United Packing Co.

National Labor Relations Board - Board Decisions

May 17, 1977

229 N.L.R.B. 730 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Food Fair Stores, Inc. d/b/a United Packing Co. and
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, Schochtim
Division of the Chicago Fur Workers Union, Local
45. Case 27-CA-4869-2
May 17, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On January 7, 1977, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge noted in his Decision that during the first
week of March 1976, Respondent notified its Kosher meat customers that it
was discontinuing its Kosher slaughtering operations as of April 2, 1976.
Examination of the record reveals that Plant Manager Wiley only notified
these customers that a possibility existed that Respondent might terminate
its Kosher operations, without specifying the date April 2. The decision to
close down the operation on April 2 did not receive final authorization from
higher management until approximately the middle of March. These
corrections to the Administrative Law Judge's Decision do not detract from
our affirmance of his Decision that Respondent did not violate the Act
herein.
2 At fn. 5 of his Decision, the Administrative Law Judge found that,
based on the authorization cards it had proffered, the Union was the
majority representative of the Kosher operation employees from the date of
its demand for recognition on March 25, 1976. Such findings, however, are
usually made in the context of employer unfair labor practices which have
made the cards a more valid indicator of employee preference than an
election. Here, however, the Administrative Law Judge found that
Respondent did not violate the Act. Therefore, in light of the above facts,
and in view of the Supreme Court's decision in Linden Lumber Division,
Summer & Co., v. N. L.R.B., 419 U.S. 301 (1974), in which it held that in the
absence of independent unfair labor practices an employer has no
obligation to recognize or bargain with a union solely on the basis of
229 NLRB No. 119
authorization cards, we disavow the Administrative Law Judge's finding at
fn. 5.
DECISION
STATEMENT OF THE CASE
MARnTN S. BENNETT, Administrative Law Judge: This
matter was heard at Denver, Colorado, on August 31 and
September 1, 1976. The amended complaint, dated June 3
and based upon a charge filed April 12, 1976, by
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Schochtim Division of the
Chicago Fur Workers Union, Local 45, herein the Union,
alleges that Respondent, Food Fair Stores, Inc. d/b/a
United Packing Co., has engaged in unfair labor practices
within the meaning of Section 8(a)(l), (3), and (5) of the
Act. Briefs have been submitted by the General Counsel
and Respondent.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, Food Fair Stores, Inc. d/b/a United
Packing Co., is a Pennsylvania corporation which main-
tains an office and place of business at Denver, Colorado,
where it is engaged in the business of packing and sale of
meat products. It respectively sells and purchases goods
valued in excess of $50,000 per annum to and from points
outside the State of Colorado. I find that the operations of
Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Schochtim Division of the
Chicago Fur Workers Union, Local 45, is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction, The Issues
Respondent, at the time material herein, was engaged in
the slaughtering and sale of meat, both kosher and
nonkosher, at its Denver plant. Kosher meat must be
slaughtered according to ritual by individuals who have
studied the Jewish laws and are certified as qualified to do
same by the supervising rabbi, who is not necessarily in the
plant. There were some 12 to 13 persons so engaged in
Denver and all are referred to herein as rabbis although
only 1 of them, Merdoch Abdelhak,l was a religious rabbi
in the customarily understood sense.
There are some 425 production employees who are
employed in the non-kosher operation of the plant and
they have for many years been represented by Amalga-
mated Meat Cutters and Butcher Workmen of North
America, Local No. 641, AFL-CIO, herein Local 641,
X Spelled otherwise in the complaint and at various places in the
transcript.
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UNITED PACKING CO.
which manifestly is a labor organization within the
meaning of Section 2(5) of the Act. The kosher employees
have never belonged to or been represented by Local 641.
There is also a contract between Respondent and Local
Union No. I of the International Union of Operating
Engineers, covering a small unit of maintenance employ-
ees; the latter group is not involved herein. Respondent has
contended that a separate unit of the kosher kill employees
is not appropriate.
The complaint, as amended at the hearing, alleges that
Respondent promised its kosher employees economic and
other benefits for refraining from union activities or giving
support or assistance to the Union; discharged I 11 named
employees of the kosher department, in essence the entire
complement, because of their union activities; and refused
to meet and bargain with the Union as the representative of
the kosher department employees, this unit reflecting the
customary exclusions.
B. Sequence of Events
In October 1975, Robert Wiley, with considerable
experience in the field, was appointed general manager of
the Denver operation. From the outset, he was unhappy
with the kosher portion of Respondent's slaughtering
operations and within 2 weeks so expressed himself to this
group. He stated that the yield was poor, that the
percentage of bloodshots or hemorrhages was much too
high and that if these conditions did not improve he would
feel constrained to discontinue this operation.
Wiley uncontrovertedly testified, and I find, that the
yield from kosher slaughtering operations, based upon his
experience, should be between 75 and 80 percent and the
record demonstrates that the yield at Respondent was
substantially less.2 In October 1975, soon after the arrival
of Wiley upon the scene, there was a 4-day walkout by the
kosher department employees over wages; this was settled
by a 10-percent wage increase. At that time, according to
Wiley, the employees were told by Vice President Silver of
Respondent that, if there was no improvement in the yield
and the elimination of bloodshots, it was doubtful that
kosher operations could continue.
The thrust of the case for the General Counsel is that the
rabbis thereafter became interested in unionization. They
held several meetings, contacted Local 641, encountered
disinterest on the part of the latter, and ultimately
contacted the Union in March 1976. On March 23, eight of
the group held a meeting at which cards were signed and
these were duly mailed to the office of the Union in
Chicago. A ninth card, that of Rabbi Lowinger, was duly
mailed on March 24. The Union wrote to Wiley on March
25, declared its majority status, enclosed copies of the
authorization cards, requested recognition, and asked to
meet for the purpose of collective bargaining.
On April 2, 1976, the kosher department was shut down
under circumstances allegedly involving poor yield, as
described. The General Counsel stresses that on April 6
counsel for Respondent, located in Beverly Hills, Califor-
nia, wrote to the Union in Chicago and referred to the
2 There is much testimony, not controverted, concerning the loss
therefrom of meat yield and revenues at Respondent, but I deem it
unnecessary to set this forth in detail.
March 25 request for a meeting. He denied the request
until such time as the Union was duly certified by the
Board, but made no reference to the April 2 shutdown. On
the other hand, the record does not disclose when counsel
for Respondent was apprised thereof.
C. Concluding Findings
As set forth, Wiley uncontrovertedly testified that an
operation as this could not be profitable unless the yield
ran between 75 and 80 percent. There is evidence that
during the period from January 22 through April 2, 1976,
the yield was in the 30-to 50-percent bracket. Significantly,
from March 10 on, the yield did not reach 50 percent. And
the bloodshot meat is condemned by inspectors from the
U.S. Department of Agriculture who are regularly on duty
in the plant.
There is evidence that during the October walkout the
slaughtering was conducted by the production and mainte-
nance employees of the much larger unit who employed the
stunning method and that there were no bloodshots. 3
There is also evidence that in November Wiley and
Superintendent Robert Holloway of the slaughtering
department advised the kosher group that the yield had not
increased significantly and that, absent better yields and
less bloodshots, Respondent would abandon its kosher
operations. There are admissions in essence to this effect
from Rabbis Wolf and Fishbane.
Later, in January 1976, Wiley met with Silver and with
Sam and Jack Friedland, respectively the founder and
president of Respondent. Wiley reaffirmed his view that
the kosher operations were a loss to Respondent and that it
was economically unsound to continue same. As stated, the
record amply demonstrates the experience of Wiley with
other concerns in this type of operation.
About that time Wiley also met with Rabbi Abdelhak
and Rabbi Twerski, also spelled as Twersky; the latter was
the local rabbinical supervisor. Wiley reiterated his
previously expressed views, but did agree to add an
additional man or men. One rabbi was added late in
January or early in February. Wiley met with Abdelhak
and Holloway once or twice a week thereafter concerning
the problem, there was no improvement and Wiley, an
impressive and manifestly knowledgeable witness, obtained
approval from management in the last week of February or
the first week of March to shut down the kosher
operations.
He decided to set the date for April 2, this being the end
of a pay period. Respondent's largest customer, on the east
coast, was so informed as well as others; all were advised to
seek other sources of supply. Wiley told Holloway and
Rabbi Abdelhak in the second week of March of this
decision, but asked that it be kept confidential so as to
avoid an upheaval in the plant; he did not at that time
specify the closing date.
On April 2, Wiley told these two, as well as Rabbi
Twerski, that this was the final date of kosher operations.
Respondent then ceased same and Respondent has not
since engaged in any kosher slaughtering.
3 Compliance with the religious ritual or lack thereof at that time is not
before me.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David Wolf, one of the group of rabbis, testified for the
General Counsel that Rabbi Abdelhak told him on April 2,
in a private conversation, that "If we dropped the Union,
at least we will be able to go back to work . . . .4
Abdelhak flatly denied the conversation, claiming that the
two had never discussed union organization. I deem it
significant, as Respondent stresses, that Abdelhak himself
was discharged along with the rest of the group and has no
job with Respondent. Indeed, if he is rank and file, as he
testified, a reinstatement and make whole order might well
be addressed and applied to him.
Rabbi Zvi Fishbane testified that a meeting was held at
the home of Rabbi Twerski on May 4 and Abdelhak then
asked if the employees were ready to leave the Union.
Abdelhak flatly denied this, testifying rather that Twerski,
on this occasion, proposed that he, Twerski, as an
independent contractor, undertake the kosher slaughtering
operations at the premises of Respondent. I credit
Abdelhak herein; Twerski did not testify.
The evidence preponderates that Respondent was long
dissatisfied with the lack of profitability of its kosher
operations, that the employees in this group had long been
on notice thereof, and that they were well aware that a
cessation of these operations might be imminent. It was
then that they embraced the Union. I do not, on this
record, with the very much larger complement elsewhere in
the plant which had long been organized, regard this action
4 The alleged supervisory status of Abdelhak is in issue. It would seem
that he was at best a straw boss and not an agent of Respondent. In any
event, the case clearly does not stand or fall upon his status.
I I do find that at all times material herein the rabbis of Respondent's
Kosher division, excluding office clerical and professional employees,
guards and supervisors constituted a unit appropriate for the purposes of
collective bargaining within the meaning of Sec. 9(b) of the Act. I further
find that as of March 25, 1976, the Union was the representative of the
employees in this unit within the meaning of Sec. 9(a) of the Act.
as having a potential chilling effect on unionization, as
expressed in Textile Workers Union of America v. Darling-
ton Manufacturing Co., 380 U.S. 263 (1965). 5
In view of the foregoing considerations, I shall recom-
mend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Food Fair Stores, Inc. d/b/a United Packing Co.,
Denver, Colorado, is an employer whose operations affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Schochtim Division of the
Chicago Fur Workers Union, Local 45, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practic-
es within the meaning of Section 8(a)(5), (3), and (1) of the
Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER6
The complaint is dismissed in its entirety.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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