Benson Produce Co.

National Labor Relations Board - Board Decisions

Nov 29, 1946

71 N.L.R.B. 888 (N.L.R.B. 1946)

In the Matter of N. BEN WEINER, JULIUS WEINER, LESTER ROSE AND
HOWARD ROSE, A CO-PARTNERSHIP , DOING BUSINESS AS BENSON PROD-
UCE COMPANY' and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS Or AMERICA, LOCAL 851,
AND AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN or NORTH
AMERICA, LOCAL 615, A. F. OF L.
Case No. 18-C-1213.Decided November 29,1946
Mr. Clarence A. Meter , for the Board.
Messrs. James H. Hall and Stanley Carlson , of Marshall , Minn., for
the respondents.
Mr. Gilbert TV. Ewer, of Willmar, Minn., and Messrs . Nels Sparring
and Fred Babelcuhil , of Minneapolis , Minn., for the Unions.
Mr. Seymour Cohen , of counsel to the Board.
DECISION
AND
ORDER
On August 19, 1946, Trial Examiner Isadore Greenberg issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interinedi-
ate Report attached hereto. The Trial Examiner further recom-
mended that the complaint be dismissed insofar as it alleges that the
respondents engaged in unfair labor practices by making statements
or remarks to their employees to discourage activity on their part for
the purpose of collective bargaining and other mutual aid and pro-
tection, and to discourage union membership and activity among them.
No exceptions to the Intermediate Report were thereafter filed with
the Board.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
1 Name as amended at the hearing.
71 N. L. R.B,No.144.
888
BENSON PRODUCE COMPANY
ORDER
889
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 respondents, N. Ben Weiner, Julius
Weiner, Lester Rose, and Howard rose, as co-partners doing business
as Benson Produce Company, Benson, Minnesota, and N. Ben Weiner
and Julius Weiner as individuals, and their agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Refusing to,bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local 851, and Amalgamated Meat Cutters & Butcher Workmen of
North America, Local 615, both affiliated with the American Federa-
tion of Labor, as the exclusive representative of all production and
maintenance employees at the respondents' plant at Benson, Minne-
sota, including truck drivers and helpers, but excluding administra-
tive, supervisory, office and clerical help, and creamery employees;
(b) In any manner interfering with the efforts of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local 851, and Amalgamated Meat Cutters & Butcher
Workmen of North America, Local 615, both affiliated with the Ameri-
can Federation of Labor, to negotiate for or represent the employees as
the exclusive bargaining agent in the aforesaid bargaining unit.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local 851, and Amalgamated Meat Cutters & Butcher Workmen of
North America, Local 615, both affiliated with the American Federa-
tion of Labor, as the exclusive bargaining representative of all em-
ployees in the bargaining unit described herein with respect to rates
of pay, wages, hours of employment, or other conditions of employ-
ment, and if an understanding is reached on any such matters, embody
such understanding in a signed contract;
(b) Post at their plant at Benson, Minnesota, copies of the notice
attached to the Intermediate Report, marked "Appendix A." 2 Copies
of said notice, to be furnished by the Regional Director for the
Eighteenth Region, shall, after being duly signed by the respondents'
representative, be posted by the respondents immediately upon receipt
2 Said notice, however, shall he, and it hereby ic, amended by stuking from the first
paragraph thereof the words : "The Recommendation of a Trial Examiner " and substi-
tuting in lieu thereof the words : "A Decision and Order " In the event that this
order is enforced by decree of a Circuit Court of Appeals, there shall be inserted in the
notice, before the words "A Decision and Order ," the words : "A Decree of the United
States Circuit Court of Appeals Enforcing "
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof and maintained by them for 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 respondents to insure that said notices are not altered,
defaced, or covered by any other material ;
(c) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this order, what steps
the respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondents engaged in unfair labor practices by making
statements or remarks to their employees to discourage activity on
their part for the purpose of collective bargaining and other mutual
aid and protection, and to discourage union membership and activity
among them, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Clarence A. Meter, Esq, for the Board
James H. Hall, Esq., and Mr. Stanley Carlson, of Marshall, Minn., for the
respondent.
Mr. Gilbert IF. Ewer, of Willmar, Minn , and MMMessi s. Nels Spari ing and Fi ed
Babelcuh-l, of Minneapolis, Minn., for the Unions.
STATEMENT OF THE CASE
Upon an amended charge duly filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, Local 551. and Amalgamated Meat Cutters
& Butcher Workmen of North America, Local 615, A F of L, herein referred to
as the Unions, the National Labor Relations Board, herein referred to as the
Board, by its Regional Director for the Eighteenth Region (Minneapolis, Minne-
sota) issued a complaint dated June 12, 1946, against N. Ben Weiner, Julius
Weiner, Mable Weiner, Dorothy Weiner, Kate Weiner, Ruth Weiner and Ann
Gold, a co-partnership, doing business as Benson Produce Company, Benson,
Minnesota, herein referred to as the respondents,' alleging that the respondents
had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein referred to as the Act. Copies
of the complaint, accompanied by notice of hearing thereon, were duly served
upon the respondent partnership, N. Ben Weiner, Julius Weiner, and the Unions.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondents interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act by: (1) about
April 23, 1946, and at all times thereafter, refusing to bargain collectively with the
Unions although the Unions represented a majority of the respondents' employees
in an appropriate bargaining unit; and (2) about November 15, 1945, granting
wage increases to their employees, and making statements to them, for the purpose
and with the effect of dissuading and discouraging them from joining or assisting
'As is hereinafter set forth , the complaint as originally issued included the names of
some individuals who are not co -partners in the respondent partnership , and omitted the
names of two who are. It is the partnership itself, and those of the partners who were
served with the complaint, who are referred to herein as "respondents."
BENSON PRODUCE COMPANY 891
the Unions or engaging in conceited activities for the purpose of collective
bargaining and other mutual aid and protection.
About June 20, 1946, an answer was filed on behalf of the respondent partner-
ship, N. Ben Weiner, and Julius Weiner, denying the commission of the alleged
unfair labor practices. In addition the answer demanded dismissal of the com-
plaint because of incorrect designation therein of the parties respondent and
for the further reason that -notice had not been served upon those members of the
respondent co-partnership "who are the general managers thereof."
Upon due notice a hearing was held or June 26, 1946, at Benson, Minnesota,
before the undersigned, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board and the respondents were represented by counsel ; the
Unions by lay representatives. Full opportunity to be heard, to examine and
cross-examine witnesses. and to introduce evidence bearing on the issues, was
afforded to all the parties
At the hearing the undersigned granted a motion of the respondents' counsel,
in which counsel for the Board joined, to dismiss the complaint as to Mabel
Weiner, Dorothy Weiner, Kate Weiner, Ruth Weiner, and Ann Gold, on the
ground that these individuals are not members of the respondent partnership and
therefore were improperly joined in this proceeding. The undersigned also
granted a motion of Board counsel to amend the complaint by designating the
names of the partners as being N Ben Weiner, Julius Weiner, Lester Rose, and
Howard hose, instead of the parties originally named thei ern, and by sub-
stituting the foiegoing names for those listed therein wherever the} appear in
the caption and body of the complaint The undersigned reserved decision on
a niotion'by the respondents' counsel at the opening of the hearing to dismiss the
complaint on the ground that the iespondent partnership had not properly been
served with the complaint and notice of hearing. It appears that of the four
co-partners comprising the respondent partnership (N. Ben Weiner, Julius Weiner,
Lester Rose, and Howard rose) only the two first named were served in their
individual names. Copies of the complaint and notice of hearing, addressed to
the respondent partnership, Benson Produce Company, were also received by one
of the remaining partners, Lestei rose. who is the partner most actively engaged
in the immediate management of the respondents' plant. In these circumstances.
it seems clear that the respondent partnership as such was properly served 2
The undersigned therefore denies the motion to dismiss the complaint.
At the conclusion of the hearing a motion of counsel for the Board to conform
the pleadings to the proof as to minor variances such as dates, was granted with-
out objection. Opportunity was afforded the parties to argue orally before and
file briefs with the undersigned Counsel for the Board availed himself of the
opportunity for oral argument The respondent filed a brief with the under-
signed
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
N Ben Weiner, Julius Weiner, Lester Rose, and Howard Rose are copartners,
doing business as Benson Produce Company. The partnership has its piuicipal
'Rule 171) of the Rules of Civil Procedure for the Fedeial District Courts, nhicli bN
analogy is applicable to this proceeding , pi mides that a partnership or other unincorporated
association , even one which by state law has no capacity to sue or be sued , loan sue or be
sued in its coni nion name for the purpose of enforcing for or against it a substantive right
existing undei the Constitution or laws of the United States See also, United Mae
Workers v . Coronado Coal Co., 259 U. S. 344.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place of business at Benson , Minnesota , where it is engaged in the business of
processing poultry and eggs.
During the calendar year 1945, finished products produced at the plant at
Benson, Minnesota , were sold in an amount valued in excess of $100,000, of
which in excess of 90 percent was sold and transported to points outside the
State of Minnesota.
The respondents concede that they are engaged. in commerce within the
meaning of the Act 3
II THE ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local 851, and Amalgamated Meat Cutters & Butcher Workmen of
North America, Local 615, are both labor organizations affiliated with the
American Federation of Labor, admitting to membership employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain; interfei enee, i estravnt, and coei owon
1. The appropriate unit
The complaint alleges and the respondents concede that a unit consisting
of all production and maintenance employees at the respondents' plant at
Benson, Minnesota, including truck drivers and helpers, but excluding adminis-
trative, supervisory, office and clerical help, and creamery employees, constitutes
a unit appropriate for the purpose of collective bargaining within the'meaning
of Section 9 (b) of the Act.
The undersigned finds that the above-described unit at all times material
herein constituted and now constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Unions of a majority of employees in the appropriate unit
On March 9, 1945, a collective bargaining election was conducted by the Board's
Regional Director for the Eighteenth Region, among the employees in the above
unit. This election was held pursuant to a Stipulation for Certification Upon
Consent Election entered into between the Unions and the respondents on
February 27, 1945 The Unions received a majority of the votes cast in the
election, and the Board accordingly issued its Decision and Certification of
Representatives" on May 11, 1945, certifying the Unions as the exclusive
bargaining representative of the employees in the unit described above
The undersigned finds that on March 9, 1945, and at all times thereafter, the
Unions were and now are, the exclusive representative of all the employees in
the above-described appropriate unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours, and other conditions of employment.
3. Sequence of events
Following their certification by the Board as bargaining representative, the
Unions began negotiations with the respondents for a collective bargaining
agreement. Thus, during June 1945, representatives of the parties niet to discuss
a proposed contract which had previously been submitted in writing to the
8 The findings in this section are based upon a stipulation entered into at the hearing,
and upon the respondents ' answer.
Case No 18-R-1228.
BENSON PRODUCE COMPANY 893
respondents by the Unions 6 The principal terms of this proposed contract
provided for a closed shop, seniority system, consultation with the Unions
preceding discharge of any employee, time and a halt for work performed in
excess of 40 hours in any week, double time for work performed on holidays and
on the seventh consecutive day of work in any given week. it vacation plan, a
grievance procedure, a check-elf of union dries, and a wage scale ranging from 55
to 70 cents per hour, ns contrasted with the scale ranging from 45 to 571/2 cents
per hour then in ellect in the respondents' plant Since the parties did not reach
any agreement at their first meeting, the Unions requested the respondents to
submit it counterproposal to the contract proposed by them About a week later
they again met, at which time the respondents submitted a proposed written
contract providing for an open shop; vesting in the employer of the unlimited
power to discipline, ]tire and discharge employees, subject only to "justice and
reasonable rights of the employees" and existing or future laws, hours and days
worked to be without any restriction except those imposed by law; no check-oll;
no osertimepayments except those imposed by law; and retention of the respond-
ents' then existing wage scale" Unable to reach any agreement with the
respondents, the Unions, on June 18, 1945, invoked the assistance of the United
States Conciliation Service, as a result of which a meeting was held between
representatives of the parties and a Federal Conciliator on or about July 6, 1945.
At this meeting the parties and the conciliator discussed the proposed contract
which had been submitted by the Unions, term by term They were unable to
reach any : greeiianit as to a wage scale, sacation plan, certain seniority provi-
sions, the closed shop, or a check-off, but did agree with regard to certain other
terms. The conciliator then sugg:sted that the Unions redraft the contract so
as to incorporate the teams thus far agreed upon, and to show which provisions
were still in dispute and that the parties then sign the redrafted contract and
submit the disputed issues to the War Labor Board for decision
On or about July 20, 1945, shortly after the meeting with the conciliator, the
Unions submitted to the respondents a redraft of the contract containing the
pros isions allegedly agreed upon, and indicating which terms were still in dispute,
and requested the respondents to sign it This they refused to (10 Sparring, as
representative of the Unions, pointed out that the respondents' refusal to si1
the piottereil iediaft meant that the Unions "would have to submit the whole
thing to the War Labor Board," to which the respondents' attorney, Hall, answered
that he did not care, since the respondents were not "concerned" by any order of
that agency
Fsver, one of the Unions' representatives at the meeting with the conciliator,
testified tiiat at the said meeting the parties had concurred in the conciliator s sug-
gestion that they sign a redraft of the contract embodying the terms agreed upon,
and showing those still in dispute Carlson and Attorney Hall, two of the respond-
ents representatives at the said meeting, testified that they had never agreed to
sign a "partial contract " Carlson, who together with Attorney Hall, i epiesented
S Unless otherwise indicated, the findings of fact herein made are based upon
uncontroverted evidence
° Ewer and Sparring, representatives of the Unions, testified that to their knowledge,
the respondents had never submitted any written counterpioposals to the Unions dining
their negotiations However, they did not specifically deny having received the above-
mentioned proposal trmn the respondents That this document was the only wirtten
proposal ever submitted to the Unions by the respondents, the latter concede whether
such it proposal, which in effect simply announced the respondents' desire to maintain
unchanged ilie existing conditions of employment in its plant, constituted a "vounter-
proposal" as the term is commonly used, is discussed below in the undersigned's concluding
findings
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondents on this occasion, testified that their refusal to sign was based, not
only on their contention that they had never agreed to sign a partial contract,
but also on their claim that the redraft submitted by the Unions contained some
provisions to which the parties had never agreed, and omitted others which had
been agreed on. The undersigned is convinced fioim the record, and therefore
finds, that at the meeting on July 0, it had been agreed by the parties that they
would follow the procedure suggested by the conciliator, naively that they would
sign a redraft indicating the terms agreed upon, and those still in dispute, and
further, that the redraft submitted by the Unions to the respondents on or about
July 20, contained an accurate statement of such ternhs'
Sometime in July, the dispute between the Unions and the respondents was
ceitified to the War Labor Board. A hearing thereon was held before a hearing
officer of that agency on October 30, 1945 During discussions at the said hearing,
the Unions withdrew their demands for a union shop and a check-off of union
dues, and agreed to a less liberal vacation plan than they had been demanding.
As to the wage demands of the Unions, the respondents took the position that they
could not afford, and therefore would not consider, a wage increase in any amount.
The matter of wages and the other issues remaining in dispute were then sub-
mitted to the War Labor Board for decision. On November 13, 1945. the hearing
othcer issued his report recommending a wage increase for the respondents' em-
ployees amounting to 71/.-^ cents per hour, which increase vi as not as great as that
demanded by the Unions; that such wage increase be made retroactive to July 14,
1945, instead of to February 15, 1945, as demanded by the Unions; a vacation plan
substantially as agreed to by the Unions and the respondents; that the War Labor
Boai d make no recommendation as to the issue of a guaranteed work week, but
that the respondents' offer of a 40-hour guaranteed work week be accepted by the
Unions, instead of the 48-hour guaranteed work week which the Unions had
demanded ; that the Unions' demand for certain employment rights for the em-
ployees in the event of transfer of work to another plant, be denied, and that
no forth of union security be granted.
On November 23, 1945, within 10 days after receiving the recommendations of
the hearing ollicer, the Unions sent letters to the Regional Office of the War
Labor Boaud and to the i espondents intorming them that the recommendations
were acceptable to the Unions' On the same date, the respondents informed
the Regional Office of the War Labor Board and the Unions by letter that "the
company still maintains its position that it can not at this time grant any wage
increaises whatsoever to its employees."
7In making the above findings, the undersigned credits the testimony of Ewer, above
referred to. Ewer impressed the undersigned as a straightforward credible witness.
Although Carlson and Hall testified , as set forth above , that the respondents had not
agreed to sign a "partial contract," Carlson testified at another point that the Union
iepresentatives "came out with this partial contract to have us sign which we agreed we
,could su/ia provided ecitain provisions in it were amended so as to agree with the items
that we had agreed upon pieviously in our discussion with the union " (Emphasis
supplied ) It seems clear that the conciliator 's suggestion that the redraft be signed by
the paities was not to have them sign a "partial contract ," but merely to define the areas
of agreement and disagreement between the parties , so as to facilitate the settlement of
the disputed issues
Carlsmi's general testimony that the redraft submitted by the Unions contained "some
provisions that we had not agreed on" and omitted "certain provisions" which "we had
agreed upon pieviousll" is not credited Neither lie nor any other witness gave any
testimony which pointed to any specific inaccuracies in the Unions' redraft
IThe letter to the respondents was addressed to Julius Weiner , one of the paitners in
the respondent firm, care of Marsh ill Produce Company, Marshall , Minnesota , pursuant
to a request made by the respondents that communications regarding the business between,
the Unions and them be so addressed
BENSON PRODUCE COMPANY 895
At about the same time as the respondents mailed the above letter to the
Unions and the War Labor Board, taking the position that they could not grant
an> wage increases to their employees, they put into effect a wage increase of
5 cents per hour for all their hourly paid employees,' admittedly without notitying
or consulting the Unions
On or about December 28, 1945, the National War Labor Board sustained the
reconmmenciations of its hearing officer On January 21, 1946, the Unions
requested the respondents by letter to nifoi Ili them when it would be convenient
to meet with them "to execute a contract in accordance [with the reconimenda-
tions of the National War Labor Board] " About February 1, Carlson tele-
phoned Sparring, stated that he had received the letter requesting a meeting,
and informed him that the respondents would not agree to any contract unless
it contained a provision for the posting of a ten thousand dollar cash bond by
the Unions, indemnifying the respondents against violations of the contract on
the part of the Unions" Having in the meantime filed a charge of refusal to
bargain against the respondents, with the Board, and having been advised by a
Boat d agent to make another attempt to consummate an agreement with the
respondents, the Unions on April 11, 1946. requested the respondents by mail
to meet with them on April 23, for the "purpose of negotiating a contract for
your employees." The parties met on the suggested date This meeting was
opened by the Unions by submitting to the respondents' representatives a pro-
posed contract embodying the recommendations of the War Labor Board. Carl-
sou then announced for the respondents that they would insist as a condition
to entering into any contract with the Unions, that such contract contain a
provision for a fifty thousand dollar cash bond to be posted by the Unions,
providing for indennn1ficaLion of the respondents at the rate of tell thousand
dollars per day during any period that more than 20 per cent of the respondents'
employees absented themselves from work. To this the Unions replied that
they would consider posting such a bond if the respondents would post one in
like amount to guarantee against violations of the contract on their part. The
respondents, however, insisted that only the Unions should be required to post
an indemnity bond, since the Unions had "all the protection under the law," while
eiuployeis have none During an ensuing discussion of various terms of the
contract, the respondents took the position that they would not consider making
retroactive any wage increases they might grant, whereupon the Unions pro-
posed that they agree on the 71/2 cents per hour increase recommended by the
War Labor Board, and submit the issue of retioi.ctivity to arbitration This
proposal was rejected by the respondents Finally, after further fruitless
discussion, the union representatives stated that it seemed useless to "sit there
and argue any longer" and that the parties "might as well discontinue the meet-
ing " To this Attorney Hall replied that the respondents' representatives were
° One witness placed the (late of the wage increase as "about the middle part of Novem-
ber," 1945 Another was "inclined to think it would be a little later in November "
"At the same time Carlson stated that he would not be in a position to meet with the
Unions until some time after March 15 Sparring requested an earlier meeting, and it
was agiced that Carlson would notify him by letter when it would be convenient for the
parties to meet Spariinq testified that the Unions never received the letter promised
by Carlson , while Carlson testified that his secretary mailed Sparring a letter the next
day, setting a meeting date for February 20, but that the Unions ' representatives failed to
appear for the meeting on that date. The secretary who is alleged to have mailed the
letter vas not called as a witness Since the undersigned does not feel it necessary
to iesolve this apparent conflict in the evidence in order to decide the issues herein, he
will not make a finding as to iihich of the pasties bears the responsibility for the faatue
to hold a meeting earlier than the one next held
71 77 3 4-4 7-vol 71-5S
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willing to continue to discuss the issues between the parties , but that they were
not going to agree to anything " The sleeting then ended
After the meeting of April 23, the Unions filed with the Minnesota State
Department of Labor, notice of intention to stn ike, as a result of which a State
Conciliator called a meeting for May 7, 1946, at which he invited the parties
to state their respective positions with regard to the dispute between them The
representative of the Unions made a statement , after which Carlson , for the
respondents , declared that they would not participate in the hearing for the reason
that the Unions did not represent a major ity of the respondents ' employees, and
also because the State Conciliator present was a former member of the Team-
sters Union , with which one of the Unions herein concerned is affiliated As
a result of the respondents ' refusal to participate , the hearing was adjourned.
Shortly thereafter the Unions were informed that,on May 8, 1946 , the respondents
had filed with the Minnesota Division of Conciliation a request for investigation
and certification of iepresentatives ," setting forth that: "It has been over a
year since the NLI{B election which carried by only one vote and during the
year many changes in personnel has occurred and several employees have stated
to management at various times that the Union does not iepresent a majority
of the the eniplo .N ees in the bargaining unit " Pursuant to this request , the State
Conciliator set a hearing for May 21 When the Conciliator asked the respond-
ents to adduce proof of their contention that the Unions did not represent a
majority of the employees , their representative stated that they had no proof
to otter , since the contention was based on hearsay On June 3. 1946, the State
Labor Conciliator dismissed the request of the respondents and notified both
parties of such action"
On June 5, 1940, the Unions wrote to the respondents asking what position they
then took in view of the dismissal of their request by the State Conciliator. On
June 11, Carlson replied: "As yet the Labor Conciliator of the State of Minnesota
has not advised us to the effect that the petition filed by the Benson Produce
Company has been dismissed . Until he does so, it is our intention to take no
action whatsoever " This was the last contact between the Unions and the
respondents prior to the hearing
11 Hall denied that lie had made the statement that the respondents would not agree to
anything, and testified that he merely pointed out that "we are not iefusing to negotiate,
we are willing to negotiate all these controierted articles That is not swing we would
agree to all of them of would not agiee to any of them " The testimony of Ewer, Sparring,
and two of the iespondemts eniplo}ees, who repiecented the Unions at the conteience, was
in agieenient that Hall stated on this occasion that the respondents would not agree "to
anything " The undersigned credits the testimony of these four witnesses, and finds that
in substance Hall made the statement to the Unions' repi esentatives on the above-described
occasion, that while the respondents were willing to discuss the issues between them and
the Unions, iliey would not come to anv agreement with them thereon The undersigned
bases this finding not only on the testimony of the afore-nientioned witnesses who impressed
him as reliable, but also on the fact that the respondents' whole couise of conduct
throughout the negotiations with the Unions bespeaks an attitude consistent with the
ium.irks attiibuted to Hall by the witnesses. naniely, that the respondents, b3 complying
with the letter ot the Act through a willingness to meet with the Unions on demand, could
aioid then duty sincereli to attempt to reach in accord with them
2 As provided for by Section 16 of the Minnesota Labor Relations Act
Carlson testified that lie had never seen a copy of the notice of dismissal, as did
Howard rose, one of the partners in the respondent firer. However, it is clear that
such notice 'was duly served on the respondents, since it appears from the testimony
of one of the respondents' employees that a copy of the notice is, and had been for about a
month prior to the hearing, posted at the plant
BENSON PRODUCE COMPANY 897
4. The contentions of the parties, and conclusions with respect thereto
With respect to the wage increase admittedly put into effect by the respondents
in November 1945, without consulting the Unions, the respondents contend that
this action was not motivated by any desire on their part to undermine the Unions
as the collective bargaining representative of their employees, but was simply a
part of general wage increases put into effect at the same time in all the enter-
prises in which N. Ben Weiner and Julius Weiner, co-partners in the respondent
business, had an interest, and that "if the Weiner boys had raised wages in the
Marshall Produce Company plant and the Marshall Fruit, Inc plant and not at
Benson Produce Company, the Unions would now claim that,the reason Benson
Produce Company was not included was that some of the employees belong to
the Union and that that constituted discrimination."
The undersigned finds this contention to be without merit. The record shows
that throughout the time the Unions had been trying to negotiate a wage increase
for the respondents' employees, the respondents had consistently contended that
they could not afford to grant one Indeed, at the very time they unilaterally put
the aforesaid wage increase into effect, they were taking this position before the
War Labor Board. In these circumstances, for the respondents to put into effect
a wage increase without 'notifying or consulting the duly designated collective
bargaining representative of their employees, bespeaks a determination to circum-
vent the process of collective bargaining, and to undermine the prestige and
effectiveness of the Unions in representing their employees As the Supreme
Court has held, such unilateral action has the necessary effect of "nilnuniz[ing]
the influence of organized bargaining" and of interfering with the right of self-
organization by "emphasizing to the employees that there is no necessity for a
collective bargaining agent" (illay Department Stores Co. v N. L. It B , 326
U. S 376). The aforesaid opinion of the Supreme Court also points out the
lallncy in the respondents' argument that if they had omitted their employees
from the general wage increases put into effect by the Weiners in their various
businesses, they would have run the risk of being held to have committed an
unfair labor practice in so doing Such a risk could easily have been avoided
by the respondents by consulting the Unions and giving them an opportunity to
approve or reject the proposed increase Then, it the Unions had i ejected the
increase on behalf of the respondents' employees, and the respondents conse-
quently had not included those employees in the general increase, there would
have been no "danger that the 'National Labor Relations Board would have
considered such omission an unfair labor practice" (May Department Stoics
case, supra). If on the other hand, the'Unions had accepted the increase for
the respondents' employees, it is obvious that no question of an unfair labor
practice could arise from its having been thus granted as a result of collecrive
bargaining "
34 The respondents' further defense, namely, that they put the wage increase into effect
after being advised by the hearing officer of the War Labor Board that such action would
not constitute an unfair labor practice, is palpably untenable Even assuming that the
War Labor Board agent gave the respondents such advice, such an informal opinion
rendered by the representative of an agency other than the Board cannot be deemed to be
determinative of the issues herein Section 10 (a) of the Act explicitly vests exclusive
power in the Board to prevent unfair labor practices, and under this section the Board
alone may decide whether any unfair labor practices have been committed and to determine
how flier shall be corrected (N L. R B i Walt Disney Productions, 146 F (2d) 44, 48
(C C A 9), ceit denied, 65 S Ct 1025) Cf N L R B v. Baltimore Transit Co , 140
F 2d i1, 54 (C C A 4), cert denied 421 U S 795
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondents also take the position that the Act "imposes upon the employer
only the duty of conferring and negotiating, and does not require the making of
an agreement"; that they have never "refused at any time to negotiate with
the Unions"; and that, consequently, they have fulfilled their obligations under
the Act Though it is true, as the respondents contend, that the Act does not
iequire the parties to collective bargaining to reach an agreement, it is equally
true that "there is a duty on both sides, though difficult of legal enforcement, to
cuter into discussion with an open and fair mind, and a sincere puipose to find a
basis of agreement touching wages and hours and conditions of labor " 15 The
.ubstance of the duty to make an honest effort to reach an accord cannot be
satisfied by an offer of its shadow-a willingness merely to meet and discuss
Counsel for the Board contends that though the respondents met with the
Unions, and discussed the latters' demands with them, their conduct reveals
that they have never intended to baigain in good faith with the Unions, as the
Act requires The record shows that the original Proposed contract submitted
by the Unions was rejected by the respondents, and that when the parties were
then unable to reach any agreement, the Unions requested the respondents to
submit a counterproposal. The proposal submitted by the respondents in response
to this request, a copy of which is in evidence, proved to be nothing more than
a reduction to writing of the then existing wages, hotirs, and conditions of em-
ployment in the respondents' plant-in short, it was not a counterproposal at
all, but a reiteration in written form of the respondents' flat rejection of the
Unions' demands. Throughout the whole course of the negotiations between the
pal ties. protracted over 15 months, the respondents admittedly never submitted
another written proposal to the Unions, though the latter did at various times
submit at least three drafts of proposed contracts to the respondents The
Unions at various times endeavored to bring the parties to agreement by with-
drawing or modifying some of their demands as to matteis customarily con-
sidered vital in collective bargaining16 At each stage of the negotiations, as the
Unions sought to bring the parties closer to agreement, the respondents contrived
to introduce a new element to prolong the impasse. Thus, after the meeting
with the Federal Conciliator, the respondents, in violation of their previous
ogi cement to cooperate, refused to sign the redraft submitted by the Unions,
and thus to help define the issues still in dispute, and to indicate those on which
agreement had been reached ; after the war Labor Board had issued its
recommendations, and the Union promptly offered to settle the dispute on the
basis of those recommendations, the respondents not only rejected this offer, but
accompanied such rejection with a unilateral wage increase to their employees,
in flagrant derogation of the Unions' status as collective bargaining representa-
tive; when the Unions, despite-the foregoing, again sought to induce the re-
spondents to enter into an agreement with them, the respondents laid down the
condition that they would enter into no agreement which did not provide for
15 Globe Cotton Mills v. N. L R B., 103 F. (2d) 91, 94 (C C. A 5)
16 Thus, tor example, the Unions withdrew their demands for a closed shop and the
check-off of union dues, and offered to sign a contract without any form of union security;
offered to accept a wage increase substantially less than they had been demanding, and to
submit the issue of retroactivity to arbitration ; and modified their demands as to vaca-
tions, a seniority system, and a guaranteed workweek.
17 Attorney Hall's remarks on this occasion , to the effect that the respondents were not
"concerned " with any decision of the war Labor Board, is illustrative of the respondents'
attitude
BENSON PRODUCE COMPANY 899
the posting of a fifty thousand dollar cash indemnity bond by the Unions ;'e and
finally, without any reasonable ground to doubt the Unions' majority status
among their employees, the respondents filed a petition with the Minnesota
Division of Conciliation for an investigation and certification of representatives,
and although a copy of the subsequent notice of dismissal of that petition was
posted in their plant, refused to take any further action towards settlement of
the dispute between the parties, on the patently false ground that they had not
been advised of the dismissal of their petition.
The undersigned is persuaded from the record that the respondents did not
at any of the times material herein bargain in good faith with the Unions; that
by meeting and "negotiating" with the Unions they were only paying lip-service
to their obligations under the Act, and that they made no real effort to find
a b.i••is of accord with the Unions On the basis of the foregoing, the under-
signed concludes and finds: 1. That during the latter part of November 1945,
the respondents, by granting a wage increase to their hourly paid employees
without consultation with the Unions, refused to bargain collectively with the
Unions. and interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act 2. That at all the
times material herein, on and after June 1945,'9 the respondents have failed and
refused to bargain collectively with the duly designated representatives of a
majority of their employees within an appropriate unit, thereby interfering
with, restraining. and coercing their employees in the exercise of the rights
guaranteed in Section 7 of the Act
5. Alleged interference , restraint , and coercion
The Board adduced no evidence in support of the allegation in the complaint
that the respondents "did by statements and remarks discourage activity on
the part of their employees for the purpose of collective bargaining and other
mutual aid and protection " The undersigned therefore finds that the re,
spondents have not interfered with, restrained, or coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act, by means of statements
of remarks addressed to the employees.
"The Boaid has pointed out that for an employer to insist on the execution of such a
bond, is. by unilateral action, attempting to add a condition precedent to bargaining not
found in the Act, and that if a union weie required by employers with which it bargained
to post such a bond (involving the deposit of large sums of cash as collateral) as a condi-
tion of reaching agieement, "it is apparent that the execution of a few such contracts
with similar bonds would very soon seriously impair, if not totally destroy, the Union's
ability to execute signed agreements and thus frustrate one of the essential aims of the
Act " (Matter of Sciripto Mfg Co , 36 N L R B 411 427 See also Matter of Jasper Black-
burn Products Corporation, 21 N. L. R. B. 1240 , 1253-1255 ) The undersigned makes no
finding herein that the respondents' demand for the posting of such a bond, in and of itself
constituted an unfair labor practice, but lie considers the making of this demand, in combi-
nation with all of the other circumstances herein discussed , as indicative of the respond-
ents ' lack of a genuine desire to reach an agreement with the Unions. Significant also
is Attorney Hall's statement on the same occasion, that the respondents would not agree
to anything.
19 The complaint alleges that the respondents' refusal to bargain dates from April 23,
1946, but the undersigned is convinced from the record that the respondents never nego-
tiated with the Unions in good faith, and that the refusal to bargain consequently dates
from the commencement of negotiations between the parties-first definitely shown in the
recoi'd as being in Juno 1945 Since this issue was fully litigated at the hearing, the
undersigned finds that the respondents' refusal to bargain began at that time Cf Matter
of Fort Wayne Corrugated Paper Company, 14 N L R B 1, 5, enforced 111 F (2d) 869,
S72-S73 (C C A 7) Matter of Eagle-Picker Mining & Smelting Company, 16 N. L. R. B.
727. enforced 119 F (2d) 903, 910 (C C A 8).
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents 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 and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record lit
the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local 851, and Amalgamated 1\Ieat Cutters & Butcher Work-
men of North America, Local 615, both affiliated with the American Federation
of Labor, are labor organizations within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the respondents' plant at
Benson, Minnesota, including truck drivers and helpers, but excluding admunrs-
trative, supervisory, office and clerical help, and creamery employees, constitute
a unit appropriate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act
3 International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America„ Local 851, and Amalgamated Meat Cutters & Butcher Woi k-
inen of North America, Local 615, both affiliated with the American Federation of
Labor, were on March 9, 1945, and at all times thereafter have, been, the exclusive
representative of all the employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4 By refusing to bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 851, and
Amalgamated Meat Cutters & Butcher Workmen of North America, Local 615,
both affiliated with the American Federation of Labor, as the exclusive repre-
sentative of their employees in the appropriate unit, the respondents have engaged
in and are engaging in unfair labor practices, within the meaning of Section
8 (5) of the Act.
5. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents have engaged
in and are engaging in unfair labor practices, within the meaning of Section 8
(1) of the Act
6 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
7 The respondents have not engaged in unfair labor practices by addressing
statements or remarks to their employees to discourage union membership and
activity among then.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, it is
recommended that the respondents, N. Ben Weiner, Julius Weiner, Lester Rose,
and Howard Rose, as co-partners dying business as Benson Produce Company,
BENSON PRODUCE COMPANY 901
Benson Minnesota, and N. Ben Weiner and Julius Weiner as individuals,20 and
their agents, successors, and assigns, shall.
1 Cease and desist from
(a) Refusing to baugai n collectively with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Local 851, and Amal-
gamated Meat Cutters & Butcher Workmen of North America, Local 615, both
affiliated with the American Federation of Labor, as the exclusive representative
of all production and maintenance employees at the respondents' plant at Benson,
Minnesota, including truck drivers and helpers, but excluding administrative,
supervisory, office and clerical help and creamery employees ;
(b) In any manner, interfering with the efforts of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 851, and
Amalgamated Meat Cutters & Butcher WWtoikmen of North America, Local 615.
both affiliated ww ith the American Federation of Labor, to negotiate for or repre-
sent the employees as the exclusive bargaining agent in the aforesaid bargaining
unit
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Local 851, and Amal-
gamated Meat Cutters & Butcher Workmen of North America, Local 615, both
affiliated with the American Federation of Labor, as the exclusive bargaining
representative of all employees in the bargaining unit described herein with
respect to rates of pay, hours of employment or other conditions of employment,
and it an understanding is reached on any such matters, embody such under-
standing in a signed contract;
(b) Post at their plant at Benson, Minnesota, copies of the notice attached
to the Intermediate Report herein marked "Appendix A" Copies of said notice,
to be furnished by the Regional Director for the Eighteenth Region, shall, after
being duly signed by the respondents' representative, be posted by the respond-
ents immediately upon receipt thereof and maintained by them for 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 respondents to insure that said notices are not altered, defaced, or covered
by any other material ,
(c) File with the Regional Director for the Eighteenth Region, on or before
ten (10) days from the (late of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of the Intermediate Report the respondents notify said Regional Director
in writing that they have complied with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondents engaged in unfair labor practices by making state-
20 Since, as has hereinabove been pointed out, Lester Rose and Howard Rose were not
individually served with the complaint and notice of hearing heiein, the undersigned rec-
ommends that the order run against them only in their capacity as co-partners in the
respondent partnership, Benson Pioduce Company In view of the fact, that N. Ben
Weiner and Julius Weiner were served as individuals, the undersigned has formulated the
recommended order so as to inn against them in their individual capacities as well as that
of co -partners in Benson Produce Company . The respondent partnership , Benson Produce
Company, was served by service of papers addiessed to it in its partnership name, and
received by Lester Rose, a co-partner, and through service upon co-partners N. Ben Weiner
and Julius Weiner
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments or remarks to their employees to discourage activity on their part for
the purpose of collective bargaining and other mutual aid and protection, and
to discourage union membership and activity among them.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) (lays from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Immediate Report or
to any other part of the record or proceedings (including rulings upon all
motions or objections) as he relies upon, together with the origin.l and tour
copies of a brief in support thereof Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing
the same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) (lays from the
date of the order transferring the case to the Board. Any party desiring to
submit a brief in support of the Intermediate Report shall do so within fifteen
(15) days from the date of the entry of the order transferring the case to the
Board, by filing with the Board an original and four copies thereof, and by
immediately serving a copy thereof upon each of the other parties and the
Regional Director.
ISADORE GREENBERG,
Trial Examiner.
Dated August 19, 1946.
APPENDIX A
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 engage in any acts in any manner interfering with the efforts
of International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Local 851, and Amalgamated Meat Cutters & Butcher
Workmen of North America, Local 615, both affiliated with the American
Federation of Labor, to negotiate for or represent the employees in the
bargaining unit described below.
We will bargain collectively upon request with the above-named unions as
the exclusive representative of all employees in the bargaining unit described
below with respect to rates of pay, hours of employment or other conditions
of employment. The bargaining unit is:
All production and maintenance employees at our Benson, Minnesota,
plant, including truck drivers and helpers, but excluding administrative,
supervisory, office and clerical help, and creamery employees.
BENSON PRODUCE COMPANY,
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.