Barby's Frosted Foods, Inc.

National Labor Relations Board - Board Decisions

May 7, 1954

108 N.L.R.B. 797 (N.L.R.B. 1954)

BARBX'S FROSTED FOODS, INC. 797
not covered by bargaining contract until 1950? To new em-
ployees who did not ask whether membership in District 50
was required? The record is devoid of evidence of any notice
to these groups of employees that the clause would not be
enforced. How were these employees to know that the Respond-
ents and District 50 did not intend to carry out the union-
security provision of their contracts ? It is not enough to show
that some of the employees received notice to free them from
the otherwise coercive effect of the contracts. Moreover, I
question the weight accorded by the majority to the testimony of
the Respondents' secretary that it had come to his attention in
grievance proceedings and otherwise that it was common
knowledge among employees that the Respondents did not
operate under a union shop. I doubt that this testimony--"un-
contradicted" as it may be--warrants a finding that all the
Respondents' employees were aware that the union-security
provision of the contracts was not in effect. Viewing all the
evidence pointed to by the majority, I must conclude that it
does not cure the "ambiguity" of the deferral clause, assuming,
arguendo, that anything less than a clearly expressed deferral
can be effective.
Finding nothing in the language of the deferral clause or
the extrinsic evidence effectively deferring application of the
union-security provision of the contracts which exceeded the
security permitted by Section 8(a) (3) and were made with
a union not authorized to contract for such security, I conclude
that the Respondents by maintaining such provision interfered
with the rights guaranteed their employees by Section 7 of
the Act and unlawfully assisted District 50. 1 would therefore
enter the customary order to remedy such violations.
Member Beeson took no part in the consideration of the
above Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order.
BARBY'S FROSTED FOODS, INC. and LOCAL Z, INTERNA-
TIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL,
SOFT DRINK & DISTILLERY WORKERS OF AMERICA,
CIO. Case No. 4-CA-809. May 7, 1954
DECISION AND ORDER
On December 17, 1953, Trial Examiner Max M. Goldman
issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirm-
ative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that
108 NLRB No. 111.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had not engaged in certain other alleged unfair
labor practices , and recommended that the complaint be
dismissed with respect to such allegations . Thereafter, the
Respondent filed exceptions to the Intermediate Report, and a
supporting brief.'
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 Intermediate Report, the Respondent's
exceptions and brief, and the entire record in the case, and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent , Barby's
Frosted Foods, Inc., Perth Amboy, New Jersey , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local 2, International Union
of United Brewery, Flour , Cereal, Soft Drink & Distillery
Workers of America, CIO, or any other organization of its
employees by discriminatorily discharging employees or by
discriminating in any other manner with regard to their hire
and tenure of employment or any term or condition of employ-
ment.
(b) Interrogating employees concerning union interests and
activities ; declaring that a wage increase cannot be obtained
through the Union; threatening to move the plant out of town
if the Union' s organizational efforts continue ; declaring that
it will never bargain with the Union; or offering a wage increase
but never with the Union as representative.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to join or assist Local 2, International Union of
United Brewery, Flour, Cereal, Soft Drink & Distillery Workers
of America, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from
any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
tThe Respondent ' s request for oral argument is hereby denied, as the record and the
Respondent's exceptions and brief adequately present the issues and the positions of the
parties.
BARBY'S FROSTED FOODS, INC. 799
(a) Offer Sophie Straffey immediate and full reinstatement to
her former or substantially equivalent position without preju-
dice to her seniority or other rights and privileges and make
her whole in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy" for any loss of pay
she may have suffered by reason of the Respondent's discrimi-
nation against her.
(b) Upon request, make available to the Board or its agents,
for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount
of back pay due.
(c) Post at its plant at Perth Amboy, New Jersey, copies
of the notice attached to the Intermediate Report and marked
"Appendix." 2 Copies of such notice, to be furnished by the
Regional Director for the Fourth Region, shall, after being
duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of at least sixty (60) consecutive
days thereafter in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that the notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fourth Region in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondents violated the Act in respects other
than herein found, be, and it hereby is, dismissed.
Member Rodgers took no part in the consideration of the
above Decision and Order.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by Local 2, International Union of United Brewery, Flour, Cereal,
Soft Drink & Distillery Workers of America, CIO, herein called the Union or the CIO, the
General Counsel by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania),
of the National Labor Relations Board, herein called the Board, issued his complaint dated
April 7, 1953, against Barby's Frosted Foods, Inc., 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 (a) (1) and (3), and Section 2 (6) and (7) of the
Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the
complaint and the charge together with notice of hearing were duly served upon the Respond-
ent and the Union.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleges in substance that the
Respondent discharged certain six persons from its employ on or about November 7, 1952,
and engaged in certain acts of interference, restraint, and coercion. The Respondent's answer
denies the commission of unfair labor practices.
Pursuant to notice, a hearing was held on certain days between June 22 and 29, 1953, at
Perth Amboy, New Jersey, before the undersigned, the Trial Examiner designated by the
Chief Trial Examiner. The General Counsel, the Union, and the Respondent were represented
by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded the parties.
At the close of the testimony the General Counsel and the Respondent presented oral argu-
ment. A brief was received only from the Respondent.
Upon the entire record in the case, and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New Jersey corporation, has its principal office and plant in Perth
Amboy, New Jersey, where it is engaged in the purchase, preparation, freezing, packing, and
sale of poultry. During the year 1952, the Respondent caused products valued at more than
$ 100,000 to be shipped and transported from its plant in interstate commerce to and through
States of the United States other than the State of New Jersey. The undersigned accordingly
finds that the Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 2, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery
Workers of-America, CIO, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
1. The events
In August 1951, the Respondent entered into a contract with the Amalgamated Meat Cutters
Union, Local 464, AFL, herein called the AFL. The Charging Party, as already noted, is
referred to as either the Union or the CIO. In June 1952, Benno Merker, a representative of
the CIO, met with several of the then employees of the Respondent at the home of Mabel
Brown, an alleged discriminatee . Among the employees present were the then AFL stewardess
of the plant, Sophie Straffey, another alleged discriminatee. Merker distributed cards to those
present to organize the Respondent's employees in the CIO. These cards were later turned in
to Merker. Straffey became stewardess of the CIO, and sometime during that summer almost
all of the employees disaffiliated from the AFL and signed cards for the CIO.
On Friday, August 8, during working time and with the Respondent's consent, Merker,
Straffey, and a group of employees, including alleged discriminatees Lucille Clark and Madelyn
Kurtz, appeared at the Respondent's office and requested recognition on behalf of the Union.
Present in the office which was shared by both Samuel B. Kagan and Martin Singer, president
and secretary-treasurer of the Respondent respectively, were Kagan and Singer. Kagan pointed
out that the Respondent had a contract with the AFL and suggested that they take up the matter
with the Respondent's attorney on Monday when he returned to town. Merker then with Kagan's
permission talked to the employees on working time and explained what had transpired at the
meeting in an effort to avert a work stoppage. There was no cessation of work at this time.
On Monday, August 11, Merker and Straffey met with Kagan and Singer at the office of the
Respondent's attorney. The Respondent declined recognition to the CIO for the reason that
it had a valid contract with the AFL, relying on the contract that they hall entered into on
August 31, 1951, which provided that the contract would remain in effect until August 31,
1952, and thereafter from year to year unless notice were given by either party 90 days prior
to the anniversary date.
BARBY'S FROSTED FOODS, INC. 801
When the employees received word of the outcome of the conference that day, August 11,
they went on strike. The strike for recognition lasted until September 18, when the parties
entered into a strike settlement agreement and the employees returned to work. Recognition
for the CIO as bargaining agent was not obtained. During the course of the strike Straffey
was in charge of the picket line.
On an occasion apparently in October, during working time, Sidney Penn,i foreman,
arranged in series for the relief of employees from their immediate work on the production
line and instructed them to see an AFL representative elsewhere on the premises. In speaking
to the employees the AFL representative solicited their affiliation with the AFL.
In October employee Victoria Pawloski was instructed by Penn to appear at the Respondent's
office. When she appeared at the office she found the Respondent's counsel present. Singer was
present during only part of the incident. Pawloski, like other employees, was wearing a CIO
button and counsel asked her what labor organization she was for, and she replied the CIO.
Counsel asked her why she wanted the CIO, and she inquired whether she had to reply. He
stated that she had to give a reply. Pawloski thereupon replied that she wanted the CIO in
order to obtain better working conditions. Upon counsel's further questioning about working
conditions, Pawloski pointed out as something she had in mind which needed betterment, a
pool of water at a certain part of the plant which had been there for some time and was
dangerous. The attorney told her that she did not need a labor union for that and suggested to
Singer that he look into the matter. Pawloski also stated that she felt that the employees would
get a raise through the CIO, and the attorney declared that she had already gotten her pay
increase when she got a 5-cent pay raise. Counsel further questioned Pawloski as to whether
she had picketed during the strike and had received any strike benefits. Pawloski replied that
she had picketed and received $ 5 as strike benefits. Counsel also inquired of Pawloski as to
whether she had attended a certain union meeting and whether Merker had been present.
Pawloski stated thatshehad been present but that Merker had not. The attorney then questioned
Pawloski as to whether Straffey had prevented any of the employees from going to a certain
AFL meeting, and Pawloski replied that she had not heard of such an incident and that Straffey
had declared that she was going to attend that meeting. Counsel stated that Straffey was not as
nice as Pawloski thought she was and that sometimes Straffey was with the employees and
sometimes she was not. The attorney also asked Pawloski whether the employees had paid
dues to the CIO, and she replied that she had not.
According to Straffey's credible testimony, on November 5 she was called to the Respondent's
office and found Kagan, Singer, the Respondent's attorney, and employee Elizabeth Wilgus
present. The attorney stated that he noted that she was wearing her CIO button, and Straffey
acknowledged that fact. The attorney then asked Straffey what she thought of Wilgus breaking
down during a representation hearing in which the CbO and the Respondent had been participat-
ing and the way Wilgus had been treated in the course of that hearing. Straffey's retort was that
he was still wearing the CIO button. There was also some reference to politics. Counsel
thereafter pointed out that "if this keeps up" Kagan could move the plant out of town, and
Straffey replied that she had worked for Kagan for 5 years and she did not want to put Kagan
out of business,but that she was still with the CIO. The attorney declared that he could state
that they would never sit down with the CIO and if Kagan consented to doing so, Kagan would
have to get himself another attorney. Counsel also declared that he could promise a few cents
pay increase, but never with the CIO. The attorney thereupon asked Straffey if she was the
leader of the employees and Straffey replied that she did not know whether she was the leader
but that she was shop stewardess. The attorney then repeated that he could promise a pay
raise of a few cents but never with the CIO.2
'The General Counsel takes the position that Penn is a supervisor as defined in the Act
and the Respondent takes a contrary view. The Respondent operates on a production- line
basis. Penn generally receives instructions from Kagan or Singer in the mornings as to how
or in what manner certain poultry is to be processed that day; and it is Penn's job as foreman
to supervise production, although on occasion he performs production work to relieve an
employee. There are about 50 persons employed on production work and Penn has complete
control over the assignment and transfer of these production employees. Penn has authority
to discharge only after consulting with Kagan. It is accordingly found that Penn is a supervisor
as defined in the Act.
2 The undersigned was more favorably impressed with Straffey than Kagan as witnesses.
Kagan's version of the November 5 incident, although consistent with Straffey's version in
339676 0 - 55 - 52
802 DECISIONS OF NATIONAL LABOR RELAT' JNS BOARD
Two days later, November 7, events arose which the General Counsel relies upon for his
allegation of the discriminatory discharge involving Straffey and five other persons.
In the latter part of November, Kagan addressed the employees at the plant. In the course of
his talk, Kagan discussed a Christmas club and disputed certain assertions made by the CIO
in a leaflet as untrue. Kagan also declared that it would not have made any difference to him if
the employees had initially been organized by the AFL or the CIO, but that in view of the as-
sertions made by the CIO, he would not sit down and talk with the CIO. Kagan then turned to
Singer for confirmation, and Singer declared that that was right. Kagan stated further that an
election was going to be held when the employees would have a choice between the AFL, the
CIO, and no union, that the employees should think before they voted, and that they could vote
as they desired. 3
2. Conclusions
It is found that by the following acts and conduct the Respondent engaged in interference,
restraint, and coercion in violation of Section 8 (a) (1) of the Act, (1) the Respondent's at-
torneys (a) inquiry of Pawloski as to which labor organization she favored, (b) inquiry of
Pawloski as to why she wanted the CIO, (c) declaration to Pawloski that she had already
gotten a pay increase and, in effect, that she could not expect a pay increase from the CIO,
(d) inquiry of Pawloski as to whether she attended a certain CIO meeting, (e) declaration to
Straffey, in effect, that if the CIO organizational efforts continued, the plant would be moved
out of town, (f) declaration to Straffeythat the Respondent would never bargain with the CIO,
and (g) offer to the employees of a pay increase through Straffey but never with the CIO as a
representative; and (2) Kagan's declaration to the employees that he would not bargain with
the CIO in view of its campaign assertions.
In view of the Respondent's granting the CIO permission to address the employees on its
property and during working time although for the purpose of averting a possible strike and
the Respondent's counsent for a group of employees to accompany the CIO in making a request
for recognition on the Respondent's time, the undersigned finds without merit and dismisses
the General Counsel's allegation that the Respondent violated Section 8 (a) (1) of the Act by
Penn's conduct in relieving employees from work and instructing them to confer with an AFL
representative on the premises.
some respects, was for the most part contradictory. The explanation Kagan gave for Wilgus'
presence in his office on the day involved was that the Respondent's attorney had come to the
office on some corporate business and that the attorney, referring to Wilgus' unfortunate
experience at the representation hearing, asked how Wilgus felt. Kagan continued that he
replied that he did not know how Wilgus felt and had not had a chance to talk to her. According
to Kagan he then suggested that Wilgus be called up and that they could find out how she felt,
explaining that both he and the attorney were quite concerned as to how Wilgus felt. More
than a week had elapsed between this event and the day a hearing was last held in the re-
presentation proceeding. Wilgus did not appear as a witness in this proceeding. Wilgus had
appeared as a witness for the CIO in the representation proceeding and according to the Re-
spondent's counselhe had possession of a statement which Wilgus had prepared concerning
this event. Neither Singer nor the Respondent's attorney, the only other persons present at
this event, appeared as a witness.
3 The findings as to Kagan's address are based upon the credible testimony of Pawloski,
Elizabeth Kiraly, and Ciel Mutilitis. Kagan gave a version of the speech that differed in some
respects particularly in that, according to his version, he had stated that he could not tall,
with either the CIO or the AFL until after the election. Singer as already noted did not testify.
The only other persons who were present during Kagan's talk and who testified on the subject
were Anna Vrablic, Catherine Ryan, and Anna Porvaznik. Their testimony does not, however,
provide much aid in resolving the significant issues. Vrablic testified that she was not certain
as to what Kagan had said regarding dealing with the CIO. Ryan testified that she did not pay
much attention to anything that transpired except the Christmas club. Porvaznik testified that
Kagan stated he could not at that time sit down and talk to the CIO. According to an affidavit
this witness executed on January 16, 1953, for a field examiner connected with the Regional
Office which she testified at the hearing that she had not read before signing, Kagan stated
at the meeting that he did not care which labor union the employees voted for, and that Kagan
would not sit down with the CIO and discuss anything.
BARBY'S FROSTED FOODS, INC. 803
B. The discrimination
The General Counsel alleges that on November 7, 1952, the Respondent discharged Sophie
Straffey because of her activities on behald of the CIO. The General Counsel also alleges that
later the same day the Respondent discharged Mable Brown, Lucille Clark, Madelyn Kurtz,
Gloria Lavin, and Margaret Shannon for engaging in or attempting to engage in a concerted
protest over the Straffey discharge. The Respondent's position is that all the persons named,
including Straffey, quit their employment with the Respondent.
It is undisputed that Straffey, who was first employed by the Respondent in 1947, was called
to the office at about 10 o'clock in the morining of November 7. There is a dispute as to what
occurred at the office at that time. The General Counsel's version is that Straffey was then
discharged and that the reason given Straffey for her discharge was that the employees were
afraid of her. The Respondent's version is that after certain complaints were raised with
Straffey, she quit her employment. It is undisputed that immediately after the incident at the
office, Straffey walked down the production line declaring to the employees that she was
discharged and asking if the employees were afraid of her. It is also undisputed that thereafter
the production line became disorganized and production ceased. It was at this time that the
events occurred with give rise to the General Counsel's allegation that Brown, Clark, Kurtz,
Lavin, and Shannon were discharged for engaging in protected activities--engaging or attempt-
ing to engage in a protest over Straffey's discharge. The Respondent, as has been noted, dis-
agrees, taking the position that a voluntary abandonment of employment then occurred.
Concerning the incident which transpired at the office between Straffey and the Respondent,
Kagan gave the following version. He testified that Singer was present in the office during the
entire time and that he, Kagan, took up certain complaints with Straffey. The complaints
Kagan took up were that Straffey had played cards on the Respondent's time a few weeks
earlier, she had been reporting late for work, she was slow in returning to work after rest
periods, and she had been talking to and bothering her fellow employees. When Kagan mentioned
that he had had some complaints from the employees that Straffey had been intimidating
them, Straffey stated that that was not true and asserted that she was called to the office
because of her CIO activities. Kagan then denied that Straffey's CIO activities had anything to
do with it and explained that the matter had been brought to a head when he had received the
day before, November 6, a gomplaint from an employee who had stated that unless Straffey
stopped bothering her she would quit. Straffey asked Kagan to name the employee and Kagan
declined stating that the important thing was that Straffey be aware of this matter and that he
did not want it to happen again. Straffey after making a certain anti-Semitic remark declared
that she did not have to listen to Kagan or work for him and asked for her pay. Kagan in-
structed the bookkeeper to make up Straffey's pay and the incident ended. Kagan explained in
his testimony that he had been informed of the substance of the complaints by Penn, the fore-
man, as they occurred, but when the unnamed employee told Kagan that she was going to leave
on account of Straffey he then decided, "now is the time to get Mrs. Straffey--I want to
straighten her out on all these factors." Kagan explained further in his testimony that at that
time he could not afford to lose any employees.
The Respondent's bookkeeper testified that when Straffey left Kagan's office, both Straffey
and Kagan said to each other, in effect, if that is the way you feel about it. He testified further
that he was then instructed to make up Straffey's pay and that from his location in the outer
office he could state that Singer was in the office with Kagan and Straffey during the entire
time, a period of about 10 or 15 minutes. Singer as has already been noted did not testify.
Straffey's version of what occurred that morning in the office follows. Singer was present
in the office when she first entered but left the office prior to the conversation with Kagan.
Kagan informed Straffey that she was discharged and upon Straffey's request for an ex-
planation, Kagan gave as the reason for the discharge that the girls were afraid of her. Straffey
asked Kagan toname the employees involved and Kagan declined. Straffey declared that Kagan's
explanation was not correct and asserted that the reason for her discharge was her CIO ac-
tivities. At the close of the conversation Straffey asked for her pay and Kagan stated that her
pay was being made up. After Straffey was paid, as already reported, she walked down the
production line inquiring of the employees if they were afraid of her and declaring that she
was discharged. Straffey specifically denied quitting her employment and making the anti-
Semitic remark. Straffey also denied that any of the following subjects arose : Gambling or
card-playing, reporting late for work, slowness in returning to work after rest periods,
talking with the employees at work, or that Straffey was after one of the girls because she had
too much to do with the Respondent.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the undersigned's observation of the witnesses, and particularly in view of
the failure to call Singer as a witness, and Straffey's immediate declaration to the employees
that she had been discharged because the girls were afraid of her, the undersigned finds that
the conversation involved between Kagan and Straffey occurred substantially as related by
Straffey and that Kagan discharged Straffey giving her as the reason that she was intimidating
the employees.
Except for Kagan's testimony of reports of intimidation involving Straffey, the record does
not support this assertion. No employees were named at the hearing by Kagan as having made
complaints to him of intimidation by Straffey. The record does show, as already reported,
that during the month prior to Straffey's discharge employee Pawloski was questioned by
the Respondent as to whether Straffey had prevented employees from attending a certain AFL
meeting, and Pawloski replied that she had not heard of such incident and that Straffey had
declared that she was going to attend that meeting. It is accordingly found that there is no
substance to the assertion that Kagan had complaints from employees that Straffey was en-
gaged in intimidation.
The undersigned views as afterthoughts the other matters which Kagan raised for the first
time at the hearing and not at the time of Straffey's discharge. Concerning card-playing, it
appears that about 2 weeks after the strike which ended September 18, production was at a
standstill for a lack of poultry and Penn assigned the employees to prepare cellophane for use
in the wrapping or packing work. At that time Straffey and about five other employees were
in the lunchroom where Straffey was using playing cards to tell the employees their fortunes.
According to Straffey, Penn appeared and told them that they were fired, but they continued
to work thereafter. According to Penn he told the employees that he would talk to Kagan about
it. When Penn took the matter up with Kagan, Kagan told Penn to forget about it. Concerning
tardiness it appears that Penn had talked to Straffey about this matter. It appears, however,
that Straffey had not been late since the close of the strike. Straffey's credible testimony is
that Penn never criticized her for being slow in returning to work after rest periods and that
she was never told that she was interfering with work by talking. There appears to be no
question that there was no rule against talking at work. It appears also that the employees not
only talked but also sang while at work.
In view of the Respondent's antagonism toward the CIO, the absence of other reasons for
discharge, and the Respondent's interview with Straffey only 2 days before her discharge, as
already reported, when Straffey was asked if she was the leader of the employees and the wage
increase was offered but never with the CIO and Straffey showed no inclination toward giving
up the CIO, the undersigned finds that SophieStraffey was discharged on November 7, 1952, in
violation of Section 8 (a) (3) of the Act.
Concerning the five other persons alleged as discriminatees, the undersigned is not convinced
that the General Counsel has sustained the burden of proof of establishing their discharge as
having arisen from a concerted protest of Straffey's discharge because of the unreliability of
the testimony adduced in support of the allegation. For example, when the testimony of some
of the persons involved as to their movements on the morning of November 7 in relation to the
time they testified they were told that they were discharged and they punched their timecards
is compared with the timecards adduced by theRespondent showing the record of their check-
out time, their testimony is in this respect viewed as unreliable. Certain improbabilities also
appear in their testimony. Thus, although there appears to be no fixed practice among the
employees as to whether they changed their uniforms or covered them with other clothes
when going to the Respondent's office, when the persons involved went toward the office on
this occasion for the purpose, by their version, of protesting Straffey's discharge, each had
by then changed to street clothes. Moreover, concerted protest does not appear to be the
likely explanation for their conduct inasmuch as when these five persons appeared at the
office, although by their version they had been told that they were discharged, not a word of
protest according to their own testimony was uttered concerning Straffey's or their own
discharge.
Accordingly, it is found that the Respondent did not violate the Act with respect to Mable
Brown, Lucille Clark, Madelyn Kurtz, Gloria Lavin, and Margaret Shannon.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection
with the operations of the Respondent described in section I, above, have a close, intimate,
BARBY'S FROSTED FOODS, INC. 805
and substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative of Section
8 (a) (1) and (3) of the Act, it will be recommended that the Respondent cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent interfered with, restrained, and coerced its employees
by the conduct enumerated in the section herein entitled "Conclusions," the undersigned will
recommend that the Respondent cease and desist from this conduct.
Having found that beginning November 7, 1952, the Respondent discriminated against Sophie
Straffey, it willbe recommended that the Respondent be ordered to offer Straffey immediate and
full reinstatement to her former or substantially equivalent position 4 without prejudice to
her seniority or other rights and privileges and make her whole for any loss of pay suffered
by her as a resultofthediscrimination,by payment to her a sum of money equal to the amount
she would have earned from November 7,1952, the date of the discharge, to the date of the offer
of reinstatement less her net earnings 5 to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Co., 90 NLRB 289. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other silch period. It will be
also recommended that the Respondent make available to the Board upon request payroll and
other records to facilitate the checking of the amount due.
The Respondent contends that no reinstatement order should be issued in the Straffey case
on the theory that when the eviscerating department where she was employed to do a certain
operation was eliminated in April 1953, her particular job was abolished. Some of the
operations in the eviscerating department which the Respondent considered less skilled than
its other work are still being performed and some of the employees of that department
continued to perform the same operations after the elimination of the department. Straffey
had not performed this particular operation while in Respondent's employ but her work was
not so different in this less skilled class that it can be said that under usual circumstances
the Respondent would not have transferred Straffey to this work. Straffey had been treated by
the Respondent as having continuous service although she had been away from work for about
4`-i months because of illness. Accordingly, in view of the fact that Straffey had greater
seniority than at least 1 of the employees in the eliminated department who remained in the
Respondent's employ and the Respondent's recognition of the seniority principle in the
conduct of its business, it is found that Straffey's employment would not have been discontinued
at the time of the elimination of the eviscerating department.
The Respondent's infractions of Section 8 (a) (1) and (3) of the Act, herein found, disclose a
fixed purpose to defeat self-organization and its objectives. Because of the Respondent's un-
lawful conduct and its underlying purposes, the undersigned is persuaded that the unfair labor
practices found to have been committed are related to the other unfair labor practices pro-
scribed by the Act, and that the danger of their commission in the future is to be anticipated
from the course of the Respondent's conduct in the past. The preventive purposes of the Act
will be thwarted unless the remedial order is coextensive with the threat. In order, therefore,
to make effective the interdependent guarantees of Section 7, to prevent the recurrence of
unfair labor practices, and thus to effectuate the purposes of the Act, and thereby minimize
industrial strife which burdens and obstructs commerce, it will be recommended that the
Respondent cease and desist from interfering in any manner with the rights guaranteed by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Local 2, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery
Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the
Act.
4 The Chase National Bank of the City of New York, San Juan, Pureto Rico. Branch, 65 NLRB
827.
5 Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation v. N. L. R. B , 311 U. S. 7.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating with regard to the hire and tenure of employment of Sophie Straffey
and thereby discouraging membership in the above-named labor organization, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
3. By (1) engaging in interrogation as to union interests and activities , (2) declaring that a
wage increase could not be obtained through the Union, (3) threatening to move the plant out
of town if the Union's organizationaleffo.is continued, (4) declaring that it would never bargain
with the Union as representative , and by engaging in discrimination and thus interfering with,
restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in discrimination against Mabel Brown, Lucille Clark,
Madelyn Kurtz, Gloria Lavin, and Margaret Shannon as alleged.
(Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of Local 2, Interna-
tional Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of
America, CIO, or in any other labor organization, by discriminating in regard to the
hire or tenure of employment or any term or condition of employment.
WE WILL NOT inquire of our employees as to their union interests and activities,
declare that a wage increase cannot be obtained through a labor organization, threaten
to move our plant out of town if organizational activities are engaged in, declare that we
will never bargain with a labor organization, offer a wage increase but never with a
certain labor organization as representative of our employees.
WE WILL NOT in any other manner interfere with , restrain, or coerce our employees
in the exercise of their right to self-organization, to join or form a labor organization,
to join or assist Local 2, International Union of United Brewery, Flour, Cereal, Soft
Drink & Distillery Workers of America, CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Sophie Straffey immediate and full reinstatement to her former or
substantially equivalent position without prejudice to her seniority or other rights and
privileges and make her whole for any loss of pay suffered as a result of discrimination
against her.
All our employees are free to become or remain members of the above-named Union, or
any other labor organization.
BARBY'S FROSTED FOODS, INC.,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.