Neuhoff Bros., Packers

National Labor Relations Board - Board Decisions

Mar 11, 1953

103 N.L.R.B. 451 (N.L.R.B. 1953)

NEUHOFF BROS ., PACKERS 451
WE WILL, upon request , bargain with UNITED WHOLESALE , RETAIL AND
DEPARTMENT STORE UNION OF AMERICA , CIO, LOCAL 586, as the exclusive rep-
resentative of all employees in the bargaining unit described below with
respect to wages, rates of pay , hours of employment , and other conditions of
employment , and if an understanding is reached , embody such understanding
in a signed agreement . The bargaining unit is :
All employees of the Syracuse , New York , retail store, excluding the
store manager and all supervisors as defined in the National Labor
Relations Act.
WE WILL NOT take any unilateral action in derogation of the above-named
union 's right to act as the exclusive representative of our employees in the
above-described unit, with respect to any matter properly subject to the col-
lective-bargaining process.
WE WILL NOT interfere , in any other manner , with the efforts of the union
to bargain collectively with us in regard to the above -mentioned matters, as
the exclusive representative of our employees in the appropriate unit de-
scribed above.
All of our employees are free to become, remain , or refrain from becoming
members of the above-named union or any other labor organization , except to
the extent that their right to refrain may be affected by a lawful agreement which
requires membership in a labor organization as a condition of employment.
NATIONAL SHOES , INC., AND NATIONAL
SYRACUSE CORPORATION,
Employer.
Dated -------------------- By -------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.
NEUHOFF BROS., PACKERS and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case No. 16-CA-431.
March 11, 1953
Decision and Order
On December 31, 1952, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint , and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Styles and Peterson].
103 NLRB No. 45.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the General Counsel's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Respond-
ent, Neuhoff Bros., Packers, Dallas, Texas, be, and it hereby is,
dismissed.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed by the above-named
Respondent Company, a hearing involving allegations of unfair labor practices
in violation of Section 8 (a) (1), (3), and (5) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act, was held in Dallas, Texas,
before the undersigned Trial Examiner on October 28, 29, 30, 31, and November
1, 3, and 5, 1952.
In substance the complaint alleged and the answer denied that the Respond-
ent: (1) On September 15, 1951, discriminatorily and to discourage union mem-
bership laid off 10 named employees ; (2) on September 17 and thereafter refused
to bargain with the Union as the exclusive representative of all employees in
an appropriate unit, although the Union had been so designated by a majority
of said employees; (3) through its officers and agents interrogated, threatened,
promised benefits to, and engaged in surveillance of its employees; (4) by the
foregoing unfair labor practices caused and prolonged a strike beginning on
September 17; (5) on various dates discriminatorily refused reinstatement to
100 named employees; and (6) by said acts interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by the Act.
At the hearing all parties were represented, were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally upon the record, and to file briefs and
proposed findings and conclusions. Argument was held. Briefs have been
received from General Counsel and the Respondent.
During the course of the hearing, upon motion by the Respondent, the com-
plaint was dismissed as to the 8 (a) (5) allegations. At the conclusion of the
hearing ruling was reserved upon a motion by the Respondent to dismiss the
remaining allegations of the complaint. The motion is disposed of by the findings,
conclusions, and recommendations appearing below. After the hearing counsel
for the Respondent filed a motion to correct the transcript in certain respects.
No objection having been received, said motion, hereby made a part of the record,
is granted.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following :
NEUHOFF BROS., PACKERS
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
453
Neuhoff Bros., Packers, is a Texas corporation having its principal office and
place of business in Dallas, Texas, where it is engaged in the slaughtering,
processing, sale, and distribution of beef, pork, veal, and related products.
The Respondent annually purchases cattle and hogs valued at more than
$1,000,000, of which more than 20 percent is shipped to the Dallas plant from
points outside the State of Texas. It annually sells products valued at more
than $1,000,000, of which more than 10 percent is shipped to points outside the
State of Texas.
It is found that the Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
is a labor organization admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Events and issues
The major issues here remaining' for determination all stem from events of
the week ending Saturday, September 15, 1951, although some of the events them-
selves were rooted in preceding occurrences or circumstances. In short: (1)
On Thursday management decided to stop killing cows in large number for the
avowed reason that its current killings had failed to comply with regulations
of the Office of Price Stabilization; (2) on Friday management determined to
lay off its beef-boning crew, for the claimed reason that this crew would not be
needed with cessation of cow-killing; (3) later on Friday management received
from the Union a written claim that it represented a majority of all its employees ;
and (4) on Saturday management laid off all 10 of its beef-boning crew.
It is General Counsel's claim that the real and illegal purpose of the September
15 layoff was to discourage union membership. Upon the merit of this claim
depend certain of his other allegations'that a strike beginning on September
17 was caused by the layoff, and so was an unfair labor practice strike, and that
the Respondent's failure to reinstate strikers thereafter, immediately upon re-
ceipt of their unconditional offers to return, constituted additional unfair labor
practices. Early in the hearing General Counsel made it clear that he would
adduce evidence to support his claim of an unfair labor practice strike, but
that he neither claimed nor would endeavor to prove that the Respondent dis-
criminated in the selection of individuals for reemployment during or after an
economic strike.
B. Facts, evidence, and conclusion bearing upon the layoff
General Counsel claims that the 10 persons were laid off on September 15 "be-
cause of their membership in or activities on behalf of the Union." Since there
is no credible testimony that any of the 10 were given this reason in explana-
tion of their layoff, it follows that the preponderance of evidence must depict
circumstances from which it may reasonably be inferred that the illegal cause
existed. The Trial Examiner is unable to agree with General Counsel in his
apparent contention, argued both orally and in his brief, that statistical flaws in
As noted, the 8 ( a) (5) issue was disposed of during the hearing.
257965-54-vol. 103-30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's defense must be viewed only as sound support for his own
case.
There is no showing that any of the 10 was actually a member of the Union
on September 15. Credible evidence establishes that only 4 2 of the 10 had signed
authorization cards before that date, and that only 3 8 of these 4 had engaged
in union activities other than by signing a card. Thus as to 6 of the 10 there
is an absence of facts from which even a strained inference might be drawn
that the Company had knowledge of their activity and therefore acted to dis-
courage it. Although the Union claimed, in its letter received September 14 by
the Company, to represent a majority of all the employees, it actually did not
represent a majority of the boning crew.
In his oral argument General Counsel points to "the normal amount of 8 (a)
(1)" acts, showing that the layoff "was fully calculated to defeat union activity."
The record reveals a dearth of evidence, even if accepted at its face value, which
relates to illegal interference, restraint, and coercion before September 15.
Only 3 employees, of a total force of about 600, testified to alleged major in-
cidents of this nature.
Of significance to the point of alleged company motive is the claim, if true,
of employee David Meza, who said that his foreman, Raymond Hrabal, told
him on Friday, September 14, that "they had ten boys in the cutting room lined
up that were going to be fired because they had joined a union." Meza further
said that Hrabal made this statement in response to his own question as to
what the "foreman" had just told another employee, Juanita Alvarez. On cross-
examination Meza changed his testimony as to the department involved and
claimed Hrabal said the "boning" room. Alvarez' testimony, if believed, only
partly corroborates Meza-for she said that Hrabal told her "they" were going
to fire "some of the boning gang" for the implied reason that "it is getting hot
up there."
Although Hrabal was not a witness, the Trial Examiner is not convinced that
he actually made the statements claimed by Meza and Alvarez or, if he made
them, that they may be attributed to management. Credible evidence establishes
that Hrabal was not a foreman or a supervisor within the meaning of the Act.
Meza's credibility was shaken when, even upon redirect examination, he stoutly
insisted that he had never told anyone about the incident-anyone at the plant,
outside the plant, or connected with the National Labor Relations Board. As to
Alvarez, the Trial Examiner is unable to find credible her version of another
incident. In short, the preponderance of credible evidence does not support a
finding that a representative of management told employees that members of
the boning gang were to be fired because of their union activities.
Juanita Alvarez, identified above, also said that Elmer Simmons, foreman of
the cutting department, on two occasions a week or two before September 15,
told her in effect that with a union the employees would have no paid vacations,
no rest periods, and no Christmas bonus. She claimed further than on the
second occasion she was making boxes and that another employee, Vidal, was
also present. Her testimony is not only contradicted by Simmons, but also by
Vidal. Simmons, Vidal, and a third employee, Isabel Camacho, who was regu-
larly assigned to the boxmaking job, denied that Alvarez ever made boxes for
2 Angel Reyes, David Fuentes, Rudy Ochoa, and Rudy Salazar. Although Reyes testi-
fied that 2 more of the 10-Paul Velez and Frank Gutierrez-signed cards in August, their
cards were not offered. Velez was a witness for General Counsel but was not questioned
on the point. For reasons discussed more fully above, the Trial Examiner cannot accept
as true Reyes' testimony where unsupported by credible evidence.
3 Reyes, Fuentes, and Ochoa.
NEUHOFF BROS., PACKERS 455
the department. Under the circumstances, the Trial Examiner is unable to
accept as credible Alvarez' testimony relating to Simmons.
Angel Reyes, 1 of the 10 boners laid off and the employee leader of the
organizational efforts, testified that Foreman Jimmy Delgado told him Superin-
tendent Martin McRedmond had asked him, before the layoff, who the union
leaders were but that he had said he did not know. Delgado, a witness for
General Counsel, corroborated Reyes' testimony, in substance , on this point.
The Trial Examiner is unable to find, however, that McRedmond's inquiry of
Foreman Delgado, or Delgado's relating it to Reyes, constituted a threat of
reprisal or promise of benefit or was otherwise coercive. Certainly the incident
cannot serve as the basis for a finding that from Delgado the superintendent
ascertained the identity of the leaders. On the contrary, it would point to the
probability that on the day the layoff was decided upon management was unaware
of who the leaders, if any, were.
Reyes also testified, with partial corroboration, that sometime before September
15 he confided in a newly hired foreman, Kezmer Wach, and told him that he
was organizing the employees. This much Wach, as a witness, admitted, and
added that he had volunteered the opinion to Reyes that he was "making a mis-
take." Reyes further testified, and Wach denied, that at later social meetings
Wach had told him the Company would fire him, and offered him more money
if he would cease his activities. Reyes also said that on two successive paydays
before the layoff he had been given more money than he had earned-$10 one
week and $15 another. Company records refute this apparent claim of "benefits,"
and establish that only once in the material period was he overpaid, and that the
error was caused by misplaced decimal points-the total error amounting to
431.99.
Where unsupported by credible testimony, the Trial Examiner cannot accept
Reyes' testimony as trustworthy. He admitted he had been convicted of "killing-
shooting a man" and that before the hearing he had denied such conviction when
a witness in another case before a Texas justice of the peace court.
Wach denied and there is no credible evidence to show that he violated Reyes'
confidence, as to his organizational efforts. He was a foreman in another depart-
ment, and was in Canada at the time of the layoff ; he was neither consulted
about the layoff nor was he actually serving as the foreman of any department
at the time.
According to Reyes' own testimony, applicants for union membership were
signed up in secret, behind closed doors.
In summary, the Trial Examiner is unable to find, from credible evidence, that
management knew or believed that the leader or leaders of the union activity
were in the boning crew before September 15.
The preponderance of credible evidence fails to establish management knowl-
edge or suspicion-a prime requisite for a conclusion that its motives were illegal
in the layoff. It follows, and the Trial Examiner concludes and finds, that the
evidence is insufficient to establish that : (1) The layoff of September 15 was
discriminatory and to discourage union membership; (2) before that date man-
agement or supervisors engaged in interference, restraint, or coercion; and (3)
the strike beginning on September 17 was caused by the Employer's unfair labor
practices.4
4 In view of the above conclusion , it appears unnecessary here to analyze the contention
of General Counsel that there are serious inconsistencies in certain reports and statistics
compiled by the Respondent to show the economic necessity for temporarily discontinuing
the killing of cows. It is undisputed that a compliance problem existed and began before
any union activity , that a Government official was consulted about it, that it became acute
during the week ending September 15, and that upon Its disappearance several weeks
later the boners were recalled to work.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The strike and alleged interference thereafter .
A substantial number of employees remained away from the plant on Monday,
September 17, in protest against the layoff, and 2 or 3 days later picket lines
were set up.
General Counsel introduced some evidence which, if credited, would show that
the Respondent interfered with the employees' rights to engage in collective
activities. Employee Elmer Beasley said that on the morning of September 17,
outside the plant gates, he heard Joe Neuhoff, one of the Neuhoff brothers, ask
all who had not signed a union card to come in to work, and that he heard Neu-
hoff tell another employee, Jewel Carpenter, "You know Christmas is coming."
That such a discriminatory request or implied threat was made by Neuhoff was
not only denied by the official himself, but by many employees, including Car-
penter, who, Beasley said, were also present at the time. The Trial Examiner
is unable to accept as true Beasley's unsupported claims.
As noted heretofore, General Counsel specifically stated that, absent a finding
of an unfair labor practice strike, he made no claim of discriminatory selection of
strikers for return to work. Nor does the record permit such a finding.
It will be recommended that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact and upon the entire record in the case, the
Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2 (6) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices, as alleged in the
complaint, within the meaning of Section 8 (a) (1) and (3) of the Act.
[Recommendations omitted from publication in this volume.]
MARMAN BAG COMPANY, INC. and STOVE MOUNTERS INTERNATIONAL
UNION OF NORTH AMERICA, AFL, PETITIONER . Case No. 10-RC-
2048. March 11, 1953
Decision and Certification of Representatives
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted among the employees in the
stipulated unit on November 3, 1952, under the direction and super-
vision of the Regional Director for the Tenth Region. Thereafter,
a tally of ballots was furnished the parties. The tally showed that
of approximately 53 eligible voters, 47 cast valid ballots, of which 29
were for, and 18 against, the Petitioner. There were neither void nor
challenged ballots.
On November 10, 1952, the Employer filed objections to the results
of the election. Thereafter, in accordance with the Board's Rules
and Regulations, the Regional Director conducted an investigation
103 NLRB No. 59.