Kingan & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1938

8 N.L.R.B. 1063 (N.L.R.B. 1938)

In the Matter of KINGAN & Co., INCORPORATE!) and UNITED MEAT
PACKING WORKERS LOCAL INDUSTRIAL UNION No. 117
Case No. C-495.-Decided September 12, 1938
Meat Packing Industry-Settlement : stipulation providing for cessation of
unfair labor practices and reinstatement of employees-Order: entered on
stipulation ; certain affirmative action not required in view of employer's com-
pliance with provisions of stipulation prior to issuance of order.
Mr. Walter B. Chel f, Mr. Colonel C. Sawyer, and Mr. Lester M.
Levin, for the Board.
White, Wright & Boleman, by Mr. Burrell Wright, of Indianapolis,
Ind., for the respondent.
Mr. Earl E. Houck, of Washington , D. C., and Mr. T. C. Townsend,
of Charleston, W. Va., for the United.
Mr. Redmond S. Brennan, of Kansas City, Kans., for the Amalga-
mated.
Mr. Langdon West, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by United Meat
Packing Workers Local Industrial Union No. 117 , herein called the
United . the National Labor Relations Board , herein called the Board,
by the Regional Director for the Eleventh Region (Indianapolis,
Indiana), issued its complaint dated March 1, 1938, against Kingan
& Co., Incorporated , Indianapolis , Indiana, herein called the respond-
ent, alleging that the respondent had engaged in and was ennaning
in unfair labor practices affecting commerce , within the meaning of
Section 8 ( 1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat . 449, herein called the Act.
Copies of the complaint and the notice of hearing thereon were
duly served upon the respondent , the United , and Amalgamated
Meat Cutters and Butcher Workmen of North America, Local Union
No. 165, herein called the Amalgamated.
8 N. L. R . B., No. 132.
1063
1064 NATIONAL LABOR RELATIONS BOARD
Concerning the unfair labor practices the complaint alleged, in
substance, that the respondent terminated the employment of 42
named employees and refused to reinstate 40 of them because they
joined and assisted the United; that the respondent by the aforesaid
acts and by threats, speeches, and conversations with individual em-
ployees, and in other ways, discouraged its employees in the free
choice of their representatives for the purpose of collective bargain-
ing, and thereby interfered with, restrained, and coerced its employees
in the exercise of their rights guaranteed in Section 7 of the Act.
On March 12, 1938, the respondent filed its answer in which it
admitted the allegations concerning the nature and scope of its busi-
ness, but denied the allegations of unfair labor practices. On March
15, 1938, the Regional Director granted the motion to intervene made
by the Amalgamated on the same date.
Pursuant to a notice and an amended notice of hearing duly served
upon the parties, it hearing was held on March 24, 1938, at Indian-
apolis, Indiana, before Madison Hill, the Trial Examiner duly desig-
nated by the Board.' All parties were represented by counsel and
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce- evidence bearing
upon the issues was afforded all parties. During the hearing the
respondent and counsel for the Board entered into a stipulation
setting forth the facts concerning the nature and scope of the re-
spondent's business and the terms of an order which the Board could
enter in the case upon its approval of the stipulation. Both the
United and the Amalgamated approved the stipulation, and it was
received in evidence without objection. Thereafter the Trial Ex-
aminer granted the motion made by counsel for the Board to amend
the complaint in order to delete the allegations with respect to the
discriminatory discharge of one named employee and to include such
allegations with respect to two other named employees. This was
in accordance with the terms of the stipulation and no objection was
made by any of the parties. Thereupon the hearing was adjourned.
The above-mentioned stipulation provides as follows :
It is hereby stipulated and agreed by and between Kingan &
Co., Incorporated, by Burrell Wright of the firm of White,
Wright & Boleman of Indianapolis, Indiana, representing the
Respondent herein, and Walter Chelf, Attorney, Eleventh Re-
gion. for the National Labor Relations Board as follows :
1. Kingan & Co., Incorporated, operating a meat packing plant
at Indianapolis, Indiana, is a New Jersey corporation which was
1 On October 1, 1937 , the Board issued an order consolidating this case and Matter of
Kingan d Co, Incorporated and United Meat - Pacl ing Workers Local Industrial Union
No. 117 ( Case No. XI-R-43), involving a petition for investigation and certification of
representatives . On March 19 , 1938, the Board revoked this order.
DECISIONS AND ORDERS 1065
incorporated on the 8th day of October, 1920, and authorized to
do business in the State of Indiana.
2. Kingan & Co., Incorporated, a New Jersey corporation, di-
rectly and through subsidiaries operates three meat packing
plants in the United States located at Indianapolis, Indiana;
Richmond, Virginia; and Storm Lake, Iowa.
3. Directly and- through subsidiaries it operates eleven whole-
sale meat distributing houses known as branch houses located
at various points throughout the United States.
4. At its meat packing plant at Indianapolis, it purchased and
slaughtered in excess 800,000 animals during the fiscal year end-
ing November 1, 1937, at a total value of approximately
$25,500,000.00.
5. The animals slaughtered in the Indianapolis plant of
Kingan & Co., Incorporated are principally purchased from com-
mission men doing business in the public stockyards at Indian-
apolis, Indiana, although the Company at times purchases some
live stock at points other than the stockyards at Indianapolis,
having the same shipped to itself at Indianapolis.
6. Approximately 95% of the live stock purchased and slaugh-
tered at the Indianapolis Plant of Kingan & Co., Incorporated
originate in the State of Indiana, the balance originating in
other states.
7. The products of live stock slaughtered at the Indianapolis
Plant of Kingan & Co., Incorporated, including meat processes,
meat products, and so-called by-products, are distributed through-
out the United States, approximately 90% of such products being
shipped beyond the boarders of the State of Indiana.
8. During the year ending November 1, 1937, the Indianapolis
Plant of Kingan & Co., Incorporated, shipped approximately
309,000,000 pounds of product having a total value of approxi-
mately $60,000,000.
9. The delivery of fresh meats and other perishable products
prepared in the Indianapolis Plant is by means of refrigerator
cars and refrigerator trucks.
10. Salesmen are used for the sale of the products of the
Indianapolis Plant of Kingan & Co., Incorporated, which are
sold directly, to the trade. A considerable portion of the output
of said plant, however,, is shipped to wholesale branch distribut-
ing houses and of Kingan & Co., Incorporated, in other cities.
.11. Kingan & Co., Incorporated in the course and conduct of its
business has and does carry on a general meat packing business
including slaughtering, packing, curing, processing and sale of
meats, meat products and by-products.
1066 NATIONAL LABOR RELATIONS BOARD
It is stipulated and agreed by all the parties, that neither of
the parties to this stipulation are to be precluded from proving
or introducing evidence as to other or additional facts concerning
any and all of the matters hereinabove stipulated. It is further
stipulated and agreed by the parties hereto that for the purposes
of this proceeding, the Respondent admits that it operates in
interstate commerce. That the complaining Union herein,
United Meat Packing Workers Local Industrial Union No. 117,
the intervenor Union herein, Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union No. 165, and
Kingan & Co., Incorporated, has this day entered into a con-
sent election agreement, a copy of which consent election agree-
ment is to be made an exhibit in this case.
It is further agreed and stipulated by the parties hereto, if
approved by the Board, that the National Labor Relations Board
may enter its cease and desist order in the above entitled case
in the following form :
I. That the Respondent shall:
1. Cease and desist from interfering with, restraining or co-
ercing its -employees in the exercise of their right to form,
join and assist labor organizations of their own choosing and
in particular the United Meat Packing Workers Local In-
dustrial Union No. 117, to bargain collectively and to engage
in other concerted activities with its employees at its Indianap-
olis Plant.
2. Cease and desist from discharging or threatening to dis-
charge or layoff or in any other manner discipline or penalize
its employees for the reason that such employees have joined
or assisted the United Meat Packing Workers Local Industrial
Union No. 117 or any other labor organization of its employees
or from in any other manner discriminating in regard to hire
and tenure of employment of any of its employees in order to
encourage or discourage the membership of its employees in
or their affiliation with, any labor organization of its em-
ployees.
II. Take the following affirmative action in order to effec-
tuate the policies of the National Labor Relations Act :
A. Offer to all employees named in the complaint (a list of
which names is attached to this stipulation and marked Ap-
pendix A) 2 immediate and full reinstatment to employment
in their respective former classifications without prejudice to
their former seniority and other rights or privileges, dismiss-
2 See appendix "A" of the Decision and Order below.
DECISIONS AND ORDERS 1067
ing if necessary any person hired since the date of their dis-
charge to perform the work of such employees;
B. Cease and desist from in any manner encouraging the
formation and administration of Amalgamated Meat Cutters
and Butcher Workmen of North America, Local Union No.
165, a labor organization of its employees and from according
any special privileges to any of its employees who are mem-
bers of said organization, which privileges are not granted to
other labor organizations of its employees.
C. Place the names of all employees named in the complaint
in this cause of action (as set out in Appendix "A" attached
hereto) upon a preferential list granting the said employees
seniority rights over any and all employees of the Respondent
at its Indianapolis Plant fot a period of three months from
the date of the reemployment of each of said employees in each
instance, subsequent to which time said employees listed in
Appendix "A" attached hereto will revert to their normal
bases of seniority. This seniority preference to be granted to
said employees in lieu of any back wages for any time or money
lost by them as a result of alleged discriminatory discharge.
D. Make whole to all employees named in the complaint in
this cause of action and listed in Appendix "A" attached
hereto for any losses they may suffer by reason of any refusal
of their application for reinstatement in accordance with Para-
graph C herein, by p4yment to each of them, respectively, a
sum equal to that which each of them would normally have
earned as wages during the period from the date of any such
refusal of their application to the date of their reemployment,
less the amount, if any, which each, respectively, earned during
such period.
E. Post notices on or before March 28, 1938, in conspicuous
places throughout Respondent's Indianapolis Plant, stating
(1) that the Respondent will cease and desist in the manner
aforesaid; (2) that Respondent's employees are free to join
or assist any labor organization for the purposes of collective
bargaining with the Respondent; (3) that the Respondent cease
and desist from according any privileges to its employees
who are members of Amalgamated Meat Cutters and Butcher
Workmen of North America, Local Union No. 165, which are
not accorded to its employees who are members of other labor
organizations; (4) that the Respondent will not discriminate
against members of any labor organization of its employees,
or any person assisting such organizations, by reason of such
membership or assistance; (5) that such notices shall remain
1068 NATIONAL LABOR RELATIONS BOARD
posted for a period of at least thirty (30) consecutive days
from the date of posting.
F. File with the Regional Director of the Eleventh Region
within ten days from the date of this stipulation a report in
writing, setting forth in detail the manner and form in which
the Respondent has complied with the foregoing requirements.
In the event the National Labor Relations Board applies to
the Circuit Court of Appeals for enforcement.of this order, the
parties hereto agree to the entry of the above order in the above
form.
On April 1, 1938, pursuant to Article II, Section 37, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
the proceeding was duly transferred to the Board. The Board here-
by approves the above stipulation.
On April 11, 1938, the respondent filed a report of compliance with
requirements of the stipulation entered into at the hearing. On
April 15, 1938, the Board issued its order incorporating in the record
the respondent's report of compliance.
Since the respondent has filed with the Board a report of compli-
ance with the terms of the stipulation, we shall not include Sections
E and F of Part II of the stipulation in our order.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a New Jersey corporation engaged in the slaugh-
tering of livestock and the processing of meat products. Directly
and through subsidiaries it operates three meat packing plants at
Indianapolis, Indiana, Richmond, Virginia, and Storm Lake, Iowa.
This case is concerned with activities at the respondent's Indianapolis,
Indiana, plant. During the fiscal year ending November 1, 1937, the
respondent slaughtered at this plant over 800,000 animals, having a
total value of approximately $25,500,000. About 95 per cent of these
animals originated from points within the State of Indiana. During
the same fiscal period the respondent processed and shipped from its
Indianapolis plant approximately 309,000,000 pounds of products,
having a total value of about $60,000,000. About 90 per cent of these
products were shipped to points outside the State of Indiana.
We find that the above-described operations constitute a continuous
flow of trade, traffic, and commerce among the several States.
DECISIONS AND ORDERS
ORDER
1069
Upon the basis of the above findings of fact and stipulation, and
upon the entire record in the case, and. pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations
Board hereby orders that Kingan & Co., Incorporated, Indianapolis,
Indiana, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the
exercise of their right to form, join, and assist labor organizations
of their own choosing and in particular the United Meat Packing
Workers Local Industrial Union No. 117, to bargain collectively and
to engage in other concerted activities with its other employees at its
Indianapolis plant';
(b) Discharging or threatening to discharge or lay off or in any
other manner discipline or penalize its employees for the reason that
such employees have joined or assisted the United Meat -Packing
Workers Industrial Union No. 117 or any other labor organization
of its employees;
(c) In any other manner discriminating in regard to hire and tenure
of *employment of any of its employees in order to encourage or dis-
courage the membership of its employees in or their affiliation with,
any labor organization of its employees.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to all employees listed in appendix A to this order im-
mediate and full reinstatement to employment in their respective
former classifications without prejudice to their former seniority and
other rights or privileges, dismissing if necessary any person hired
since the date of their discharge to perform the work of such
employees ;
(b) Cease and desist from in any manner encouraging the forma-
tion and administration of Amalgamated Meat Cutters and Butcher
Workmen of North America, Local Union No. 165, a labor organiza-
tion of its employees and from according any special privileges to
any of its employees who are members of said organization, which
privileges are not granted to other labor organizations of its
employees; -
(c) Place the names of all employees listed in appendix A to this
order upon a preferential list granting the said employees seniority
rights over any and all employees of the respondent at its Indianap-
olis plant for a period of 3 months from the date of the reemploy-
ment of each of said employees in each instance, subsequent to which
time said employees listed in appendix A attached hereto will revert
to their normal bases of seniority; this seniority preference will be
1070 NATIONAL LABOR RELATIONS BOARD
granted to said employees in lieu of any back wages for any time
or money lost by them as a result of alleged discriminatory discharge;
(d) Make whole all employees listed in appendix A to this order
for any losses they may suffer by reason of any refusal of their appli-
cation for reinstatement in accordance with paragraph (c) herein, by
payment to each of them, respectively, a sum equal to that which
each of them would normally have earned as wages during the period
from the date of any such refusal of their application to the date
of their reemployment, less the amount, if any, which each, respec-
tively, earned during such period.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Order.
APPENDIX A
Walter Abell
John Adams
Sam Blunk
Mary Cecil
May Cress
Charles Daniels
William Disbro
Clarence Ford
Tom Green
Davina Haines
Joe Haines
Theo. Hargraves
Wm. Hargraves
Thomas Hargraves
James Hill
Helen Hill
Albert Kindle
Paul Martin
Lawrence Mills
Inez Mills
Nicholas Misch
Michael Murphy
Harry Owens
Chas. Poindexter
Raymond Reed
Mabel Roberts
Herman Rothman
Leslie Russell
Francis Schaler
Fred Schofner
Emily Schwartz
Clarence Selig
Bert Short
James Sizemore
Harold Stewart
Jessie West
Mary Wooster
Dave Wright
William Workens
Edith Bendler
George Carter