S. Haydu & Sons, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1942

42 N.L.R.B. 852 (N.L.R.B. 1942)

In the Matter of S HAYDU & SONS, INC and PACKINGHOUSE WORKERS
ORGANIZING COMMITTEE, C. I 0
Case No C-1992 -Decided July 24, 1942
Jurisdiction : meat pioducts manufacturing industry.
Unfair Labor Practices:
Intel ference, Restraint, and Coercion maintaining surveillance over the union
activities and meetings of employees, urging, persuading, warning, and bribing
employees to refrain from aiding, becoming, or remaining members of the
union, thieatening employees with discharge and other reprisals if they aided
the union of became members thereof
Discrimination discharge for union activities
Remedial Orders : reinstatement and back pay awarded.
Mr William Maslow and Mr. John J. Cuneo, for the Board.
Mr Samuel R Ball and Mr Milton Bruck, of Newark, N. J., for
the respondent
Mr. Samuel L Rothbard, of Newark, N J, for the Union
Mr Reynolds C. Seitz, of counsel to the Board
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on June 11, 1941,1 by
Packinghouse Workers Organizing Committee, affiliated with the Con-
giess of Industrial Organizations, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Di-
iector for the Second Region (New York City), issued its complaint
dated September 8, 1941, against S. Haydn & Sons, Inc., 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) 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, accompanied by notices of
hearing thereon, were duly served upon the respondent and the Union
With ieference to the unfair labor practices, the complaint alleged
in substance (1) that the respondent fi om on or about April 1, 1941,
The original charge ias filed on Apul 24, 1941, and the first amended charge on May
7, 1941
42 N L R B, No 166
852
S HAYDU & SONS, INC 853
disparaged -and expressed disapproval of the Union, interrogated its
employees concerning their union affiliations, kept under surveillance
the union activities, meetings, and meeting places of the Union, urged,
persuaded, and warned its employees to iefrain from aiding, becom-
ing, or remaining members of the Union, and threatened the employ-
ees with discharge or other reprisals if they aided the Union, (2)
that the respondent discouraged membership in the Union by dis-
charging and refusing to reinstate six named employees 2 because
they had joined and assisted the Union; and (3) that by the fore-
going acts the respondent interfered with, iestrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act
On September 19, 1941, the respondent filed its answer to the com-
plaint, wherein it denied the jurisdiction of the Board; denied that
it had, engaged in any of the alleged unfair labor practices, and
affirmatively averred that each of the six employees named in the
complaint had been dischaiged for cause
Pursuant to notice, a hearing was held on September 25, 1941, at
Newark, New Jersey, befoie Gustaf B Erickson, the Trial Examiner
duly designated by the Chief Tiial Examiner. The Board, the re-
spondent, and the Union were reps esented by counsel and participated
in the hearing All parties were afforded full opportunity to be
heard, to examine and cross examine witnesses, and to introduce evi-
dence bearing upon the issues At the close of the Board's case, the
Trial Examiner granted, without objection, a motion of the Board
to sti ike from the complaint the name of Andrew Kalbat, and a fur-
ther motion to amend the complaint to conform to the proof Dur-
ing the healing the Trial Examiner made various rulings on other
motions and on the admissibility of evidence The Board has re-
viewed the iulings Of the Trial Examiner and finds that no preju-
dicial ei r of s were committed The rulings are hereby affirmed
On October 16, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act He
recommended that the respondent cease and desist from such unfair
labor practices and take certain affirmative action in order to effectu-
ate the policies of the Act, including the reinstatement with back pay
of Lullis, Parchuk, Murray, Wood, and Kuwalek On November 5,
1941, the respondent filed exceptions to the Intermediate Report, and
a motion to reopen the recoid for further, proceedings and evidence
2 The employees and the dates of the alleged discharges are Jerome Lullis, April 24,
1941 , Michael Parclielk (Paichuk), April 28 1941, Robert Murray, April 30, 1941, Janes
Wood, May 17, 1941, Andrew Kalbat, May 29, 1941, and Stanley Kuwalek, June 4, 1941.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the question of jurisdiction 8 Pursuant to notice duly served on
the parties, a hearing for the purpose of of al argument was held,be-
fore the Board in Washington, D. C, on January 6, 1942 The re-
spondent and the Union were represented by counsel and participated
in the heal nig On January 7, 1942, the Board granted the respond-
ent's motion to reopen the record foi further evidence on the question
of jurisdiction On April 13, 1942, pursuant to notice duly served
on the parties, a further healing was held at Newark, New Jersey,
before Thomas S Wilson, the Trial Examiner duly designated by
the Chief Trial Examiner Before the introduction of any evidence,
the hearing was adjourned Thereafter,-on May 26, 1942, the re-
spondent and the Board's attorney entered into a stipulation in re-
spect to the business of the respondent The Board hereby approves
said stipulation and'the same is hereby made part of the record On
June 8, 1942, the respondent requested permission to argue orally the
issue of jurisdiction, and to submit a brief in reference thereto The
Board denied the request for oral argument, but granted the respond-
ent permission to file a brief The respondent filed the brief on
June 19. 1942 , ,
The Board has considered the respondent's exceptions and its brief
in support thereof Insofar as the exceptions are inconsistent with
the findings of fact, conclusions of law, and order set forth below,
the Boai d finds them to be without merit
Upon the entire retold in the case, the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
S. Haydu & Sons, Inc, was incorpoiated under the laws of the
State of New Jersey on August 28 , 1924, and hits its piincipal office
and place of business in Newark , New Jersey . It is engaged in the
manufacture , sale, and distribution of processed meats and related
products The principal raw materials used are beef, pork, season-
ing, and casings The raw materials are delivered to the respondent
in the form of bull, cow , or hog carcasses These carcasses are cut up
at the respondent 's plant into loins, hams , and smaller cuts and are
then processed by smoking, curing, pickling, and seasoning. The
seasoned meats are stuffed into casings , and sold as vaiious types of
sausages Some of the smoked pork is sold as bacon The products
are packed and labeled at the respondent '§ plant For a certain time
they are also refrigerated at the respondent 's plant, and thereafter
they are sold and distributed wholesale to various retail outlets.
' The respondent 's exceptions , like its motion are addressed solely to the question of
Jurisdiction The respondent took no exception to the Trial Examiner 's findings as to
the alleged unfair labor practices
S HAYDU & SONS, INC. 855
During 1941, which was a representative period in the respondent's
business, it purchased raw materials which in value amounted to
$1,097,656 11 Appioximately 53 percent, by value, of such total
was shipped to the respondent fiom points outside the State of New
Jersey The balance of the raw materials purchased during the pe-
riod indicated above, valued at approximately $500,000, and cdnsti-
tuting approximately 46 peicent, by value, of the total, was pur-
chased from four concerns within the State of New Jersey The
goods purchased from the New Jersey concerns originated in, and
were shipped to the companies in question from, places outside New
Jersey
Of the finished products manufactured by the respondent in 1941,
products valued at approximately $48,000 were sold to American
Stores Company, Inc, a concern with its principal office in Phila-
delphia, Pennsylvania, and retail stores in various States The prod-
ucts which the respondent sells to American Stores Company, Inc, are
sold 'within New Jersey for, resale at 'retail within the same' State
During the period from January 1 to May 22, 1941, the respondent
sold to Trunz Pork Stores, a New York corporation, pork fat to the
value of $894 43 The Trunz Pork Stores picked up the pork at the
respondent's place of business Transactions with the Trunz Stores
ceased in 1941.
We find, contrary to the contention of the respondent, that the
respondent is engaged in commerce within the meaning of the Act 4
II THE ORGANIZATION INVOLVED
Packinghouse Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, is a labor organization which
admits to membership employees of the respondent. '
I III THE UNFAIR LABOR PRACTICES
A Interference, restraint, and coercion
On the evening of April 18, 1941, approximately seven of the
respondent's employees met at the home of employee Robert Murray
with Meyer Stern, field representative of the Union, for the purpose
I See National Labor Relations Board v Suburban Lumber Company , 121 F ( 2d) 829
(C C A 3), enf'g as mod Matter of Suburban Lumber Company and International Broth-
erhood of Teamsters, Chauffeurs, Stablemen and helpers of America, Local UntionmNo 676,
3 N L R B - 194, ceit denied 312 U S 078, National Labor Relations Board v Robert
S Green, Inc, 125 F ( 2d) 485 (C C A 4 ) enf'g Matter of Robert S Green, Incorporated
and United Construction Workers Organizing Committee , 31 N L R B 1184 , Wilson
& Co, Inc v National Labo, Relations Board, 124 F (2d) 845 (C C A 7), enf'g Matter
of Wilson & Co , Inc, and United Packinghouse Workers of America, Local No 49, C I 0,
30 N L R B 314 Matter of Poultrymen 's Service Corpoiatson and United Cannery Agri-
cultural, Packing and Allied Workers of Amer ica, C 1 0 , 41 N L R B 444
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of discussing unionization At that meeting, employees Jerome Lullis,
Michael Parchuk, and James Wood signed application cards for mein-
bership in the Union Murray had signed a card on the previous day
After some discussion, those present planned a second meeting for
April 23, 1941, to be held at a tavern about 2 blocks from the respond-
ent's plant Between April 18 and April 23, 1941, Lullis and Murray
spread word of the scheduled meeting among the employees of the
respondent, solicited their membership in the Union, and secured some
signatures therefor
On April 23, 1941, at about 6 p in , Lullis, Murray, Parchuk, Wood,
and one other employee left the plant in Wood's automobile and drove
to the tavein at which the employees had been requested to assemble
When they arrived they observed Frank Haydu, vice president of the
respondent, and his nephew seated in Haydu's station wagon which was
parked in front of the tavern Instead, therefore, of stopping, the
employees drove around the block Upon their return they noticed
Stern standing across the street and diove up to him. When they
came to a halt, according to the mutually, corroborative testimony of
Lullis, Murray, Stern, and Wood, the following incident occurred:
Frank Haydu approached the automobile, opened the door, and looked
inside at the occupants He had a pencil and paper in his hands and
said, "I got your names down" Stern turned to the employees in the
car with the remark, "Lets go to the meeting, boys " When the em-
ployees hesitated. Stern continued by stating, "You don't have to
worry You can't be fired, boys, for union activity " Haydn retorted
"No they can't be fired, but I can get slow all of a sudden " Stern
further testified that, dust before the employees above-mentioned drove
up in their car, he had obsei ved 'Haydn stop two groups of men in
the vicinity of the tavein and that these men departed and did not
return. Stanley Kuwalek, an employee, testified that on this occasion
he was in a group of three employees bound for the meeting, but
because they encountered Haydn in the vicinity of the tavern they did
not enter it.
Haydu did not deny his presence in the vicinity of the tavern on
the afternoon of Apiil 23, 1941 According to him, however, his
actions were prompted by his observance of "two suspicious men walk-
ing up and down our plant for about an hour that afternoon and as
our men were going out of work I seen those men pointing to these
fellows and I was cur ions to see what it was all about" Haydn testi-
fied that one of the men was Stein Haydu's version of the incident
,in front of the union meeting place was that he wanted to "find out
what the two gentlemen wanted with our employees," and that when
he was told by Wood that "we got a meeting across the street" he made
no reply. We credit the above testimony of Lullis, Murray, Stern,
Wood, and Kuwalek, as did the Trial Examiner We find, moreover,
q S HAYDU & SONS, INC. 857
as did the Trial Examiner, that by saying "I can get slow all of a
sudden" Haydu meant, and was understood to mean, that he could
use the pretext of a sudden slackening of business as an excuse to rid
himself of union employees
On the following morning, Apiil 24, 1941, a group of the respond-
ent's employees, among whom were Murray, Lullis, Parchuk, ` and
Wood, gathered in front of the plant and there told Frank Haydu
that they were not going in to woik until the respondent promised to
meet with their union representatives At the hearing Murray, Lullis,
and Parchuk gave the following account of what happened Frank
`Haydu said, "Why do you bother with the union organizer 2" Joseph
Haydu, the respondent's general superintendent, who was also present
said, "Come on back; never mind these guys" Concerning this inci-
dent, Frank Haydu testified that when he noted that the employees
were standing around on the morning of April 24, he approached
them with his brother, Joseph, and asked them "what it was all
about," and that, when they replied "we are organizing and our
C I 0 representatives are hete," he said, "this is a hell of a time in
the morning to pull anything like this " 5 Joseph Haydu did not
testify We credit the testimony of Murray, Lullis, and Parchuk, as
did the Trial Examiner
Frank Haydu told the men to see him at 10 o'clock the same morn-
ing Immediately after the 10 o'clock meeting was scheduled, the group
of employees who had been standing around outside went into the
plant Shortly thereafter Fiank Haydu called the group into his
office According to the uncontradicted testimony of Murray, which
we credit, Frank Haydu asked them why they did not come to him
when they were in "trouble " s and when one of the men, replied,
'.We thought we couldn't bargain with you," Frank Haydu said,'
"You didn't have to go and get a bunch of Communists and Jews."
The men, except Murray, were then sent to their work, Murray
testified, without contradiction, and we find, that in the presence of
William, Joseph, and Lou Haydu,' Frank Haydu said to him that
if it was money he wanted, "we will fix you up " Later that morn-
ing, but before 9.30, Joseph Haydu, according to the undenied testi-
mony of Parchuk and Wood, separately offered Parchuk and Wood
$2 weekly increases in pay if they "would not bother with the . . .
union organizers" and would "forget about the union " All three men
received a $2 increase in their next pay checks Frank Haydu ad-
mitted that he gave Parchuk and Wood pay increases but stated
that he did so "just to make them feel happy," and that "they de-
" This encounter took place at about 6 a in
H2ydu testified that by "trouble" he iefeired to the men organizing
7 The respondent 's president , general superintendent , and general store manager , respec-
tively
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
served a raise " It was merely a coincidence, he indicated, that they
were given raises at the time when "the organizers were around "
The Trial Examiner did not credit Frank Haydu's explanation, nor
do ,we. We find, as did the Trial Examiner, that the wage increases
were given on this occasion in order to discourage the recipients from
adheience to the Union
At 9 30 a in on April 24, 1941, Lullis was discharged 8 At 10 a in.
on the same day he accompanied Organizer Stern and an organizer
named Stanton, to the scheduled meeting with Frank and Joseph
Haydn in the respondent's office The Haydus objected to the pres-
ence of Lullis Stein demanded that Lullis be allowed to remain,
whereupon Joseph Haydu said that the respondent had a contract
with each employee 9 and that the respondent had nothing to discuss
with the Union The meeting ended at that point 10
On April 30 the Union held a meeting at Harrison, New Jersey, a
town contiguous to Neu ark On this occasion Stern observed Frank
Haydu standing across the street from the meeting hall behind a
police booth According to Stein, Haydn had his eyes "glued" on
the door of the meeting hall Haydu testified that he was there
seeking street directions The Tiial Examiner did not credit Haydu's
explanation as to the ieason for his presence, nor do we We find, as
did the Trial Exannnei, that Haydu was there seeking information
concerning the union activities of the respondent's employees
Vice-President Frank Haydn's surveillance of the men as they gath-
ered,for the union meetings on April 23 and 30, 1941, his open attempts
to discourage the employees from attending the meeting of April 23,
his threat on that occasion to resort to the pretext of a slackening of
business in order to combat unionization, his and Joseph Haydu's anti-
union remarks to the men assembled before the plant early on the
morning of April 24, 1941, his disparagement of the Union at his
meeting with the group of employees after they came into the plant
to work on the morning of the 24th, his offer and grant of wage in-
creases to Murray, Parchuk, and Wood in order to discourage their
adherence to the Union, and the respondent's disciiminatory discharges
of union members, discussed below, all evidenced a course of conduct
on the part of the respondent calculated to discourage the iespondent's
employees from membership in the Union, for they indicated the re-
spondent's intense opposition to the self-organization of its employees.
We find, as did the Tiial Examiner, that by maintaining surveillance
over the union activities and meetings of its employees, by urging, per-
suading, warning, and bribing its employees to refrain from aiding,
becoming, or remaining members of the Union, and by threatening its
8 The discharge of Lullis is discussed in Section III, B, below
° There is no evidence that the respondent had contracts with any of its employees
10 These findings are based on the undenied testimony of Stern
S HAYDU & SONS, INC 859
employees with discharge and other reprisals if they aided the Umon'or
became members thereof, the respondent has interfered with, re-'
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
B The dascrvininatory discharges
The complaint, as amended at the hearing, alleges that the respondent
discharged and refused to reinstate Jerome Lullis, Michael Parchuk,
Robert Murray, Stanley Kuwalek, and James Wood because they
joined or assisted the Union The respondent's answer admits the
discharges, denies any unfair labor practices in connection therewith,
and avers that they were made for cause :
1 The discharges of Lullis, Parchuk, Murray, and Kuwalek
Jerome Lullis was fir st employed by the respondent in October 1940
as a packer, and worked continuously in that capacity As appears
in Section III A, above, Lullis fouled the Union on Api1118, 1941, and
was conspicuously active in its behalf He was dischaiged on April
24 and has not since been reinstated Lullis testified without contra-
diction, and we find, that on that morning, following the incident in
front of the plant which has been described above, he was called into
the office of the respondent and was asked by Frank Haydu, in the
presence of William, Joseph, and Lou Haydu, if he was "satisfied with
the place, or if not, what was wrong?" Lullis replied that the hours
were too long and that he was not getting enough pay William Haydu
then said, "If you aren't satisfied, you shouldn't come to work " There-
upon, either Frank or William Haydu told Lillis to go home He
went to the diessing room to change his clothes and was there met by
Joseph Haydu, who told Lullis that lie had not been discharged but
had quit Lullis insisted, however, that he had been dischai ged He
left the plant
Frank Haydu testified that Lullis was discharged because he al-
legedly stuck a 3-inch screw into a cottage ham on the morning of
April 24 Dan O'Connell, the respondent's sales manager, testified
that he saw Lullis commit the act, and that he reported the incident to
Joseph Haydu Lullis denied that he had stuck a screw into the ham,
and testified, without contradiction, that at the time of his discharge
no mention had been made of such an incident There is no evidence
that Lullis' work had been unsatisfactory prior to April 24, 1941
The Trial Examiner did not credit the respondent's asserted reason
for the discharge of Lullis, nor do we. We-credit Lullis' version of
the circumstances surrounding his dismissal. The respondent's intense
opposition to union activity, the fact that Lullis was known by the
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent to be active in union affairs, and that the respondent's
explanation of the discharge, made for the first time' at the hearing,
is wholly inconsistent with Joseph Haydu's undenied attempt to per-
suade Lullis that his dismissal was a voluntary departure from em-
ployment, combine to convince us that Lullis' union activity was the
real cause for his discharge, and we so find.
Michael Parchulc was first employed by the respondent on January
29, 1941, as a packer Like Lullis, he joined the Union on April 18,
1941, and came to the respondent's attention as a union man He was
discharged on April 28 and has not been reinstated Parchuk testi-
fied without denial, and we find, that on that day Joseph Haydu told
him that work was slow and that "he was going to let (him) go "
According to the uncontradicted testimony of Parchuk, between April
23, 1941, and the time of his discharge, the respondent had hired four
new packers.
The respondent contended at the hearing that Parchuk was dis-
charged because he allegedly stuck a 5-inch nail into some bolonga
Frank Haydu testified that he and O'Connell saw Parchuk commit the
act and that Haydu immediately "bawled him out and let him go"
Parchuk denied the alleged offense He further testified, without
contradiction, and we find, that he was not told of any such incident
at the time of his discharge There is no evidence that Parchuk's
work was unsatisfactory at any time prior to April 28, 1941
We, as did the Trial Examiner, credit the denials of Parchuk,
and find that his version of the circumstances suirounding his
severance of employment with the respondent is true Joseph Haydu's
assertion that Parchuk would be laid off because business was slow is
discredited by the fact that the i espondent had, within the 5 days prior
to Parchuk's dischaige, hired four new packers Moreover, the reason
for Parchuk's discharge which the respondent offered at the hearing
is at complete variance with that assertion. Under all the circum-
stances, we find, as did the Trial Examiner, that the respondent dis-
charged Parchuk for his union activity.
Robert Murray was first employed by the respondent in June 1940
as a linker He also cut beef and loaded trucks Murray, as we have
found, joined the Union on April 17, 1941, and participated actively
in the Union's affairs. He was discharged on April 30 and has not
been reinstated. We find, upon Murray's undenied testimony, that
on the morning of that day Joseph Haydu told him that "Things are
getting slow. We will- have to let,you go" He was thereupon dis-
charged Stanley Kuwalek testified that after Murray's discharge,
he talked to Joseph about the discharge of Murray, Lullis, and Par-
chuk, and that Haydu advanced no reason for the discharges except
to say, "Them guys have a union."
S HAYDU & SONS, INC 861
At the hearing the respondent contended that Murray was dis-
charged because on the afternoon preceding the day of his discharge
he turned off the water valve on the ice machine, causing the head
gasket to be blown off Employee Herbert Yeatman, a witness for
the respondent, testified that Murray was the only person' whom he
saw leave the engine room before the occurrence and that he reported
that fact to Frank Haydu the same evening Murray denied that he
had shut off the water and further testified that he had never heard of
the incident There is no evidence of dissatisfaction in connection with
Murray's work prior to April 30, 1941, nor }s it asserted that the
ieason for Murray's discharge which was advanced at the hearing
was ever communicated to him
We, as did the Trial Examiner, credit the testimony of Kuwalek,
and the account which Murray gave of the circumstances surrounding
his dismissal. In Murray's case, as in Parchuk's, the reason given
Murray for his discharge is inconsistent with the contention of the
respondent, asserted for the first time at the hearing, that he had been
guilty of misconduct. As found above, work wits not "getting, slow"
at the time of Murray's discharge nor does the record warrant the
finding that Murray turned off the water We find, as did the Trial
Examiner, that the real cause of'Murray's dismissal was the respond-
ent's opposition to his union activity
Stanley Kwwalelc was first employed by the respondent in Novem-
ber 1937 as a linker, packer, truck loader, and janitor He domed the
Union on April 23, 1941 Kuwalek was discharged on June 4 He
testified as follows concerning the circumstances of his discharge On
the day previous to his dismissal, he was asked by Joseph Haydu if
the employees were having a meeting that night Kuwalek replied
in the affirmative On the following morning he was called to the
office Present there were William, Joseph, and Frank Haydu Wil-
liam Haydu asked him if he had gone to the meeting and inquired
as to its nature. Kuwalek answered that he had attended the meet-
ing and that it was a union meeting After some further conversa-
tion Joseph Havdu said to Frank Haydn, "I don't want any guys
that don't mind their own business and attend meetings " Frank
then asked Kuwalek, "You are not satisfied with us 2" Kuwalek pro-
tested that he never made such statement, to which Frank responded,
"The best thing for you to do is to pack up and, get out " Kuwalek
demanded to know the reason for his discharge and received no
answer He then asked Frank, "Why am I fired, because I went to
a meeting last night?" Frank answered "Yes," and added that there
had never been a union at the plant and that the Company did not
want any Frank Haydu denied categorically that he had ever talked
to Kuwalek about union activity We credit Kuwalek's testimony
as did the Trial Examiner.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contended at the hearing that Kuwalek was dis-
charged because he mixed cigarettes with meat Frank Haydn tes-
tified that he and several other employees saw Kuwalek do it, and
that he immediately discharged Kuwalek None of the other em-
ployees was called to testify. Kuwalek denied that he had ever com-
mitted such an act There was no evidence of any complaint con-
cerning his work prior to this alleged incident
Like the Trial Examiner, we credit Kuwalek's'denial of the alleged
misconduct, and his explanation of the circumstances surrounding
his discharge Kuwalek, like Lullis, Parchuk, and Murray, was
known by the respondent to be one of the most active union propo-
nents We find, as did the Tiial Examiner, that Kuwalek was dis-
charged because of the anti-union attitude of the respondent
Against the background of the respondent's anti-union conduct, and
in the light of the respondent's self-contradictory explanations of the
'discharges, the four discharges portray a' pattern of union discrimi-
nation The explanations offered by the respondent are rejected an
to to it Under all the circumstances, we find, as did the Trial Exam-
iner, that the respondent discharged Jerome Lullis, Michael Parchuk,
Robert Murray, and Stanley Kuwalek, and has since failed to rein-
state them, because they had joined and assisted the Union, thereby
discoui aging membership in the Union and discriminating in'regard
to their hire and tenure of employment We further find that by
the -foregoing discharges and by the interrogation and remarks ad-
dressed to Kuwalek by the Haydus on the day of his discharge, the
respondent interfered with, i esti aired, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2 The discharge of James Wood
James Wood was first employed by the respondent in July 1940 as a
packer He joined the Union on April 18, 1941, and was an active
member thereof He was discharged by the respondent on May 17,
1941 In respect to the circumstances pertinent to his discharge, Wood
testified as follows On April 24, 1941, about 8 30 a m, he was told
by Lou Haydn "to lay off the unign,and don't bother with the union "
On May 15, 1941, after working hours, he had a fist fight with a fellow
employeesabout a block from the plant The fight followed an argu-
it The Trial Examiner , who had the opportunity to observe the witnesses who testified at
the hearing, stated in his Intermediate Report that the witnesses for the Board told a
clear and convincing story and the sitnesses for the respondent were evasive and contra-
dictory The transcript of testimony in lirge measure ' confirms the Trial Examiner's
observation Moieoser , as further pointed out by the Trial Examiner , the respondent's
isserted reasons for the discharges are inconsistent with the fact that the respondent
reported to the New Jersey Unemployment Insurance Office that the four men named
above had merely been laid off As pointed out abo^ e , the respondent filed no exceptions
to the Trial Examiner' s findings of discrimination
S HAYDU & SONS, INC, 863
ment that commenced outside the plant Immediately after the fight,
as Wood was driving his car past the plant, he was stopped by William
,Haydn Haydu asked him who had been fighting and Wood told him
that he had Haydu then said, "Don't come in Get your pay Satui -
day" Wood has not been reinstated Frank Haydu testified that
Wood was discharged because "lie struck punches right at the foot of
the door in the retail store " 12 Frank Haydu, however, admitted that
he did not see the fight, but stated that he vas given a report of the
incident by his brother Lou, the retail store manager Neither Wil-
liam not Lou Haydu testified It is admitted that the respondent made
no iinvestigation to determine who was responsible for the fight, nor
was there any evidence that the respondent disciplined the fellow em-
ployee with whom Wood fought Under all the circumstances, in-
"cludrng the failuie of William and Lou Haydu to testify concerning
material aspects of the case, w e credit the testimony of Wood, as did
the Trial Examiner
In view of the respondent's anti-union attitude and conduct, its dis-
criminatory discharge of Lullis, Paichuk, Kuwalek, and Murray, and
the prominence of Wood's activity in behalf of the Union, of which
the respondent had knowledge, the respondent's summary discharge
of Wood for the fight that took place after working hours and away
from the plant; without any investigation of who was responsible
therefor, and without the imposition of any discipline upon the other
employee involved, we are convinced, and we find, that the respondent
seized upon the occurrence as a pietext to dischai ge Wood because of
his union affiliation and activities and to discourage membership in
the Union We accordingly find, as did the Trial Examiner, that the
respondent discouraged membership in the Union by discriminating in
regard to hire and tenure of employment of James Wood and thereby
interfered with, iestrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, oc-
cur r ing in connection with the operations of the respondent desci ibed
in Section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States andjtend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce
V THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we sliall,order it to cease and desist therefrom, and to take
11 The retail store is operated in connection with the Plant and is adjacent thereto
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain affirmative action designed to effectuate the policies of the Act.
We have found, that,, the respondent, by dischai ging and failing to
reinstate Jei ome Lullis, Michael Paichuk, Robeit Mui i ay, Stanley
Kuwalek, and James Wood, discriminated in regard to then hire and
tenure of employment We shall, therefore, order the respondent to
offer each of them immediate and full reinstatement to his former or a
substantially equivalent position without piejudice to his senioiity or
other rights and privileges, and to make each of them whole for any
loss of pay he may have suffered by season of the respondent's dis-
^crimi nation against him, by payment to him of a sum of money equal
to the amount which he would normally have earned as wages from
the date of the discharge to the date of the respondent's offer of rein-
statement, less his net earnings 13 during said period
Upon the foregoing 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 C I O , is a labor organization, within the meaning of Section
2 (5) of the Act
2 By discriminating in regard to the hire and tenure of employ-
ment of Jerome Lullis, Mich-eel Paichuk, Robert Murray, James
Wood, and Stanley Kuwalek, and thereby discouraging membeiship in
Packinghouse Workers Organizing Committee, affiliated with ,the
C I 0 , the respondent has engaged in and is engaging in unfair labor
practices, within the meaning,of Section 8 (3) of the Act
3 By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respondent
has engaged in and is engaging III unfair labor practices, within the
meaning of Section 8 (1) of the Act.
4 The aforesaid unfair laboi 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 upon the entree record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, S Haydn & Sons, Inc., its
officers, agents, successors, and assigns, shall
13 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
''d+heie than for the respondent , which would not halve been incurred but for his unlawful
-discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Bi otherhood of Carpenters and Joiners of Ames ica,
Lumber and Sawmill Workers Union, Local2390 , 8 N L R B 440
S HAYDU & SONS, INC 865
1 Cease and desist from :
(a) Discouraging membership in Packinghouse Workers Organiz-
ing Committee, affiliated with the C I. 0, or any other labor organiza-
tion of its employees, by discharging, laying off, or iefusing to reinstate
any of its employees, or in any other manner discriminating in regard
to their hire or tenure of employment or any terms or conditions of
their employment;
(b) In any other manner mterfeimg with, restraining, or coercing
its employees in the exercise 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 ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in, Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act: %
(a) Offer to Jerome Lullis, Michael Parchuk, Robert Murray, James
Wood, and Stanley Kuwalek immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges;
(b) Make whole the said Jerome Lullis, Michael Parchuk, Robert
Murray, James Wood, and Stanley Kuwalek for any loss of earnings
resulting from the respondent's discrimination against them by pay-
ment to each of them a sum of money equal to that which he would
normally have earned as wages from the date of his discharge to the
date of the respondent's offer of reinstatement, less his net earnings
during said period;
(c) Post immediately in conspicuous places throughout its plant
in Newark, New Jersey, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating (1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a) and
(b) of this Order; (2) that it will take the affirmative action set forth
in paragraphs 2 (a) and (b) of this Order; and (3) that the respond-
ent's employees are free to become or remain members of Packing-
house Workers Organizing Committee, affiliated with the C I 0,
and that the respondent will not discriminate against any employee
because of membership in or activity on behalf of that organization;
(d) Notify the Regional Director for the Second Region in writing
within ten (10) days from the receipt of this Order what steps the
respondent has taken to comply herewith.
MR GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
472814-42-vol 42-55