BOARD
spondent indicated a willingness to bargain with the Union on some
other basis.
Under these circumstances, we find that the respondent has not
refused to bargain collectively with the Union. We shall, therefore,
dismiss the allegation of the complaint alleging that the respondent
failed to bargain collectively within the meaning of Section 8 (5) of
the Act.
B. The Discharge of Ernst Schmocker
Ernst Schmocker was hired by the respondent in the autumn of
1936 and worked at the sausage bench. During the spring of 1937,
Schmocker joined the Union and was active in soliciting the respond-
ent's employees for membership in the Union.
On May 7, 1937, Dr. Alvin Staub, chief inspector of the New
York Division for the Meat Inspection Division of the Bureau of
Animal Industry, Department of Agriculture, visited the respondent's
plant and complained of the congestion in the manufacturing depart-
ment, stating that not more than 8 of the 12 men working at the
sausage bench should be allowed to work there. He testified at the
hearing that in his opinion the situation could only be remedied by
the removal of several employees from the sausage bench.,
Minder, Sr., on May 8, 1937, informed Joseph Kuffer, foreman of
the manufacturing department, that three or four men would have
to be laid off by the end of the month and that one employee would
have to be laid off, that morning, the choice being left to Kuffer's
discretion.
Schmocker testified that after informing the men of Dr. Staub'-
investigation and the resultant necessity to reduce the force, Kuffer
said, "Well, it is too much going on about the Union, and whoever
wants to quit should quit and go home." Then he said,2 "Well, Ernst,
I think I will start with you, the first one, and the others will follow,
Take your bundles and tools and don't forget nothing because you
don't have to come back anymore." Schmocker further testified that.
before he left Kuffer said to him, "Well Ernst, you should know
better than to do a thing like that, you know Mr. Minder don't like
to have unions and all that stuff." Adolph Hutzenlaub, Richard
Baumeister, and Albert Fischer, three employees in the manufactur-
ing department, corroborated Schmocker's version of the circum-
stances surrounding the discharge. Kuffer denied making such state-
ments. According to his testimony he told the assembled employees
of Dr. Staub's investigation, added that some men would have to,
leave, and called for volunteers. When no one volunteered, he
chose Schmocker to be laid off.
2 All the conversation at the Minder plant on this occasion was in German.
DECISIONS AND ORDERS 769
At a subsequent meeting of employees called by Minder, Sr., on
May 13, 1937, Baumeister got into an argument with Kuffer over
Schmocker's discharge and accused him of referring to Schmocker's
Union activities when he discharged him. Kuffer admitted to Bau-
meister during the argument that he had made such remarks to
Schmocker. This admission was not denied by Kuffer.
At the May 13, 1937 meeting, Minder, Sr., informed the employees
of the manufacturing department that charges had been filed with
the Board to the effect that Schmocker had been discharged for union
activities . He then read and asked them to sign a statement which
he had prepared concerning the circumstances of Schmocker's dis-
charge. The statement read in part as follows :
The only reason we understand for our foreman 's action $
was due to the fact . . . Dr. Staub visited our bologna kitchen
. and found conditions too crowded.
The Union of which we are all members . ,. . has complained
to the Agricultural Department . . . in order to bring pressure
upon Mr. Minder to cause him to sign with our Union.
At no time did we hear our foreman tell Ernst Schmocker
that he was being laid off because he belonged to the Union .. .
All the employees present except Baumeister , Hutzenlaub, and
Fischer signed the statement, although it appears that some of them
had not been present at the time of Schmocker's discharge and conse-
quently had no independent knowledge of the incident and others
did not understand English well enough to know what they were
signing. In view of these considerations and the fact that Minder,
Sr., prepared and requested the assembled employees to sign the state-
ment, we do not credit it as an accurate account of the circumstances
surrounding Schmocker's discharge.
Furthermore, the respondent's failure to apply its customary sen-
iority rule in Schmocker's case without apparent' reason , persuades us
that the necessity to reduce its staff was not the real reason for his dis-
charge. The respondent stated that it was its practice to lay off em-
ployees according to seniority. However, there was no contention
made that Schmocker was laid off on the basis of seniority, because
as a matter of fact he had more seniority than three other employees.4
The respondent did not attempt to explain this departure from its
usual practice in Schmocker's case. Kuffer, however, when pressed
for an explanation, stated that Schmocker was in ill health. Never-
theless, this explanation was contradicted by Minder, Sr., who denied
ever stating that Schmocker was discharged for that reason.
8 The statement referred to the discharge of Ernst Schmocker on May 8, 1937.
a Gus Br)ll is one of these employees . He was hired by the respondent in January 1937,
laid off in April 1937, and rehired on May 5, 1937 . Adolph Hutzenlaub and Albert
Fischer were the other two employees who possessed less seniority than Schmocker on
May 8, 1937.
770 NATIONAL LABOR RELATIONS BOARD
One week after his discharge Schmocker found other employment
earning a substantially higher salary. Schmocker also testified that
he does not wish to return to his former position.
Although there is a conflict of the testimony concerning the cir-
cumstances surrounding Schmocker's discharge, the weight of the
evidence convinces us that Schmocker was discharged because of his
union membership and activity. We find that the respondent dis-
charged Ernst Schmocker because of his union membership and
activity and thereby discriminated in regard to his hire and tenure
of employment in order to discourage membership in a labor or-
ganization and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
C. The lay-off of Adolph Hutzenlaub and Albert Fischer
Adolph Hutzenlaub and Albert Fischer, employees in the manu-
facturing department, were laid off on May 28, 1937.5 They were not
active in union affairs , but they were conspicuous when they refused
to sign the statement of May 13, 1937, prepared by Minder, Sr.,
dealing with Schmocker's discharge. The Union claims that their
lay-off was due to union activities. In support of this contention,
Fischer testified that at the time of the lay-off Kuffer stated to him,
"Mr. Minder has no fight with the Union but you two fellows talk
too much about the Union. We have too much union talk around
here." However, Hutzenlaub and Brill, who were laid off at the
same time and who were the only other employees present, testified
that no reference was made to union activities when Kuffer laid
them off.
The respondent asserted that the lay-off of the two men was due
to Dr. Staub's orders and the slowness of the business, and that the
men were laid off in accordance with seniority. The evidence sup-
ports this contention in that Hutzenlaub, Fischer, and Brill were
employees having the least seniority in the plant on that date.
On June 29, July 5, and July 21, 1937, the respondent hired three
new employees. Minder, Sr., testified that he did not attempt to
offer reemployment to Hutzenlaub and Fischer in preference to the
men employed because he knew they had secured other employment.'
We are not convinced that the respondent in laying off Hutzenlaub
and Fischer was motivated by their union activities. We find that
the respondent in laying off these men did not discriminate against
them because of their union membership and activity and the- allega-
tions of the complaint with respect to them will be dismissed.
5 Gus Brill, an employee, was also laid off at the same time. However, Brill was not a
member of the Union nor is it claimed that his lay -off was a discriminatory lay-off within
the meaning of the Act.
6 Hutzenlaub secured employment the day following his lay-off and Fischer secured
employment within two weeks of his lay-off. They both testified that they did not wish
to be reinstated.
DECISIONS AND ORDERS 771
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The actvities of the respondent set forth in Section III above occur-
ring in connection with the operations of the resuondent 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 commerce and the free
flow of commerce.
V. THE REMEDY
The Board has found that the respondent's discharge of Ernst
Schmocker constituted an unfair labor practice within the meaning
of Section 8 (3) of the Act. In order to restore the status quo,
Schmocker ordinarily would be entitled to reinstatement and back
pay. However, he has indicated that he does not wish to be rein-
stated, having secured employment elsewhere. We shall therefore
only order the respondent to award back pay to Schmocker from the
date of his discharge to the date of his employment elsewhere.
On the basis of the foregoing findings, of fact and upon the entire
record in the proceeding the Board makes the following :
CONCLUSIONS OF LAW
1. Butchers Union, Local No. 174, of the Amalgamated Meat
Cutter & Butcher Workmen of North America, affiliated with the
American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. The respondent by discriminating in regard to hire and. -tenure
of employment of Ernst Schmocker , and thereby discouraging mem-
bership in the Union , has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( 3) of the Act.
3. The respondent by interfering with, restraining, and coercing
its employees in the exercise of the .rights guaranteed in Section .7 of
the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. All the respondent 's employees engaged in the manufacture of
meat products , excluding supervisory employees , constitute an appro-
priate unit for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
5. Butchers Union, Local No. 174 was on April 15, 1937, and at
all times thereafter has been the exclusive representative of all em-
ployees in such unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
6. The respondent did not refuse to bargain collectively with the
Butchers Union , Local No. 174 as the exclusive representative of
the employees in such unit.
772 NATIONAL LABOR RELATIONS BOARD
7. The respondent has not discriminated in regard to hire and
tenure of employment by laying off Albert Fischer and Adolph Hut-
zenlaub on May 28, 1937, within the meaning of Section 8 (3) of
the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce `vithin the meaning of Section 2 (6) and (7) of
the Act.
ORDER
On 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 John Minder
and Son, Inc., and its officers, agents, successors, and assigns shall:
1. Cease and desist :
(a) From interfering with, restraining or coercing its employees
in the exercise of the rights to self-organization, to form, join or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the National Labor Relations Act ;
(b) From discouraging membership, in Butchers Union, Local 174,
or any other labor organization of its employees by discriminating
in regard to hire or tenure of employment or any term or condition
of employment. ,
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Ernst Schmocker for any loss of pay he may have
suffered by reason of his discharge, by payment to him of a sum of
money equal to that which he normally would have earned as wages
from the date of his discharge to the date of his securing other
employment ;
(b) Post immediately in conspicuous places throughout the plant
notices to its employees stating that the respondent will cease and
desist in the manner aforesaid;
(c) Maintain such notices for a period of at least thirty (30) con-
secutive days from the date of posting;
(d) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith.
It is further ordered that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent has engaged in
unfair labor practices by refusing to bargain collectively with the
Union and by its lay-off of Adolph Hutzenlaub and Albert Fischer
on May 28, 1937.