Stahl-Meyer, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1962

138 N.L.R.B. 265 (N.L.R.B. 1962)

STAHL-MEYER, INC. 265
other employer or . . . person ." But the reading is not supported by the text
of the "exceptions ," which says nothing about "membership or nonmembership in a
labor organization ," but exempts from the reach of the subcontractors clause (1)
"work . .. subcontracted to an employer who is signatory to an Agreement with
the Union ," and (2 ) "any other work which is presently under specific contracts
with the Teamsters , Culinary Workers and Building Service Employees Unions."
To be sure, the Frito employees are not represented by any union , but this does not
mean that the "exceptions" specified in subdivisions Cl and 3 of article I, and
allegedly applied to the Frito employees , "are based upon the membership or non-
membership in a labor organization of employees .
It is important to bear in mind, in that connection , that the General Counsel's
claim is not simply that there was an agreement to exclude the Frito employees be-
cause they were not union members; his allegations go much beyond that , for they
are that the relevant unions and market operators entered into unlawful agreements
by force of the application to the Frito employees of specific contractual terms-the
"exceptions"-coupled to the reading the General Counsel gives them. The Re-
spondent Employers deny these allegations , except that there was an agreement to
exclude the Frito employees ; and it is thus incumbent upon the General Counsel to
establish his claim with substantial evidence . This, so far as the Respondent Em-
ployers are concerned, he has not done, and thus his relevant claims against them
must fail.
As for the Respondent Unions concerned , they are inseparably linked with the
relevant market operators in the incidents in question , and thus, as the record will
not support a finding that the Respondent Employers violated the Act by reason
of such incidents, in my judgment , it would be inappropriate and not an effectuation
of the policies of the Act to conclude on the basis of the admissions in their answers
that the Respondent Unions entered into any contract or agreement in violation of
Section 8(e). Thus, I shall recommend dismissal of all the allegations pertaining
to the incidents in the third category , discussed above.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. Each of the Respondent Unions is , an has been at all times material to the
issues in this proceeding , a labor organization within the meaning of Section 2(5)
of the Act.
2. Each of the Respondent Employers is, and has been at all times material to the
issues in this proceeding , an employer within the meaning of Section 2(2) of the Act.
3. The evidence in this proceeding is insufficient to warrant a finding that any of
the Respondent Unions and Employers committed unfair labor practices in violation
of Section 8(e) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and -upon
the entire record in the case , I recommend that the complaint; as amended, be
dismissed in its entirety. ,
iStahl -Meyer, Inc. and William Neville and Local 30, 30A, 30B
and 30C, International Union of Operating Engineers, AFL-
CIO, Party in Interest
Stahl-Meyer , Inc. and Stahl -Meyer, Inc., Debtor in Possession
and William Neville and Local 30, 30A, 30B and 30C, Inter-
national Union of Operating Engineers , AFL-CIO , Party in
Interest. Cases Nos. 2-CA-7791-8 and 2-CA-8538. August 24,
1962
SUPPLEMENTAL DECISION AND ORDER
On June 5, 1962, Trial Examiner Frederick U. Reel issued his,
Opinion and Order Granting Motion To Dismiss in the above-entitled
proceeding. Although the Trial Examiner assumed, without decid-
138 NLRB No. 34.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, that Respondent Stahl-Meyer, Inc., had engaged in the alleged
unfair labor practices, and that Respondent Stahl-Meyer, Inc., and
Stahl-Meyer, Inc., Debtor in Possession, could be held answerable, as
a successor, for the unfair labor practices engaged in by Respondent
-Stahl-Meyer, Inc., he concluded that it would not effectuate the poli-
•cies of the Act to issue a remedial order. Therefore, he recommended
that the complaint herein be dismissed in its entirety for the reasons
set forth in the attached Opinion and Order Granting Motion To
Dismiss. Thereafter, the General Counsel filed a petition for review
of the Trial Examiner's order, and the Party in Interest filed a state-
ment in opposition thereto.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
,Opinion and Order Granting Motion To Dismiss, the General Coun-
sel's petition for review, the Party in Interest's statement in opposi-
tion thereto, and the entire record in these cases, and hereby adopts
the findings, conclusions,,and recommendations of the Trial Examiner
with the addition of the following supplemental findings of fact.
1. THE BUSINESS OF THE RESPONDENTS
Stahl-Meyer, Inc., is a corporation duly organized under the laws
of the State of New York. On or about February 1, 1962, Stahl-
Meyer, Inc., filed a petition for an arrangement under Chapter XI
,of the Bankruptcy Act in the United States District Court for the
Southern District of New York. Pursuant to this petition, a court-
appointed referee issued an order authorizing Stahl-Meyer, Inc., to
operate and manage its property and business as a debtor in posses-
sion. Since February 2, 1962, the debtor in possession has continued
in possession of, and has operated, the properties and business of
Stahl-Meyer, Inc., has been engaged in substantially the same business
-operations as were formerly engaged in by Stahl-Meyer, Inc., and
has employed substantially the same employees and supervisors.
Stahl-Meyer Inc., and Stahl-Meyer Inc., and Stahl-Meyer, Inc.,
Debtor in Possession, herein collectively referred to as Respondents,
have maintained a place of business in the borough of Brooklyn, in
the city and State of New York, herein called the Brooklyn plant,
where they are engaged in the processing, packaging, sale, and dis-
tribution of meat products and related products. During the past
year, a representative period, Respondents, in the course of their
business, processed, packaged, sold, and distributed at the Brooklyn
plant, products valued in excess of $50,000, of which products valued
in excess of $50,000 were sold and shipped by it from said place of
business directly to persons located outside the State of New York.
We find that the Respondents are employers engaged in commerce
STAHL-MEYER, INC. 267
within the meaning of Section 2(6) and (7) of the Act, and that it
would effectuate the policies of the Act to assert jurisdiction in these
cases.
II. THE LABOR ORGANIZATION INVOLVED
Local 30, 30A, 30B and 30C, International Union of Operating En-
gineers, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above
Supplemental Decision and Order.
OPINION AND ORDER GRANTING MOTION TO DISMISS
These cases, consolidated by order of the Regional Director, came on for hearing
in Now York City, on April 30, 1962, pursuant to the following procedural steps:
Case No. 2-CA-7791-8 was one of a series of cases which the Board severed
on January 15, 1962, 135 NLRB 298, and remanded for trial. Case No. 2-CA-8538
originated on a charge filed March 30, 1962, and in substance alleged the same
violations as in the preceding case except that the later charge was directed at Stahl-
Meyer, Inc., Debtor in Possession. The theory of both cases is that the Respondents
violated Section 8(a)(2) and (1) of the Act by employing as a chief engineer
(allegedly a supervisor) a person who at the same time was active in the Union
(party in Interest in this proceeding) which represented Respondents' employees.
The consolidated amended complaint which issued April 6, 1962, varied in one major
respect from that before the Board in January; the current complaint recites (and
the answers admit) that the chief engineer is a member of the bargaining unit, and
the complaint which was then before the Board contained no such allegation.'
As stated, the matter came on for hearing on April 30, 1962, and on May 2, 1962,
at the conclusion of General Counsel's case, counsel for the Respondents filed an
oral motion to dismiss the complaint? At the time I indicated on the record that I
was disposed to grant the motion, but that I would welcome briefs from the parties
before issuing a ruling thereon. Accordingly, I adjourned the hearing. Briefs were
thereafter filed by counsel for General Counsel and for Party in Interest and have
been carefully considered
Upon consideration thereof, and of the entire record,3 it is my view that the com-
plaint should be dismissed for the following reasons-
General Counsel alleges violation of the Act under the doctrine set forth in
Employing Bricklayers' Association of Delaware Valley and Vicinity, 134 NLRB
1535, and the cases there cited at footnote 3. In particular he urges that the em-
ployment of one Philip Scherer as a chief engineer violated the Act until late in May
1961, when Scherer left the job, and that the violation continued with the employ-
ment in mid-June 1961 of Theodore Maurer, who is still serving as chief engineer.
1. Assuming, without deciding, that Maurer is a supervisor,4 I am convinced
that General Counsel failed to establish any violation of the Act in 'Maurer's case.
Maurer, admittedly a union member, as indeed the contract which covered all mem-
i In his otherwise excellent brief, General Counsel suggests that the chief engineer may
not be in the bargaining unit. But General Counsel alleged in the amended complaint
and stated at the hearing that the Union was the exclusive bargaining representative of
the chief engineer, operating engineers , and maintenance mechanics And the very cases
on which General Counsel relies ( e g , Anchorage Businessmen 's Association, Drugstore
Unit, and its Member Employers etc., 124 NLRB 662, enfd. 289 F 2d 619 ( CA. 9) ;
Ceilich Tanning Company , 128 NLRB 501 ; Nassau and Suffolk Contractors ' Association,
Inc, and its Members, 118 NLRB 174) answer the suggestion in General Counsel's brief
that the inclusion of supervisors in a bargaining unit is improper
2 Counsel for Party in Interest made a similar motion which I regard as superfluous
g The transcript of record is hereby corrected at page 27 to insert the word "you" after
the word "want" on line 19 and the word "not," after the word "am" on line 20 It is
further corrected at page 462 , line 17 , to substitute "mootness" for "moot necessarily.
4 At most the chief engineer directly supervises one watch engineer and one fireman.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.hers of the bargaining unit required, took no part whatsoever in any union activity
,during the period of his employment except to attend occasional meetings and speak
from the floor on general matters. During that period he did not vote in any umon
election or participate in any contract negotiations or hold any umon office. To be
sure he has the same right to vote as any other union member. But to hold on this
,record that his bare membership without more makes his employer a law violator
would be to read the first clause of Section 14(a) out of the statute. Cf. Nassau &
Suffolk Contractors' Association, Inc., and Its Members, 118 NLRB 174, 181,
where the Board said: "Where foremen are members of the rank-and-file unit and
union, it is reasonable to expect that they will have a voice and vote in the adminis-
tration of the affairs of the union." See also Geilich Tanning Company, 128 NLRB
501, where the Board, following a court remand, found that supervisors' participation
,in union affairs, lawful when the supervisors were members of the bargaining unit,
became unlawful when they left the unit.5 It should also be noted that the employer
made certain that Maurer held no official position with the Union before hiring him.
2. As To Scherer, I am prepared to assume without deciding that (a) he was a
supervisor within the meaning of the Act, and (b) his activity as a member of the
Union's executive board was such as to make his employer a law violator under
,the cases referred to above. Even under those assumptions (both of which are
highly questionable on this record), I would dismiss the case as to Scherer on the
ground that it would not effectuate the policies of the Act to issue an order in his
case. Scherer, who was never in the employ of the Respondent Debtor in Possession,
deft the employ of the corporate Respondent in May 1961, after the issuance of the
original complaint which alleged a violation of the Act in his case. At the time
Maurer was hired as Scherer's replacement, the original Respondent took pains to
ascertain that Maurer was not active in union affairs. I am well aware that the
case does not become technically moot by the cessation of what I am assuming,
arguendo, was a violation. I will further assume that although Debtor in Possession
-never employed Scherer, it may be answerable, as a successor, for any violation with
respect to him. But under the circumstances here, where (a) the alleged violation
,arises out of alleged dual union-management activities of an alleged supervisor, (b)
the alleged supervisor has not been employed for over a year, and (c) the employer,
when hiring a replacement, took pains to employ one who would be free of the
alleged taint, entry of a cease-and-desist order would, in my judgment, be unneces-
sary and unwarranted, and posting of a notice would contribute to confusion and
instability rather than to effectuation of the policies of the Act.
General Counsel has cited cases holding that the Board may issue an order not-
withstanding that the violation has ceased. In other cases the Board has declined
to issue such an order. See, e.g., American Gilsonite Company, 122 NLRB 1006;
-Canton Carp's, Inc., 130 NLRB 1451; International Ladies Garment Workers Union,
AFL-CIO (Twin-Kee Manufacturing Co., Inc.), 130 NLRB 614; Florence Pipe
Foundry & Machine Co., 112 NLRB 960; International Woodworkers of America,
AFL-CIO (Central Veneer, Incorporated), 131 NLRB 189, 190, 196. Each case
must necesarily turn on its own facts. Inasmuch as the General Counsel urges that
the Union as Party in Interest has not indicated abandonment of its position, it may
be appropriate to point out not only that the original Respondent took care to avoid
the problem when it replaced Scherer, and that Debtor in Possession never violated
the Act, but also that General Counsel is prosecuting five other cases on this issue,
some or all of which (it is to be hoped) possess more vitality than' Scherer's, and
that the Union is a Party in Interest in all those cases. One or more of those cases
will suffice to determine whether the Union should (to paraphrase General Counsel's
brief) "accept the principle that chief engineers should not be on the Union's Execu-
tive Board." At least one of those cases, Banner Yarn Dyeing Corporation, Case
No. 2-CA-7791-1 [139 NLRB 1018], now pending before a Trial Examiner, raises
this precise issue
Accordingly, it is hereby ordered that the Respondents' motion to dismiss the
complaint be granted, and said complaint is hereby dismissed.6
5 General Counsel cites Anchorage Businessmen's Association, et al ., 124 NLRB 662,
-enfd 289 F 2d 619 (CA 9), to support his claim that inclusion in, or exclusion from,
the unit is immaterial on this issue That case concerned highly placed supervisors whose
role in creating the union in question was such as to lay their employer open to a charge
of domination It appears to be an exception to the general rule that exclusion from the
unit is material on this issue, for that factor was again emphasized, since Anchorage, in
•Geilich (see text, supra) and in Detroit Association of Plumbing Contractors, 126 NLRB
1381, 1383, enfd. 287 F. 2d 354 (CAD.C.).
9 Under Rule 102 27 of the Rules and Regulations, Series 8, the parties have 10 days
from the date hereof in which to file with the Board a request for review of this order.