Miller Abattoir Co.

In the Matter of MILLER ABATTOIR COMPANY and PACKING HOUSE WORKERS. UNION, LOCAL No. 5, A. F. OF L. In the Matter Of MILLER ABATTOIR COMPANY and PACKING HOUSE WORKERS UNION, LOCAL 5, AFFILIATED WITH AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA Cases Nos. C-1125 and R-1131, respectively.Decided November 17, 1939 Slaughtering and Dressing of Cattle and Sale and Distribution of Meat Products Industry-Interference, Restraint and Coercion: statements by fore- man that plant would close if union organized-Discrimination: discharges found not to have been discriminatory and charges dismissed where employer faced necessity of reducing staff and employees discharged were least efficient .and least reliable-Collective Bargaining: charges of failure to, dismissed- Investigation of Representatives: question concerning representation: majority status disputed by employer-Unit Appropriate for Collective Bargaining: butchers and butchers' helpers, including ice-box man-Election Ordered: to be held when circumstances permit free choice of representatives. Mr. Will Maslow, for the Board. Mr. William E. Decker and Mr. Russel C. McFall, of Jersey City, N. J., for the respondent. Mr. David I. Ashe, of New York City, for the Union. Miss Marcia Hertzmark, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 6, 1937, Packing House Workers Local 5, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,' herein called the Union, filed with the Regional Director for the Second Region (New York City) charges that Miller Abat- 1 The Union was otherwise designated in various formal papers. Its correct name was substituted by motion granted at the hearing. 17 N. L. R. B., No. 74. 872 MILLER ABATTOIR COMPANY 873 toir Company,2 North Bergen, New Jersey, herein called the respond- ent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 28, 1938, the Union filed a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On March 8, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered the Regional Director to conduct an investigation and to provide for an appropriate hearing upon due notice; and, pursuant to Article IT, Section 37 (b), and Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that the representation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for purposes of hear- ing, and that one record of the hearing be made. On April 28, 1938, the Union filed an amended charge in the complaint proceeding. On May 2, 1938, the Board, by the Regional Director, issued its complaint, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting, commerce, within the -meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. Copies of the complaint and notice of hearing were duly served upon the respondent and upon the Union.3 With respect to the unfair labor practices, the complaint 4 alleged in substance that the respondent (1) on or about October 28, 1937, discharged William Turner and Matthew Martin 5 because they joined and assisted the Union, and thereafter refused to reinstate them; (2) on or about October 29, 1937, refused to bargain collec- tively with the Union as the duly authorized representative of the respondent's employees in an appropriate bargaining unit; and (3) by its officers and agents, urged, persuaded and warned its employees -to refrain from becoming or remaining members of the Union. The .respondent thereafter filed its answer, denying the unfair labor prac- tices and stating that Turner and Martin had been discharged because of losses suffered by the respondent's business and because these per- 2 The name of the respondent was incorrectly spelled in some of the formal papers. 'Correction was made by motion at the hearing. S Service of all formal papers was made upon the Union's attorney and the attorney for the respondent. No appearance was made for the Union at the hearing. 4 The complaint was amended at the hearing, following notice of intention to amend dated November 15, 1938. 6 Incorrectly designated in the complaint as Nathan Martin. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sons were the least efficient and reliable of the respondent's employees.. Concerning the charge of refusal to bargain with the Union, the respondent alleged that the Union did not represent a majority of .its employees in the appropriate unit, and that the Union had failed to exhibit proof of authority to represent the employees.. The answer requested that the complaint be dismissed because of delay in issuing it, and alleged that the consolidation of the representation proceeding with the unfair labor practice proceeding was improper. Pursuant to notice of postponement of the hearing dated June 10, 1938, notice of continuance dated October 31, 1938, and notice of post- ponement dated November 1, 1938, a hearing was held in Jersey City, New Jersey, on November 17 and 18, 1938, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel. At the commencement of the hearing counsel for the Board moved to strike the portion of the respondent's answer which alleged lathes and improper consoli- dation of the two proceedings. The Trial Examiner denied the mo- tion of counsel for the Board, treated the allegations in the answer as motions to dismiss, and denied those motions. During the course of the hearing the Trial Examiner made other rulings upon motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. . The Trial Examiner thereafter filed his Intermediate Report, dated January 12, 1939, finding that the respondent had not engaged in unfair labor practices and recommending that the complaint be dis- missed. The Union subsequently filed exceptions to the Intermediate Report and, pursuant to request granted by the Board, both the Union and the respondent filed briefs. Upon request of the Union for permission to argue orally, and after notice duly served upon the parties, a hearing was held before the Board in Washington, D. C., on September 28, 1939, for the purpose of oral argument. The Union and the respondent appeared by counsel and participated in the argument. During the course of the hearing before the Board, the Union withdrew its contention that the respondent had refused to bargain with the Union. The complaint will be dismissed in that respect. The Union also withdrew its request for certification on the record and asked that an election be held to determine representation. The Board has considered the exceptions of the Union to the Inter- mediate Report and, to the extent indicated below, hereby sustains them. MILLER ABATTOIR COMPANY 875 Upon the entire record in the case the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Miller Abattoir Company .is a New, Jersey corporation having its principal office and place of business in North Bergen, New Jersey. .It has been engaged, since February 1937, in the slaughtering and dressing of cattle, sheep, and calves and in the sale and distribution ,of carcasses of cattle, sheep, and calves, and other meat' products. The respondent purchases each year about 98,000 cattle, sheep, and calves, of which .approximately 98 per cent are purchased in States other than New Jersey. About 79 per cent of the meat and by- products therefrom sold by the respondent are delivered to whole- sale dealers and to butcher shops outside the State of New Jersey. The respondent's annual sales total approximately $1,000,000. H. THE ORGANIZATION INVOLVED Packing House Workers, Local 5, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership butchers and butchers' helpers employed by the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Organization of the respondent's employees by the Union began about September 1937 when Anthony Lester, its secretary-treasurer and business agent, came to the plant to. see Turner and Martin whom he had previously known. He made several visits to the plant and, on one of them, left application cards with Turner who obtained the signatures of Martin and two other employees, John Gloistein and William Brosky. Martin signed. up John Mikulski. The five men were initiated into the Union on October 20, 1937.. Barney Castronova, foreman of the plant, had also known Lester prior to this time, but as a butcher rather than as a union organizer. On Lester's first visit to the plant he informed Castronova of his new occupation and jokingly asked him to join the Union. Castronova replied that he was now a foreman and was not eligible for membership. Sometime during September 1937, on the killing floor of the plant, while Gloistein, Brosky and others were present, Castronova told 876 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD Turner, "... if the Union comes in here, we will all be out of a. job . . . the Miller Company won't stand for a union . . . if we- started any union business here we will all be closed up, because they will close up before giving in to a union." On one occasion Castro- nova stated to Martin, "... if you join up with the Union we will- all be out of a job. If you stay away from the Union, we will all be one happy family." After Lester had come into the plant a few times, Castronova told Turner, "Tell Lester not to come in . . . I_ don't want him in here. If you want to talk to him, talk to him outside . . . if you keep . out of the Union and don't start anything: they will always have a job here for you." Lester testified that Castronova told him "the boss doesn't like you coming around here.. He found out you are the Union man." Barney then informed- Lester that the plant was losing money and "he will close the damn place up before he will recognize any union here." Turner stated= that, after Castronova learned that he had received the union appli- cation cards from Lester, Castronova told him, ". . . if the Union came in there, the Millers would close the plant, because they would not give in to the Union, and Nve would all be out of a job." How- ever, Martin admitted at the hearing that Castronova told him, "I know you belong; go ahead and do the best you can. I don't care, what you join. If you want to join the Union, go ahead; I don't care what you do." Nevertheless, in October, when Gloistein asked Castronova for a raise in salary and said that if he did not get it he would sign up with the Union, Castronova told him that the Union "is no good; I shouldn't sign up." Gloistein later joined the, Union and Castronova advised him, upon learning of it, that be- thought Gloistein was making a mistake but that he still had a chance to. drop out of the Union if he wanted to. Castronova ad- mitted that he told the men, while they were working on the floor together, "Maybe if we joined the Union, they might shut it down." However, he denied generally having talked to the men on any other occasion about the Union. We find that Castronova made the statements attributed to him. The Trial Examiner, in his Intermediate Report, characterized Cas- tronova's statements as "a. fear shared by him as a fellow employee- rather than a threat of reprisal." However, we cannot consider these' statements in so innocuous a light. Predictions that "if the Union• comes in here, we will all be out of a, job," "the Miller Company won't stand for a union," and "they will close up before giving inr to a union," coming from one in a supervisory capacity, are neces- sarily considered by employees as expressing the attitude of the. employer. Such threats were calculated to discourage union mem- bership. Whether or not this was accomplished is not material in MILLER ABATTOIR COMPANY 877 view of the prohibitions contained in Section 8 (1) of the Act. Cas- tronova was admittedly a supervisory employee and his actions are attributable to the respondent. We find that by the afore-mentioned statements of its foreman, the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged discriminatory discharges As stated above, Turner, Martin, Brosky, Gloistein and Mikulski were initiated into the Union on October 20, 1937, although they had signed applications at various times within a few days prior to that date. On October 27 Turner and Martin were discharged, the former having been given about 5 days' notice and the latter without notice.e The respondent contends that the dismissals were made necessary by the losses which its business had sustained in the S months the plant had been operating, and claims that Turner and Martin were the least efficient and reliable of its employees and were, therefore, chosen in preference to other employees when it was found advisable to reduce expenses by dispensing with the services, of two employees. The Union seeks to establish that the men were discharged because of their union activity. We shall discuss the facts in connection with each discharge separately. Willia?m Turner was hired by Melvyn Levyj manager of the respondent's plant, about February 19, 1937, within about a week after the business commenced, and worked until the time of his discharge as a "facer" and "rumper." He had been a sheep butcher for 35, years and had developed a stiff finger which made it necessary that he use only one hand in facing, an operation described by Turner as "punching out the skin from the lamb . . . so that the lamb was, skinned out except where the tail and neck was." The respondent claimed that this was an "old-fashioned" method of facing, that because "of it Turner often tore the "fel," or membrane between the outer skin and the meat, and that such tearing caused a decrease in the value of the meat by spoiling its shape. It appears that tear- ing of the "fel" delays the entire process of butchering because of the necessity of stopping the operations to fasten the skin with a skewer. The respondent, although admitting that Turner was an experienced and fast worker, asserts that his disability logically made him one of the persons to be let out when the necessity arose to reduce operating expenses. 9 Both men thereafter secured other jobs and do not want to be reinstated. The Union seeks to recover back pay for them from the date of their discharge to the date of their subsequent employment. 7 Sometimes referred to as Melville Levy in the record. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turner testified that his work had never been criticized and that, in fact, it had been praised by his foreman on several occasions. He further stated that it is not unusual to tear a fel, and another witness, Brosky, testified that a fel could be torn if another butcher, earlier in the process, had done careless work. In view of the re- spondent's admission that Turner was competent in all respects except that he tore too many fels, and in view of the fact that his alleged incompetence in that respect was not clue to a cause which -could be remedied, the fact that his work was not criticized by his foreman cannot be taken as indicating that his work was entirely satisfactory. Walter Miller, who was in charge of the plant, testi- -fied that Castronova had reported to him that other butchers were complaining about Turner's work. Brosky stated that at times `Turner "didn't do the work right" and that Castronova often told 'him that Turner had a "funny way of punching out." After Turner's discharge, the facing was done by Brosky, who had -formerly alternated on this operation with Turner. The rumping was done by one "Big Walter" who was employed and paid by 'Charles Miller and Company, whose plant was across the street from the respondent's plant and the majority of whose stock is owned by 'the respondent. Walter had been helping at the respondent's plant on busy days prior to the discharge of Turner. The first occasion upon which a new employee was added was three days after Gloistein 'left on November 6. Edward Friedman, who was hired at that time, stayed only 9 days. On December 16, John Benedict was employed. No other butchers were employed until the following April 1938. 'Thus it appears that no new employee was added to the respondent's pay roll until after Gloistein left. Although "Big Walter" carne to work at the plant in a permanent capacity after the discharge of 'Turner, he continued on the pay roll of Charles Miller and Company "and his employment added no burden to the respondents pay roll, -which was therefore reduced by the amount of Turner's and Martin's wages. Although the statements of Castronova to Turner cast some -doubt upon the explanation given for Turner's discharge, the fact that expenses were actually reduced lends support to the respondent's ,contentions. We credit the testimony of the respondent as to its business losses and as to its belief that Turner was the least efficient butcher in- its plant. The fact that Brosky, Gloistein and Mikulski, who were also members of the Union and of whose membership Castronova had knowledge, were retained by the respondent, is added indication that 'Turner was not discharged because of his activities in behalf of the Union. We conclude that it has not been established that the respondent discharged Turner because of his union membership and activities. MILLER ABATTOIR COMPANY 879. We shall, therefore, dismiss the complaint in so far as it alleges that the respondent discriminated in regard to-Turner's tenure of employ- ment by discharging him on October 27, 1937. Matthew Martin was employed by the respondent in February 1937 as a head skinner and butcher's helper and was engaged in several operations connected with the butchering process. The reason given by the respondent for its choice of Martin as one of the persons to be discharged on October 27 was that he was repeatedly late in arriving at the plant. In August 1937 he was laid off for that reason by Walter Miller, but a few days later Castronova went to Martin's home and asked him to return to work, saying, "We couldn't do without you." . Martin returned to work and received a raise of $2 per week at that time. He was late two months before his final discharge in October and was warned by Castronova that if he was.. late again he would lose his job. However, lie was late two weeks. before his discharge and was not dismissed at that time, although he was again warned. The respondent admits that it had no fault to find with Martin's work except in the respect that he was so often late. Castronova testified that Hess, who had been employed on_ September 21, 1937, was not chosen for dismissal rather than Martin,. in spite of his lack of seniority, because he was prompt and there was no complaint against his work. After Martin's dismissal,. Manser, an old employee, took his place and no IIiew employee was added. In Martin's case, as in the case of Turner, Castronova's warnings against their union activities throw some doubt on the respondent's motives, but the evidence as a whole leads us to the conclusion that they were not discharged because of their union activities. We find that the respondent discharged Martin because of its belief that he was the least reliable employee in the plant, and not because of his membership in the Union and activities in its behalf. We shall, therefore, dismiss the complaint in so far as it alleges that the respondent discriminated in regard to Martin's tenure of employment by discharging him on October 27, 1937. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the unfair labor practices of the respondent set forth in Section III, A, above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the, several States, and tend to lead to labor disputes burdening an& obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair, labor practices, we shall order it to cease and desist from further 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in such practices, and to post appropriate notices in its plant. Since we have found that the respondent has not discriminated against Turner and Martin, we shall dismiss the complaint in so far as it pertains to said alleged discriminations. VI. THE QUESTION CONCERNING REPRESENTATION The Union claimed at the hearing that it represented a majority of the respondent's employees within an . appropriate unit. The respondent denies this contention. We find that a question has arisen concerning the representation ,of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE . We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. VIH. THE APPROPRIATE UNIT The Union contends that the nine butchers and butchers' helpers employed by the respondent constitute an appropriate unit. The respondent claims that McKenna, an "ice-box man," should be in- cluded in the unit. McKenna works in an ice bog about 25 to 50 feet from the killing gang and his duties consist of cutting the hide off the lambs and cutting them down after they are slaughtered and dressed. He is known as a cutter and also as a butcher, in addition to his designations as an ice-box man. It appears that McKenna, like the executives and office employees, wears a white coat while working, whereas the men on the killing floor do not. His work, however, requires in part some contact with customers of the re- spondent, and we do not feel that his wearing of a white coat is significant. His position is clearly not supervisory. We will include McKenna in the unit. Aside from the question concerning Mc- Kenna there is no dispute as to the appropriateness of the unit pro- posed by the Union. We find that the butchers and butchers' helpers employed by the respondent, including the ice-box man, but excluding all other em- ployees, constitute a unit appropriate for the purposes of collective MILLER ABATTOIR COMPANY 881 'bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self -organization and -collective bargaining and otherwise effectuate the policies. of the Act. IX. THE DETERMINATION OF REPRESENTATIVES The Union claims to represent a majority of the respondent's employees in the appropriate unit. It submitted at the hearing the membership cards of five employees. However, as we have noted above, the Union now requests that an election be held to determine the question of representation. We find that the question which has arisen concerning representation can best be resolved by an election by secret ballot. Since the respondent has, by engaging in various unfair labor practices, interfered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circum- stances permit a free choice of representatives unaffected by the respondent's unlawful acts. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CoNCLusIONs OF LAW 1. Packing House Workers Local 5, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 ,of the Act, has engaged in and is engaging in unfair labor practices -within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices -affecting commerce, within the meaning of Section 2 (6) and (7) ,of the Act. 4. The respondent has not engaged in unfair labor practices -within the meaning of Section 8 (3) of the Act. 5. A question affecting commerce has arisen concerning the repre- ,sentation of employees of the respondent, within the meaning of ;Section 9 (c) and Section 2 (6) and (7) of the Act. 6. The butchers and butchers' helpers employed by the respondent, including the ice-box man, but excluding all other employees, con- stitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the National Labor Relations Act. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the- respondent, Miller Abattoir Company, North Bergen, New Jersey,. and its officers, agents, successors, and assigns shall : 1. Cease and desist from in any manner interfering with, restrain-- ing, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for .the purposes of collective bar- gaining and other mutual aid or protection, as gVaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will- effectuate the purposes of the Act : (a) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist as aforesaid; (b) Notify the Regional Director for the Second Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act- DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National' Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Miller Abattoir Company, North Bergen, New Jersey, an election by secret ballot shall be conducted at such time as the Board shall in the, future direct, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the butchers and butchers' helpers employed by the respondent, including the ice-box. man, but excluding all other employees to determine whether or not they desire to be represented by Packing House Workers Local 5,, affiliated with Amalgamated Meat Cutters and Butcher Workmen of: North America, for the purposes of collective bargaining.